United States, Department of the Treasury, Internal Revenue Service, St.Louis, Missouri (Agency) and National Treasury Employees Union, CHAPTER14 (Union)

[ v61 p377 ]

61 FLRA No. 69

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
ST. LOUIS, MISSOURI
(Agency)

and

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 14
(Union)

0-AR-3959

_____

DECISION

November 3, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Jeanne M. Vonhof filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The grievance concerned claims that the Agency violated the parties' collective bargaining agreement by failing to solicit bargaining unit employees for details to management positions. The Arbitrator sustained the grievance in part and denied it in part.

      For the following reasons, we deny the Agency's exceptions.

II.      Background and Arbitrator's Award

      The Union filed a grievance on behalf of bargaining unit employees who were not considered for a detail to a non-bargaining unit, i.e., supervisory or managerial, position. The Union alleged that the Agency failed to use the procedures set forth in Article 16, Section 4 (Section 4) of the parties' collective bargaining agreement to select the employees to be detailed. [n2]  The Agency denied that grievance on the ground that it was non-grievable, claiming that details to supervisory or managerial positions were not covered by the grievance procedure. The Union thereupon invoked arbitration.

      The Arbitrator framed the issue as follows:

Did the Agency violate Article 16, Section 4 when it did not solicit bargaining unit employees for two details into management positions? If so, what is the appropriate remedy?

Arbitrator's Award (Award) at 1.

      The Arbitrator summarized Section 4 as describing "how selection will be made for details once a detail becomes available." Award at 21. The Arbitrator found, in addition, that the definition of detail set forth in Article 16, Section 1 "does not specifically exclude from--or include--managerial or supervisory positions under the coverage of Article 16." Id.

      The Arbitrator reviewed evidence as to the bargaining history relating to Article 16. She noted the Agency's claim that, in bargaining over the parties' National Office, Regions and Districts (NORD) V agreement, when Section 4 was added to the agreement, the Union had offered proposals establishing selection procedures for details of bargaining unit employees to supervisory or managerial positions. The Agency claimed to have rejected the Union's proposals. However, the Arbitrator found that the Agency had presented no evidence as to such proposals and concluded that the absence of that evidence "substantially weaken[ed]" the Agency's position. Id. at 22. According to the Arbitrator, the bargaining history did not clearly show that "the parties discussed the issue and agreed that the language of Section 4 would not apply to [supervisory or] managerial positions[.]" Id. at 23.

      The Arbitrator also found that the negotiation of Section 4 occurred in the context of previous disputes as to whether Article 16 covers details to supervisory or managerial positions. Specifically, the Arbitrator noted that the parties had negotiated several settlement agreements addressing the issue and that terms from such agreements had been incorporated into the NORD V agreement. In this regard, the Arbitrator referenced Article 16, Section 1(C) (Section 1(C)), which requires a temporary promotion and higher pay for an employee who is detailed to a higher-graded managerial position.

      The Arbitrator also noted previous arbitration awards holding that Article 16 applied to details to supervisory and managerial positions. In particular, the Arbitrator cited the Doering award, in which Arbitrator Doering rejected claims that grievances as to details of bargaining unit employees to supervisory and managerial positions were not grievable. According to the Doering award, such details concerned bargaining unit [ v61 p378 ] employees' conditions of employment because, under Article 10 of the parties' agreement, the detailed employee remained the incumbent of the bargaining unit position.

      In addition, the Arbitrator discussed the Flagler award, which also held that Article 16 applied to details of bargaining unit employees to supervisory or managerial positions. The Arbitrator noted that the Flagler award found that the parties' bargaining history demonstrated that they could not agree on wording regarding such details and so did not specifically preclude the application of Article 16 to those details. The Flagler award concluded that, because Article 16, Section 1(B) (Section 1(B)) applied to details to higher-graded positions, it covered details to supervisory or managerial positions.

      The Arbitrator concluded that, since the bargaining history demonstrated that neither party had succeeded in adding its preferred terms to the agreement, "the current language of Article 16 must be interpreted as written, and as interpreted by earlier binding arbitration awards." Id. at 27. In particular, the Arbitrator concluded that: (1) the parties were aware of the previous arbitration awards when they bargained over Section 4; (2) she was bound to follow the precedent established by those awards; and (3) "[t]here is no indication in the language of Section 4 that the parties intended to exclude supervisory or managerial positions from its application." Id. at 28. Based on these findings, the Arbitrator concluded that "the Agency did elect to bargain over the filling of supervisory positions in this case." Id. at 29. Specifically, in this regard, the Arbitrator concluded that "[t]he Agency agreed to the selection language under Article 16, which arbitration decisions already had determined applies to supervisor/managerial decisions." Id.

      The Arbitrator rejected the Agency's reliance on the Contract Administration Handbook, issued by the Agency after the NORD V agreement was ratified. That document explained that Section 4 applied only to details to bargaining unit positions. The Arbitrator found that the Union had not participated in drafting that document and did not agree to the Agency's interpretation.

      The Arbitrator also rejected the Agency's claim that matters pertaining to the detail of unit employees to supervisory or managerial positions constitute a permissive matter of bargaining and it had elected not to bargain over that matter in connection with Section 4. The Arbitrator found that, because the Agency had agreed to the selection provisions of Section 4, in light of the arbitration awards, it had elected to negotiate over those matters.

      The Arbitrator then turned to evidence that the local Union had not acted in accordance with the interpretation of Article 16 upon which it relied in arbitration. Specifically, the Arbitrator noted evidence that: (1) on 13 previous occasions the Agency had detailed employees to supervisory or managerial positions without complying with Article 16 and the Union failed to grieve those actions; (2) the local Union President had agreed that Agency management could fill supervisory or managerial positions without relying on Article 16. The Arbitrator stated that "[w]hen a local Union fails to enforce a provision of a national labor agreement, whether because of ignorance, neglect, or some other reason, at some point local Management may form a reasonable expectation that the local Union has acquiesced in the practice." Id. at 31. Accordingly, the Arbitrator concluded that the local Union had waived its rights under Section 16. As a result, although finding that the Union had prevailed on the issue of the general application of Section 4, the Arbitrator concluded that "no remedy is appropriate for the instant grievance due to the local Union's acquiescing in past conduct violating [Section 4], and waiving its rights under that [s]ection until the filing" of the grievance in this case. Id. at 31-32

      Consequently, as her award, the Arbitrator sustained the grievance in part, insofar as she found that Section 4 applied to details of bargaining unit employees to supervisory or managerial positions. She denied the grievance in part, finding that no remedy was warranted.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency claims that the award is deficient on essence grounds insofar as it concludes that Article 16 applies to details of bargaining unit employees to supervisory or managerial positions. According to the Agency, that conclusion is based on the Arbitrator's finding that the prior arbitration awards, reaching that same conclusion, are binding precedent. The Agency contends that the Arbitrator erred in this regard because, although Article 16 does require temporary promotions for employees detailed to supervisory or managerial positions, it does not require that the selection procedures in Article 16 be used for such details. The Agency asserts that the arbitration awards relied on by the Arbitrator were issued before the addition of those procedures to the parties' agreement and, thus, do not support the Arbitrator's conclusion.

      According to the Agency, the Arbitrator's finding that it elected to bargain over the procedures applicable to details of bargaining unit employees to supervisory or managerial positions is deficient as a matter of law. In this regard, the Agency cites Chairman Cabaniss' concurring opinion in AFGE, Local 3911, 59 FLRA 516, 519 (2003) (Local 3911) to the effect that permissive matters must be affirmatively included in the parties' agreement. The Agency maintains that there is no dispute [ v61 p379 ] that the parties did not negotiate over the application of Section 4 to details of bargaining unit employees to supervisory or managerial positions. The Agency contends that this is the only evidence in the record as to the question of its election to negotiate. The Agency asserts that the arbitration awards relied on by the Arbitrator, which concern the pay employees are to receive after they are already detailed, "simply cannot be read as establishing that Article 16 applies to the filling of supervisory positions." Exceptions at 15.

B.      Union's Opposition

      The Union maintains that the award draws its essence from the parties' agreement. The Union argues that: (1) the definition of the term "detail" in the agreement can be read to encompass details to supervisory and managerial positions; and (2) the previous arbitration awards interpreted that definition as applying to such details. According to the Union, this means that Article 16 as a whole, including Section 4, applies to details of bargaining unit employees to supervisory or managerial positions.

      Moreover, the Union points out, because the Agency did not insist on excluding such matters from Article 16, even after the Doering and Flagler awards, "the Arbitrator properly concluded that the Agency effectively agreed" to their inclusion. Opposition at 5. Further, the Union argues that the Arbitrator properly rejected the Agency's argument that Article 16 only concerns employees' entitlement to pay after they have been detailed to supervisory or managerial positions. The Union claims that, in the Doering and Flagler awards, since Article 16 did not explicitly apply to such details, the arbitrators necessarily had to decide whether those details were covered by Article 16 before any relief could be ordered.

      The Union maintains that the award is not contrary to law. Citing Dep't of Labor, 60 FLRA 737, 739-40 (2005) (Chairman Cabaniss concurring), the Union contends that the Authority has held that arbitral enforcement of a contract provision concerning a permissive matter must be treated "as matters of contract interpretation, not waivers of statutory rights, because an election to bargain concerns the exercise of a right, not an abandonment or relinquishment of a right." Opposition at 7. Thus, once the Arbitrator determined that Article 16 applied to details of bargaining unit employees to supervisory or managerial positions, the Union asserts, she properly concluded that the Agency elected to bargain over that matter.

      The Union contends that Local 3911 is factually distinguishable from the instant case. According to the Union, that case concerned whether the grievance procedure covered complaints concerning the non-selection of a bargaining unit employee for a non-unit position, not whether contractual selection procedures applied to such selection actions. The Union maintains that Chairman Cabaniss took the position that the latter question was the dispositive issue and, thus, the award in this case is consistent with her concurrence.

IV.      Analysis and Conclusions

A.      The Award is not Deficient on Essence Grounds

      In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See, e.g., United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).

      The Arbitrator found that, in two prior awards, arbitrators had concluded that Article 16 applied to details of bargaining unit employees to supervisory and managerial positions, particularly because Article 16 as a whole covered details to higher-graded positions, which included such positions. The Arbitrator summarized the parties' bargaining over the extent to which Article 16 covered details to supervisory or managerial positions. The Arbitrator found that the Agency, in negotiating Section 4 subsequent to the prior awards, had not insisted on contract language reflecting its right to exclude details of bargaining unit employees to supervisory and managerial positions from the coverage of Article 16, thus acquiescing in the arbitral interpretations of that coverage. Based on these findings, the Arbitrator concluded that the selection procedures set forth in Article 16, Section 4 applied to the details in question.

      The Agency has not demonstrated that the Arbitrator's conclusion, based on her findings, is an irrational or implausible interpretation of Article 16, or that it manifests unfaithfulness to the obligation of an arbitrator. The Arbitrator specifically noted that Article 16 applies to details to higher-level positions and held that "[t]here is no indication in the language of Section 4 that the parties intended to exclude supervisory or managerial positions from its application." Award at 28. Moreover, given the fact that Article 16 already contains some language expressly dealing with details to non-unit positions, the Agency fails to show why it is irrational, implausible, or in manifest disregard of Article 16, for the Arbitrator to conclude that the selection procedures of Section 4 apply to such details.

      Accordingly, we deny the Agency's essence exception. [ v61 p380 ]

B.      The Award is not Contrary to Law

      The Agency contends that the Arbitrator erred, as a matter of law, in concluding that it elected to bargain over selection procedures for detailing bargaining unit employees to supervisory or managerial positions. When a party's exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying the standard of de novo review, the Authority determines whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, United States Penitentiary, Terre Haute, Ind., 58 FLRA 327, 329 (2003). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      The Authority has previously considered and rejected the arguments raised by the Agency in its contrary to law exception. Specifically, "[t]he Authority has unambiguously rejected the argument that awards enforcing provisions resulting from bargaining over permissive subjects concern `waiver of a statutory right and not contract interpretation.'" United States Dep't of Agriculture, Rural Development Oklahoma, Stillwater, Okla., 59 FLRA 983, 985-86 (2004) (Rural Development Oklahoma) (quoting United States Dep't of the Treasury, IRS, Washington, D.C., 56 FLRA 393, 395 (2000)) (separate opinions by Chairman Cabaniss and Member Pope). The Authority has held, in this regard, that an election to bargain "constitutes the exercise of the right . . . not an abandonment or relinquishment of the right." Id. at 396.

      According to the Authority, when the question concerns a permissive matter, the dispositive issue is whether the arbitrator's award as to that matter draws its essence from the parties' agreement. For the reasons stated earlier, we find that the Arbitrator's award draws its essence from Article 16 of the parties' agreement. Thus, consistent with Authority precedent, the Arbitrator's award is consistent with law.

      Moreover, the Arbitrator specifically found, based on the record, that the Agency had agreed, despite the holdings of the Doering and Flagler awards, to continue Article 16 without change when negotiating the NORD V agreement. The Arbitrator found that, by agreeing, in those negotiations, to continue in the parties' agreement, unchanged, a provision that had been interpreted as applying to details of bargaining unit employees to supervisory or managerial positions, the Agency had elected to bargain over that permissive matter. The Arbitrator's finding is consistent with Rural Development Oklahoma. Thus, the Agency has failed to show that the Arbitrator's conclusion is incorrect as a matter of law.

      Accordingly, we deny the Agency's contrary to law exception.

V.      Decision

      The Agency's exceptions are denied.


APPENDIX

      The relevant text of Article 16 is as follows:

Article 16
Details
Section 1
A.
For the purposes of this article, a detail is defined as the temporary assignment of an employee to a different position for a specified period of time with the employee returning to regular duties at the end of the detail. This includes positions at higher or lower grades.
B.
1. An employee who is detailed to a position of higher grade for one (1) full pay period or more will be temporarily promoted, if eligible, and receive the rate of pay for the position to which temporarily promoted.
. . . .
C.
An employee who is detailed to a higher graded managerial position for one (1) full pay period or more will be temporarily promoted, if eligible.
. . . .
Section 4
Permanent Employees
A.
The Employer may effect details or non-competitive temporary promotions of sixty (60) days or less from among appropriately qualified employees (to be eligible for a temporary promotion, employees must meet minimum OPM qualifications and time-in-grade requirements).
Once a detail or non-competitive temporary promotion of more than sixty (60) consecutive days [ v61 p381 ] becomes available, the Employer will solicit and consider volunteers in the following order:
1. Center Campus or commuting area (by Division first, then among all Divisions);
2. [A]rea, or its equivalent (by Division first, then among all Divisions); and
3. Service-wide (all Divisions).
B.
For permanent employees, volunteers for details of more than sixty (60) consecutive days will be solicited from interested and qualified employees in the order set forth in subsection 4A above. If there are too many volunteers, selection will be made in descending order using IRS EOD date, unless competitive procedures are used to identify the best qualified candidate. If there are insufficient volunteers, the Employer will select from among appropriately qualified employees in reverse order of seniority, using IRS EOD date, absent local mutual agreement to the contrary.
. . . .
D.
Volunteers for non-competitive temporary promotions of more that sixty (60) days, but less than 120 consecutive days will be solicited fr