Internal Revenue Service, Chicago District Office (Activity) and National Treasury Employees Union, Chapter 10 (Union)

 4 FLRA No. 90
 
 INTERNAL REVENUE SERVICE,
 CHICAGO DISTRICT OFFICE
 Activity
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 10
 Union
 
                                            Case No. 0-AR-50
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR RICHARD I. BLOCH FILED BY THE AGENCY UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR THIS GRIEVANCE AROSE WHEN SOME 173
 REVENUE OFFICERS FILED GRIEVANCES ALLEGING VIOLATIONS OF ARTICLE 11 OF
 MULTI-DISTRICT AGREEMENT II (HEREINAFTER MDA II.  /1/ THE GRIEVANTS
 COMPLAINED THAT THE ACTIVITY HAD FAILED TO RETAIN SELECTED CASES FROM
 AMONG THEIR RESPECTIVE CASELOADS WHEN THE SIZE OF THE CASELOADS BECAME
 UNMANAGEABLE AND DEMANDED, AS A REMEDY, THAT THE ACTIVITY CEASE
 VIOLATING ARTICLE 11, THAT A WORK PLANNING SYSTEM BE DEVELOPED,
 INCORPORATING THE VARIOUS FACTORS SET FORTH IN ARTICLE 11, THAT A WORK
 MONITORING SYSTEM BE IMPLEMENTED, THAT CERTAIN SUPPORT SERVICES BE
 PROVIDED TO PROMOTE THE "MANAGEABILITY" OF ASSIGNED CASELOADS, AND THAT
 THE ACTIVITY CONFORM WITH THE CONTRACTUAL MANDATE CONCERNING RETENTION
 OF SELECTED CASES.
 
    THE ACTIVITY SUBSEQUENTLY ASSERTED THAT THE GRIEVANCES WERE
 NONARBITRABLE AND THE ARBITRABILITY ISSUE WAS SUBMITTED TO THE
 ARBITRATOR FOR RESOLUTION PRIOR TO A HEARING ON THE MERITS.  THE
 ARBITRATOR STATED THE ISSUE AS FOLLOWS:  "ARE THE GRIEVANCES
 ARBITRABLE?"
 
    THE ARBITRATOR REJECTED THE ACTIVITY'S ARGUMENT THAT THE DISPUTE WAS
 NONARBITRABLE BECAUSE THE PROVISION WAS NONNEGOTIABLE SAYING:
 
    IT MAY BE THAT THE CONTESTED PROVISION IS NON-NEGOTIABLE AND
 THEREFORE UNENFORCEABLE.  BUT
 
    THERE HAS BEEN NO SUCH DECISION RENDERED BY ANY BODY OF APPROPRIATE
 JURISDICTION WITH RESPECT
 
    TO THIS ARTICLE, SUCH AS WOULD REQUIRE A CONCLUSION BY THE ARBITRATOR
 THAT THE PROVISION IS
 
    SOMEHOW VOIDED . . . (T)HE QUESTION IS NOT WHETHER THIS PROVISION
 SOMEHOW VIOLATES THE TERMS
 
    OF THE EXECUTIVE ORDER, BUT WHETHER THE EMPLOYER ABIDED BY ITS
 CONTRACTED-FOR OBLIGATION TO
 
    RETAIN SELECTED CASES WHEN AND IF THE ITS CONTRACTED-FOR OBLIGATION
 TO RETAIN SELECTED CASES
 
    WHEN AND IF THE GRIEVANT'S CASELOAD WAS UNMANAGEABLE.
 
    THE GRIEVANCE, THEN, REQUESTS A DECISION ON A MATTER RESTING SQUARELY
 WITHIN THE
 
    CONTRACT.  THIS IS NOT A CASE, AS MANAGEMENT SUGGESTS, OF THE UNION
 ATTEMPTING TO GAIN THROUGH
 
    ARBITRATION WHAT IT COULD NOT SECURE THROUGH NEGOTIATION.  TO THE
 CONTRARY, MANAGEMENT HERE,
 
    HAVING NEGOTIATED THE EXPRESS TERMS OF ARTICLE 11, NOW SEEKS TO AVOID
 ARBITRATION ON THE BASIS
 
    THAT IT COULD NOT OR SHOULD NOT HAVE NEGOTIATED THEM IN THE FIRST
 PLACE.  THAT CLAIM IS NOT
 
    PERSUASIVE IN THIS FORUM.
 
    THE ARBITRATOR ALSO HELD THAT WHILE QUESTIONS AS TO THE SCOPE AND
 PROPRIETY OF THE VARIOUS REQUESTED REMEDIES MAY EXIST, SUCH QUESTIONS
 DID NOT REQUIRE THE DECISION THAT THE GRIEVANCES THEMSELVES BE FOUND
 NONARBITRABLE.  THEREFORE, AS HIS AWARD, THE ARBITRATOR FOUND THE
 GRIEVANCES ARBITRABLE.
 
    THE AGENCY FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
 44766.  THE AGENCY ALSO REQUESTED THAT A STAY OF THE ARBITRATION AWARD
 BE GRANTED IN ACCORDANCE WITH SECTION 2429.8 OF THE AUTHORITY'S INTERIM
 RULES AND REGULATIONS.  THE UNION DID NOT FILE AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 AGENCY'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY
 TO LAW, RULE, AND REGULATION.  IN SUPPORT OF THIS EXCEPTION THE AGENCY
 ARGUES THAT THE DETERMINATION OF MANAGEABLE INVENTORY WORKLOADS IS A
 RESERVED RIGHT OF MANAGEMENT WHICH CANNOT BE INFRINGED UPON THROUGH THE
 NEGOTIATED GRIEVANCE PROCEDURE.  RELYING UPON A FEDERAL LABOR RELATIONS
 COUNCIL DECISION FINDING THAT SIMILAR LANGUAGE WAS NONNEGOTIABLE, THE
 AGENCY ARGUES THAT THE INSTANT GRIEVANCE IS NOT ARBITRABLE BECAUSE THE
 LANGUAGE OF ARTICLE 11, SECTION 1 WAS NONNEGOTIABLE.  /3/ THE AGENCY
 ALSO ARGUES THAT ANY REMEDY THE ARBITRATOR WOULD ATTEMPT TO PROVIDE IN
 THE INSTANT CASE WOULD BE AN INFRINGEMENT OF MANAGEMENT'S MANDATORILY
 RESERVED RIGHT TO DIRECT ITS EMPLOYEES, WOULD EXCEED THE BOUNDS OF THE
 ARBITRATOR'S JURISDICTION, AND WOULD BE UNENFORCEABLE.  THEREFORE,
 ACCORDING TO THE AGENCY, THE ENTIRE ARBITRATION HEARING WOULD BE A
 USELESS ACT.
 
    THE AGENCY'S FIRST EXCEPTION, WHICH IN EFFECT ALLEGES THAT THE AWARD
 IS CONTRARY TO LAW, STATES A GROUND ON WHICH THE AUTHORITY WILL FIND AN
 AWARD DEFICIENT UNDER SECTION 7122(A)(1) OF THE STATUTE.  HOWEVER, IN
 THIS CASE THE AGENCY HAS FAILED TO DEMONSTRATE IN WHAT MANNER THE
 ARBITRATOR'S AWARD FINDING THE GRIEVANCES ARBITRABLE IS CONTRARY TO LAW.
  THE ARBITRATOR'S DETERMINATION AND AWARD WAS LIMITED TO A FINDING THAT
 THE GRIEVANCES, WHICH ALLEGED A VIOLATION OF A SPECIFIED PROVISION OF
 THE PARTIES' NEGOTIATED AGREEMENT, INVOLVED MATTERS RESTING SQUARELY
 WITHIN THE AGREEMENT AND THEREFORE COULD PROPERLY BE HEARD ON THE
 MERITS.
 
    AS NOTED BY THE ARBITRATOR, THE ARGUMENTS SET FORTH BY THE AGENCY
 WITH RESPECT TO RESERVED MANAGEMENT RIGHTS MAY AFFECT AN ARBITRATOR'S
 DETERMINATION ON THE MERITS OF THE GRIEVANCE OR THE SCOPE OF POSSIBLE
 REMEDIES AVAILABLE TO AN ARBITRATOR IF IT IS SUBSEQUENTLY DETERMINED
 THAT THE AGREEMENT HAS BEEN VIOLATED.  HOWEVER, SUCH ARGUMENTS DO NOT
 PROVIDE A BASIS FOR FINDING THE ARBITRATOR'S AWARD IN THIS CASE
 DEFICIENT.  /4/ THEREFORE, THE AGENCY'S FIRST EXCEPTION PROVIDES NO
 BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION
 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS.
 
    IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S
 AWARD CONSTITUTES AN IMPROPER MODIFICATION OF THE CONTRACT AND MUST BE
 SET ASIDE IN ACCORDANCE WITH 5 U.S.C. 7122(A)(2).  IN SUPPORT OF ITS
 EXCEPTION THE AGENCY ARGUES THAT IN ARRIVING AT HIS DECISION THE
 ARBITRATOR FAILED TO TAKE ARTICLE 2 OF THE CONTRACT INTO CONSIDERATION.
 /5/ THE AGENCY ARGUES THAT THE AGREEMENT PROVISION INVOLVED WAS
 NONNEGOTIABLE BECAUSE OF THE FEDERAL LABOR RELATIONS COUNCIL DECISION
 ESTABLISHING THAT MANAGEABILITY OF WORKLOADS IS A RESERVED MANAGEMENT
 RIGHT.  THE AGENCY ARGUES THAT, BY NOT MODIFYING THE CONTRACT IN
 ACCORDANCE WITH THAT DECISION, THE ARBITRATOR IGNORED ARTICLE 2'S
 MANDATE TO CONFORM THE CONTRACT TO FUTURE LAWS AND THUS
 
    THE ESSENCE OF THE AGENCY'S ARGUMENTS IN SUPPORT OF ITS SECOND
 EXCEPTION ARE THE SAME AS THOSE MADE WITH RESPECT TO ITS FIRST
 EXCEPTION.  THUS, TEE AGENCY IS SEEKING TO HAVE THE AWARD FOUND
 DEFICIENT ON THE BASIS THAT CERTAIN RIGHTS RESERVED TO MANAGEMENT
 PREVENT A FINDING OF ARBITRABILITY WITH RESPECT TO THE PARTICULAR
 GRIEVANCE IN THIS CASE.  AS PREVIOUSLY INDICATED SUCH CONTENTIONS
 PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C.  7122(A)
 AND SECTION 2425.3 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S INTERIM RULES AND REGULATIONS, WE HEREBY SUSTAIN THE
 ARBITRATOR'S AWARD.  THE AGENCY'S REQUEST FOR A STAY IS DENIED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 24, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ MDA II WAS THE AGREEMENT IN EFFECT MAY 3, 1974-- MAY 3, 1976.
 ARTICLE 11, SECTION 1 PROVIDES:
 
                                ARTICLE 11
 
                            ASSIGNMENT OF WORK
 
    SECTION 1.
 
    THE EMPLOYER WILL RETAIN SELECTED CASES OF AN INDIVIDUAL REVENUE
 OFFICER'S CASELOAD WHEN THAT REVENUE OFFICER'S TOTAL CASELOAD IS
 UNMANAGEABLE.  THE PARTIES RECOGNIZED THAT THE NUMBER OF CASES EACH
 INDIVIDUAL REVENUE OFFICER CAN MANAGE IS DEPENDENT ON MANY FACTORS, SUCH
 AS GEOGRAPHIC AREA COVERED, TYPE OF CASE, GRADE LEVEL OF CASE, NUMBER OF
 TAXPAYERS, PRIORITY PROGRAMS, AND OTHER ASSIGNED DUTIES.
 
    /2/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS;  THE AUTHORITY MAY TAKE SUCH
 ACTION AND MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT
 CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /3/ THE AGENCY BASES ITS ARGUMENTS ON SECTION 12(B)(1) OF EXECUTIVE
 ORDER NO. 11491 AND FEDERAL LABOR RELATIONS COUNCIL DECISIONS
 INTERPRETING THAT SECTION.  THE GRIEVANCES IN THIS CASE WERE FILED IN
 1975 AND THE CONTRACT UNDER WHICH THIS DISPUTE AROSE, AND WHICH WAS
 BEFORE THE ARBITRATOR, WAS IN EFFECT ONLY FROM 1974 TO 1916, PRIOR TO
 ENACTMENT OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    /4/ CF.  MARINE CORPS LOGISTICS SUPPORT BASE PACIFIC, BARSTOW,
 CALIFORNIA AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 1482, 3 FLRA NO. 61 (1980) (WHEREIN THE AUTHORITY HELD THAT
 NOTHING IN THE MANAGEMENT'S RIGHTS PROVISIONS OF THE STATUTE PRECLUDES
 AN ARBITRATOR FROM REACHING THE MERITS OF A GRIEVANCE WHERE THE UNION
 HAS ALLEGED A VIOLATION OF CERTAIN SPECIFIED PROVISIONS OF A COLLECTIVE
 BARGAINING AGREEMENT.)
 
    /5/ ARTICLE 2 OF MDA II STATES IN PERTINENT PART:
 
    IN THE ADMINISTRATION OF ALL MATTERS COVERED BY THIS AGREEMENT,
 OFFICIALS AND EMPLOYEES ARE
 
    GOVERNED BY EXISTING OR FUTURE LAWS AND REGULATIONS OF APPROPRIATE
 AUTHORITIES INCLUDING
 
    POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL;  . . .