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The decision of the Authority follows:
11 FLRA NO. 83
INTERNAL REVENUE SERVICE, BROOKHAVEN SERVICE CENTER Activity and NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 99 Union Case No. 0-AR-192
This matter is before the Authority on exceptions to the award of Arbitrator Russell A. Smith filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.
The dispute in this matter concerns snow conditions in the area of the Activity during the week of February 6, 1978. Several employees did not report for work and claimed entitlement under the parties' collective bargaining agreement to administrative leave. When the claims for administrative leave were denied by the Activity, grievances were filed and submitted together to arbitration. After arbitration was invoked by the Union but before the arbitration hearing, one of the grievants was permanently promoted to a supervisory position. 1 At the arbitration hearing the Activity contended with respect to this grievant that her grievance was not arbitrable because the parties' agreement could not apply to a supervisor and because a conflict of interest precluded the Union from representing her. The Arbitrator however ruled that this grievance was arbitrable. He found that the parties' agreement did not preclude the grievant's claim which arose while she was in a position within the bargaining unit and which had vested prior to her promotion to [ v11 p486 ] the supervisory position. Similarly, he ruled that there was no conflict of interest because representation by the Union was for the sole purpose of vindicating that claim and there was no representation of the grievant in her status as a supervisor. Having found the grievance arbitrable, the Arbitrator as his award on the merits denied the grievant's claim for administrative leave for February 6, 1978, and granted her claim for February 9, 1978.
In its exceptions the Agency contends that the Arbitrator's ruling that this grievance was arbitrable is deficient. The agency essentially contends that this ruling is contrary to the Statute and the parties' collective bargaining agreement because supervisors are not employees under section 7103(a)(2) of the Statute and under the agreement and consequently are precluded from use of a negotiated grievance procedure. The Agency further contends that the ruling is contrary to the Statute because the Union's representation of the grievant was precluded by section 7114 and section 7121 of the Statute 2 and constituted a conflict of interest once the grievant was promoted to a supervisory position. However, the Agency's exceptions provide no basis for finding the award deficient.
As has been noted, the Arbitrator expressly determined that the grievant was not precluded from use of the negotiated grievance procedure to resolve her claim which arose while she was in a position within the bargaining unit and which had vested prior to her promotion to the supervisory position. Likewise, he ruled that the Union's representation of the grievant solely to vindicate that claim without any representation of the grievant in her status as a supervisor was proper. In addition, as his award the Arbitrator merely reestablished the situation of February 9, 1978 (at which time, as noted, the grievant was not a supervisor) as it would have existed but for the Activity's improper denial of administrative leave to the grievant. The Agency in its exceptions has not specified any provision of the Statute which expressly precludes the Arbitrator's ruling in the circumstances of this case that this grievance was arbitrable. 3 Furthermore, adherence to the [ v11 p487 ] statutory definition of employee, to the representational principles of section 7114 and section 7121, and to the grievance procedure provisions of section 7121 does not establish that the Statute precluded the continued processing and resolution under the parties' negotiated grievance procedure with appropriate representation by the Union of the grievance filed by the grievant before she assumed the supervisory position. Consequently, the Agency has failed to demonstrate that the award is contrary to the Statute or the parties' agreement, and its exceptions are accordingly denied.
Issued, Washington, D.C., March 3, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
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Footnote 1 This grievant claimed administrative leave for February 6 and 9, 1978. Her grievance was filed on March 4, 1978. Arbitration was invoked on July 11, 1978, and the hearing was held on October 22 and 23, 1980. She was permanently assigned to a supervisory position in May 1980.
Footnote 2 The Agency essentially maintains that the representational rights of a union under section 7114(a)(1) and 7121(b)(3)(A) are in terms of representing employees, as defined in section 7103(a)(12), and therefore cannot properly extend to the representation of a supervisor.
Footnote 3 the Authority in this respect takes particular note of the following circumstances as reflected in the Arbitrator's Award and Opinion: the dispute arose, the grievance was filed, and arbitration was invoked at a time the grievant was in a position within the bargaining unit and substantially before she was promoted to a supervisory position; both the promotion of the grievant and the arbitration hearing occurred over two years after the dispute arose and the grievance was filed; the grievance pertained to a discrete event that did not persist and the grievant's claim was complete and perfected upon the denial of administrative leave; the grievance did not concern the continuing application of a substantive provision of the collective bargaining agreement to a person no longer within the bargaining unit; and the award solely reestablished the situation of February 9, 1978, as it would have existed had the Activity not improperly denied the grievant administrative leave at a time she was not a supervisor.