36:0273(35)AR - - Treasury, IRS, Omaha District and NTEU Chapter 3 - - 1990 FLRAdec AR - - v36 p273

[ v36 p273 ]
The decision of the Authority follows:

36 FLRA No. 35













July 12, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Merton C. Bernstein. The Arbitrator determined that the grievance, which claimed that the Activity violated the Internal Revenue Manual in failing to select an internal applicant for a position over an external candidate, was not grievable under the parties' collective bargaining agreement.

The Union filed an exception to the award 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 Internal Revenue Service (the Agency) filed an opposition to the exception on behalf of the Activity.

We conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exception.

II. Background and Arbitrator's Award

The Activity posted a vacancy announcement for several openings for the position of revenue officer. Two bargaining-unit employees, the grievant and another employee, were referred to the selecting official and were rated best qualified. The selecting official decided not to select either internal applicant. Instead, she selected six candidates from outside the Agency. In making the selections, the selecting official did not compare the qualifications of the external candidates with those of the internal applicants. The grievant filed a grievance over her failure to be selected and the grievance was submitted to arbitration.

The Union contended before the Arbitrator that the Activity's failure to select the grievant violated Internal Revenue Manual Policy Statement P-O-4 (P-O-4). The Union argued that P-O-4 requires that selections be made from within the Agency when internal applicants are as qualified as external candidates and that the grievant's credentials were at least equal to those of the external candidates who were selected.

The Activity contended before the Arbitrator, among other things, that violations of P-O-4 are not grievable under the parties' collective bargaining agreement (NORD II). The Activity argued that the bargaining history of Article 13, Section 1(B), granting Agency employees "first consideration" for all placement actions within the bargaining unit, established that the Union sought and abandoned proposals to make the policy of P-O-4 enforceable under the negotiated grievance procedure in exchange for "first consideration."

The Arbitrator agreed with the Activity that a grievance claiming that the failure to select an internal applicant over an external candidate violated P-O-4 is not grievable under NORD II. After examining the bargaining history to NORD II and the derivation of the "first consideration" provision and its interrelationship with P-O-4, the Arbitrator concluded that the Agency and the Union settled their differences on the subject of consideration of internal applicants by adopting the "first consideration" principle with the understanding that the negotiated grievance procedure would not be available to challenge the merits of selection decisions involving internal applicants. The Arbitrator stated that it would be inconsistent with such a bargain that after "first consideration," the Union could insist on a comparison of internal applicants who were not selected with external candidates who were selected and grieve the failure to select internal applicants on the ground that the external candidates who were selected were not better qualified than internal applicants who were not selected.

Accordingly, the Arbitrator denied the grievance.(1)

III. Positions of the Parties

The Union contends that the award is contrary to law. The Union claims that it has a statutory right to grieve violations of P-O-4 and that the Arbitrator's finding that the Union waived its statutory right is contrary to law because the waiver is not clear and unmistakable. The Union states that the Arbitrator did not characterize his interpretation of the bargaining history as a waiver, but that the Arbitrator's determination is "a waiver by another name." Union's Exception at 13. The Union asserts that neither the wording of the "first consideration" provision of NORD II nor its bargaining history can support a legal finding of waiver. The Union maintains that the award "simply fails to meet the requirement of well settled law that a waiver of a statutory right be clear and unmistakable." Id. at 15.

The Agency contends that the Union's exception provides no basis for finding the award deficient. The Agency claims that the Union mischaracterizes the award and relies on inapplicable case law. The Agency maintains that the Arbitrator never considered the issue of whether the Union had a statutory right to grieve P-O-4 and did not find that the Union waived a statutory right. Moreover, the Agency disputes the Union's claim that it has a statutory right to grieve P-O-4. The Agency also argues that the Union is not correct in its assertion that in order to find a matter excluded from the coverage of the n