36:0278(36)AR - - Treasury, IRS, Salt Lake City, UT and NTEU Chapter 17 - - 1990 FLRAdec AR - - v36 p278

[ v36 p278 ]
The decision of the Authority follows:

36 FLRA No. 36













July 12, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statemen`t of the Case

This matter is before the Authority on an exception to the award of Arbitrator Matthew W. Finkin. The Arbitrator determined that the grievance, which claimed that the Activity violated the Internal Revenue Manual in selecting an external candidate for a position over an internal applicant, 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 exception.

II. Background and Arbitrator's Award

The Activity posted a vacancy announcement for several openings for the position of revenue officer. Approximately 100 bargaining-unit employees applied for the vacancies. Twenty-eight internal applicants, including the grievant, were referred to the selecting official and were rated best qualified. The selecting official selected six internal applicants. The grievant was informed that she had not been selected. The Activity then selected several candidates from outside the Agency.

The Union filed a grievance on behalf of the grievant claiming that the Activity violated Internal Revenue Manual Policy Statement P-O-4 (P-O-4) by selecting external candidates over the grievant. The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated the issues to be: (1) whether the grievance was timely filed; (2) whether the selection of an external candidate over an internal applicant, allegedly in violation of P-O-4, is grievable under the negotiated grievance procedure of the parties' collective bargaining agreement (NORD II); and (3) if the answer to issue (2) is yes, whether the Activity violated P-O-4 and, if so, what should be the remedy.(1)

On the issue of whether the selection of an external candidate over an internal applicant, allegedly in violation of P-O-4, is grievable under NORD II, the Arbitrator, after reviewing four arbitration awards that had considered the issue and reached different results, stated that the issue was a close and difficult one. The Arbitrator concluded that NORD II and its bargaining history should be read to provide that alleged violations of P-O-4 have been excluded from the scope of the parties' negotiated grievance procedure under NORD II.

In finding that the grievance was not grievable, the Arbitrator rejected the Union's argument that the bargaining history of NORD II did not evidence a waiver of its statutory right to enforce P-O-4 under the negotiated grievance procedure. In the Arbitrator's view, because section 7121(a)(2) of the Statute allows for the exclusion under a collective bargaining agreement of any matter from the application of the negotiated grievance procedure, the question was not whether the Union had waived a statutory right, but whether NORD II excluded grievances alleging violations of P-O-4.

Accordingly, the Arbitrator denied the grievance.

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 although the Arbitrator characterized the issue as one of exclusion, rather than of waiver, "an exclusion is merely a waiver by another name." Union's Exception at 14. The Union asserts that in order for violations of P-O-4 to be excluded, an exclusion would have to be evidenced by an agreement to this effect or by clear and unmistakable evidence that the Union relinquished its right to grieve violations of P-O-4. The Union maintains that the Arbitrator pointed to no agreement to exclude violations of P-O-4 and the Arbitrator did not find, and on the record could not find, that the Union waived its right to grieve P-O-4 violations.

The Agency contends that the Union's arguments on waiver misconstrue the issue presented. The Agency argues that the cases cited by the Union on waiver do not apply. The Agency maintains that the issue decided by the Arbitrator was whether under NORD II the Union had a right to grieve alleged violations of P-O-4. The Agency asserts that based on his interpretation of NORD II, the Arbitrator concluded that the grievance was not grievable. The Agency claims that because the award constitutes the Arbitrator's interpretation of the collective bargaining agreement, the Union's exception provides no basis for finding the award deficient.

IV. Analysis and Conclusion

We conclude that the Union fails to establish that the Arbitr