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49:1503(134)AR - - Treasury, IRS, Cleveland District and NTEU, Chapter 37 - - 1994 FLRAdec AR - - v49 p1503

[ v49 p1503 ]
The decision of the Authority follows:

49 FLRA No. 134















June 30, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator William L. Richard filed by the Union 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator concluded that, although the Agency violated certain regulatory provisions by the way it employed the grievants as part-time seasonal employees, the grievants were not improperly furloughed and they were not entitled to be converted to full-time permanent employment. For the following reasons, we conclude that we lack jurisdiction under section 7122(a) of the Statute to review the Union's exceptions.

II. Background and Arbitrator's Award

The grievants, who were employed as part-time seasonal employees, were furloughed for a 2-week period. The Union filed a grievance disputing the furloughs and, when the grievance was not resolved it was submitted to arbitration. The parties did not stipulate, and the Arbitrator did not frame, the issues for resolution.

Before the Arbitrator, the Union claimed that the Agency failed to employ the grievants in a manner consistent with requirements for part-time seasonal employment and that, as a result, the grievants had been "converted de facto to full-time permanent status." Award at 5 (emphasis omitted). The Union claimed further that, as the grievants should properly have been considered full-time permanent employees, the Agency was required to conduct the disputed furloughs using adverse action procedures.(1) Moreover, according to the Union, even if the grievants were not deemed full-time permanent employees, the furloughs violated Article 22, Section 2E4 of the parties' agreement because they were "'budget[-]driven'" and the parties' agreement permits furloughs only for "lack of work" reasons.(2) Id. at 13. Finally, the Union claimed that, as certain grievants had worked for more than 1 year without interruption and, frequently, worked more than 32 hours per week without being provided full-time work schedules, they were entitled to conversion to full-time permanent status with backpay.(3)

The Arbitrator rejected the Union's claim that the grievants "were, de facto, full-time permanent employees[.]" Id. at 11 (emphasis omitted). In so doing, the Arbitrator relied on prior, non-expedited arbitration awards involving the parties.(4) According to the Arbitrator, those awards held that the grievants could be converted to full-time permanent status only through competitive action. The Arbitrator also rejected the Union's claim that the furloughs violated Article 22, Section 2E4 of the parties' agreement because they were imposed for "budget[-]driven" and not "lack of work" reasons." Id. at 13. The Arbitrator concluded, in this regard, that, as budgetary considerations always affect the availability of work, "budget-driven" furloughs were the same as furloughs caused by "lack of work." Id. The Arbitrator stated that, however the Union characterized them, the disputed furloughs were "the result of a legitimate exercise of management's rights" to lay off seasonal employees for budgetary, staffing, or work-related reasons and were properly conducted under Article 22. Id. Moreover, according to the Arbitrator, interpreting Article 22 as precluding layoffs imposed for budget reasons would "abrogate management's exercise of its rights and would render it unenforceable" under Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990). Award at 13.

The Arbitrator also rejected the Union's remaining claims. In this regard, the Arbitrator found that, although the Agency had failed to establish seasonal conditions of employment for the grievants at the time of their appointment, the Agency had informed the grievants through other means of the conditions of their seasonal employment and of the possibility of being laid off. Further, the Arbitrator determined that, although the Agency regularly required the grievants to work more hours and consecutive months than was consistent with applicable regulations, "no provision of law, regulation, or [the parties'] agreement . . . requires either automatic or non-competitive conversion of the grievants to full-time permanent status because of such inconsistencies." Id. at 8.

The Arbitrator concluded that the Agency did not violate law or the parties' agreement by implementing the disputed furloughs. However, to remedy the Agency's violation of regulations, the Arbitrator directed the Agency to employ the grievants in a manner consistent with the FPM and the parties' agreement and to cease using seasonal employment as a substitute for permanent employment. In addition, he ordered the Agency to obtain from new part-time seasonal employees special employment agreements establishing their full understanding of and acquiescence to the conditions of seasonal employment prior to their assumption of duties.

III. Exceptions

The Union argues that, because the Arbitrator found that the Agency violated provisions of the FPM and the parties' agreement by the manner in which it employed the grievants as part-time seasonal employees, he was required under the FPM to further find that the furloughs should have been conducted through the use of adverse action procedures. In addition, the Union claims that the furloughs violated Article 22 of the parties' agreement, which it interprets as prohibiting furloughs for "budgetary" reasons. Exceptions at 15. According to the Union, the Arbitrator misapplied Authority precedent in concluding that the Union's interpretation of Article 22 would abrogate management's rights.

The Union also argues that the Arbitrator's failure to order the grievants to be converted to permanent status is based on an erroneous interpretation of Authority decisions and prior arbitration awards. According to the Union, noncompetitive conversion to permanent status is appropriate and authorized in the circumstances of this case. The Union also asserts that the Arbitrator's conclusion that previous arbitration awards precluded him from converting the grievants "is erroneous as a matter of law and inconsistent with Authority precedent." Id. at 23.

IV. Opposition

The Agency contends that conversion of the seasonal employees involved in this case to permanent status is not mandated by any applicable law and that the Union's reliance on certain Authority decisions is misplaced. Further, the Agency claims that the Arbitrator did not err when he relied on previous arbitration awards because the facts and contractual provisions at issue in those awards are the same as those at issue here.

V. Analysis and Conclusions

We find that we are without jurisdiction under section 7122(a) of the Statute to review the Union's exceptions. Section 7122(a) provides, in pertinent part:

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).

The matters described in section 7121(f) include serious adverse actions covered under 5 U.S.C. § 7512, such as furloughs for 30 days or less. See, for example, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL-CIO, 32 FLRA 79 (1988) (SSA). Review of awards relating to such matters may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703.

The Union claimed in arbitration that the Agency had conducted the 2-week furloughs in violation of law, regulation, FPM provisions, and the parties' agreement. In this regard, the Union claimed that the furloughs should have been conducted through the use of the adverse action procedures set forth in 5 U.S.C. § 7513 and the parties' agreement. As the grievance in this case concerns furloughs which, according to the Union, were covered by 5 U.S.C. § 7512, the grievance concerns a matter that is covered by section 7512 and, under section 7122(a) of the Statute, the Authority lacks jurisdiction to review the award. SSA, 32 FLRA at 83.

We note that, according to the Arbitrator, the Agency was not required to conduct the grievants' furloughs through the use of adverse action procedures. That is, the Arbitrator concluded that the furloughs were not covered by 5 U.S.C. § 7512. However, the Authority's jurisdiction to review an award does not properly rest on the outcome of an award. Rather, our jurisdiction depends on whether the claim advanced in arbitration is one that is covered by section 7512. See Panama Canal Commission and Maritime Metal Trades Council, 49 FLRA No. 134, slip op. at 5 (1994).

We conclude that we lack jurisdiction to review the Union's exceptions to the award. Accordingly, the exceptions will be dismissed.

VI. Decision

The Union's exceptions are dismissed.

(If blank, the decision does not have footnotes.)

1. The Union relied on FPM chapter 340, subchapter 2-6c, which provides, in pertinent part:

c. A layoff which is not in accordance with preestablished conditions of employment and this subchapter [on seasonal employment] is subject to adverse action procedures if the furlough is for 30 days or less . . . .

During the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document, Summary Table at 7. FPM chapter 340, subchapter 2 has been provisionally retained. See id.

2. Article 22, Section 2E4 provides, in pertinent part, that "the sole determinants of the length of time [a seasonal] employee is in pay status are the availability of work and the employee's standing on the release and recall list established under Article 14 of this Agreement." Exceptions at 9.

3. As relevant here, 5 C.F.R. § 340.202(a) defines "part-time career employment" as "regularly scheduled work of from 16 to 32 hours per week . . . ." The term "seasonal employment" is defined in 5 C.F.R. § 340.401(a) as "annually recurring periods of work of less than 12 months each year."

4. In so doing, the Arbitrator relied on Article 43, Section 4A8 of the parties' agreement, which provides, in pertinent part, that "[t]he Arbitrator's decision shall be final, binding and, except for expedited awards, precedential . . . ." Exceptions, Attachment 3 at 76.