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 Authorit