Internal Revenue Service, Cincinnati District Office and National Treasury Employees Union, Chapter 9 (Authority decision, December 4, 1986)

Final FLRA decision. The Authority denies the agency's exceptions to an arbitration award requiring pay for a missed furlough notice period. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice. This decision does not state that it involves one.

Plain-English summary

The IRS Cincinnati District Office furloughed seasonal employees with no more than one day's notice after reducing hours in its Taxpayer Service Division. Their agreement called for five days' notice whenever possible. An arbitrator found that the office could have given that notice and awarded straight time pay for four days following the furloughs. The IRS argued that the Back Pay Act did not support the remedy and that the award limited its right to lay off employees. The Authority found the arbitrator had connected the missed notice to lost pay and had enforced a valid negotiated procedure without barring the furloughs. It denied the agency's exceptions, leaving the pay award in place.

Decision snapshot

• Authority: Back Pay Act, 5 U.S.C. § 5596, and negotiated procedures under 5 U.S.C. § 7106(b)(2).
• Outcome: Agency exceptions denied; four days of pay for affected employees stands.
• Key point: A feasible contractual notice period could support back pay even though the agency retained the right to furlough employees.

Full text (FLRA public release)

[ v24 p288 ]

24:0288(35)AR

The decision of the Authority follows:

24 FLRA No. 35

INTERNAL REVENUE SERVICE
CINCINNATI DISTRICT OFFICE
Activity

and

THE NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 9
Union

Case No. 0-AR-1146

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Patrick A. McDonald 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.

II. BACKGROUND AND ARBITRATOR'S AWARD

The grievance in this matter arose when a number of seasonal employees were furloughed because of a reduction in the number of hours allocated to the Taxpayer Service Division. According to the Arbitrator, 32 of the employees were notified by the Activity on February 11, 1985 that they would be furloughed at the close of business on February 12; one employee was notified on February 12 that she would be furloughed at close of business that day. Sixteen others were notified on February 25 that they would be furloughed at the close of business on February 26 and one employee was notified on February 26 that she would be furloughed that same day. A group grievance was filed, contending that the Activity's failure to provide five days advance notice of the furloughs violated Article 25, Section 1H of the collective bargaining agreement, which provides: "An employee will, whenever possible, receive five days notice of furlough." The matter was submitted to arbitration.

The parties stipulated to the Arbitrator that the furloughed employees were "ready, willing and able to work for four days following their furlough." The Arbitrator found that the Activity knew before the furloughs were announced that the number of hours available was reduced and that furloughs would be necessary. He ruled that the Activity could have given five days notification and that by not doing so it violated Article 25, Section 1H. He rejected the Activity's contention that the grievance infringed on its rights to determine its mission, budget, and number of employees. As his award he sustained the grievance and ruled that the Activity's violation of the notice requirement of the agreement "resulted in the denial of all or part of the pay and allowances otherwise due to the grievants for four days following February 12, 1985 and February 26, 1985." He ordered the Activity to reimburse the grievants at their straight-time rate for the four days following their notifications of furlough.

III. FIRST EXCEPTION

A. Contentions

The Agency contends the award is contrary to the Back Pay Act, 5 U.S.C. Section 5596, because the Arbitrator failed to make the requisite findings to support the award of backpay. Specifically the Agency contends that the Activity's failure to give five days notice to the grievants did not constitute an unwarranted or unjustified personnel action because the agreement provision violated was discretionary, not mandatory. Further, the Agency contends that the Arbitrator did not make the required finding that the violation directly resulted in the reduction or loss of pay to the grievants and that he failed to address evidence showing that the grievants would not have worked beyond the furlough dates.

B. Analysis and Conclusion

We find that this exception fails to establish that the award is deficient as alleged. In order for an award of backpay to be authorized under the Back Pay Act, the arbitrator must find that an agency personnel action was unjustified or unwarranted, that the personnel action directly resulted in the withdrawal or reduction of the grievant's pay, allowances or differentials, and that but for the action, the grievant would not have suffered a withdrawal or reduction of pay, allowances or differentials. American Federation of Government Employees, Local 1760 and Social Security Administration, Northeastern Program Service Center, 22 FLRA No. 19 (1986).

In this case, the Arbitrator found that the Activity violated the agreement provision and that it was possible for the Activity to give five days notice under the circumstances presented. Contrary to the Agency's contention, the Arbitrator's interpretation of the agreement as imposing a mandatory requirement for five days notice when possible constitutes a finding by an appropriate authority under the Back Pay Act. See National Labor Relations Board Union, Local 19 and Office of the General Counsel, National Labor Relations Board, 7 FLRA 21 (1981). Therefore, the Activity's action furloughing the grievants without the required notice was an unjustified or unwarranted personnel action under the Back Pay Act.

As to the second part of the Agency's exception, we find that the Arbitrator made the required finding under the Back Pay Act that the Activity's failure to give the grievants five days notice directly resulted in their not working for the four days following furlough. He specifically found that the Activity knew sufficiently in advance that furloughs would be required, he noted the parties' stipulation that the grievants were available to work, and he found that the Activity had sufficient hours in its allocation to employ them during the notice period. The Agency fails to show that the Arbitrator erred in finding that the grievants otherwise would have worked for four days following notice or that he ignored evidence pertaining to that. Its exception constitutes nothing more than disagreement with the Arbitrator's finding of fact and with his reasoning and conclusions. This disagreement provides no basis for finding an award deficient. Department of the Air Force, Scott Air Force Base and National Association of Government Employees, Local No. R7-23, 4 FLRA 712 (1980).

IV. SECOND EXCEPTION

A. Contentions

The Agency contends that the award is contrary to section 7106(a)(2)(A) of the Statute because it restricts its right to layoff employees and imposes a mandatory notice requirement. The Agency maintains that the effect of the award is to nullify the furloughs which were implemented.

B. Analysis and Conclusion

The Agency's second exception fails to show that the award violates section 7106(a)(2)(A) of the Statute. Contrary to the Agency's contentions, the award in no way prevents the Activity from furloughing or laying off employees. Rather, the award only enforces the Activity's contractual obligation to give employees notice of furlough "whenever possible." The Authority has consistently held that the rights reserved to management under section 7106(a) of the Statute are subject to procedures negotiated under section 7106(b)(2) and such procedures are enforceable by grievance and arbitration. National Treasury Employees Union and U.S. Customs Service, 18 FLRA No. 94 (1985). The Authority has found that a bargaining proposal which provided for a 30 day notice of reduction in force was a negotiable procedure which would not prevent the agency from laying off and/or retaining employees. National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Farmers Home Administration, 16 FLRA 807 (1984) (Proposal 2). In this case, the agreement provision for a five day notice of furlough whenever possible also constitutes a procedure which was properly enforceable by the Arbitrator. Consequently, the award is not contrary to section 7106(a)(2) of the Statute.

V. DECISION

Accordingly, for the above reasons, the Agency's exceptions are denied.

Issued, Washington, D.C., December 4, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY