National Treasury Employees Union and Internal Revenue Service (Authority decision, January 28, 1988)

Final FLRA decision. The Authority denies a union exception to an arbitration award establishing reassignment procedures. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

The National Treasury Employees Union and IRS reached an impasse during negotiations over parts of their national agreements. A binding arbitrator imposed procedures requiring the agency to identify employees for reassignment, provide five workdays' notice, and allow local bargaining over the impact consistent with law. The union argued that those provisions waived its statutory bargaining rights and exceeded the arbitrator's authority. The Authority found that reassignment procedures were a mandatory subject of bargaining and that the union had misread the provisions as a waiver. It denied the exceptions and left the award in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; reassignment procedures remained in the award.
• Key point: Contract terms governing reassignments did not amount to an improper waiver of future bargaining rights.

Full text (FLRA public release)

[ v30 p1097 ]

30:1097(119)AR

The decision of the Authority follows:

30 FLRA NO. 119
30 FLRA 1097

28 JAN 1988

NATIONAL TREASURY EMPLOYEES UNION

Union

and

INTERNAL REVENUE SERVICE

Agency

Case No. O-AR-1341

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the interest arbitration award of Arbitrator Jerome H. Ross. As part of his award the Arbitrator imposed certain provisions concerning employee reassignments. The Union has filed exceptions to this portion of the award under section 7122 (a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition.

For the reasons discussed below, we conclude that the award is not inconsistent with the Statute and that the Arbitrator did not exceed his authority when he imposed the provisions concerning reassignments. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The dispute concerns an impasse reached by the parties during reopener negotiations covering four articles of the parties' national collective bargaining agreements. The Federal Service Impasses Panel (the Panel) approved the parties' joint request for binding mediation/arbitration.

The Arbitrator issued his award resolving the matters at impasse after the parties were unable to reach agreement at his mediation/arbitration hearing. As relevant to the Union's exceptions, the Arbitrator imposed the following provisions as Article 15, Section 5 of their agreements concerning employee reassignments:

With respect to all other reassignments, the following procedures shall apply:

1. The employer shall designate the employee(s)to be
   reassigned.

2. The employer shall give the affected employee(s) five
   work days notice.

3. The parties may locally bargain the impact of such
   reassignments consistent with law.

III. Exceptions

A. Positions of the Parties

The Union contends that the award is deficient because the provisions of Article 15, Section 5 are outside the Union's duty to bargain. The Union maintains that by imposing these provisions, the Arbitrator waived the Union's rights under the Statute to bargain on the implementation of the reassignment of employees. The Union acknowledges that the assignment of employees is a mandatory subject of bargaining. The Union argues, however, that the waiver of its statutory rights is outside the duty to bargain. Consequently, the Union claims that the award is deficient because: (1) the Agency may not insist on bargaining to impasse over proposals which are outside the Union's duty to bargain; (2) the Arbitrator lacked authority to impose provisions which are outside its duty to bargain; and (3) the Arbitrator lacked jurisdiction to decide whether the provisions were within the Union's duty to bargain.

The Agency argues that the provisions imposed by the Arbitrator concerned employee reassignments, not a waiver of the Union's statutory rights. The Agency claims that the Arbitrator properly resolved the parties' impasse over the procedures to be applied for the reassignment of employees and that the exceptions should be denied because the Union merely disagrees with the decision on the merits. The Agency maintains that the Union misconstrues the provisions as a waiver of statutory rights rather than the ordinary operation of a contract bar to any subsequent Union proposals which are inconsistent with the procedures in the provision. In the Agency's view, the provisions imposed by the Arbitrator simply preclude either party during the life of the agreements from acting on employee reassignments contrary to the terms of the agreements. To the Agency, this preclusion does not constitute a waiver. B. Analysis and Conclusion

We conclude that the union's position in this case is without merit.

The provisions imposed by the Arbitrator relate to reassignments of bargaining-unit employees and concern the conditions of employment of unit employees. The subject of the provisions constitutes a mandatory subject of bargaining for both parties. The Union has misconstrued the provisions as constituting a waiver of its statutory rights to bargain over the implementation of future employee reassignments.

During the term of the collective bargaining agreements, both parties are obligated to act in accordance with the agreements. Thus, the rights and the obligations of the parties in reassignments of employees are a result of collective bargaining and the primacy of the collective bargaining agreements. In our view, the Arbitrator did not improperly resolve an impasse over the Union's waiver of its statutory rights. Consequently, the Union's exceptions provide no basis for finding the award deficient.

IV. Decision

The Union's exceptions are denied.

Issued, Washington, D.C., January 28, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY