Internal Revenue Service, Birmingham District Office (Activity) and National Treasury Employees Union, NTEU Chapter 12 (Union) (Authority decision, June 18, 1981)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

An IRS arbitrator found contract violations in two promotion competitions and ordered corrective consideration for five original applicants. The union argued that relief should be limited to employees who had grieved; the agency also filed an exception. The Authority rejected the union’s contract and authority challenges, dismissed the agency’s exception as late, and sustained the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exception denied, agency exception dismissed as late; award sustained.
• Key point: The arbitrator could account for all affected original applicants when crafting the promotion remedy.

Full text (FLRA public release)

[ v06 p143 ]

06:0143(28)AR

The decision of the Authority follows:

6 FLRA No. 28

INTERNAL REVENUE SERVICE,
BIRMINGHAM DISTRICT OFFICE
Activity

and

NATIONAL TREASURY EMPLOYEES UNION,
NTEU CHAPTER 12
Union

Case No. O-AR-89

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR SAMUEL EDES FILED BY BOTH THE AGENCY AND THE UNION UNDER
SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (5 U.S.C. 7122(A)).

ACCORDING TO THE ARBITRATOR THIS GRIEVANCE AROSE WHEN THE ACTIVITY
ANNOUNCED A VACANCY IN A GS-13 POSITION IN SEPTEMBER 1977. FIVE
ACTIVITY EMPLOYEES APPLIED FOR THE POSITION. THE RANKING OFFICIAL GAVE
THE FIVE APPLICANTS SCORES RANGING FROM 31.08 TO 33.72. HE THEN SET THE
SCORE FOR THE "HIGHLY QUALIFIED LIST AT 35. SINCE NONE OF THE
CANDIDATES RECEIVED THAT SCORE, NONE WERE CERTIFIED FOR PROMOTION.
SUBSEQUENTLY, IN OCTOBER 1977 THE VACANCY WAS AGAIN ANNOUNCED, BUT THIS
TIME ON A REGIONAL BASIS ALLOWING EMPLOYEES OUTSIDE OF THE ACTIVITY TO
COMPETE. THE FIVE APPLICANTS WHO HAD APPLIED FOR THE POSITION WHEN IT
WAS FIRST ANNOUNCED AGAIN APPLIED, ALONG WITH SIX OTHERS. EVENTUALLY,
ONE OF THE CANDIDATES WAS SELECTED FOR THE POSITION. THE SELECTED
EMPLOYEE WAS NOT ONE OF THE ORIGINAL FIVE APPLICANTS. THEREAFTER, THREE
OF THE ORIGINAL FIVE APPLICANTS FILED INDIVIDUAL GRIEVANCES OVER VARIOUS
ACTIVITY ACTIONS WITH RESPECT TO BOTH THE SEPTEMBER AND OCTOBER RATINGS
AND RANKINGS. TWO OF THE ORIGINAL FIVE APPLICANTS DID NOT FILE
GRIEVANCES. THE THREE GRIEVANCES WERE PRESENTED TO THE ARBITRATOR AT
ONE HEARING. THE ARBITRATOR STATED THE ISSUES AS FOLLOWS:

THE KEY ISSUES HERE PLACED BY THE PARTIES FOR DETERMINATION BY THE
ARBITRATOR ARE WHETHER

(THE THREE GRIEVANTS) WERE EVALUATED AND RANKED AND THEIR PROMOTION
APPLICATIONS FAIRLY AND

OBJECTIVELY PROCESSED AND ACTED UPON IN ACCORDANCE WITH THE
PROVISIONS OF THE APPLICABLE

AGREEMENT BETWEEN THE PARTIES AS RESPECTS THE PROMOTION PROCEEDINGS
IN SEPTEMBER 1977 AND/OR

OCTOBER 1977. . . . IN THE EVENT THAT CONTRACT VIOLATIONS ARE FOUND
TO HAVE OCCURRED, THE

ARBITRATOR IS REQUIRED TO ISSUE AN AWARD EMBODYING THE REMEDY TO BE
APPLIED TO CORRECT THE

VIOLATIONS. /1/

THE ARBITRATOR DETERMINED THAT THE PROCEDURES SET FORTH IN THE
COLLECTIVE BARGAINING AGREEMENT CONCERNING PROMOTION ACTIONS HAD BEEN
"VIOLATED IN SUBSTANTIAL RESPECTS" BY THE ACTIVITY WITH REGARD TO BOTH
THE SEPTEMBER AND OCTOBER APPRAISALS AND RANKINGS. WITH RESPECT TO A
REMEDY FOR THE VIOLATIONS, THE ARBITRATOR CONSIDERED VARIOUS
ALTERNATIVES AND SPECIFIC CONTRACT PROVISIONS /2/ AND MADE THE FOLLOWING
AWARD:

1. THE AGENCY, AS DETAILED IN THIS OPINION, VIOLATED ARTICLE 7 AND
   ARTICLE 9 OF THE

AGREEMENT IN RESPECT TO THE PROCEDURES APPLICABLE TO THE PROMOTION
APPRAISAL AND RANKING OF

(THE GRIEVANTS) IN SEPTEMBER 1977, IN FAILING TO IDENTIFY THE BEST
QUALIFIED CANDIDATES AND IN

CONSEQUENCE POSTING THE GS-13 VACANCY IN AN EXPANDED AREA.

2. THE AGENCY, AS DETAILED IN THIS OPINION, VIOLATED ARTICLE 7 AND
   ARTICLE 9 OF THE

AGREEMENT IN RESPECT TO (THE GRIEVANTS) IN RESPECT TO THEIR RANKING
IN OCTOBER 1977.

. . . .

4. (ALL FIVE ORIGINAL APPLICANTS) SHALL BE DEEMED BEST QUALIFIED AND
   THEIR NAMES SHALL BE

SUBMITTED ON A SINGLE CERTIFICATE TO THE SELECTING OFFICIAL FOR THE
NEXT GS-13 VACANCY.

THE UNION FILED AN EXCEPTION TO PART 4 OF THE ARBITRATOR'S AWARD
UNDER SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE /3/ AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5
CFR PART 2425. THE AGENCY FILED AN OPPOSITION AND IN THAT OPPOSITION
ALSO TOOK EXCEPTION TO A PORTION OF PART 4 OF THE ARBITRATOR'S AWARD.

IN ITS EXCEPTION THE UNION CONTENDS THAT "(T)HE ARBITRATOR EXCEEDED
HIS AUTHORITY UNDER THE AGREEMENT AS HIS AWARD DOES NOT DRAW ITS ESSENCE
FROM THE AGREEMENT." IN SUPPORT OF THIS EXCEPTION THE UNION ARGUES THAT,
BY GRANTING PRIORITY CONSIDERATION TO ALL FIVE ORIGINAL APPLICANTS, THE
AWARD DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT IN THAT IT PROVIDES A
REMEDY FOR TWO EMPLOYEES WHO WERE NEITHER GRIEVANTS IN THE ACTION NOR
PARTIES TO THE PROCEEDING BEFORE THE ARBITRATOR. THE UNION CITES TO
NUMEROUS PROVISIONS OF THE AGREEMENT AND ASSERTS THAT UNDER THOSE
PROVISIONS THE ARBITRATOR WAS PRECLUDED FROM AWARDING RELIEF TO
EMPLOYEES WHO DID NOT FILE GRIEVANCES ON THEIR OWN BEHALF OR WHO DID NOT
HAVE THE UNION FILE GRIEVANCES FOR THEM. /4/ THE UNION ASSERTS THAT THE
PRINCIPLE SET FORTH IN HOTEL EMPLOYEES UNION V. MICHELSON'S FOOD
SERVICES, INC., 545 F.2D 1248(9TH CIR. 1976) SHOULD BE APPLIED BY THE
AUTHORITY IN THIS CASE. IN MICHELSON'S FOOD SERVICES THE COURT FOUND
THAT AN ARBITRATOR HAD EXCEEDED HIS AUTHORITY BY PERMITTING AN EMPLOYEE
WHO HAD FILED AN INDIVIDUAL GRIEVANCE TO TRANSFORM HIS GRIEVANCE INTO A
GRIEVANCE ON BEHALF OF OTHER SIMILARLY SITUATED EMPLOYEES ON THE DAY OF
THE ARBITRATION HEARING.

THE UNION ALSO CONTENDS THAT THE AWARD GOES BEYOND THE ISSUE
SUBMITTED TO THE ARBITRATOR SINCE THROUGHOUT THE GRIEVANCE PROCEDURE THE
ONLY ISSUE IN DISPUTE CONCERNED THE GRIEVANTS' FAILURE TO RECEIVE PROPER
CONSIDERATION. FINALLY, THE UNION CONTENDS THAT THE ARBITRATOR HAD NO
AUTHORITY TO FASHION A REMEDY OTHER THAN THAT EXPLICITLY PROVIDED FOR IN
ARTICLE 7 OF THE AGREEMENT WHEN VIOLATIONS OR MERIT PROMOTION PROCEDURES
OCCUR. IN THE UNION'S VIEW SECTION 15(C)(2) OF ARTICLE 7, SUPRA NOTE 2,
MANDATES RELIEF ONLY TO "AGGRIEVED EMPLOYEES," I.E., THOSE EMPLOYEES WHO
ACTUALLY FILE GRIEVANCES. THE UNION THUS CONCLUDES THAT THE ARBITRATOR
EXCEEDED HIS AUTHORITY BY GRANTING THE EXCLUSIVE CONTRACTUAL REMEDY TO
EMPLOYEES WHO MADE NO ATTEMPT TO HAVE THEIR PROBLEMS ADJUSTED OR
RESOLVED UNDER THE CONTRACTUAL PROCEDURE.

THE AUTHORITY WILL FIND AN AWARD DEFICIENT WHEN IT IS DEMONSTRATED IN
THE EXCEPTION THAT THE ARBITRATOR EXCEEDED HIS OR HER AUTHORITY BY
RENDERING AN AWARD IN DISREGARD OF A PLAIN AND SPECIFIC LIMITATION ON
THAT AUTHORITY. DEPARTMENT OF THE AIR FORCE, MCGUIRE AIR FORCE BASE AND
LOCAL 1778, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 3 FLRA NO.
38(1980). THE AUTHORITY WILL ALSO FIND AN AWARD DEFICIENT WHEN IT IS
DEMONSTRATED IN THE EXCEPTION THAT THE AWARD FAILS TO DRAW ITS ESSENCE
FROM THE CONTRACT. UNITED STATES ARMY MISSILE MATERIEL READINESS
COMMAND (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1858, AFL-CIO, 2 FLRA NO. 60(1980). HOWEVER, IN THIS CASE THE
UNION HAS FAILED TO DEMONSTRATE THAT THE AWARD IS DEFICIENT ON EITHER OF
THESE GROUNDS.

THE ARBITRATOR STATED THE KEY ISSUE BEFORE HIM AS WHETHER THE
GRIEVANTS' PROMOTION APPLICATIONS WERE "FAIRLY AND OBJECTIVELY PROCESSED
AND ACTED UPON IN ACCORDANCE WITH THE PROVISIONS OF THE APPLICABLE
AGREEMENT." IN RESPONSE TO THIS QUESTION, THE ARBITRATOR FOUND THAT THE
ACTIVITY HAD VIOLATED THE AGREEMENT WITH RESPECT TO THE GRIEVANTS IN
BOTH THE SEPTEMBER AND OCTOBER 1977 RANKINGS (SEE PARTS 1 AND 2 OF THE
ARBITRATOR'S AWARD, PP. 2-3, SUPRA). THEREAFTER, IN FASHIONING A
REMEDY, THE ARBITRATOR CONSIDERED "AVAILABLE ALTERNATIVES," SPECIFICALLY
REFERRED TO THE PROVISIONS OF ARTICLE 7, SECTION 15(C)(2) OF THE
AGREEMENT, AND DETERMINED THAT HE "(COULD) NOT SIMPLY REQUIRE THAT THE
THREE GRIEVANTS BE DEEMED TO HAVE BEEN ERRONEOUSLY OMITTED FROM THE BEST
QUALIFIED LIST WITHOUT TAKING INTO ACCOUNT THAT TWO OTHER CANDIDATES
WERE IN THE FIELD IN THE SEPTEMBER COMPETITION." ACCORDINGLY, HE
DIRECTED THAT ALL FIVE OF THE ORIGINAL APPLICANTS BE PLACED ON A
CERTIFICATE FOR THE NEXT APPROPRIATE VACANCY.

THE UNION ARGUES THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY BY
FAILING TO AWARD THE "EXPLICIT REMEDY" PROVIDED FOR IN ARTICLE 7,
SECTION 15(C)(2) FOR VIOLATIONS OF MERIT PROMOTION ACTIONS. THE UNION
REFERS TO THE TERM "AGGRIEVED EMPLOYEE" USED IN THE BEGINNING OF SECTION
15(C) AND MAINTAINS THAT THE REMEDY PROVIDED IN THAT SECTION IS
AVAILABLE ONLY TO EMPLOYEES WHO HAVE FILED GRIEVANCES UTILIZING THE
GRIEVANCE PROCEDURES AND NOT TO NONGRIEVANTS. IN ITS OPPOSITION TO THE
UNION'S EXCEPTION, THE AGENCY ARGUES PRECISELY THE OPPOSITE. /5/
ACCORDING TO THE AGENCY, SECTION 15(C)(2) SPECIFICALLY ADDRESSES
EMPLOYEES OTHER THAN A GRIEVANT AND REQUIRES, AS WAS DONE BY THE
ARBITRATOR, THAT WHEN THERE IS A DEFECT IN THE OVERALL PROMOTION
PROCEDURES, ALL EMPLOYEES ERRONEOUSLY OMITTED FROM THE BEST QUALIFIED
LIST ARE TO RECEIVE PRIORITY CONSIDERATION FOR THE NEXT VACANCY. THUS
THE PARTIES ARE IN DISAGREEMENT OVER THE MEANING OF A PARTICULAR
CONTRACT PROVISION, A PROVISION WHICH WAS BEFORE THE ARBITRATOR AND
DISCUSSED IN HIS OPINION. THAT PROVISION, WHICH IS SUSCEPTIBLE OF
VARYING INTERPRETATIONS, INCLUDING THE ONE ADVANCED BY THE AGENCY AND
APPLIED BY THE ARBITRATOR, PROVIDES THE AUTHORITY IN THE CIRCUMSTANCES
OF THIS PARTICULAR CASE FOR THE ARBITRATOR TO FASHION THE REMEDY HE DID
DESPITE THE EXISTENCE OF PROVISIONS ELSEWHERE IN THE AGREEMENT WHICH
MIGHT OTHERWISE SERVE AS A LIMITATION ON AN ARBITRATOR'S AUTHORITY TO
EXTEND A GRIEVANCE TO COVER NONGRIEVANTS. THE EXISTENCE OF THAT
PROVISION FURTHER MAKES THIS CASE DISTINGUISHABLE FROM THE COURT'S
DECISION IN MICHELSON'S FOOD SERVICES, SUPRA. FOR THESE REASONS THE
UNION HAS FAILED TO DEMONSTRATE THAT THE ARBITRATOR EXCEEDED HIS
AUTHORITY OR THAT THE AWARD FAILS TO DRAW ITS ESSENCE FROM THE
AGREEMENT. THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR
FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF
THE AUTHORITY'S RULES AND REGULATIONS.

AS PREVIOUSLY INDICATED, THE AGENCY ALSO TOOK EXCEPTION TO A PORTION
OF PART 4 OF THE ARBITRATOR'S AWARD. HOWEVER, THAT EXCEPTION WAS
SUBMITTED AS PART OF THE AGENCY'S OPPOSITION TO THE UNION'S EXCEPTION
WHICH WAS FILED WITH THE AUTHORITY ON MAY 13, 1980. SECTION 2425.1(B)
OF THE AUTHORITY'S REGULATIONS, 5 CFR 2425.1(B)(1980), PROVIDES:

THE TIME LIMIT FOR FILING AN EXCEPTION TO AN ARBITRATION AWARD IS
THIRTY (30) DAYS

BEGINNING ON THE DATE OF THE AWARD.

THE SUBJECT ARBITRATION AWARD IS DATED MARCH 25, 1980. THEREFORE,
UNDER SECTION 2425.1(B) OF THE AUTHORITY'S REGULATIONS THE AGENCY'S
EXCEPTION IS UNTIMELY. IN THIS REGARD, THE AUTHORITY IS NOT EMPOWERED
TO EXTEND OR WAIVE THE TIME LIMIT FOR FILING EXCEPTIONS TO ARBITRATORS'
AWARDS. BECAUSE THE AGENCY'S EXCEPTION WAS UNTIMELY FILED, AND APART
FROM OTHER CONSIDERATIONS, THE AGENCY'S EXCEPTION IS DISMISSED.

FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
AWARD.

ISSUED, WASHINGTON, D.C., JUNE 18, 1981

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ A SUBSIDIARY ISSUE BEFORE THE ARBITRATOR WAS WHETHER ONE OF THE
GRIEVANTS WAS ENTITLED TO A SPECIAL ACHIEVEMENT AWARD. THE ARBITRATOR
DENIED THE GRIEVANCE CONCERNING THAT ISSUE AND THAT PART OF HIS AWARD IS
NOT BEFORE THE AUTHORITY IN THIS CASE.

/2/ ONE OF THE PROVISIONS CONSIDERED BY THE ARBITRATOR WAS ARTICLE 7,
SECTION 15(C)(2) WHICH PROVIDES:

C. IN THE ABSENCE OF AN ADJUSTMENT SATISFACTORY TO AN AGGRIEVED
EMPLOYEE OF ANY MERIT

PROMOTION ACTION INVOLVING AN EMPLOYEE OF THE UNIT WHICH IS
DETERMINED TO HAVE BEEN IN

VIOLATION OF THE PROVISIONS OF THIS AGREEMENT, AND WHICH HAS HAD THE
EFFECT OF DENYING THE

GRIEVANT PROPER CONSIDERATION, CORRECTIVE ACTION WILL BE TAKEN AS
FOLLOWS:

. . . .

2. IF THE EMPLOYEE WAS ERRONEOUSLY OMITTED FROM THE BEST QUALIFIED
   LIST, HE/SHE SHALL

RECEIVE PRIORITY CONSIDERATION (I.E., A CERTIFICATE WHICH CONTAINS
HIS/HER NAME ALONE WILL BE

SUBMITTED TO THE SELECTING OFFICIAL) FOR THE NEXT APPROPRIATE VACANCY
FOR WHICH HE/SHE IS

QUALIFIED. IF MORE THAN ONE EMPLOYEE WERE ERRONEOUSLY OMITTED FROM
THE BEST QUALIFIED LIST,

THE NAMES OF ONLY THOSE EMPLOYEES WILL BE SUBMITTED ON A SINGLE
CERTIFICATE TO THE SELECTING

OFFICIAL FOR THE NEXT APPROPRIATE VACANCY.

/3/ 5 U.S.C. 7122(A) PROVIDES:

(A) 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). IF UPON REVIEW
THE AUTHORITY FINDS THAT

THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS;

THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
CONCERNING THE AWARD AS IT

CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
REGULATIONS.

/4/ THE UNION CITES TO ARTICLE 35, SECTION 2 WHICH DEFINES A
GRIEVANCE AS A "REQUEST FOR PERSONAL RELIEF," TO ARTICLE 35, SECTION 6
WHICH SETS FORTH THE TIME LIMITS WITHIN WHICH A GRIEVANCE MUST BE FILED
TO HAVE IT PURSUED TO ARBITRATION UNDER THE AGREEMENT, AND TO ARTICLE
35, SECTION 10 WHICH PROHIBITS ISSUES FROM BEING RAISED IN A GRIEVANCE
UNLESS THEY HAVE BEEN RAISED AT STEP 1 OF THE GRIEVANCE PROCEDURE OR ARE
MUTUALLY INTRODUCED BY THE PARTIES.

/5/ THE UNION SUBMITTED TO THE AUTHORITY A COPY OF AN AGENCY
"DOCUMENT" WHICH THE UNION ALLEGES CONTRADICTS ARGUMENTS MADE BY THE
AGENCY IN ITS OPPOSITION. HOWEVER, THAT DOCUMENT WHICH ON ITS FACE IS
CHARACTERIZED AS AN "INFORMATION SERVICE . . . TO DESCRIBE LABOR
RELATIONS TRENDS" PROVIDES NO BASIS FOR DISCREDITING THE STATEMENTS MADE
BY THE AGENCY IN ITS OPPOSITION.