United States, Department of the Treasury, Internal Revenue Service, Denver, Colorado (Agency) and National Treasury Employees Union, Chapter 32 (Union)

[ v60 p572 ]

60 FLRA No. 114







January 14, 2005


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Norman Brand filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      As relevant here, the Arbitrator found that the Agency violated § 7116(a)(1) and (5) of the Statute when it refused to bargain with the Union over certain portions of the Union's leave swapping proposal. As a remedy, the Arbitrator ordered the Agency to bargain with the Union. For the following reasons, we find that the award is deficient.

II.      Background and Arbitrator's Award

      During the term of the parties' collective bargaining agreement, one of the Agency's Directors formed a leave committee consisting of Agency and Union representatives. The purpose of the committee was to develop "proposals that would alleviate . . . leave problems (such as AWOL and inability to get needed time off)[.]" Award at 7. The committee developed a proposed annual leave agreement, which included a leave swapping proposal. The proposal was never adopted.

      Subsequently, the Union requested to bargain over several proposals, including the leave swapping proposal, and the Agency refused to bargain. A grievance was filed alleging that the Agency violated § 7116(a)(1) and (5) of the Statute by refusing to bargain over the proposals. Unresolved, the grievance was submitted to arbitration, where the parties stipulated the following issues:

Whether the agency violated 5 U.S.C. §§ 7116(a)(1) and (5) when it declined to enter into negotiations over proposals submitted by the Union . . . because it asserted that the proposals were outside the duty to bargain?
If so, what shall be the remedy?

Id. at 2.

      The Arbitrator found that the Union's leave swapping proposal was neither covered by, nor inseparably bound up with, Article 32 of the parties' national agreement. [n2]  In this regard, the Arbitrator determined that Article 32, § 1.C. "does not speak to the situation in which an employee chooses not to use approved leave." Id. at 14. According to the Arbitrator, that provision "only governs how the [A]gency will initially assign annual leave." Id. Finding that the Union's proposal "covers an entirely different subject - what happens when an employee does not want to use the leave he or she has been granted[,]" the Arbitrator found that the Agency had a duty to bargain over the proposal. Id. at 15.

      The Arbitrator further found that the proposal did not affect the Agency's right to assign work because it concerns only leave that the Agency has already approved and because the Agency retains the right to cancel the approved leave. Nevertheless, the Arbitrator clarified that "[a]ny program of annual leave swapping must preserve management's right to determine that employees with skills to meet its staffing needs are available at the times they are needed." Id. Consequently, the Arbitrator determined that, "to the extent the leave swapping program contains a provision that equates `skills' with being `in the same job series,' it impinges on the non-negotiable right of management to assign work." Id.

      Based on the foregoing, the Arbitrator determined that the Agency violated the Statute by refusing to bargain over the negotiable aspects of the Union's leave swapping proposal. To remedy the violation, the Arbitrator ordered the Agency to "engage in good faith negotiations over the Union['s] proposals that are negotiable." Id. at 16. [ v60 p573 ]

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency claims the Arbitrator erred in finding that it had a duty to bargain over the Union's leave swapping proposal. In this connection, the Agency asserts that the proposal is "clearly an aspect of the granting of annual leave[,]" which is covered by the parties' agreement. Exceptions at 5. Specifically, the Agency claims that the proposal is "inseparably bound up" with the agreement. Id. at 5-6. According to the Agency, the proposal "provides a process for resolving . . . conflicts in obtaining approval for annual leave . . . by allowing an employee with approved leave to transfer that approval to another employee whose leave request has not been approved by management." Id. at 6. The Agency asserts that such conflicts are already resolved under the parties' agreement by "granting preference to the employees with the most service . . . ." Id. at 7. In the Agency's view, the Union's leave swapping proposal would circumvent this process.

      The Agency also argues that the award violates its right to assign work under § 7106(a)(2)(B) of the Statute because it "directly interferes" with its ability to approve or disapprove annual leave requests. Id. at 11. In this regard, the Agency argues that the proposal effectively removes its authority to approve leave for the employee acquiring the leave through a swap because "the proposal only requires that one of the two employees involved in the swap have approved leave." Id. at 10. According to the Agency, the proposal is neither a negotiable procedure nor an appropriate arrangement under the Statute.

B.      Union's Opposition

      According to the Union, the Arbitrator correctly determined that "Article 32 § 1C applies to situations where employees have conflicting requests for leave, while the swapping proposals apply in situations where there are no conflicts but only willing employees arranging the use of pre-approved annual leave." Opposition at 12. The Union claims the award is consistent with the Authority's decision in United States Customs Serv., Customs Mgt. Ctr., Miami, Fla., 56 FLRA 809 (2000) (Customs Service), wherein the Authority "look[s] more closely at the purpose of the provisions and proposals, as well as the factual circumstances under which each would be implicated." Id.

      The Union disputes the Agency's claim that the leave swapping proposal affects the Agency's right to assign work. In this connection, the Union asserts that the Agency has already approved the leave addressed in the proposal and it retains the right to cancel that leave. The Union also points out that the Arbitrator limited the applicability of the proposal to employees that have the same skills and qualifications, as determined by management. See id. at 6. According to the Union, the leave swapping proposal is negotiable as either a procedure or an appropriate arrangement under the Statute.

IV.      The Award Is Deficient

      The Authority reviews the questions of law raised by the award and the Agency's exceptions de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      In a grievance alleging an unfair labor practice (ULP) by an agency, the union bears the burden of proving the elements of the alleged unfair labor practice by a preponderance of the evidence. See Social Security Admin. Headquarters, Balt., Md., 57 FLRA 459, 460 (2001) (citing AFGE, Nat'l Border Patrol Council, 54 FLRA 905, 909 (1998)). Here, the Union alleged that the Agency committed a ULP by refusing to bargain over the Union's leave swapping proposal and the Agency claimed it had no duty to bargain over the proposal because it was covered by the parties' agreement.

      The "covered by" doctrine is a well established defense to a claim that an agency failed to provide a union with notice and an opportunity to bargain over changes in conditions of employment. United States Dep't of the Interior, Wash., D.C., 56 FLRA 45, 53 (2000). In this regard, the "covered by" doctrine excuses parties from bargaining on the ground that they have already bargained and reached agreement concerning the matter at issue. United States Dep't of Health and Human Services, Social Security Admin., Balt., Md., 47 FLRA 1004, 1015 (1993). The doctrine has two prongs. Under the first prong, if a party seeks to bargain over a matter that is expressly addressed by the terms of the parties' collective bargaining agreement, then the other party may properly refuse to bargain over the matter. See Customs Service, 56 FLRA at 814. Under the second prong, if a matter is not expressly addressed by the terms of the parties' collective bargaining agreement, but is nonetheless inseparably bound up with and, thus, an aspect of a subject covered by the terms of the agreement, then the other party may also properly refuse to bargain over the matter. Id.

      The Union's leave swapping proposal would allow an employee who does not wish to use approved leave to transfer the leave period to another employee, without regard to whether that employee has approved leave or whether management has approved that employee's absence. By its plain terms, the proposal involves not only the disposition of leave already granted to one [ v60 p574 ] employee, but also the granting of leave to another employee -- namely, the recipient of the swapped leave -- by allowing the employee with approved leave to give that leave to another employee, whether or not the recipient has been granted leave. That is, contrary to the Arbitrator's conclusion, the proposal concerns not only the disposition of leave already granted to one employee, but also the granting of leave to a second employee.

      Also contrary to the Arbitrator's conclusion, Article 32 does not concern only the Agency's role in initially granting leave. As plainly worded, Article 32 concerns the Agency's role in both granting and denying annual leave. As relevant here, Article 32, § 1.C provides that "the [Agency] will resolve a conflict in requests" for annual leave "by granting preference to the employee with the most service . . . ." Award at 3 (quoting the parties' agreement). As such, Article 32, § 1.C permits the Agency to approve and deny annual leave requests. Furthermore, this provision dictates that, where more than one employee requests leave for the same time period, the request of the most senior employee requesting leave for that time period should be granted.

      We conclude that, as argued by the Agency, the Union's proposal would circumvent the process set forth in Article 32, § 1(C) by permitting an employee with approved annual leave who decides not to use that leave to grant annual leave to any employee, whether or not there is a more senior employee who has requested leave for that same period. Consequently, we conclude also that the Arbitrator erred in determining that the Union's proposal "covers an entirely different subject[.]" Id. at 15. As the standards for granting leave are expressly addressed by the parties' agreement, the Union's leave swapping proposal is covered by the agreement and the Agency has no duty to bargain.

      The Union's arguments, in reliance on the Authority's decision in Customs Service, do not compel a different result. In Customs Service, the Authority explained that, under prong 1 of the "covered by" doctrine, if a contract provision does not expressly encompass the subject matter addressed in a proposal, then it will, pursuant to prong 2, examine the parties' bargaining history and intent to determine whether the matter sought to be bargained is an aspect of matters already negotiated. See Customs Service, 56 FLA at 814. This analysis is unnecessary in this case because the matter the Union sought to negotiate is expressly encompassed by the parties' agreement.

V.      Decision

      The portion of the award finding a violation of the Statute for the Agency's refusal to bargain over the Union's leave swapping proposal is set aside. [n3] 


Article 32
Annual Leave

Section 1

A.      The Employer has determined that annual leave will be granted in a manner which permits each employee who wishes to take at least two (2) consecutive weeks of annual leave each year, unless permitting such leave causes a severe work interruption. Upon request, any denial of annual leave must be accompanied by a written statement of the reasons for the denial. Employees may utilize annual leave in fifteen (15) minute increments. Annual leave may not be charged in increments of less than fifteen (15) minutes.

      . . . .

C.      Subject to its right to assign work, the Employer will resolve a conflict in requests by employees in the same occupation for scheduled annual leave by granting preference to the employee with the most service as determined by enter on duty (EOD) date. An employee's approved annual leave will not be disapproved if an employee with an earlier EOD date subsequently requests leave for the same period.

Section 2

The Employer may approve a change in selection of leave time provided another employee's choice is not affected.

Section 6

A.      The granting of advanced leave by the Employer is discretionary. However, the Employer has determined that when an employee requesting advanced annual leave:

     1.      has completed his/her probationary or trial period;

     2.      has served more than ninety (90) days in his or her current appointment;

     3.      is eligible to earn annual leave;

     4.      does not request more advanced annual leave than would be earned during the remainder [ v60 p575 ] of the leave year or for the remainder of the period during which the employee will be employed; and

     5.      is not on a leave restriction letter or has not been the subject of a leave related action covered by Article 38, or any action covered by Article 39, and/or 40 within the last twelve (12) months, then the request will be granted.

Award at 3-4 (quoting the parties' agreement).

Leave Swapping Program [Proposal]

1.      If an employee [with] pre-approved annual leave determines they [sic] do not want to use their pre-approved annual leave, the employee will send a message to the Systems Office with a courtesy copy to his/her manager.

2.      A Systems Analyst will input the information in the Denver Web Page Leave Swapping link.

3.      Other employees can access the Denver Web Page Leave Swapping link and determine if they have the desired accrued annual leave balance and are interested in swapping approved leave.

4.      Employee must have the same skills as the swapper. If the employees are in the same job series, they will send a brief Aspect message to the other employee expressing an interest to swap.

5.      Leave swapping discussions may be done utilizing Aspect. Once verbal agreement is made, the employees need to sign a leave swap form. This should be done at a time when they are not scheduled to be on the phones.

6.      The employee with the pre-approved annual leave "owns" this time. It is up to the leave owner to determine the trade.

7.      A locally developed form titled "Leave Swap" to affirm the trade must be completed and singed by both employees. Both must retain copies and also provide copies to their manager and the Systems Office within 3 working days. Once the form is signed, the swap is completed and cannot be negated unless agreed to by both employees.

8.      Upon receipt of the singed Leave Swap form, the Systems Office will update the Denver Web Page Leave Swapping link information.

Id. at 6 (quoting the Union's proposal).

Concurring opinion of Chairman Cabaniss:

      I write separately to note that the proposal in question as interpreted by the Arbitrator would also appear to conflict impermissibly with the Agency's right under § 7106(a)(2)(B) to assign work.

      As the majority opinion correctly notes, the award here affects both the Agency's right to grant leave and to deny leave. The Authority has found that the right to assign work under § 7106(a)(2)(B) includes the right to determine the particular duties to be assigned, the right to decide when work assignments will occur, and the right to decide to whom or what positions the duties will be assigned. See AFGE, 58 FLRA 341, 343 (2003). Proposals or provisions which require an agency to approve leave requests directly interfere with an agency's right to assign work. See NTEU, 46 FLRA 696, 697-98 (1992). As for proposals or provisions meant to be appropriate arrangements under § 7106(b)(3), the proposal here would substantively affect the decisions the Agency can make regarding whether to approve or deny leave for employees. Proposals and provisions which negate how an agency proposes to exercise its rights under § 7106(a) excessively interfere with that § 7106(a) right and do not constitute an appropriate arrangement under § 7106(b)(3). See, e.g., IFPTE, Local 1, 49 FLRA 225, 249 (1994) (absolute prohibition on assignment of particular duties to certain employees found to excessively interfere with agency right to assign work); NTEU, Chapter 26, 22 FLRA 314, 325 (proposal that completely abrogated agency right to assign particular employees to perform particular job excessively interfered with right to assign work). As a result, I also would find that the award should be set aside because it impermissibly conflicts with the Agency's right