Internal Revenue Service and NTEU Chapter 66, 0-AR-3506, August 15, 2003, 59 FLRA No. 8.

FLRA affirmed an award in which the arbitrator interpreted the contract as requiring that stewards requesting official time be released from their duties "unless reasonable efforts have first been made to augment and reassign staff, including unit managers, in order to grant such requests and, despite such reasonable efforts, the presence of the requesting union stewards at their work stations is essential to the performance of the Agency's responsibilities."

The union filed an institutional grievance, which was referred to arbitration, alleging that the agency violated the Article 9, Section 2 when it denied official time to the union's Chief Steward and stewards during March and April, 2001. The contract provision relied upon reads as follows:

Stewards and employees wishing to use official time under this article will check with their managers and will be released provided their work requirements or work schedules do not prohibit release.

The arbitrator noted that the parties were in agreement that the agency had the right under the above provision to impose restrictions on the release of union representatives from their duties. However, he interpreted the provision as requiring the agency, before denying use of official time on workload/scheduling grounds, to first make a reasonable effort to reassign staff, including unit managers, to perform the steward's work. Only if that effort fails to provide substitute personnel could the request be denied.

The agency filed exceptions, claiming, among other things, that the award was contrary to management's right to assign work and that it directly regulated the conditions of employment of supervisory personnel, a permissive subject of bargaining, where the agency had never elected to bargain on permissive matters. It raised an "essence" challenge to the arbitrator's interpretation of the word "their" in the provision's phrase "their work requirements," claiming that it was illogical to infer, as the arbitrator did, that "their" referred not merely to stewards, but also to the stewards' managers.

FLRA rejected the agency's claim that the award was contrary to management's rights, noting that it has already held that section 7131(d) carves out an exception to management's § 7106(a) rights, absent emergency or other special circumstances. See, in this connection, 52 FLRA No. 117, 51 FLRA No. 111, and 45 FLRA No. 30. "The exception," said FLRA, "applies to matters of amount, allocation, and scheduling of official time. See AAFES, 51 FLRA at 1374. . . . Section 2P, as interpreted and applied by the Arbitrator, concerns the scheduling of official time." Moreover, the agency's reliance on a case involving the negotiability of a proposal dealing with the assignment of work to the union president was misplaced, since "the proposal did not concern official time under § 7131(d)."

Nor was the award deficient because it dealt with the working conditions of supervisors, a permissive subject of bargaining.

Matters which implicate the working conditions of managers and supervisors are a permissive subject of bargaining. See, e.g., AFGE Local 3302, 52 FLRA 677, 680-82 (1996) [52 FLRA No. 65] (Member Armendariz concurring). An agency is fully empowered to bargain over, and to choose to agree to, a contract proposal that directly implicates the working conditions of its supervisors and managers. See id. at 681-82. Accordingly, an arbitrator's interpretation and enforcement of a contract provision may directly determine the working conditions of a manager or supervisor. . . .

The Agency argues that it never agreed to such a provision and imposing such terms on it without its consent is contrary to law. However, disagreement with the Arbitrator's interpretation of Section 2P does not establish that imposition of that interpretation conflicts with the Agency's right to choose not to bargain over such matters. When the parties submitted the issue of the Agency's obligations under Section 2P to arbitration, it was the Arbitrator's construction of the agreement for which they bargained. The Agency cannot now challenge that interpretation on the grounds that it is contrary to its election not to bargain.

FLRA also denied the agency's "essence" exception to the arbitrator's interpretation of the word "their." It found that the agency failed to demonstrate that the arbitrator's interpretation was irrational, implausible, or unfounded. "The Arbitrator interpreted the language of Section 2P to require reasonable efforts to augment and reassign staff in order to release stewards. In our view, this constitutes the Arbitrator's interpretation of the word 'their.'"

It also found that the award was not based on a nonfact.

The key to this case is FLRA's determination that the award doesn't affect management's rights to assign work because official time under § 7131(d) is an exception to management's § 7106(a) rights. Were it not for this exception, FLRA would have had to apply the BEP test, with its "excessive interference" Prong II requirement, to determine whether the award was defective.