Adams v. Internal Revenue Service

314 F.3d 1367, 171 L.R.R.M. (BNA) 2837
Court of Appeals for the Federal Circuit·Decided January 8, 2003·No. No. 01-3385·Published·Cited by 1 cases

Opinion

BRYSON, Circuit Judge.

A group of seasonal employees at the St. Louis, Missouri, offices of the Internal Revenue Service (“IRS”) challenge the agency’s decision to place them in nonduty, nonpay status for two weeks each year. An arbitrator upheld the agency’s practice based on his conclusion that the Office of Personnel Management (“OPM”) regulations governing seasonal employment compelled the agency to release the employees in that manner. The employees seek re[1369]*1369view of the arbitrator’s decision. We affirm the arbitrator’s decision in the agency’s favor.

I

The 132 petitioners are employed at the IRS’s customer service call site in St. Louis. From 1984 through 1996, the St. Louis call site employed a number of seasonal employees to answer taxpayer inquiries and adjust taxpayer accounts. During that period, the seasonal employees worked year-round. In 1996, however, IRS regional management directed the local management at the St. Louis call site to place all seasonal employees in nonduty, nonpay status for one two-week pay period each year. The IRS regional management explained that its decision resulted from what it regarded as a need to comply with the pertinent OPM regulations, which define seasonal employment as “annually recurring periods of employment of less than 12 months each year.” 5 C.F.R. § 340.401(a). In response, the local chapter of the National Treasury Employees Union (“NTEU”), the union that represents IRS employees at the St. Louis call site, cooperated with local IRS management to develop a scheduling mechanism that would provide the seasonal employees with some flexibility in selecting their release periods. Under that procedure, each of the seasonal employees was placed in nonduty, nonpay status for one two-week pay period in 1996,1997, and 1998.

In May 1999, local IRS management at the call site informed the seasonal employees that they would again be placed in nonduty, nonpay status for one two-week pay period before the end of the current fiscal year. Accordingly, each of the affected employees was asked to indicate a preference for the pay period for which he or she wished to be released between July 1 and September 30, 1999. This time, however, the local NTEU chapter notified management that it objected to what it characterized as the involuntary furlough of the seasonal employees. The union asserted that the placement of seasonal employees in nonduty, nonpay status violated the seasonal employment provisions of the applicable collective bargaining agreement between the IRS and the NTEU. In particular, the union relied on the provision in the agreement stating that the “sole determinants of the length of time an employee is in pay status are the availability of work and the employee’s standing on the release and recall list.”

The NTEU subsequently asked the IRS for an explanation of the release of the seasonal employees. Local IRS management responded that OPM’s regulations, in particular 5 C.F.R. § 340.401(a), require seasonal employees to be employed for a period of less than 12 months a year. The IRS explained that it could satisfy that regulation by releasing each seasonal employee for one two-week pay period. The NTEU then filed a grievance on behalf of the seasonal employees. When management and the union were unable to settle the dispute, the issue was presented to an arbitrator for decision.

Following a hearing, the arbitrator ruled in favor of the agency. The arbitrator found, based on the agency’s stipulation, that the release of each of the seasonal employees for a two-week period was not ordered because of the unavailability of work. For that reason, the arbitrator concluded that the release of the seasonal employees constituted a furlough that violated the terms of the collective bargaining agreement. The arbitrator further determined, however, that the regulatory definition of seasonal employment mandated that the IRS engage in the “bureaucratic artifice” of an annual furlough. Because the arbitrator concluded that the OPM regulations required that the seasonal employees be released for some period each [1370]*1370year, and that the OPM regulations trumped the provisions of the collective bargaining agreement, the arbitrator denied the NTEU’s grievance.

The petitioners sought review of the arbitrator’s decision pursuant to 5 U.S.C. § 7121(f), which allows this court to review arbitration awards that raise claims involving adverse agency actions under 5 U.S.C. § 7512 in the same manner as if the matter had been decided by the Merit Systems Protection Board. See generally Cornelius v. Nutt, 472 U.S. 648, 105 S.Ct. 2882, 86 L.Ed.2d 515 (1985). Because the arbitrator’s decision addressed the question whether the petitioners were subjected to an adverse action within the meaning of section 7512, ie., a furlough of 30 days or less, this court has jurisdiction under section 7121(f) to review the arbitrator’s disposition of that issue.

II

Federal agencies have hired employees on a seasonal basis for at least the past 40 years. Although there is no express statutory authorization for seasonal employment, OPM has invoked the general authority of the President to prescribe regulations for the admission of individuals into the federal civil service and to govern the competitive service, 5 U.S.C. §§ 3301, 3302, and has promulgated regulations authorizing agencies to hire seasonal employees. See Nat’l Treasury Employees Union v. Merit Sys. Prot. Bd., 743 F.2d 895, 902-03 n. 6 (D.C.Cir.1984); 49 Fed.Reg. 17,722 (Apr. 25, 1984); 60 Fed.Reg. 3061 (Jan. 13, 1995).

OPM’s seasonal employment regulations define seasonal employment as “annually recurring periods of work of less than 12 months each year” and state that “[s]ea-sonal employees are permanent employees who are placed in nonduty/nonpay status and recalled to duty in accordance with preestablished conditions of employment.” 5 C.F.R. § 340.401(a). The OPM regulations, however, do not specify the duration of a season. Instead, they provide that “[ajgencies determine the length of the season, subject to the condition that it be clearly tied to [the] nature of the work.” Id. § 340.402(b).

The OPM regulations require agencies to execute individual employment agreements with each seasonal employee prior to the employee’s entry onto duty, informing the employee that he or she is subject to periodic release and recall as a condition of employment. 5 C.F.R. § 340.402(c). When a seasonal employee is released in accordance with the conditions set forth in the employee’s individual employment agreement, the release does not constitute an adverse action furlough as that term is used in 5 U.S.C.

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Adams v. Internal Revenue Service, 314 F.3d 1367, 171 L.R.R.M. (BNA) 2837 (Fed. Cir. 2003).

314 F.3d 1367 (Adams v. Internal Revenue Service) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Adams v. Internal Revenue Service
314 F.3d 1367 (Federal Circuit, 2003)