Internal Revenue Service, National Computer Center and National Treasury Employees Union (Authority decision, February 10, 1982)

Final FLRA decision. The Authority denied the IRS's exceptions and left in place an arbitration award requiring removal of an employee reprimand. An Authority order under 5 U.S.C. § 7122 concerning an arbitration award is excluded from judicial review by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice; this order addresses an arbitration grievance and does not decide an unfair labor practice.

Plain-English summary

An IRS supervisor directed an employee to meet without a union representative. The employee declined unless a representative could attend, and the IRS issued a reprimand for insubordination. An arbitrator found that the employee reasonably expected possible discipline and was entitled to representation, so he ordered the reprimand removed. The IRS challenged that award, arguing that the employee had violated its conduct handbook. The Authority found that the IRS was repeating its disagreement with the arbitrator's reasoning and denied its exceptions. The order left the reprimand's removal in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Agency exceptions denied; reprimand removal upheld.
• Key point: A qualified refusal to meet without requested union representation did not require the arbitrator to find insubordination.

Full text (FLRA public release)

[ v08 p100 ]

08:0100(19)AR

The decision of the Authority follows:

8 FLRA No. 19

INTERNAL REVENUE SERVICE,
NATIONAL COMPUTER CENTER,
MARTINSBURG, WEST VIRGINIA
Agency

and

NATIONAL TREASURY EMPLOYEES
UNION
Union

Case No. 0-AR-156

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR CLAIR V. DUFF FILED BY THE AGENCY UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR PART 2425). THE UNION FILED AN OPPOSITION. /1/

ACCORDING TO THE ARBITRATOR'S AWARD, THIS MATTER CONCERNS THE DEMAND
OF THE GRIEVANT'S IMMEDIATE SUPERVISOR THAT THE GRIEVANT MEET WITH HER
WITHOUT HIS UNION REPRESENTATIVE. THE GRIEVANT REFUSED TO TAKE PART IN
THE MEETING UNLESS HIS UNION REPRESENTATIVE COULD BE PRESENT AND
CONSEQUENTLY THE MEETING NEVER TOOK PLACE. A LETTER OF OFFICIAL
REPRIMAND WAS ISSUED TO THE GRIEVANT FOR INSUBORDINATION ON THE BASIS OF
THIS REFUSAL, AND A GRIEVANCE WAS FILED AND ULTIMATELY SUBMITTED TO
ARBITRATION PROTESTING THE REPRIMAND.

THE ARBITRATOR CAREFULLY EXAMINED THE SITUATION IN THIS CASE AND
DETERMINED THAT THERE WAS NO CULPABLE CONDUCT ON THE PART OF THE
GRIEVANT. ON THE BASIS OF THE EVIDENCE PRESENTED, THE ARBITRATOR
EXPRESSLY FOUND THAT THE GRIEVANT REASONABLY BELIEVED THAT THE MEETING
CALLED BY HIS SUPERVISOR MAY HAVE RESULTED IN DISCIPLINARY ACTION
AGAINST HIM. THE ARBITRATOR FOUND THAT THE GRIEVANT WAS THEREFORE
ENTITLED TO UNION REPRESENTATION AND HIS SUPERVISOR WAS OBLIGATED TO
HONOR HIS REQUEST FOR SUCH REPRESENTATION IF THE MEETING WERE TO
PROCEED. MOREOVER, THE ARBITRATOR EMPHASIZED THAT THE GRIEVANT HAD
EXPRESSLY INDICATED THAT HE WAS WILLING TO PROCEED WITH THE MEETING
PROVIDED HIS RIGHT TO UNION REPRESENTATION WAS HONORED. CONSEQUENTLY,
THE ARBITRATOR RULED THAT NO REPRIMAND WAS MERITED FOR THE GRIEVANT'S
REFUSAL TO MEET ALONE WITH HIS SUPERVISOR WITHOUT UNION REPRESENTATION.
TO THE ARBITRATOR SUCH A PROPERLY QUALIFIED REFUSAL WAS NOT
INSUBORDINATE UNDER THE CIRCUMSTANCES AND DID NOT VIOLATE THE AGENCY'S
HANDBOOK OF EMPLOYEE RESPONSIBILITIES AND CONDUCT. ACCORDINGLY, AS HIS
AWARD, THE ARBITRATOR DIRECTED THAT THE REPRIMAND BE REMOVED FROM THE
GRIEVANT'S PERSONNEL FILE.

IN ITS EXCEPTIONS, THE AGENCY CONTENDS THAT THE AWARD IS DEFICIENT
BECAUSE THE ARBITRATOR WAS COMPELLED BY THE CIRCUMSTANCES OF THIS CASE
TO HAVE FOUND THAT THE GRIEVANT WAS INSUBORDINATE AND IN VIOLATION OF
THE HANDBOOK OF EMPLOYEE RESPONSIBILITIES AND CONDUCT. HOWEVER, THE
EXCEPTIONS IN NO MANNER ESTABLISH THAT THE ARBITRATOR'S AWARD IS
DEFICIENT. AS NOTED, THE ARBITRATOR DETERMINED THAT THE GRIEVANT WAS
ENTITLED TO UNION REPRESENTATION AT THE MEETING AND THAT CONSEQUENTLY
HIS PROPERLY QUALIFIED REFUSAL TO MEET WITH HIS SUPERVISOR WAS NOT
INSUBORDINATE. THUS, HE CONCLUDED THAT UNDER THESE CIRCUMSTANCES THE
HANDBOOK WAS NOT VIOLATED AND THERE WAS NO BASIS FOR THE REPRIMAND GIVEN
THE GRIEVANT. IN ARGUING THAT THE ARBITRATOR WAS REQUIRED TO FIND A
VIOLATION OF THE HANDBOOK, THE AGENCY IS ESSENTIALLY DISAGREEING WITH
THE ARBITRATOR'S REASONING AND CONCLUSIONS IN ARRIVING AT HIS AWARD AND
IS ATTEMPTING TO RELITIGATE THE MERITS OF THE GRIEVANCE BEFORE THE
AUTHORITY. SUCH ASSERTIONS PROVIDE NO BASIS FOR FINDING AN AWARD
DEFICIENT. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2206 AND
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION,
SOUTHEASTERN PROGRAM SERVICE CENTER, 6 FLRA NO. 103(1981).

FOR THE FOREGOING REASONS THE AGENCY'S EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., FEBRUARY 10, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ IN ITS OPPOSITION, THE UNION ALSO ALLEGES THAT THE AGENCY'S
EXCEPTIONS SHOULD BE DISMISSED BECAUSE OF THE AGENCY'S FAILURE TO COMPLY
WITH VARIOUS PROCEDURAL REQUIREMENTS OF THE AUTHORITY'S RULES AND
REGULATIONS. HOWEVER, THE AUTHORITY FINDS NO BASIS FOR DISMISSING THE
EXCEPTIONS ON THIS BASIS AND THE MATTER IS PROPERLY BEFORE THE AUTHORITY
FOR DECISION.