Internal Revenue Service, Philadelphia Regional Office (Activity) and National Treasury Employees Union, Chapter 22 (Union) (Authority decision, March 24, 1982)

Final FLRA decision. The Authority resolved exceptions to an arbitral award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116; this decision does not decide one.

Plain-English summary

An arbitrator sustained an IRS employee’s grievance over a one-day suspension because the agency did not give the advance notice required by the collective bargaining agreement. The IRS argued that the arbitrator disregarded a past practice and misread the contract. The Authority found that those arguments disagreed with the arbitrator’s interpretation and remedy but did not establish a legal defect. It denied the agency’s exception and left the award in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: The award sustaining the suspension grievance was upheld.
• Key point: Disagreement with an arbitrator’s contract reading did not show that the award was deficient.

Full text (FLRA public release)

[ v08 p260 ]

08:0260(58)AR

The decision of the Authority follows:

8 FLRA No. 58

INTERNAL REVENUE SERVICE,
PHILADELPHIA REGIONAL OFFICE
Activity

and

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 22
Union

Case No. O-AR-182

DECISION

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

ACCORDING TO THE ARBITRATOR'S AWARD, A GRIEVANCE WAS FILED
CHALLENGING THE ONE-DAY SUSPENSION OF THE GRIEVANT. REJECTING THE
ACTIVITY'S ARGUMENT THAT IT HAD ACTED IN A MANNER CONSISTENT WITH AN
ESTABLISHED PAST PRACTICE, THE ARBITRATOR FOUND THAT THE ACTIVITY HAD
FAILED TO GIVE THE PROPER ADVANCE NOTICE OF THE SUSPENSION AS REQUIRED
BY THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. ACCORDINGLY, AS HIS
AWARD, THE ARBITRATOR SUSTAINED THE GRIEVANCE.

IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD DOES NOT DRAW ITS
ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT. IN SUPPORT THE AGENCY
PRINCIPALLY ARGUES THAT THE ARBITRATOR WENT OUTSIDE THE PARTIES'
AGREEMENT AND IGNORED EVIDENCE OF A PAST PRACTICE REGARDING THE
NOTIFICATION OF EMPLOYEES BEFORE SUSPENSIONS WERE IMPOSED. THE AGENCY
FURTHER CLAIMS THAT THE AGREEMENT'S 15-DAY NOTICE REQUIREMENT DOES NOT
APPLY AND THAT SUSTAINING THE GRIEVANCE IN THIS CASE WITHOUT A
DISCUSSION OF THE MERITS IS IMPROPER UNDER THE AGREEMENT. ACCORDING TO
THE AGENCY, THE ARBITRATOR CONSEQUENTLY HAS ALTERED THE PARTIES'
AGREEMENT AND IMPOSED AN OBLIGATION NOT SPECIFICALLY PROVIDED FOR UNDER
THE TERMS OF THE AGREEMENT.

THE AGENCY'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
DEFICIENT UNDER THE STATUTE. THE AGENCY IS ESSENTIALLY DISAGREEING WITH
THE ARBITRATOR'S INTERPRETATION AND APPLICATION OF THE AGREEMENT,
INCLUDING HIS REJECTION OF THE CLAIMED PAST PRACTICE, AND WITH THE
REMEDY HE FORMULATED FOR THE VIOLATION OF THE AGREEMENT. SUCH
DISAGREEMENT FAILS TO ESTABLISH THAT THE AWARD DOES NOT DRAW ITS ESSENCE
FROM THE AGREEMENT AND DOES NOT CONSTITUTE A BASIS FOR FINDING THE AWARD
DEFICIENT. E.G., LETTERKENNY ARMY DEPOT AND NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1429, 5 FLRA NO. 35 (1981); VETERANS
ADMINISTRATION HOSPITAL, NEWINGTON, CONNECTICUT AND NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES, LOCAL R1-109, 5 FLRA NO. 12 (1981).
ACCORDINGLY, THE AGENCY'S EXCEPTION IS DENIED.

ISSUED, WASHINGTON, D.C., MARCH 24, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY