Internal Revenue Service, National Computer Center, Martinsburg, West Virginia (Agency) and National Treasury Employees Union (Union)



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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 BA