34:0355(67)AR - U.S. DEPARTMENT OF THE TREASURY IRS, MEMPHIS SERVICE CENTER and NTEU -- 1990 FLRAdec AR



[ v34 p355 ]
34:0355(67)AR
The decision of the Authority follows:


  34 FLRA NO. 67
  
           U.S. DEPARTMENT OF THE TREASURY
               INTERNAL REVENUE SERVICE
                MEMPHIS SERVICE CENTER

                         and

           NATIONAL TREASURY EMPLOYEES UNION

                       0-AR-1586

			DECISION

    		   January 18, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator David A. Singer, Jr. filed by the National
Treasury Employees Union (the Union) under section 7122(a) of the
Federal Service Labor - Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations.
The Internal Revenue Service, Memphis Service Center (the Agency)
filed an opposition to the exceptions. The Union filed a reply
brief to the Agency's opposition. Because the Union did not seek
permission to file such a document as required by section 2429.26
of the Authority's Rules and Regulations, we have not considered
the document in this decision.

     The issue presented to the Arbitrator was whether the
grievant's 3-day suspension was appropriate for her offense. The
Arbitrator sustained the suspension.

     For the reasons set forth below, we find that the Union has
failed to demonstrate that the award is contrary to law, rule, or
regulation or that it is deficient on other grounds as set forth
in section 7122(a). Therefore, we deny the exceptions.

II. Procedural Issue

     The agency argues that the Union's exceptions were filed
untimely and should be dismissed. We find that the exceptions
were timely filed.

     The time limit for filing an exception to an arbitration
award is 30  days beginning on the date the award is served on
the filing party. 5 U.S.C. 7122(b) and 5 C.F.R. 2425.1(b). The
date of service is the day the matter served is deposited in the
U.S. mail or is delivered in person. 5 C.F.R. 2429.27(d).
Whenever a party is served by mail, 5 days are added to the
prescribed period. 5 C.F.R. 2429.22. See U.S. Immigration and
Naturalization Service and American Federation of Government
Employees, Local 1917, 33 FLRA  843 (1988).

     The Arbitrator sent his award to the American Arbitration
Association (AAA). Mailing to the AAA is not service on the
filing party within the meaning of the Authority's Rules and
Regulations. 5 C.F.R. 2429.27. The AAA mailed the Arbitrator's
award to the Union on June 16, 1988. Therefore, the 30-day time
limit for the Union to file its exceptions with the Authority
began on June 16, 1988. Because the award was served by mail, 5
days were added to June 16, 1988. In order for the exceptions to
be timely filed, the exceptions had to be mailed to the Federal
Labor Relations Authority and postmarked by the U.S. Postal
Service no later than July 20, 1988. The postmarked date of the
Union's exceptions was July 15, 1988. Accordingly, the exceptions
were timely filed.

III. Background and Arbitrator's Award

     The grievant was suspended for 3 days because she violated
the Internal Revenue Service (IRS) Rules of Conduct by not
reporting that, at the request of another employee, she gained
access to tax records of an employee without a legitimate reason.
A grievance was filed and ultimately was arbitrated.

     The Arbitrator sustained the grievance, finding that the
grievant's suspension was appropriate. The Arbitrator found that
Article 38 of the parties' collective bargaining agreement
required that "in deciding what disciplinary action may be
appropriate, the employer must consider the 'nature and
seriousness of the offense.'" Award at 3. The Arbitrator stated
that he found the "unauthorized accessing of tax records to be
serious." Id. 

     In addition, the Arbitrator found that the grievant knew or
should have known the IRS rule of conduct that required employees
to report acts of misconduct, and that the grievant should have
reported her misconduct "and possibly mitigated her own
punishment." Id. The Arbitrator also noted that he was convinced
by the evidence that mitigating circumstances were present in
cases where employees, who were guilty of the same misconduct,
had received a less severe penalty. Therefore, the Arbitrator
concluded that the discipline imposed on the grievant was
consistent with the discipline imposed on other employees.

     In response to the Union's assertion that the grievant "was
not accorded the benefits of progressive discipline," the
Arbitrator indicated that he could not "sustain this particular
grievance because of the absence of a progressive discipline
program where none is specified in the Agreement." Id. In
addition, he noted that "(t)he formalization of a progressive
discipline program is a matter for negotiations by the parties,
not the task of the Arbitrator." Id.

IV. The Union's Exceptions

     The Union raises two exceptions to the Arbitrator's award:
(1) the award is in violation of law, rule, and regulations and
(2) the award fails to draw its essence from the collective
bargaining agreement.

     In support of its first exception, the Union argues that
"Arbitrator Singer's conclusion that the concept of progressive
discipline does not apply in labor-management relations between
the Union and the Agency is not in accord with 'law, rule or
regulation.'" Union's Exceptions at 10. The Union specifically
argues that the award is contrary to Federal Personnel Manual
(FPM) chapter 751, subchapter 1, section 1-2(b). According to the
Union, this section of the FPM incorporates the doctrine of
progressive discipline. Id. at 9-10. The Union argues also that
the award is "contrary to law, rule, and regulation" because the
award is "flatly contradicted" by Part 751.15 of the Internal
Revenue Manual (IRM). Id. at 11. According to the Union, Part
751.15 of the IRM sets out "the concept of progressive discipline
. . . unequivocally." Id.

     In its second exception, the Union argues that the
Arbitrator's award does not draw its essence from the parties'
agreement. According to the Union, Article 38,  Section
1(F) of the parties' collective bargaining agreement incorporates
the doctrine of progressive discipline. Union's Exceptions at
13-14. The Union argues that Article 38, Section 1(F) of the
agreement mandates that management consider any mitigating
circumstances when deciding what disciplinary action may be
appropriate. Id. In addition, the Union argues that the
Arbitrator erred in concluding that the parties' agreement does
not incorporate progressive discipline because Article 2
incorporates into the agreement the provisions of the FPM and the
IRM concerning progressive discipline.

V. The Agency's Opposition

     In addition to its argument that the Union's exceptions are
untimely, the Agency argues that the award is not contrary to
law, rule or regulation. According to the Agency, "no law, rule,
or regulation requires progressive discipline as defined by the
(U)nion." Agency's Opposition at 2. The Agency argues that the
FPM, the IRM, and the parties' agreement only require that a
reasoned decision be made before an employee is disciplined.

     Finally, the Agency asserts that the agreement does not
incorporate the doctrine of progressive discipline as alleged by
the Union. According to the Agency, Article 38 of the agreement
provides a framework to "ensure that a reasoned and reasonable
penalty is meted out." Id. at 3. Thus, the Agency argues that the
award draws its essence from Article 38, Section 1(F) of the
agreement.

     The Agency suggests that if the Authority sets aside the
Arbitrator's award, the appropriate remedy would be to remand the
case to the Arbitrator for reconsideration of the penalty issue.
The Agency asserts that if the case is remanded, the Union should
not be allowed to introduce additional case law relevant to the
penalty issue. According to the Agency, the parties have a
contractual obligation under Article 43 of the agreement to
submit all evidence before the close of the hearing.

VI. Analysis and Conclusions

     We conclude that the Union has not established that the
Arbitrator's award is deficient on any of the grounds set forth
in section 7122(a) of the Statute. Specifically, the Union has
failed to establish that the award is contrary to any law, rule,
or regulation or that the award is deficient on any
other ground similar to those applied by Federal courts in
private sector labor-management relations.

     A. The Union Has Not Demonstrated that the Arbitrator's
Award is Inconsistent with the FPM or the IRM

     We conclude that the Union has not demonstrated that the
Arbitrator's award sustaining the discipline of the grievant
conflicts with the requirements of FPM chapter 751, subchapter 1,
section 1-2(b) or Part 751.15(7) of the IRM because the
Arbitrator found that the employee was not penalized out of
proportion to the character of the offense. The Arbitrator found
that the unauthorized accessing of tax records was "serious," and
that the discipline imposed was consistent with penalties imposed
on other employees guilty of the same misconduct. Award at 3.

     The Union has not shown that the grievant's discipline was
"out of proportion to the character of the offense" as discussed
in the FPM, or that the grievant's offense was relatively minor
so as to require progressive discipline under the IRM. Therefore,
we reject the Union's argument that the award conflicts with the
FPM and the IRM.

     B. The Award Draws Its Essence from the Parties' Collective
Bargaining Agreement

     The Union also claims that the award fails to draw its
essence from the parties' agreement. The Union, however, has not
demonstrated that the award is deficient under the tests set
forth in General Services Administration, Region 4, Kennedy Space
Center, Florida and American Federation of Government Employees,
Council 236, 32 FLRA  1293 (1988). In that case, the Authority
held that in order for an award to be found deficient on the
basis that it does not draw its essence from the agreement, the
party making the allegation must demonstrate that the award: (1)
cannot in any rational way be derived from the agreement; or (2)
is so unfounded in reason and fact, and so unconnected with the
wording and purpose of the agreement, as to manifest an
infidelity to the obligation of the arbitrator; or (3) evidences
a manifest disregard for the agreement; or (4) does not represent
a plausible interpretation of the agreement. Id. at 1297.

     The Union has not demonstrated that the Arbitrator's award
does not draw its essence from the agreement under any 
of these tests. The Arbitrator referred to and considered the
parties'