34:0355(67)AR - U.S. DEPARTMENT OF THE TREASURY IRS, MEMPHIS SERVICE CENTER and NTEU -- 1990 FLRAdec AR
[ v34 p355 ]
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' collective bargaining agreement in reaching his conclusion. For example, the Arbitrator noted that Article 38 of the collective bargaining agreement requires that management consider the nature and seriousness of the offense in taking disciplinary action. The Arbitrator concluded that unauthorized accessing of tax records was serious. Award at 3. The Union has not demonstrated that the Arbitrator's award is deficient because it does not draw its essence from the collective bargaining agreement. It is not necessary to resolve the Union's argument that the Arbitrator incorrectly found that the parties did not include progressive discipline in their agreement. As we found above, the Union has not demonstrated that the award conflicts with FPM chapter 751 or Part 751.15(7) of the IRM. Thus, even if the Union is correct in arguing that the concept of progressive discipline should have been applied in this case by the Arbitrator, the Union has nonetheless failed to show that had the Arbitrator considered that concept, he would been precluded from finding that the 3-day suspension of the grievant was appropriate for her offense. Consequently, the award is not deficient even if the parties' agreement had incorporated the FPM or IRM regulations. The Union is simply disagreeing with the Arbitrator's interpretation of the agreement, and such an argument does not provide a basis for finding the award deficient. See American Federation of Government Employees, Local 1917 and Department of Justice, Immigration and Naturalization Service, 33 FLRA 412 (1988). VII. Decision The Union's exceptions are denied.