43:0686(56)AR - - Treasury, IRS, Phoenix, AZ and NTEU, Chapter 33 - - 1991 FLRAdec AR - - v43 p686



[ v43 p686 ]
43:0686(56)AR
The decision of the Authority follows:


43 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

PHOENIX DISTRICT

(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 33

(Union)

0-AR-2134

DECISION

December 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John Phillip Linn filed by the Agency 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 Union filed an opposition to the exceptions.

The Arbitrator sustained a grievance over the Agency's refusal to provide the Union with certain information requested in connection with a previous arbitration. The Arbitrator directed the Agency to cease its failure to furnish the information and to reimburse the Union for certain expenses incurred as a result of the Agency's failure to furnish the information.

For the following reasons, we conclude that the Agency has not demonstrated that the portion of the award requiring the Agency to cease its failure to furnish information is deficient under section 7122(a) of the Statute. We will deny the Agency's exception to this portion of the award. We conclude that we are without jurisdiction to review the Agency's exceptions pertaining to the portion of the award ordering reimbursement of Union expenses. We will dismiss these exceptions.

II. Background and Arbitrator's Award

In connection with the processing of a previous grievance concerning the Agency's decision to effect a conduct-based reduction in rank and grade of an employee, the Union requested the Agency to provide information concerning penalties imposed for similar conduct throughout the Agency's Southwest Region. When the Agency refused to provide the requested information, the Union produced four witnesses who testified at the arbitration hearing concerning the reduction in rank and grade as to their personal knowledge of such penalties.

Subsequently, the Union filed a separate grievance requesting the Agency to, among other things, supply the information and reimburse the Union for the travel expenses it incurred for its four arbitration witnesses. When the grievance was not resolved, it was submitted to arbitration.

As relevant here, the Arbitrator framed the issue to be resolved as follows:

Did the Agency violate 5 U.S.C. [§] 7116(a)(1), (5) and (8), and/or the parties' Agreement in refusing to provide region-wide information as requested by the Union?

Award at 9.

The Arbitrator rejected the Agency's claim that it was not required to furnish the requested information because only information from the employee's work module or unit could be used in a Merit Systems Protection Board (MSPB) hearing. The Arbitrator found that the Agency was required to furnish the requested information "irrespective of what the MSPB case law may be." Award at 14. Citing U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303 (1991) (IRS, Salt Lake City), petition for review filed sub nom. Department of Treasury, Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Salt Lake City District, Salt Lake City, Utah v. FLRA, No. 91-1287 (D.C. Cir. June 17, 1991), the Arbitrator stated that arguments concerning "discoverability and admissibility of evidence in MSPB proceedings are speculative and provide no basis on which to conclude that the Agency was relieved of its obligation to furnish information under section 7114(b)(4) . . . ." Id. at 12-13. The Arbitrator concluded that the Agency violated section 7116(a)(1), (5), and (8) of the Statute by failing to furnish the Union with the requested information.

To remedy the violation, the Arbitrator ordered the Agency to cease its violation of section 7114(b)(4) of the Statute and to reimburse the Union for the travel expenses incurred on behalf of the four witnesses at the previous arbitration hearing. According to the Arbitrator, the expenses "would not have been incurred but for the Agency's unlawful refusal to provide the Union with information . . . ." Id. at 21-22.

III. First Exception

A. Positions of the Parties

The Agency argues that the Arbitrator's finding that the Agency violated section 7114(b)(4) of the Statute "conflicts with the law of the [MSPB] strictly limiting the production of disparate treatment information." Exceptions at 10. According to the Agency, the MSPB has held that the only relevant disparate treatment information in both performance and conduct cases is information "from the employee's same 'module' or work unit." Id. at 12. The Agency maintains that, under section 7121(e)(2) of the Statute and consistent with the Supreme Court's decision in Cornelius v. Nutt, 472 U.S. 648 (1985), "an arbitrator must apply the same substantive rules and standards that would be applied by the MSPB." Id. at 10. The Agency maintains that information "cannot be 'necessary' under the Statute if the MSPB holds that the information is irrelevant." Id. at 14.

In addition, the Agency claims that the Arbitrator's reliance on IRS, Salt Lake City is misplaced because in that case the requested information was intended for use at the oral reply stage of an adverse action, not in an arbitration or MSPB proceeding. The Agency states that in IRS, Salt Lake City, the Authority specifically declined to address the issue of whether "MSPB case law restrict[s] the amount of disparate treatment information that must be provided to a union seeking to represent an individual . . . or employee in an arbitration proceeding[.]" Id. at 10.

The Union asserts that the Arbitrator's award is consistent with section 7114(b)(4) of the Statute, which, the Union argues, entitles a union to a broad range of information necessary to the performance of representational responsibilities. In addition, the Union maintains that the various MSPB cases relied on by the Agency "do not reflect a uniform, absolute bar to comparing the adverse action penalty imposed on an appellant with those imposed on employees outside of the appellant's work unit." Opposition at 15.

B. Analysis and Conclusions

An agency is obligated under section 7114(b)(4) of the Statute to furnish an exclusive representative with information that is necessary to enable the union to fulfill its representational functions. Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202 (1987) (DODDS). These functions include representation in grievance arbitration. U.S. Department of Transportation, Federal Aviation Administration, New England Region, Burlington, Massachusetts, 38 FLRA 1623, 1629 (l991) (FAA, New England Region). We note, in this regard, that a union has a significant interest in issues regarding disparate treatment. See id. at 1629; DODDS, 28 FLRA at 205.

We reject the Agency's contention that the requested information "cannot be 'necessary' under the Statute" because it is inadmissible as evidence in an MSPB proceeding. Exceptions at 14. Arguments regarding the admissibility of information as evidence in other proceedings do not relieve an agency of its obligation to furnish information under section 7114(b)(4) of the Statute. For example, IRS, Salt Lake City, 40 FLRA at 306-10; U.S. Department of Labor, Washington, D.C., 39 FLRA 531, 537-39 (1991), petition for review filed sub nom. U.S. Department of Labor, Washington, D.C. v. FLRA, No. 91-1174 (D.C. Cir. April 11, 1991); FAA, New England Region 38 FLRA at 1628-30; Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410, 415-17 (1990), petition for review filed sub nom. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991).

Moreover, we reject the Agency's claim that, based on Cornelius v. Nutt, arbitrators must follow MSPB case law concerning the admissibility of evidence concerning disparate treatment. In Cornelius v. Nutt, the Supreme Court held that, in certain matters, arbitrators must "apply the same substantive rules as the [Merit System Protection] Board does in reviewing an agency . . . decision." 472 U.S. at 660. The substantive rules to which Cornelius pertains, however, "are matters like the standard of review for substantial evidence and the harmful error rule[]" as set forth in 5 U.S.C. § 7701(c). Wissman v. Social Security Administration, 848 F.2d 176, 178 (Fed. Cir. 1988). As such, arbitrators are not required to adhere to "rules of practice and procedure which the [MSPB] may implement for its own internal purposes." Id. The Agency offers no support, and none is apparent to us, for the argument that, under Cornelius, an arbitrator may not consider, or compel the production of, evidence relating to disparate treatment if that evidence encompasses more than an affected employee's work unit or module.

The Agency has not established that the award requiring the Agency to cease its failure to provide the Union with the requested information is inconsistent with law. Accordingly, we will deny the Agency's first exception.

IV. Second and Third Exceptions

A. Positions of the Parties

In its second exception, the Agency contends that the portion of the award ordering reimbursement for Union witness travel expenses is deficient because it does not draw its essence from the parties' agreement and because the Arbitrator exceeded his authority. The Agency maintains that the parties' agreement precludes an arbitrator from awarding such expenses. In its third exception, the Agency claims that the payment of witness expenses is contrary to the "law of [the] FLRA." Exceptions at 22.

The Union asserts that the Agency has not demonstrated that this aspect of the award is deficient.

B. Analysis and Conclusions

Section 7122(a) of the Statute provides, in pertinent part:

Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator's award pursuant to the arbitration (other than an award relating to a matter described in section 7121(f) of this title).

The matters described in section 7121(f) include serious adverse actions covered under 5 U.S.C. § 7512, such as reductions in grade and pay. Review of awards relating to such matters may be obtained by filing an appeal with the U.S. Court of Appeals for the Federal Circuit in accordance with 5 U.S.C. § 7703. The Authority is without jurisdiction to review such awards. For example, U.S. Department of Agriculture, Animal and Plant Health Inspection Service and National Association of Agriculture Employees, 35 FLRA 998, 1003 (1990). Similarly, the Authority has no jurisdiction to review awards concerning other matters, such as awards of attorneys fees, relating to matters described in section 7121(f). For example, U.S. Department of the Army, Army Air Defense Center, Fort Bliss, Texas and National Association of Government Employees, Local R14-89, 35 FLRA 970 (1990); U.S. Department of Justice, Immigration and Naturalization Service, Baltimore, Maryland and National Immigration and Naturalization Service Council, American Federation of Government Employees, 34 FLRA 79 (1989) (INS, Baltimore).

In this case, the Arbitrator awarded reimbursement to the Union of certain travel expenses incurred during an arbitration over an adverse action. We find no basis for concluding that an award of witness expenses in connection with an adverse action should be treated any differently from an award of attorney fees in connection with such an action. In our view, awards of fees and expenses resulting from arbitrations