National Treasury Employees Union, Chapter 284 (Union) and United States, Department of the Treasury, Internal Revenue Service, Chamblee, Georgia (Agency)

[ v60 p230 ]

60 FLRA No. 50

NATIONAL TREASURY
EMPLOYEES UNION
CHAPTER 284
(Union)

and

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
CHAMBLEE, GEORGIA
(Agency)

0-AR-3787

_____

DECISION

September 13, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator William P. Murphy filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.

      For the reasons that follow, we find that the award is contrary to law and we modify it.

II.     Background and Arbitrator's Award

      The grievant, a seasonal customer service representative, was issued a memorandum regarding unauthorized visitors on April 27, 2001. Award at 2. On April 30, the Union filed a grievance on the grievant's behalf protesting a portion of the memorandum. Shortly thereafter, on May 7, the supervisor directed the grievant to meet in her office to discuss the April 27 memo. Upon entering her office, the supervisor directed the grievant to sit, which he refused to do by noting that he had a bad back. Id. at 8. The supervisor also notified the grievant that she wished to have a counseling session pertaining to the memo's circulation. Id. at 5-6, 8. At this point, the grievant asserted that he wanted a Union representative present and, shortly thereafter, he left the meeting without permission. Id. at 8.

      Subsequently, the grievant was notified by the Agency that, as relevant here, he had allegedly engaged in four counts of misconduct. Award at 3-4. Based on these allegations the grievant was given a ten-day suspension by the Agency, which was reduced to five days after review in the internal grievance process. The grievant appealed this five-day suspension to arbitration.

      At the hearing, the Arbitrator stated that the issue presented was:

The issue in this case is whether the 5-day suspension of [the] grievant . . . was "for such cause as will promote the efficiency of the Service," as required by Article 38, Section 1, C of the National Agreement between the parties.

Award at 2.

      In resolving this issue, the Arbitrator determined that the disputed discipline was based entirely on the grievant's conduct during the May 7 meeting. Based on the record, the Arbitrator determined that the grievant's behavior during the May 7 meeting was "rude" but was not threatening or disruptive. [n2]  See Award at 7-10. As the only "valid" charge in the suspension, according to the Arbitrator, was that the grievant was rude, the Arbitrator found that under the Agency's penalty guidelines, the grievant should have received an admonishment as opposed to a suspension. Accordingly, the Arbitrator reduced the grievant's penalty to an admonishment. Id. at 10.

III.     Positions of the Parties

A.      Union's Exception

      The Union argues that during the course of the May 7 meeting, the grievant became engaged in protected activity when he requested a Union representative pursuant to § 7114(a)(2)(A) or (B) and that "[a] discussion regarding the subject matter of a grievance is a `formal meeting[.]'" Exception at 7. It further contends that the Agency discriminated against the grievant by disciplining him based on this protected activity. Id. at 6 (citing Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny)). As such, it asserts that the Arbitrator's [ v60 p231 ] award is contrary to law because the Agency could only discipline the grievant if the grievant engaged in "flagrant misconduct." Id. at 8 (citing Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7 (1995)).

B.      Agency's Opposition

      The Agency argues that the grievant was not denied Union representation during the May 7 meeting. Opposition at 5. It contends that "no examination took place since [the] [g]rievant did not remain in his manager's office long enough for the meeting . . . to take place." Id. at 6. In any event, the Agency argues that its discipline of the grievant was not based on anti-union animus, but rather merely on his conduct. Id. at 6, 7.

IV.     Analysis and Conclusions

The Arbitrator's Decision is Contrary to Law

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      The Union argues that the grievant was engaged in protected activity during the meeting with his supervisor, and, as such, that his decision to leave the meeting, even if rude, was not sufficient to warrant discipline. For the following reasons we agree and modify the award to render it consistent with the law.

      In cases alleging discrimination, the Authority applies the framework in Letterkenny, 35 FLRA at 118. Under that framework, the party making such an assertion establishe