Nteu Case Digest Issue 1 8 20 14

Distribute highlights to all stewards.
NIGHT DIFFERENTIALDENIAL OF; CBP

TECHNICIANS; REGULARLY SCHEDULED
OVERTIME - On April 4, 2013, NTEU chapter 160
filed a grievance alleging that, since approximately
2003, the agency failed to pay night differential to CBP
Technicians when they worked regularly-scheduled
overtime. During the grievance process, the agency
promptly agreed that the failure to provide the night
differential was in error, and stated that it would work
on determining who was entitled to back pay and the
amount of back pay required. The remedy was not
resolved by the conclusion of the grievance process, so
the matter was invoked to arbitration. Prior to hearing,
the matter was settled. The parties settled the matter for
back pay to the CBP Technicians who were unlawfully
denied night differential for regularly scheduled
overtime. Mass Grievance - Night Differential, Chapter
160. 3/24/2014. Staff - Barczykowski, Frank. A-4537,
Page 1.

DISCIPLINE LETTERFAILURE TO FOLLOW
PROCEDURES - The agency issued a disciplinary
admonishment letter to a Case Advocate for failing
properly legal analyse a case. The letter misstated what
the grievant wrote in her case history and IRS
erroneously found that she failed to apply IRM guidance
on Streamlined Installment Agreements. The
undisputed amount due and taxpayer requested
installment payments would not full pay the account
within 72 months as required. The union argued the
case was a continuing example of retaliation for
engaging in protected activity. On the eve of arbitration
the agency agreed to pull all documentation related to
the incident from the grievants files. Chapter 26 and
IRS, Atlanta. 6/25/2014. Staff - Welsh, Tim. A-4577,
Page 10.

REMOVALAWOL; LEAVE; FALSIFICATION -
The grievant, a secretary with about four years of
service, challenged the agencys removal for charges of
AWOL, failure to follow instructions in a leave
restriction letter, false statements in a matter of official
interest, and negligence in carrying out duties. The
grievant was unable to provide medical documentation
to substantiate the absences or disprove the other
charges. The grievant had a prior seven-day suspension
for failure to meet financial obligations and a letter of
reprimand for late payment of Federal taxes. The matter
settled with the grievant receiving a clean SF-50
reflecting a resignation for personal reasons. IRS-NTEU
2009 National Agreement II, Article 39.. Chapter 51
and IRS, Overland Park, KS. 10/25/2012. Staff - de
J uan, Fernando. A-4591, Page 13.

TRANSIT SUBSIDIESRETROACTIVE - On
February 18, 2014, an arbitrator sustained NTEUs
national grievance alleging that HHS breached Article
53, 2 of the parties Consolidated CBA when it
refused to pay employees retroactive transit subsidies up
to the new nontaxable amount for 2012 and J anuary
2013. Specifically, this entitles employees to payment
of retroactive transit subsidies to employees who
participated in HHS Transhare Program at any time
from J anuary 1, 2012 through J anuary 31, 2013, in the
amount of transit costs they incurred in excess of $125
per month and up to $240 per month ($245 per month
for 2013). NTEU is currently working on creating a
claims process through which impacted employees can
submit requests for payment of retroactive transit
subsidies to HHS. Based on current regulations, this
will require employees to certify the actual amount of
commuting costs they incurred each month from
J anuary 1, 2012 through J anuary 31, 2013. (Suzanne R,
Butler, Arbitrator) National Grievance - Transit
Subsidies, NTEU and HHS. 2/18/2014. Staff -
Silverstone, J ennifer. A-4571, Page 8.

TH
Hig hlighted Ca ses: On t his pag e
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Highlighted Cases: On this page are significant cases that set precedence or affect a number of employees.
Case Digest
A full text of any of the decisions summarized in this digest may
be obtained through the Case Digest Page on the NTEU web site.
Settlements may be obtained by requesting a copy from your
national field representative. Please include the case citation
with your request.
2014 ISSUE 1
NTEU Case Digest 2014, Issue 1 Page 1

Arbitrations

Customs and Border Protection

COPRA; OVERTIME; ANTICIPATED
OVERTIME - CBP J FK management had long
refused to schedule anticipated overtime assignments.
The agency argued it could not anticipate overtime
needs three days in advance because J FK is too busy,
despite the fact that other major international airports
schedule anticipated overtime jobs. The union filed a
grievance over the agencys failure to comply with
Article 35, 1.B. The case settled prior to hearing
when the agency agreed to begin assigning anticipated
overtime assignments. Mass Grievance - Overtime,
Chapter 153 and CBP, J FK. 12/11/2013. Staff -
Dresslar, Walter. A-4534.

MILEAGEREIMBURSEMENT OF; PAST
PRACTICE - The grievants were numerous
bargaining unit employees who were entitled to, but
did not receive mileage reimbursement as per a past
practice for the use of their private vehicles to
travel to temporary assignments to duty stations that
were not part of their official duty station. The matter
was settled with CBP paying $23,000 to affected
bargaining unit employees for the period of April 2009
to October 22, 2011. Mass Grievance - Mileage,
Chapter 142 and CBP. 1/10/2013. Staff - Drakeford,
Craig. A-4535.

NATIONAL GRIEVANCEAWARDS AND
RECOGNITION; ARTICLE 42 - NTEU received an
adverse arbitration decision in a national grievance
filed on behalf of all CBP bargaining unit employees.
During fiscal years 2011 and 2012, CBP failed to
spend the full 1% of bargaining unit salary dedicated
to bargaining unit awards. The only dispute between
the parties was the meaning of the term dedicate as
used in Article 42, 2.A and 2.B. NTEU argued that
the term dedicate meant to spend all of the 1% on
awards, while the agency argued that dedicate
simply meant to earmark. The arbitrator found that
CBP did not violate Article 42. Specifically, he held
that the agency properly exercised its discretion for
using budgetary purposes to set-aside the funds and
that [s]uch discretionary action is supported by the
plain and unambiguous meaning of the word,
dedicated, in the context of the entire Awards
provision. The arbitrator held that this indicates a
duty by the agency to earmark the funds for specific
set-aside purposes, more precisely described in
provisions that followed. In reaching this conclusion,
the arbitrator relied on the testimony of CBPs
negotiatorwho testified that the agencys intended the
term dedicate to allow for budgetary earmarking,
whereas NTEUs negotiator testified that the purpose
of Article 42 was a guaranteed awards program, and
that the agency must spend 1%. The union filed
exceptions to this award on April 17, 2014. (J ay
Goldstein, Arbitrator) National Grievance - Awards,
NTEU and CBP. 3/18/2014. Staff - Silverstone,
J ennifer. A-4536.

NIGHT DIFFERENTIALDENIAL OF; CBP
TECHNICIANS; REGULARLY SCHEDULED
OVERTIME - On April 4, 2013, NTEU chapter 160
filed a grievance alleging that, since approximately
2003, the agency failed to pay night differential to
CBP Technicians when they worked regularly-
scheduled overtime. During the grievance process, the
agency promptly agreed that the failure to provide the
night differential was in error, and stated that it would
work on determining who was entitled to back pay and
the amount of back pay required. The remedy was not
resolved by the conclusion of the grievance process, so
the matter was invoked to arbitration. Prior to hearing,
the matter was settled. The parties settled the matter
for back pay to the CBP Technicians who were
unlawfully denied night differential for regularly
scheduled overtime. Mass Grievance - Night
Differential, Chapter 160. 3/24/2014. Staff -
Barczykowski, Frank.. A-4537.

OUTSIDE EMPLOYMENTDENIAL OF
REQUEST; RESERVE TEXAS PEACE
OFFICER/VOLUNTEER LAW ENFORCEMENT
- On J anuary 23, 2013, the grievant requested
permission to work as a Reserve Texas Peace Officer
in Marshall, Texas. The agency denied the request,
and provided a written explanation for the denial that
did not satisfy the requirements of Article 11 of the
parties National Agreement. Specifically, the written
explanation did not provide a basis for denying the
request. Instead, it simply recited the conflict of
interest standards, and outlined the information that
was provided by the Officer; never explaining how the
instant request posed a conflict of interest (apparent or
otherwise). The union invoked the matter to expedited
arbitration, and after pre-hearing discussions regarding

the frivolous nature of the agencys denial, the parties
settled the matter for a grant of the officers request to
engage in outside employment/activity. NTEU - CBP
National Agrement - Article 11. Chapter 160 and
CBP. 11/5/2013. Staff - Barczykowski, Frank. A-4538.

OVERTIMEAPPROPRIATE REMEDY; BACK
PAY - The grievant, the lowest earner volunteer was
assigned to work an overtime assignment but later
learned that the agency assigned another employee,
who did not volunteer, to the same overtime
assignment. When the grievant informed the
scheduling supervisor of the error, the supervisor
canceled the grievants assignment. CBP did not
dispute that the grievant should have received the
overtime assignment. The only issue before the
arbitrator was the appropriate remedy. The arbitrator
agreed with NTEU that the appropriate remedy under
the CBA was back pay for the missed assignment.
Further the arbitrator found that the make-up remedy
argued by the agency does not comply with the Back
Pay Act. Therefore, finding CBP violated Article 35,
which constituted an unjustified personnel action that
resulted in loss of pay by the grievant, the arbitrator
ordered that the grievant be made whole for the
amount of overtime pay she would have earned had
the violation not occurred. The agency filed exceptions
with the FLRA challenging the back pay remedy. May
11, 2011 NTEU and U.S. Customs and Border
Protection National Agreement, Articles 3, 35, and 28.
(Alan R. Krebs, Arbitrator) Chapter 139 and CBP,
Seattle, WA. 2/6/2014. Staff - Anderson, Dianna. A-
4539.

OVERTIMEASSIGNMENT OF; SKIP;
VIOLATION OF ARTICLE 35; BACK PAY ACT
- On May 13, 2013, the grievant was skipped for a two
hour overtime assignment when his supervisor instead
took the assignment for himself as a so-called
holdover assignment. During the grievance process,
the agency conceded that the grievant was skipped for
an overtime assignment in violation of the call-out
order in Article 35, but refused to remedy the violation
pursuant to the Back Pay Act. The matter proceeded
to arbitration, but the parties settled the matter prior to
the hearing. Specifically, the agency agreed to pay the
grievant two hours of overtime back pay plus interest
in accordance with the Back Pay Act, 5 U.S.C. 5596.
Chapter 140 and CBP. 2/27/2014. Staff -
Barczykowski, Frank. A-4540.

OVERTIMECALL OUT; ARTICLE 35 - The
agency violated the call-out order provision of Article
35 when it failed to give an overtime assignment to the
grievant. The grievant agreed to accept a combination
of back pay and make-up overtime outside of the call-
out order so as not to interfere with the proper
administration of overtime. The grievant was owed six
hours of OT but received eight hours of total
compensation: three hours of back pay and five hours
of make-up work. Chapter 157 and CBP. 8/22/2012.
Staff - Bruce, Eric. A-4541.

OVERTIMECALL OUT; PAY CAP
COMPLIANCE; BACK PAY - CBP failed to honor
the low-earner call-out order and thereby denied an
officer two overtime assignments occurring over two
days at the end of the fiscal year. The agency
acknowledged its violation of the call-out agreement
during the Step 3 grievance but refused to issue back
pay, instead offering a make-up assignment. The
union invoked arbitration to get the officer back pay
for the missed assignments. The agency originally that
claimed the officer would exceed the pay cap. But,
because the officers earnings were not at the cap and
assignments occurring on the last two days of year
would not put him over the cap, the agency should
have assigned him the two jobs. J ust before hearing
the agency agreed to settle and to pay the officer full
back overtime pay in the amount of 10 hours of lost
overtime. Chapter 142 and CBP, Highgate Springs,
Vermont. 11/23/2013. Staff - Dresslar, Walter. A-
4542.

OVERTIMECALL-OUT - The agency conceded
that it had violated the call-out order in Article 35
when it did not call the grievant for an OT assignment.
To remedy this violation, the agency after an entire
year agreed to pay the grievant back pay for the
missed four hours of overtime. Chapter 132 and CBP.
12/3/2013. Staff - Gross, J ared. A-4543.

OVERTIMECALLOUT; OPPORTUNITY;
REMEDYPAYMENT - The grievant was not called
for an overtime opportunity in accordance with the
contracts call-out order. The agency acknowledged
that the call out order had been violated, but argued
that because the grievant was provided with a
replacement overtime assignment, the employee had
been made whole. The union pointed out that the

replacement assignment was just a further violation of
the call out order that triggered another grievance,
which was also invoked for arbitration, and further that
the agency committed a ULP by bypassing the union
and dealing directly with the grievant after the
grievance had been filed. The arbitrator sustained the
grievance and ordered that the employee be paid for
the missed overtime opportunity. He also pointed out
that the replacement assignment simply created a
further violation of the CBA. (J ohn Donoghue,
Arbitrator) Chapter 141 and CBP. 11/25/2013. Staff -
Ziv, J ohn. A-4544.

OVERTIMEDENIAL OF; VIOLATION OF
ARTICLE 35; ANTICIPATED ASSIGNMENT;
BACK PAY ACT - On J une 18, 2012, the grievant
was selected for an eight hour anticipated overtime
assignment as the low earner. On J une 28, 2012, the
grievant reported for this anticipated overtime
assignment, but was released from this assignment by
the agency when it discovered that it accidentally
assigned three officers to work two overtime
assignments. During the grievance process, the
agency offered the grievant the next available
overtime assignment, but the union did not accept this
remedial offer. The parties agreed to forego a hearing,
and, instead, briefed the matter on a stipulated record.
The arbitrator sustained the grievance, finding that the
agency violated Article 35 by releasing the grievant
from an anticipated overtime assignment. In addition,
the arbitrator ordered the agency to compensate the
grievant under the Back Pay Act for the six hours of
overtime he lost as a result of the agencys
unwarranted and unjustified personnel action. (Kathy
L. Eisenmenger, Arbitrator) Chapter 143 and CBP.
10/4/2013. Staff - Barczykowski, Frank. A-4545.

OVERTIMEIMPROPERLY RELEASED;
REMEDY - A grievance was filed when CBP
improperly released a CBPO from an overtime
assignment for which he had volunteered. The CBPO
was released in favor of a CBPO who was
involuntarily drafted. The CBPO should have worked
an additional four hours and fifteen minutes of
overtime. During the grievance process, the agency
acknowledged it made an error in releasing the CBPO,
but it refused to compensate him for the missed
overtime. Instead, the agency offered the next
available overtime assignment as a remedy. After the
case was set for hearing, the parties reached a non-
precedential settlement. The grievant received an
excused absence with pay for eight and one-half hours,
an amount of time off equivalent to the amount of back
pay of the missed overtime assignment. NTEU-CBP
National Agreement 2011, Article 35. Chapter 181
and CBP. 6/11/2014. Staff - Lenggenhager, J ulie. A-
4546.

OVERTIMEMISSED; ARTICLE 35; REMEDY -
A grievance was filed when CBP failed to fill a four-
hour overtime assignment in accordance with Article
35. During the grievance process, the agency
acknowledged that it made an error in failing to
comply with the call-out order, but refused to
compensate the officer for the missed overtime.
Instead, the agency offered the next like overtime
assignment as a remedy. The grievance was held in
abeyance pending the outcome of a decision in another
arbitration out of the same port and chapter (A-4432).
Although NTEU prevailed in that case and numerous
other similar cases across the country, CBP would not
offer any remedy other than the next like assignment.
After the case was set for hearing, the parties reached a
non-precendential settlement. The grievant received
an excused absence with pay for eight hours, an
amount of time off equiavlent to the back pay that
would be owed for the missed overtime assignment.
NTEU-CBP National Agreement 2011, Article 35.
Lenggenhager, J ulie. A-4547.

OVERTIMEMISSED; REMEDY - A grievance
was filed when CBP failed to fill a four-hour overtime
assignment in accordance with Article 35. During the
grievance process, the agency acknowledged that it
made an error in failing to assign the officer in failing
to comply the call-out order, but refused to
compensate the officer for the missed overtime.
Instead, the agency offered the next like overtime
assignment as a remedy. The grievance was held in
abeyance pending the outcome of a decision in another
arbitration out of the same port and chapter (A-4432).
Although NTEU prevailed in that case and numerous
other similar cases across the country, CBP would not
offer any remedy other than the next like assignment.
After the case was set for hearing, the parties reached a
non-precendential settlement. The grievant received
an excused absence with pay for eight hours, an
amount of time off equivalent to the back pay that
would be owed for the missed overtime assignment.

NTEU-CBP National Agreement 2011, Article 35.
Lenggenhager, J ulie. A-4548.

REASSIGNMENT; NON-SELECTION;
ARTICLE 39 - The chapter filed a grievance
challenging the agencys reassignment of an officer
with less seniority to the Santa Teresa Port of Entry,
instead of the more-senior grievant. During the
grievance process, the agency alleged that the
reassignment of the less-senior officer was the result of
a position exchange, and therefore, not subject to
challenge on seniority grounds. The union requested
documents that would establish that the reassignment
was truly the result of a position exchange, but the
agency was unable to produce any. This failure was
raised in settlement discussions with agency Counsel,
and, prior to hearing, the agency agreed to reassign the
grievant to Santa Teresa as requested in the grievance.
Barczykowski, Frank.. A-4549.

REASSIGNMENTPRECLEARANCE - Prior to
the end of his two -year rotation, a CBPO in Montreal
submitted his Notice of Intent (NOI) to return to the
U.S. Per amended Article 40 of the National
Agreement, the CBPO listed five ports in order of
priority to which he preferred to be reassigned at the
end of his rotation. All of the ports were within the
Houston Field Office. Preclearance HQ solicited the
Houston DFO to provide a list of vacancies and a few
days later CBP replied that there were no vacancies in
the Houston FO but came back with five vacancies,all
outside of the Houston DFO, including one at s the
employees home port of Brownsville. The CBPO
responded that the contract required that CBP provide
a list of five ports within the DFO he requested and
identified one vacancy at the Houston Airport and an
alternative offer to coordinate his return to
Brownsville. A grievance was filed and an
information request was made. The employee rejected
the choice given by CBP and stated that he would
return to Brownsville. During the grievance process,
NTEU learned that there were vacancies in Corpus
Christi, and Freeport, TX. CBP claimed that the
Corpus Christi vacancy was reserved for a supervisory
position and that the Freeport vacancy did not exist at
the time that the DFO surveyed for vacancies, but
rather opened after the NOI was submitted but before
the CBPO was to return home. NTEU brought both
vacancies to managements attention at the Step 3
meeting which occurred more than two months before
the employees tour was over.

The arbitrator ruled that the 2012 amendment to
Article 40 required CBP to offer the vacant positions
to a returning CBPO and that vacancies existed in both
Corpus Christie and Freeport. The arbitrator found
that CBPs interest in holding the Corpus Christie
position open for a supervisor violated the contract and
that CBP also violated the contract by not offering the
Freeport vacancy on the grounds that looking for a
very short window for vacancies when the contract
requires that five vacancies be required is not
consistent with their contractual obligations. The
arbitrator ordered CBP to transfer the CBPO to Corpus
Christie, Freeport or one of his other preferred ports if
at all possible and to pay the CBPOs travel expenses
as if he had been properly granted his request from
Canada. The arbitrator retained jurisdiction for an
application for attorney fees. (Robert T. Simmelkjaer,
Arbitrator) Chapter 148 and CBP. 3/17/2014. Staff -
Igoe, William. A-4550.

REASSIGNMENTPREFERRED OFFICE - CBP
failed to honor a married officers request to be
reassigned to a port within the preferred field office at
the end of his and his wifes tour at the Shannon
International Airport. The case settled after the agency
found another port in the same field office with
vacancies, and agreed to reassign/return both officers
to the new port. Chapter 153 and CBP - J FK. 9/9/2013.
Staff - Dresslar, Walter. A-4551.

REMOVALFALSIFICATION OF TRANSIT
RECEIPTS - The grievant was removed for
falsification of transit receipts and lack of candor. In
connection with an Internal Affairs investigation the
employee, who was unrepresented, photocopied one
receipt and alleged that it represented different receipts
for various months in 2012. The grievant was also
charged with lack of candor for answers given during
the interview. The grievant had three previous
suspension ranging from three to seven days for
various infractions between 1998 and 2011. After the
first day of the hearing the agency agreed to settle the
matter with a twenty 20-day suspension, a two-year
last chance agreement excluding AWOL charges
and a transfer to a different supervisor. The grievant
received back pay for the remaining days she was out

of work. Chapter 183 and CBP. 4/30/2014. Staff -
Talarico, Ralph. A-4552.

REMOVALFITNESS FOR DUTY - The CBPO
was sent for a fitness for duty as a result of two off-
duty shootings one resulting in death and a DUI
with a weapon. The CBPO was diagnosed with
depression and given the options of treatment,
resignation, reassignment, or removal. The employee
elected the treatment option and at the end of the six-
month treatment period was diagnosed as depressed.
CBP gave the employee two options after the second
diagnosis: resgnation or removal. The arbitrator upheld
the removal on medical grounds but held that CBP
violated Article 33, 13.J of the contract when it did
not consider the employee for another position. The
employee received full back and prospective pay and
was ultimately reassigned to an IS position in Houston.
(Robert T. Simmelkjaer, Arbitrator) Chapter 153 and
CBP. 9/10/2013. Staff - Talarico, Ralph. A-4553.

REMOVALINAPPROPRIATE ASSOCIATION -
The employee was dating a known drug dealer who
had a criminal record. The employee conceded that the
relationship continued despite the employees
knowledge that the dealer had criminal record and
possessed various drugs. The employee was only with
the agency for three years. The case settled for a clean
SF-50 and neutral employment reference. Chapter 138
and CBP. 5/30/2013. Staff - Talarico, Ralph. A-4554.

REMOVALUNFIT FOR DUTY DUE TO A
MEDICAL CONDITION - The agency issued a
letter to the CBPO-grievant proposing to remove him
for Inability to Perform the Essential Duties of the
Position Due to a Medical Condition. The agency
forced the grievant to submit to a Fitness-for-Duty
Examination after he and his supervisor got into a
confrontation on duty. The contracted-for psychiatrist
concluded that the grievant was unable to carry a CBP-
issued firearm and was unable to be a CBPO due to a
medical/psychological condition. The chapter retained
another psychiatrist who provided a second opinion
that the grievant did not have a psychological/medical
condition and was capable of performing CBPO
duties. The agency sent this file to another doctor,
who rubber-stamped the conclusion of the agencys
psychiatrist. The agency removed the grievant and the
union grieved the removal. The arbitrator concurred
with the union that the grievant not only does not have
a medical condition, but that there was no substantive
evidence upon which to base such a negative
conclusion about the grievant. The arbitrator found
that the agency improperly relied on conjecture that
the grievant had a medical condition, which was an
end-run around due process. The arbitrator ordered
reinstatement with full back pay and benefits.
CBP/NTEU Agreement 2011. (Lou Zigman,
Arbitrator) Chapter 116 and CBP, San Luis, AZ.
12/11/2013. Staff - Phillips, Ben. A-4555.

SUSPENSIONCONDUCT UNBECOMING - The
grievant was charged with conduct unbecoming of a
CBP Officer stemming from his arrest for driving
while intoxicated (DWI). The union argued that the
grievant handled himself properly by cooperating with
law enforcement, not attempting to influence the
arresting officer, immediately reporting the arrest, and
subsequently accepting responsibility for his actions.
The union also argued that other officers and
supervisors had recently received only letters of
caution and letters of reprimand for the exact same
DWI offense, and that the agency failed to consider
this fact. The union also pointed out that the agency
had delayed this action for over six months in violation
of the timely discipline provision of the CBA. The
arbitrator agreed with the unions arguments, and
found that the agencys delay in charging the grievant
was unwarranted and unfairly prejudiced the grievant.
The arbitrator substituted a letter of reprimand for the
suspension. NTEU CBP Agreement 2011. (J udge
Chuck Miller, Arbitrator) Chapter 140 and CBP,
Dallas-Fort Worth, TX. 8/25/2013. Staff - Phillips,
Ben. A-4556.

SUSPENSIONEMAILDISRESPECTFUL;
FAILURE TO FOLLOW SUPERVISORY
INSTRUCTIONS - The grievant was charged with
sending a disrespectful e-mail and failure to follow
supervisory instructions stemming from (1) an email
exchange he had with his first line supervisor that she
considered to be disrespectful and (2) from his failure
to restore his COSS access when instructed to do so.
The union argued that the grievant's messages were
not disrespectful and that he had, in fact, followed
supervisory instructions when he attempted to restore
his COSS access (twice). The agency withdrew its
action the afternoon prior to the arbitration hearing.
NTEU CBP Agreement 2011. Chapter 116 and CBP,
Arizona. 2/19/2014. Staff - Phillips, Ben. A-4557.

SUSPENSIONFAILURE TO FOLLOW
POLICY, FALSE STATEMENT; BACK PAY -
CBP suspended the grievant for 21 days for one charge
of failure to follow station policy and one charge of
making a false statement in a matter of official interest.
The local, unwritten policy permitted officers to enter
the US after hours if officers were in the nearby
Canadian compound at the time the port closed. On the
evening in question, the grievant was returning from
dinner in a nearby Canadian town after losing track of
time. When a supervisor asked him about the incident,
he said he had been in the Canadian compound when
the port closed. The arbitrator found that the employee
committed misconduct, but overturned the suspension
because of the agencys 18-month delay in imposing
discipline. The arbitartor found that the delay was so
extreme as to violate the parties contract provision
stating that discipline should be corrective and not
punitive. The arbitrator found that because the grievant
was an exemplary employee in the time between the
incident and the final decision, corrective action was
no longer needed. Moreover, the arbitrator found that
because since the agency returned the grievants
weapon well before the decision to discipline was
issued, the agency knew enough to act sooner.The
arbitrator found that the grievant was harmed by the
delay because it is simply unfair to issue discipline
after such a length of time given the grievants
intervening good conduct. And, the arbitrator felt such
a delay did not promote confidence in management by
the work force because other officers may feel that the
agency acted unfairly by taking so long to issue a
decision. The arbitrator ordered that the grievant be
made whole for any work time lost. In subsequent
clarifications requested by the parties the arbitrator
included lost overtime opportunities in his back pay
order. (Gerald Cohen, Arbitrator) Chapter 231 and
CBP, Port of Piegan, MT. 4/16/2012. Staff - Anderson,
Dianna. A-4558.

SUSPENSIONFAILURE TO FOLLOW
SUPERVISORY INSTRUCTIONS - The grievant
challenged the agencys six-day suspension decision
based on a charge of failure to follow supervisory
instructions. The union argued that due to a hearing
impairment, the grievant did not hear a supervisors
instruction that the grievant was no longer certified to
use his canine after failing to meet the requirements
for continuing certification. The arbitrator ruled in
favor of the agency on the basis of her conclusion that
the grievant had, in fact, heard the instructions
provided by the supervisor. The six day suspension
was sustained. (Carol Kyler, Arbitrator) Chapter 160
and CBP. 2/18/2010. Staff - Dresslar, Walter and
Barczykowski, Frank. A-4559.

SUSPENSIONFAILURE TO MAKE TIMELY
PAYMENT ON GOVERNMENT ISSUED
TRAVEL CARD ACCOUNT - The grievant, a
Mission Support Specialist, challenged the agencys
45-day suspension based on a charge of failure to
make timely payment on government issued travel
card account. The union argued that the agency did
not establish the charge or specifications by a
preponderance of the evidence, did not establish a
nexus, violated the grievants due process rights, and
failed to conduct an appropriate Douglas Factor
analysis. The arbitrator ruled in favor of the grievant
because the agency failed to prove the 45-day
suspension was for just cause. The 45-day
suspension was rescinded, with a full back pay award.
(Ruben Armendariz, Arbitrator) Chapter 143 and CBP.
3/30/2013. Staff - Barczykowski, Frank & Dresslar. A-
4560.

SUSPENSIONFAILURE TO SAFEGUARD
GOVERNMENT ISSUED FIREARM;
MITIGATIONSAME OR SIMILAR CONDUCT
- CBP management at J FK proposed to suspend the
officer for three calendar days for failure to safeguard
government-issued firearm after the officer
inadvertently left the weapon in the restroom in a
secure area of the airport. In preparing for the oral
reply, the union requested similar conduct actions in
the past. The agency refused to provide them except
for the New York City area. At the oral reply, the
union provided evidence of how management in other
areas of the country issued written reprimands for the
similar, and even more egregious, conduct. The
deciding official did not review the material and did
not consider the similar cases that the union raised at
the oral reply. At the hearing, the arbitrator granted
the unions motion to compel and ordered the agency
to provide hard copies of the disciplinary actions
nationwide for same or similar conduct. He
explained that the parties are bound by a national
agreement and that same or similar experiences around
the country are relevant and must be considered by
deciding officials. The union presented the cases at

hearing and argued disparate treatment and mitigation
under the Douglas Factors. The arbitrator sustained the
grievance and reduced the suspension to a written
reprimand based on the unions same or similar
cases. He also based his decision on the grievants
unrebutted testimony about how ill she was on the day
the incident occurred, which also warranted mitigation.
(J oseph A. Harris, Arbitrator) Chapter 153 and CBP -
J FK. 10/3/2013. Staff - Dresslar, Walter. A-4561.

SUSPENSIONGOVERNMENT DOCUMENTS
UNAUTHORIZED REMOVAL AND
DISCLOSURE OF - The employee removed trade
documents from the workplace and stored them at her
house. The employee also disclosed the documents to
her EEO attorney. The agency proposed a ten-day
suspension which was reduced to seven days after the
oral reply. At the hearing, NTEU argued that the
employee removed the documents because she was
still working on a headquarters task team when she
was reassigned to a warehouse and that the disclosure
to her attorney was protected. The arbitrator sustained
the charges but reduced the suspension from seven
days to two. (M. David Vaughn, Arbitrator) Chapter
183 and CBP. 5/29/2013. Staff - Talarico, Ralph. A-
4562.

SUSPENSIONINNAPPROPRIATE USE OF A
GOVERNMENT VEHICLE - A CBP Officer had
worked back-to-back assignments and was drafted for
another overtime assignment scheduled to begin within
eight hours of the end of the tour. The officer lives
more than an hour from work and decided to stay at
the office to rest before the next overtime job.
Because the office was crowded and noisy, he went
outside to sit/rest inside a GOV to make a personal
phone call. Management found the officer and a small
discussion occurred. Management proposed a 10-day
suspension for Inappropriate Use of a Government
Vehicle and Unprofessional Behavior in the
Workplace. The agency dropped the second charge
after the oral reply. The agency issued a decision
letter imposing a three-day suspension. The case
settled when the agency agreed to reduce the penalty
to a written reprimand, and the employee agreed to a
non-disciplinary, one-day LWOP. Chapter 161 and
CBP, Newark/New York. 12/11/2013. Staff - Dresslar,
Walter. A-4563.

SUSPENSIONMISUSE OF TECS;
MITIGATIONCONSISTENCY OF PENALTIES
- CBP charged the employee with TECS self-queries
on five occasions. The union established in the reply
that there were significantly fewer queries. The union
also established several mitigating factors including a
previously perfect discipline record, successful
performance during his time with CBP, and dissimilar
discipline for similar conduct by other employees,
including supervisory personnel. The deciding official
reduced the penalty to a lesser suspension. The union
invoked arbitration. The case settled just prior to
hearing when the agency agreed to reduce the penalty
to a written reprimand, which was more in line with
how the agency had treated similar conduct in the past.
Chapter 153 and CBP, J FK. 2/26/2014. Staff -
Dresslar, Walter. A-4564.

SUSPENSIONUNPROFESSIONAL CONDUCT;
TIMELINESS; CREDIBILITY OF WITNESSES -
A four-day suspension for inattention-to-duty
unprofessional conduct was mitigated to a reprimand
when the arbitrator sustained one of six charges. The
arbitrator dismissed two charges on the grounds that
they were stale and not in accordance with progressive
discipline. (Steven L. Hayford, Arbitrator) Chapter
177 and CBP, Atlanta, GA. 1/29/2014. Staff - Flig,
Steven. A-4565.

TELEWORKDENIAL OF - The grievant, a GS-
0343-13 Management and Program Analyst, was
denied a second day of telework per pay period. The
agency argued that her position requires the
performance of her duties at the work location,
despite the fact that she was already teleworking one
day per pay period, and was on a 4/10 AWS. Shortly
after invoking arbitration and setting a hearing date,
we settled for full remedy, whereby CBP granted the
grievants original telework request. CBP-NTEU 2011
Collective Bargaining Agreement, Article 15 5.
Chapter 246 and CBP, Indianapolis Hiring Center.
6/19/2014. Staff - Kaspar, Dan. A-4566.

UNFAIR LABOR PRACTICE (ULP)
INTERFERENCE, RESTRAINT,
COERCION/BYPASS, DIRECT DEALING;
OVERTIME; CALL-OUT - The chapter filed a
grievance on behalf of the grievant alleging that the
agency violated Article 35 by skipping the grievant for
an overtime assignment in violation of the call-out

order. Shortly after the union filed the grievance, a
supervisor met privately with the grievant to request
evidence of the skip and offered him the next
available assignment to remedy the contract violation.
The chapter contacted the supervisor and advised him
that his conduct was a violation of federal labor law,
and advised him to contact the union to discuss the
grievance. In response, the supervisor advised the
grievant that it was obvious that the grievant could not
be trusted anymore because he had contacted the union
about what had been said. The union filed an unfair
labor practice charge alleging that the supervisors
conduct constituted an unlawful bypass, and and that
the supervisor interfered with, restrained, or coerced
the employees in the exercise of their statutory rights.
The parties settled the matter for a ULP posting that
states that the agency a) will cease telling bargaining
unit employees that they cannot be trusted because
they sought the unions assistance with a grievance;
and b) will cease bypassing the union by discussing
directly with bargaining unit employees issues
regarding the settlement of a grievance. Evans,
Barczykowski, Frank. DA-CA-13-0243. A-4567.

UNFAIR LABOR PRACTICE (ULP)PRIMARY
PHONES - The chapter filed a ULP grievance over
the agencys failure to bargain a change in working
conditions when the agency shutdown the government
telephones in the primary passenger booths at the
Champlain Port of Entry. The arbitrator ruled for the
union and ordered the agency to bargain the change in
working conditions and post a notice. The arbitrator
refused to issue a status quo ante remedy due to the
security issues raised by management. The agency
attempted to bypass the posting requirement by
sending an email to the entire port which described the
decision in a manner favorable to management. The
arbitrator issued a remedial order for an appropriate
posting consistent with FLRA standards and
precedent. (J eanne M. Vonhof, Arbitrator) ULP
Grievance, Chapter 138 and CBP. 2/24/2014. Staff -
Talarico, Ralph. A-4568.

Department of Energy

TELEWORKREASONABLE
ACCOMODATION - DOE refused to permit the
grievant to telework because her performance ratings
were below the level required by the CBA. The
grievant sought telework as a reasonable
accommodation. The parties agreed that the employee
would telework every two days per week for three
months. If the employees performance improves in
that time, her telework will be extended so long as she
provides adequate documenation of the need for an
accommodation. The employee may also request
regular telework, but having it as a reasonable
accommodation is preferable in the event management
wishes to alter her schedule. NTEU-DOE National
Agreement 2013. Chapter 213 and DOE. 6/5/2014.
Staff - Gross, J ared. A-4569.

DHHS--Health and Human Services

AWARDS DATA; AWARDS NOTICE;
AWARDSADMINISTRATION OF - In its May 1,
2013 national institutional grievance, the union alleged
that HHS was violating Articles 3 and 27 of the
collective bargaining agreement by: refusing to
provide NTEU with necessary and relevant data
concerning awards; failing to provide notice to, and
bargain with NTEU concerning its decision to cancel
the Fiscal Year 2013 monetary awards program; and
failing to administer a fair and equitable awards
program with respect to convening performance and
incentive award committee meetings. The arbitrator
found that HHS did not fail to provide necessary and
relevant data concerning awards to NTEU and did not
fail to provide notice to, and bargain with NTEU.
However, the arbitrator found that the agency failed to
administer awards in a fair and equitable manner.
Specifically, the agency made arbitrary determinations
regarding whether to hold performance and incentive
award committee meetings. The arbitrator remanded
the grievance to the parties to identify all impacted
employees, convene committee meetings, issue non-
monetary, time-off awards to eligible employees, and
determine any additional remedies. (Perry Zirkel,
Arbitrator) National Grievance - Awards Data, NTEU
and HHS. 4/16/2014. Staff - Williams, Keisha. A-
4570.

TRANSIT SUBSIDIESRETROACTIVE - On
February 18, 2014, an arbitrator sustained NTEUs
national grievance alleging that HHS breached Article
53, 2 of the parties Consolidated CBA when it
refused to pay employees retroactive transit subsidies

up to the new nontaxable amount for 2012 and J anuary
2013. Specifically, this entitles employees to payment
of retroactive transit subsidies to employees who
participated in HHS Transhare Program at any time
from J anuary 1, 2012 through J anuary 31, 2013, in the
amount of transit costs they incurred in excess of $125
per month and up to $240 per month ($245 per month
for 2013). NTEU is currently working on creating a
claims process through which impacted employees can
submit requests for payment of retroactive transit
subsidies to HHS. Based on current regulations, this
will require employees to certify the actual amount of
commuting costs they incurred each month from
J anuary 1, 2012 through J anuary 31, 2013. (Suzanne
R, Butler, Arbitrator) National Grievance - Transit
Subsidies, NTEU and HHS. 2/18/2014. Staff -
Silverstone, J ennifer. A-4571.

Internal Revenue Service

ADMONISHMENT, ORALNEGLIGENCE - The
grievant, an ITAS employee, received a disciplinary
oral admonishment confirmed in writing for
negligence. She converted a $200 cash payment from a
taxpayer to a postal money order at a bank outside,
rather than using the offices courier service, and sent
it by ground delivery rather than next day mail. The
union argued that this was a performance issue to be
addressed in an evaluative recordation, not a conduct
issue addressed through discipline. The agency agreed
to settle, removed the discipline letter, and replaced it
with a performance counseling memo. Chapter 26 and
IRS, Wage and Investment Division. 3/20/2014. Staff -
Welsh, Tim. A-4572.

ALTERNATIVE WORK SCHEDULE (AWS)
FAILURE TO GRANT - The grievance alleged that
the agency violated Article 23 when it failed to grant
an alternative work schedule (AWS) to an Individual
Taxpayer Advisory Specialist (ITAS). There were five
full time ITASs, including the grievant, and one
additional, seasonal ITAS. No other ITAS requested
an AWS nor were any other ITASs working an AWS.
Despite the evidence at hearing that the agencys
reasons were speculative and the Territory Manager
admission that he had not approved any AWS request
for any ITASs, the arbitrator found that the agency
established that there is a lack of real work for the
grievant to perform during non-contact hours. National
Agreement 2012. (Dan Nielsen, Arbitrator) Chapter 3
and IRS. 11/20/2013. Staff - Lenggenhager, J ulie. A-
4573.

GLIDING - Chapter 49 filed a grievance for an
employee in training who wanted to work a glide
schedule. The employees manager worked in another
state and was concerned that the training classes be
supported by at least one on-site employee. Only two
training employees worked at this location. The
employee was interested in being able to glide early in
the morning. Management agreed that the employee
could glide earlier than the start of his tour without
prior management approval. The employee agreed to
notify management the day before if he wanted to
glide in later than the start of his tour. IRS-NTEU 2012
National Agreement, Articles 23, Section 3 & 4.
Chapter 49 and IRS. 5/17/2013. Staff - Dasovic, Anne.
A-4574.

REQUESTS; WORK SCHEDULES - The grievants,
six nightshift workers in the Centralized Insolvency
Unit, requested 4/10 AWS from 4 pm to 2:30 am, with
every Friday off. This was denied under the terms of a
1995 Local Agreement, which covered AWS prior to
the 2012 National Agreement. The local agreement
prohibited AWS where there was a lack of managerial
coverage. There would be no manager present for the
final hour of the TOD under the grievants requested
schedule. The evidence at hearing revealed that the
agency permitted other work groups to operate without
constant managerial coverage, that the grievants work
unit was already plagued by managerial coverage
issues stemming from managerial turnover and having
prolonged periods with no assigned manager, that
many of the grievants had served as acting managers
and as team leads, and that other employees worked
until 2:30 a.m. elsewhere within the operation.
Ultimately, the arbitrator denied the grievance, finding
that the operation was effectively closed during the
final hour of the requested TOD change. The arbitrator
also based his decision on the fact that one of the
several software programs used by the grievants to
carry out their job functions shut down for all but
research functionalities at 1:00 a.m. (Larry Evans,
Arbitrator) Mass Grievance - AWS, Chapter 71 and
IRS, Philadelphia Campus. 8/5/2013. Staff -
Silverstein, May. A-4575.

BULLYING; REPRISAL; PROHIBITED
PERSONNEL PRACTICES - Chapter 49 filed a
mass grievance against a Collection Group Manager
who was alleged to have verbally abused her
employees. The chapter filed a retaliation grievance
when the manager rated two grievants as less than
fully successful after the mass grievance was filed.
IRS agreed to permanently reassign the two grievants
who were rated less than fully successful, assign them
a coach and delay issuing a PIP for at least 90 days
while the new manager evaluated the employees
performance. If the abusive manager returns to
managing bargaining unit employees and treats
employees unprofessionally, the union retains the right
to raise the facts and circumstances of the settled cases
in a future grievance/arbitration. IRS also committed
to taking several steps to address the managers
behavior. IRS detailed the manager for at least 120
days to a non-managerial position, directed her not to
interact or interfere with her group during the detail,
reassigned her to a cubicle outside the Collection work
area, directed her to take several online training
courses, provided employees with a 360-degree survey
to evaluate her performance as a manager, and
appointed an acting manager for her group. IRS-NTEU
2012 National Agreement, Articles 4, Section 2, and
Article 5 Sections 1, 7 & 15.. Mass Grievance,
Chapter 49 and IRS. 12/5/2013. Staff - Dasovic, Anne.
A-4576.

DISCIPLINE LETTERFAILURE TO FOLLOW
PROCEDURES - The agency issued a disciplinary
admonishment letter to a Case Advocate for failing
properly legal analyse a case. The letter misstated
what the grievant wrote in her case history and IRS
erroneously found that she failed to apply IRM
guidance on Streamlined Installment Agreements. The
undisputed amount due and taxpayer requested
installment payments would not full pay the account
within 72 months as required. The union argued the
case was a continuing example of retaliation for
engaging in protected activity. On the eve of
arbitration the agency agreed to pull all documentation
related to the incident from the grievants files.
Chapter 26 and IRS, Atlanta. 6/25/2014. Staff - Welsh,
Tim. A-4577.

FLEXIPLACE; ALTERNATIVE WORK
SCHEDULE (AWS) - The issue was whether the
grievant was wrongly removed from Flexiplace and
AWS when she received a less than fully successful
mid-year evaluation. Our position was that any
decline in performance has to be attributed to
flexiplace before an employee can be removed from
flexiplace. The arbitrator ruled that the grievant did
not meet the minimum eligibility requirements because
of the mid-year evaluation. He noted that the
employees annual performance appraisal preceding
the mid-year, although rating the emplyee as exceeds
fully successful, contained the same criticisms as the
mid-year. He also noted that the annual appraisal
following the mid-year was raised from a minimally
successful to exceeds fully successful through a
grievance only because the agency failed to review
enough cases. The arbitrator ruled against NTEU
because of the minimally successful performance. IRS-
NTEU 2009 National Agreement, Article 50, Section
2.A.. (I.B. Helburn, Arbitrator) Chapter 46 and IRS.
12/18/2012. Staff - Ellzey, Anne. A-4578.

FMLACONSENT; LWOP; CONSTRUCTIVE
ADVERSE ACTION - The grievant, a GS-512-11
Fuel Compliance Agent, was unilaterally placed on
FMLA leave, without the grievants consent, from
November 1 to November 27, 2012. The grievant was
approved for FMLA from Oct. 9 - Nov. 29. The
grievant returned to work full time on Oct. 29-31, but
her IRS laptop was stolen from her home on Oct. 31.
Management placed the grievant back on FMLA on
Nov. 1, despite the grievant's request to continue to
work until new the laptop issued. We settled for the
conversion of 68 LWOP hours to Administrative
Leave. We also tacked on a settlement for an unrelated
grievance, whereby the agency agreed to convert four
hours of AWOL to LWOP. IRS-NTEU 2012 National
Agreement, Article 39 1, Article 53 3. Chapter 43
and IRS, Peoria. 1/27/2014. Staff - Kaspar, Dan. A-
4579.

FORMAL MEETINGS - A grievance was filed
alleging that IRS failed to give notice and allow the
chapter to attend meetings being held by the
Operations Manager at an ACS Call Site with hand-
picked bargaining unit employees. The meetings were
held in a conference room and lasted about one hour.
The meetings were scheduled in advance and minutes
were taken. The union contended that the topics
discussed, such as leave solicitation, overtime, and
holiday administrative time, concerned the employees

general conditions of employment. After the case was
invoked for arbitration, the Operations Manager left
the call site. The case settled when IRS acknowledged
that the meetings with the Operations Manager could
have been formal and that the union had the right to
be represented at formal meetings. National
Agreement 2012, Article 8.. Institutional Grievance,
Chapter 4 and IRS. 3/13/2014. Staff - Lenggenhager,
J ulie. A-4580.

GAINSHARING AWARD; TRAVELEXPENSES
- The grievant challenged the agencys refusal to pay
him a gainsharing award for travel savings on lodging
expenses. During business travel, the grievant saved
money on lodging expenses through use of discount
hotel vouchers that he purchased with personal funds.
The grievant could not use his government contractor-
issued credit card for lodging expenses because it had
been cancelled (for reasons not relevant to the
dispute). Having saved the agency money on his
lodging, the grievant applied for an award for the
savings he achieved as a result of the vouchers. The
agency denied him an award for that portion of the
savings because he failed to use his government
contractor-issued card to pay for the lodging. At
hearing, the union argued that Article 29, Section 17
entitles employees to an award for all lodging
savings incurred, that the grievant qualified for an
exemption to the agencys travel card use policy, and
that equity and the spirit of the program rules support
the grievants entitlement to an award payment. The
agency argued that the plain language of the parties
2000 MOU requires that travelers use their
government contractor-issued card to pay for expenses
to qualify for the award program. In his decision
denying the grievance, the arbitrator concluded that the
clear and unambiguous language of the parties
collective bargaining agreement and MOU requires
use of the government contractor-issued cards to
qualify for a gainsharing award. IRS-NTEU 2009
National Agreement, Article 29, 17; IRS-NTEU
Travel Gainsharing MOU. (J ohn W. Tapp, Arbitrator)
Chapter 40 and IRS. 8/16/2013. Staff - Sewell, Shellie.
A-4581.

HATCH ACT; POLITICAL ACTIVITY - The IRS
employee in this case works in a Taxpayer Assistance
Office (TAC) as an Individual Tax Advisory
Specialist. On October 11, 2012, she assisted a
taxpayer during the 2012 Presidential Election
campaign period. While assisting the taxpayer, she
expressed her support for the Democratic Party
because the Republicans [are] already trying to cap
my pension and . . . Theyre going to take women back
40 years. She also expressed opinions about tax law
stating: Bush tax laws were still in effect but were
going to expire in 2012, so the rich people are
complaining [because] theyve had it too good for the
last . . . Twelve years. At the end of the conversation,
she stated, Im not supposed to voice my opinion, so
you didnt hear my saying that.

The entire conversation was captured by the contact
recording system. OSC originally proposed a 60-day
suspension. The employee admitted that her conduct
met the definition of political activity, that she
violated the Hatch Acts prohibition against using her
official authority or influence to affect the result of an
election, and that that when she engaged in these
activities she knew or should have known about the
restrictions of the Hatch Act. In return, the OSC
lowered the penalty to a 14-day suspension. 5 C.F.R.
734.101; 5 U.S.C. 7324(a)(1)-(2) and 5 C.F.R.
734.306; 5 U.S.C. 7323(a)(1) and 5 C.F.R.
734.302(b)(1). Chapter 25 and IRS, Office of Special
Counsel. 4/14/2014. Staff - Shelton, J anis. A-4605.

HIGHER-GRADED WORK; DETAIL; PAY;
AWARD - The agency selected the grievant, a grade 9
Lead Customer Service Representative, for a 120-day
detail as a Telephone Systems Analyst. The vacancy
announcement listed the detail position as a grade 11.
Soon after she started working in the new position, the
grievant learned that the agency did not approve her to
receive the grade 11 pay, saying she did not qualify for
it. Encouraged by her manager, the grievant submitted
additional documentation supporting her payment as a
grade 11 citing her grade 9 CSR experience. In the
meantime, management asked the grievant to sign an
agreement that she would complete the Systems
Analyst assignment at her current rate of pay. The
grievant complied but continued attempting to
demonstrate her qualifications for the higher pay,
without success. The agency cited the reason for the
denial of the higher pay as lack of specialized
experience: the grievant had not served in the lower-
graded Analyst position for at least a year. The parties
settled for a $500 Managers Award to recognize the
grievants service in the detail. IRS-NTEU 2009
National Agreement, Article 16, 2. Chapter 14, and

IRS, St. Louis Call Site. 12/10/2012. Staff - Sewell,
Shellie. A-4582.

LEAVEAWOL, LWOPREFUSAL OF - The
union filed a grievance based on the theory that the
agency abused its discretion in refusing to grant the
employee LWOP on five days she was absent due to
illness. There was no dispute that the employee was
absent due to being incapacitated by an illness, but the
employee did not have enough sick or annual leave
available to cover the illness. The case settled when
the agency agreed to remove the AWOL. IRS-NTEU
2013 National Agreement. Chapter 73 and IRS.
1/9/2014. Staff - Igoe, William. A-4583.

OVERTIME;EQUITABLE DISTRIBUTION;
BACK PAY - On Thursday May 19, 2011, the
Taxpayer Advocate Service in Washington announced
that overtime would be available across the country.
However, Fresnos Taxpayer Advocate wanted
clarification about the offer. As a result, she did not
officially offer it to Fresnos TAS employees. The
next day, after she received the clarification that she
wanted, the Taxpayer Advocate officially notified
Fresnos TAS employees that the overtime would be
available. By the time that the announcement was
made, however, the grievant had already left work.
Pursuant to the notice requirements of such an offer,
an agency manager sent a text to the grievant after she
had left work to tell her that overtime would be
offered. However, the text went to the wrong number
and the grievant did not receive it. On the following
Monday, the grievants AWS day, the grievant could
have worked eight hours of overtime as was her habit
whenever such overtime was available. NTEU
claimed that the agencys failure to properly notify her
violated Article 24, section 2(A)(1) of the National
Agreement as overtime was not distributed as
equitably as possible. The arbitrator ruled in favor of
the union finding that under the parties Agreement,
the agency was responsible to provide notice of
overtime opportunities that includes the important
parameters of when it would be worked prior to the
beginning of the pay period. Because the grievant did
not receive that opportunity due to the agencys failure
to properly notify her, this resulted in the loss of eight
hours of overtime. As a consequence, the arbitrator
ordered the agency to pay the grievant eight hours of
overtime under the Back Pay Act. Back Pay Act - 5
U.S.C. 5596. (J effrey J . Goodfriend, Arbitrator)
Chapter 97 and IRS, Fresno. 11/22/2013. Staff -
Sheridan, Timothy J .. A-4584.

PERFORMANCE APPRAISAL;
PERFORMANCE EVALUATION - The grievant
challenged her annual appraisal alleging that the
documentation and evidence supported an overall
score of "Outstanding." The case settled for raising
one of the three disputed performance aspects, which
resulted in a higher overall rating and award. Chapter
50 and IRS. 4/16/2014. Staff - Welsh, Tim. A-4585.

PERFORMANCE EVALUATIONPAY;
PROMOTION - The grievant, a Revenue Agent,
challenged his annual performance appraisal, disputing
four CJ E aspect ratings and an overall rating of
minimally successful. The grievant argued that in
giving the disputed ratings, the agency was not fair and
objective; it failed to discuss the appraisal with him
when issued; and that other mitigating factors like lack
of training and a hostile-acting manager contributed to
an inaccurate appraisal. As a result of the low rating,
the agency denied the grievant his within-grade
increase and a career-ladder promotion. Months later,
during the following year, the agency did promote
him. The parties agreed to settle the matter prior to
hearing. The agency granted the grievant a retroactive
career-ladder promotion, payed the grievant back pay
with interest based on a retroactive within grade
increase; and revised the grievants ratings to Fully
Successful. IRS-NTEU 2009 National Agreement,
Article 12 4, 12, Article 5 7. Chapter 30, and IRS.
4/12/2013. Staff - Sewell, Shellie. A-4586.

PRIVACY; PERSONNEL RECORDSACCESS -
The grievant was denied access to her employee
performance folder when accompanied by her steward.
Management insisted that Article 7 of the contract
allowed either her or her steward to review the file, but
not the two together. The agency settled agreeing to
allow the two to view the file together in the presence
of a management representative. Chapter 26 and IRS.
11/25/2013. Staff - Welsh, Tim. A-4587.

PROMOTION INTERVIEWS; PANEL
INTERVIEWS; SELECTING OFFICIAL - NTEU
filed a national grievance alleging that the agencys
process of having a selecting official designate a panel
to interview Best Qualified (BQ) candidates violated
Article 13 of the 2012 National Agreement II (NAII).

NTEU argued that the panels constituted an additional
rating and ranking step to the promotion process that
was not negotiated between the parties. Upon
investigation, NTEU uncovered that the agency had no
guidance for the panels, which used any number of
scoring and/or rating procedures that they unilaterally
deemed fit. The arbitrator found that the 2012 NAII
does not permit the IRS to delegate selection
interviews and that only the selecting official may do
them. Also, the IRS interviews failed to comply with
government-wide regulations 5 CFR 300.103 and
335.103 and constituted prohibited personnel
practices. The final remedy has not yet been decided.
IRS-NTEU 2012 National Agreement II, Article 13
5-7. 5 CFR 300.103 and 335.103, Prohibited
Personnel Practice.. (M. David Vaughn, Arbitrator)
National Grievance - BQ Panel, NTEU and IRS.
1/10/2014. Staff - Baseman, Brandon and Ken Moffett.
A-4588.

PROMOTIONS; INTERVIEW PANELS - The
agency announced grade 12 and 12/13 Revenue Agent
positions in 2012 and used an interview panel which
did not include the selecting official. The grievant
who ranked best qualified for the 12/13 position was
told that she lost the selection based on her interview.
She was, however, selected for the grade 12 position.
Her manager interceded with the territory manager and
supported her qualifications but was told that he could
not select someone who did not pass the interview.
The union grieved the use of the panel, which did not
include the selecting official. After the national
grievance decision regarding the use of interview
panels (A-4589), the agency offered to promote her
immediately to a grade 13 position. Chapter 249 and
IRS. 3/27/2014. Staff - Welsh, Tim. A-4589.

REASONABLE ACCOMMODATION; LEAVE
WITHOUT PAY; UNDUE HARDSHIP;
UNILATERAL CHANGE IN WORKING
CONDITIONS; FMLA - The grievant was injured
when she fell at work. When she returned to work
after a lengthy absence, the union negotiated an
agreement in April 2000 whereby the agency agreed to
continue her modified work schedule by granting one
day of LWOP per week as long as her condition
warranted it. The agreement was honored by the
parties for about 10 years until the IRS discontinued it.

The arbitrator rejected the agencys contention that
the supervisor lacked the authority to bind the agency
by entering the LWOP agreement. The arbitrator
determined that the purpose of the agreement was to
accommodate the grievants disability and that in order
to rescind the agreement, the agency had to
demonstrate that maintaining the agreement
constituted an undue hardship, which they failed to do.
The arbitrator also determined that the employers
knowing acquiescence to the arrangement for
approximately 10 years converted it to a condition of
employment. The arbitrator sustained the grievance in
its entirety and determined that the grievant may use
LWOP for her regularly-scheduled day off, and that
all FMLA leave be restored to her account. IRS-NTEU
National Agreement II.. (Harry Graham, Arbitrator)
Chapter 25 and IRS. 4/9/2014. Staff - Shelton, J anis.
A-4590.

REMOVALAWOL; LEAVE; FALSIFICATION -
The grievant, a secretary with about four years of
service, challenged the agencys removal for charges
of AWOL, failure to follow instructions in a leave
restriction letter, false statements in a matter of official
interest, and negligence in carrying out duties. The
grievant was unable to provide medical documentation
to substantiate the absences or disprove the other
charges. The grievant had a prior seven-day
suspension for failure to meet financial obligations and
a letter of reprimand for late payment of Federal taxes.
The matter settled with the grievant receiving a clean
SF-50 reflecting a resignation for personal reasons.
IRS-NTEU 2009 National Agreement II, Article 39..
Chapter 51 and IRS, Overland Park, KS. 10/25/2012.
Staff - de J uan, Fernando. A-4591.

REMOVALUNAX - The grievant, a 15 year IRS
employee with good performance and no prior
discipline, was removed based on a charge of UNAX.
She was accused of accessing the accounts of the
father of her grandchild, who was estranged from her
daughter. Prior to the hearing date the grievant decided
that she did not want to return to the IRS because she
was eligible to retire. We settled the case for a clean
SF-50 and $3,750 in compensatory damages. IRS-
NTEU 2012 National Agreement, Article 342.
Chapter 73 and IRS. 1/9/2014. Staff - Igoe, William.
A-4592.


REMOVALVIOLATION OF LAST CHANCE
AGREEMENT - The grievant, a GS-5 Tax
Examination clerk, was removed for violating a Last-
Chance Agreement. The Last-Chance Agreement
required that any appeals be filed with the Merit
Systems Protection Board. We were able to show that
the grievant had not violated the Last-Chance
Agreement and the J udge determined that we could
proceed to a hearing. The case settled through the
Federal Mediation Program when the agency agreed to
substitute the removal action with a 90-day suspension
(time served) and awarded back pay to the grievant.
Chapter 98 and IRS. 1/3/2014. Staff - Ickes, Magaly.
A-4593.

REQUEST FOR INFORMATION;
PROMOTION; INTERVIEW NOTES - A
grievance was filed alleging that IRS failed to properly
rank and consider a Revenue Officer for promotion.
Section 10 of Article 13 states that interview notes,
rating/ranking questions, and answers provided to the
questions will be furnished, upon request, to the union
upon the filing of a grievance over a promotion. The
chapter submitted a request for photocopies of all the
promotion packages for each applicant from the
grievant and all those ranked above the grievant on the
HQ and BQ lists, includinginterview questions and
notes, electronic ranking questions, answers IRS
refused to give the chapter the interview questions and
notes. After the case was invoked for arbitration, the
parties agreed to a settlement when the IRS agreed to
provide the interview notes. National Agreement 2012,
Article 13, 10. Institutional Grievance, Chapter 1 and
IRS. 3/11/2014. Staff - Lenggenhager, J ulie. A-4594.

SUSPENSIONFAILURE TO FOLLOW IRS
RULES ON SECURITY CONTROLS; CAUSING
A DISRUPTION - The grievant received a 14-day
suspension based on charges that she failed to follow
IRS rules on security controls and caused a disruption
in the workplace. Specifically, it was alleged that she
brought a non-IRS person into an IRS-occupied,
secured space on at least three occasions while she was
acting as team manager. On one occasion, the non-IRS
person was observed sitting in a managers office
unaccompanied, with the door closed. The grievant did
not dispute the charges. The case settled when the
agency agreed to reduce the 14-day suspension to a 7-
day suspension and to allow the grievant to use annual
leave to cover the remaining unpaid period of the
previously-served suspension. Chapter 20 and IRS,
Oakland. 11/22/2011. Staff - Shaughnessy, Charla. A-
4595.

SUSPENSIONFAILURE TO TIMELY PAY
FEDERAL TAXES; FAILURE TO TIMELY PAY
GOVERNMENT TRAVEL CARD - The grievant
received a 14-day suspension for her failure to timely
pay her 2007 federal income taxes and her failure to
timely pay the balance on her government travel card.
The suspension was stayed pending the outcome of the
case. This was the grievants third offense for travel-
card delinquency. The case settled when the agency
agreed to retroactively implement the 14-day
suspension during a pay period when the grievant was
out on LWOP status to care for a family member under
approved FMLA leave. Chapter 20 and IRS.
8/17/2011. Staff - Shaughnessy, Charla. A-4596.

SUSPENSIONMISUSE OF AND FAILURE TO
TIMELY PAY GOVERNMENT-ISSUED CREDIT
CARD - The agency suspended the grievant for 30
days for misuse of her government-issued credit card
and her subsequent delinquency making payments on
that card. The case settled when the agency agreed to
reduce the 30-day suspension to a 15-day suspension
with back pay and benefits in accordance with the
Back Pay Act. The grievant also agreed to pay the
agency for overpayment of travel expenses in the
amount of $51.74, which the agency agreed to deduct
from her back pay. Chapter 20 and IRS, San Francisco.
6/11/2012. Staff - Shaughnessy, Charla. A-4597.

SUSPENSIONTAX DELINQUENCY - The
agency issued the grievant a one-day suspension for
failing to timely pay 2009 Federal income taxes. The
grievants checks to pay the outstanding tax balance
were returned due to insufficient funds. The tax
balance was approximately $300, which was paid in
the first quarter of 2011. The grievant had no prior
discipline. The parties agreed to settle the case by
replacing the suspension with a letter of reprimand,
converting the the suspension served to reflect LWOP
status. IRS-NTEU 2009 National Agreement II, Article
38 7. Chapter 14 and IRS, St. Louis Accounts
Management.. 9/5/2012. Staff - de J uan, Fernando. A-
4598.

SUSPENSIONTAXESTIMELY PAYMENTY
OF; GOVERNMENT CREDIT CARD, LATE

PAYMENT OF - The agency suspended the grievant
for seven days based on two charges. The agency
charged the grievant with not timely paying his
government credit card and not properly filing his
taxes. The union was prepared to show that the tax
charges were more than four years old and that the
agency had caused the late payment of the credit card
by not properly processing the grievants voucher. As
this was a mitigation case, the grievant and the union
agreed to settle the case for a reduction of the penalty
to a one-day suspension. IRS-NTEU 2012 National
Agreement, Article 38. Chapter 73 and IRS.
12/17/2013. Staff - Igoe, William. A-4599.

SUSPENSIONUNAX - The grievant, a GS-7 Tax
Examining Technician, was suspended for 120 days
for two charges of improperly accessing taxpayer data
on the Integrated Data Retrieval System without
official reason to do so. One of the accesses was made
at the request of the taxpayer and the other was done
for personal reasons. The grievant had worked for the
agency for 12 years and never had any disciplinary
actions prior to the UNAX incidents in this case.
When confronted by TIGTA, the grievant immediately
acknowledged the accesses and took full responsibility
for them. The agency suspended the grievant claiming
that she had purposefully attempted to hide one of the
accesses in a batch of work that had been assigned to
her. Prior to the hearing we stipulated that the grievant
had committed the improper accesses as charged and
the existence of a nexus between the misconduct and
the efficiency of the service. The case then settled at
hearing for a 60-day suspension and 60 days of back
pay, interest and benefits in accordance with the Back
Pay Act. IRS-NTEU 2012 National Agreement II,
Article 39. (Michael Gordon, Arbitrator) Chapter 66
and IRS, Kansas City Service Center. 3/26/2014. Staff
- Payne, Steve. A-4600.

SUSPENSIONUNAX; IMPROPRIETY
APPEARANCE OF; CONFLICT OF INTEREST;
MITIGATION - The grievant, a paralegal specialist
in the Office of Chief Counsel, was suspended for 45
days for one specification of UNAX and one
specification of engaging in the appearance of
impropriety. The grievant accessed the account of a
friend who contacted her about a deficiency notice she
received. The appearance of impropriety was having
$150 of the same taxpayers refund deposited to her
own checking account. The grievant had assisted in
the preparation of the return. The union argued, and
the arbitrator agreed, that the 45-day suspension was
excessive. In determining the appropriate penalty, she
considered the penalties assessed in other arbitration
decisions involving IRS employees for UNAX
specifications. She also noted that grievant was not
snooping other taxpayers records, which is the
concern underlying the Taxpayer Browsing Protection
Act, and that the agency waited three years to
discipline the employee after the misconduct was
discovered. Accordingly she reduced the suspension
to 21 days. (Susan Mackenzie, Arbitrator) Chapter 50
and IRS, SB/SE. 12/19/2013. Staff - Welsh, Tim. A-
4601.

TELEWORKDENIAL OF; FREQUENT
TELEWORK - The grievant, an Employment Tax
Compliance Officer, challenged the agencys denial of
her request for Frequent-Telework status. The
grievant requested telework pursuant to Article 50,
2G, which permits employees occupying positions not
on the list to be considered for telework provided that
they qualify for telework and that their positions meet
the criteria for Frequent Telework. The arbitrator
concluded that the concerns expressed by management
as the basis for denial of the grievants request for
Frequent-Telework status were not valid given that
technology has changed the way her job functions and
the realities of the situation. She determined that
managements consideration of the factors listed in
Article 50, 2.E was unreasonable and arbitrary, and
did not meet the criteria for denial listed in 2.E. She
found managements decision-making was driven not
by the negotiated criteria, but by concerns that
authorizing Frequent Telework for Employment Tax
TCOs would impair the productivity of the
organization. The arbitrator sustained the grievance
and ordered the parties to develop a frequent telework
agreement for the grievant, to last for 6 months, after
which the arrangement can be re-evaluated under the
Section 2 criteria and available productivity
information. IRS-NTEU 2012 National Agreement,
Article 50, Section 2 F & G. (Margo Newman,
Arbitrator) Chapter 25 and IRS. 3/31/2014. Staff -
Shelton, J anis. A-4602.

TRANSPORTATION SUBSIDIES
RETROACTIVE; NATIONAL GRIEVANCE - On
J anuary 1, 2012, the amount of the public-
transportation subsidy that is deemed nontaxable

automatically decreased from $230 per month to $125
per month due to the failure of Congress to enact
legislation extending the parity of the transit subsidy
with the parking subsidy. On J anuary 2, 2013, the
American Taxpayer Relief Act of 2012 (ATRA)
became law. ATRA retroactively increased the
nontaxable amount of the transit subsidy to $240 per
month for all months in 2012. The subsidy was
increased to $245 per month to adjust for inflation for
all months in 2013. The IRS did not begin paying up
to the new nontaxable amount of $245 per month until
March 1, 2013. The national grievance alleged that
the IRS breached Article 53, 10 of the parties 2012
National Agreement II (NA II) when it refused to pay
retroactive transit subsidies to eligible bargaining-unit
employees after ATRA retroactively increased the
maximum nontaxable amount of the subsidy. The
arbitrator found that the contract language requiring
the IRS to subsidize employees public-transportation
commuting costs to and from work up to the maximum
non-taxable amount does not provide the IRS with
any discretion to determine the level of the transit
subsidy, and incorporates Section 132(f) of the Internal
Revenue Code. Section 132(f) identifies the maximum
amount of the public transportation subsidy that may
be excluded from gross income. The arbitrator
interpreted the contract language up to the non-
taxable amount based on the parties past practice in
subsidizing employees transit costs. He found that
the practice reflected the raising and lowering of the
transit subsidy provided by the IRS based on
Congressional action amending the maximum
nontaxable amount of the subsidy in Section 132(f).
Thus, the contract required the IRS to provide a transit
subsidy to employees based on their actual commuting
costs, subject only to the maximum nontaxable amount
set forth in Section 132(f). The arbitrator found that
because ATRA amended Section 132(f) to increase the
maximum nontaxable amount of the subsidy to $240
per month retroactive to J anuary 1, 2012, that
increased amount was the amount the IRS was
contractually obligated to provide to employees
retroactively. As a remedy, the arbitrator ordered the
IRS to pay retroactive transit subsidies to all
bargaining unit employees in the form of cash
payments to those employees whose transit costs were
over and above $125 per month for 2012 and 2013 (up
to $240 per month for the year 2012 and up to $245
per month for the year 2013. Section 132(f) of the
Internal Revenue Code. (J oshua J avits, Arbitrator)
National Grievance - Transportation Subsidy Program,
NTEU and IRS. 1/9/2014. Staff - Gnadt, Anna. A-
4603.

UNFAIR LABOR PRACTICE (ULP)FORMAL
MEETING - An IRS attorney conducted a mandatory
meeting with a bargaining-unit employee for the
purpose of deposing the employee in relation to an
EEO complaint she had filed. The employee requested
that an NTEU steward be present at the meeting even
though the steward was not representing the employee
regarding the EEO matter. The IRS attorney refused
to allow NTEU to be present, even after NTEU gave
her an Authority decision showing that the meeting fit
the criteria of a 7114 meeting and that the union had a
right to attend. We filed an unfair labor practice
charge, then withdrew when the agency settled by
agreeing to a posting, signed by the SCR at the Kansas
City Campus, that declared that management will not
conduct formal discussions with employees, including
preparation for third-party hearings such as EEOC
hearings, without providing NTEU with notice and an
opportunity to attend. 5 USC Sec. 7115(a)(2)(A); 7116
(a)(1),(8). IRS Kansas City Campus and NTEU
Chapter 66. 4/27/2010. Staff - Fisher, J ean. A-4604.

Office of the Comptroller of the
Currency

REMOVALUNACCEPTABLE
PERFORMANCE - OCC removed a Licensing
Specialist for alleged unacceptable performance.
NTEU contended that the agency failed to give the
employee a bona fide opportunity period to improve
her performance. The arbitrator denied the grievance.
He credited managements witnesses and found that
the grievant lacked credibility notwithstanding her
unrebutted testimony. NTEU-OCC National
Agreement. (J erome Ross, Arbitrator) Chapter 302
and OCC. 6/4/2014. Staff - Gross, J ared. A-4606.

Securities and Exchange Commission

TRANSIT BENEFITRETROACTIVE - The
chapter filed a national grievance after the passage of
ATRA for the failure to provide a retroactive transit
benefit for 2012 and for failing to raise the benefit for
two months in 2013. The parties settled the matter

when the SEC agreed to a permanent transit subsidy of
$250/month or the current government-wide increase,
whichever is greater. The increased subsidy will take
effect in FY2015. The amount above the government-
wide increase will be subject to taxation. National
Grievance - Transit Benefits, Chapter 293 and SEC.
5/20/2014. Staff - Talarico, Ralph. A-4607.

SSA -- Office of Disability
Adjudication and Review

FLEXIPLACE - The grievant is an Attorney Decision
Writer for SSA ODAR in the Dallas Processing Center
(DPC). The DPC is governed by the multi-regional
contract which does not contain language limiting the
number of days that an employee can work from an
alternate duty station, such as home. The grievant
asked to work from home four days per week, the
same as similarly-situated employees in other regions
doing the same work that she did. The agency granted
two days. The chapter filed a grievance and we
invoked. The parties settled to allowthe grievant to
work from home three days per week on a 4/10 AWS
schedule. Chapter 224 and SSA ODAR. 11/7/2013.
Staff - Bruce, Eric. A-4608.

REMOVALFAILURE TO MAINTAIN LAW
LICENSE; CONDUCT UNBECOMING - The
grievant was an attorney in the Stockton, California
ODAR Hearing Office. She was removed for failure
to maintain her law license as a condition of
employment, and, related to that charge, conduct
unbecoming a federal employee and failure to follow
agency instructions. After a couple weeks of
negotiations, the agency agreed to settle just before the
hearing for a clean resignation and $20,000.00.
Chapter 224 and SSA ODAR. 1/22/2014. Staff -
Bruce, Eric. A-4609.

FLRA

Customs and Border Protection

GIVEAWAY; PAST PRACTICE; CBP
AGREEMENT: ARTICLES 3, 23, 26 AND 35 -
NTEU filed exceptions an arbitrators decision that
the agency did not violate the parties agreement or
commit an unfair labor practice when it unilaterally
eliminated a local overtime practiceas inconsistent
with Article 35 addressing overtime assignments.
NTEU maintained that the arbitrators decision failed
to draw its essence from the Agreement insofar as it
modified Article 35 by adding the word, sole to the
enumerated procedures by which overtime is
scheduled and assigned. The FLRA found that it was
not an implausible interpretation and rejected the
argument. The union also claimed that the arbitrators
decision conflicted with Articles 23 and 26 which
preserved past practices not in conflict with the
Agreement. The FLRA rejected the unions argument
that the arbitrator disregarded Article 26, Section 4 of
the agreement concerning the unions right to bargain
over overtime matters which are not specifically
addressed in the contract. The unions exceptions
were denied. Give Away Grievance, Chapter 103, and
CBP, Long Beach, California. 12/19/2013. Staff -
Donnelly, J . Kenneth. 67 FLRA No. 34, (2013). A-
4610.

UNFAIR LABOR PRACTICE (ULP)
INTERFERENCE, RESTRAINT;
OVERTIME; CALL-OUT - The chapter filed a
grievance on behalf of the grievant alleging that the
agency violated Article 35 by skipping the grievant for
an overtime assignment in violation of the Call-Out
Order. During the first-step grievance meeting, the
first-step management official and immediate
supervisor of the grievant threatened that heads will
roll if the grievant and the union continued to pursue
the grievance. The union filed an unfair labor practice
alleging that the supervisors conduct constituted
unlawful interference with employees exercise of
their rights under the Statute. The parties settled the
matter for a ULP posting that states that the agency a)
WILL NOT make statements to employees that have
filed grievances that would tend to interfere with their
right to file and pursue grievances; and b) WILL
NOT, in any like or related manner, interfere with
employees in the exercise of their rights under the
Statute. Chapter 168 and CBP. 12/12/2013. Staff -
Barczykowski, Frank. AT-CA-13-0573. A-4611.

DHHS--Food and Drug Administration

FLRA APPEAL; NON-FACTCONSIDERATION
OF; ESSENCE OF THE AGREEMENT

DRAWING FROM - The agency took exceptions to
the arbitrators decision finding that a three-day
suspension of the grievant was not for such cause as
would promote the efficiency of the service. As a
result, the arbitrator ruled that a written reprimand was
the appropriate remedy. NTEU chapter 212 and FDA
(Arbitrator Adler) A-4397. The agency claimed that
the award was based on a nonfact with respect to a
finding that the deciding official had not considered a
prior reprimand of the grievant in determining the
appropriate level of discipline. The FLRA denied the
exception, finding that the agency had provided no
basis on which to conclude that but for the alleged
factual error the arbitrator would have reached a
different conclusion. The agency also argued that the
award failed to draw its essence from the agreement
insofar as the arbitrator did not consider the grievants
prior reprimand. The FLRA found that the same
principles supporting the rejection of the nonfact
argument applied to the essence-of-the-agreement
argument and denied the exception. HHS/FDA, San
Diego, California and NTEU. 2/18/2014. Staff -
Friedman, J ill. 67 FLRA No. 63. A-4612.

Internal Revenue Service

UNFAIR LABOR PRACTICE (ULP)REFUSAL
TO SUPPLY INFORMATION; CREDITING
PLAN; FAILURE TO BARGAIN - A grievance was
filed on behalf of a Grade 12 Revenue Agent in SB/SE
who missed making the best qualified (BQ) list by
1.01 points when applying for a Grade 13 Revenue
Agent position. NTEU requested, among other items,
the Article 13, Section 5(D)(1) scores, broken down by
Critical J ob Element (CJ E), and the crediting plan used
to determine the Section 5(D)(1) scores. IRS refused to
provide these items, citing exemptions in the Freedom
of Information Act and the Privacy Act of 1974.
Thereafter, NTEU filed a ULP with the FLRA alleging
a violation of 5 U.S.C Sections 7116 (a) (1), (5) and
(8). During the FLRAs investigation of the ULP, IRS
provided the actual ranking score broken down by
applicant but refused to provide the crediting plan. The
General Counsel of the FLRA issued a complaint after
determining that NTEU was entitled to the crediting
plan and Section 5(D)(1) scores, broken down by CJ E,
and that the agency had failed to timely provide those
to the union. The IRS subsequently agreed to provide
certain NTEU representatives with a copy of the
relevant crediting plan. The conditions of release
partially followed Article 13, Section 10(E) of the
2012 National Agreement II, but NTEU was able to
secure even better terms. The agreement is an official
FLRA settlement agreement, and contains no
nonprecedentiality or nonadmissions clauses. Finally,
there were no substantive restrictions on how NTEU
could use the crediting plan for its case challenging the
employees ranking, which had been pending at
arbitration while the crediting plan issue was being
litigated. 5 U.S.C 7116(a) (1), (5), (8). Chapter 43
and IRS. 4/4/2014. Staff - Kaspar, Dan. A-4613.

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