15:0451(93)AR - IRS, Jacksonville District and NTEU Chapter 93 -- 1984 FLRAdec AR
[ v15 p451 ]
The decision of the Authority follows:
15 FLRA No. 93 INTERNAL REVENUE SERVICE, JACKSONVILLE DISTRICT Activity and NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 93 Union Case No. O-AR-386 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Edwin R. Render filed by the Agency and the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The parties submitted to the Arbitrator the issue of whether the Activity violated the representation rights provision of the parties' collective bargaining agreement /1/ by refusing to permit requested union representation during the Activity's investigatory interviews of the four grievants. In the instances of Grievants Wills, Malanowski, and Taraska the Arbitrator essentially concluded that no reasonable belief that the examinations might result in discipline had been substantiated and the Arbitrator denied their grievances. As to Grievant Rodriguez the Arbitrator concluded that such reasonable belief had been substantiated, and he sustained her grievance insofar as it requested that her statements be excluded from any disciplinary action against her. The Agency in its first exception to the award contends that the award exceeds the scope of the issue presented. In support of this exception, the Agency's argument is that the Arbitrator mentions in the course of his discussion of the matter an initial incident when no interviews were conducted because of requests for union representation. Because the grievance was sustained only to the extent of the statements of Grievant Rodriguez that were made during the interviews specifically in dispute, this exception provides no basis for finding the award deficient. In its second exception the Agency contends that the Arbitrator's finding that Grievant Taraska, whose grievance the Arbitrator denied, requested union representation is based on a nonfact. However, this exception constitutes nothing more than disagreement with the Arbitrator's finding of fact as to whether Grievant Taraska requested representation and provides no basis for finding the award denying her grievance deficient. The Union in its exceptions contends that the award is contrary to section 7114(a)(2)(B) of the Statute /2/ and does not draw its essence from the collective bargaining agreement because the Arbitrator erroneously applied a subjective test to whether the grievants had a reasonable belief that the examinations might result in discipline. Citing Internal Revenue Service, Hartford District Office, 4 FLRA 237 (1980), enforced sub nom. Internal Revenue Service v. FLRA, 671 F.2d 560 (D.C. Cir. 1982), the Union argues that under section 7114(a)(2)(B) the reasonable prospect of discipline must be determined from objective circumstances. The Authority concludes that the Union's exceptions provide no basis for finding the award deficient. The Arbitrator in his discussion accompanying his award specifically cited IRS, Hartford and specifically concluded that the standard to be used in ascertaining whether an employee "reasonably believes" that discipline might be imposed is one of relying upon "objective" considerations, including such external evidence as the facts, the affected employee's conduct and other surrounding circumstances. The basis for the Union's contention is the Arbitrator's mention of subjective considerations in his discussion accompanying the award. However, because these references do not substantiate that the Arbitrator's ultimate determination that Grievants Wills, Malanowski, and Taraska had no reasonable belief that the examinations may have resulted in discipline is contrary to either section 7114(a)(2)(B) or the collective bargaining agreement, the Authority finds that the Union has not established that the denial of the grievances is deficient. Rather, these exceptions in essence constitute nothing more than disagreement with the reasoning and conclusions of the Arbitrator in arriving at his award denying those grievances. Accordingly, the exceptions of both the Agency and the Union are denied. Issued, Washington, D.C., August 9, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The parties stipulated that the agreement revision is a restatement of section 7114(a)(2)(B) of the Statute. /2/ Section 7114(a)(2)(B) provides: (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- . . . . (B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if-- (i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation.