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
                                            Case No. O-AR-386
    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
    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 F