33:0622(79)AR - - FDA, Region II and AFGE Council 242 - - 1988 FLRAdec AR - - v33 p622
[ v33 p622 ]
The decision of the Authority follows:
33 FLRA No. 79
FEDERAL LABOR RELATIONS AUTHORITY
FOOD AND DRUG ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 31, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Charles Feigenbaum. The issue before the Arbitrator was whether the grievant's suspension for 5 days was for such cause as would promote the efficiency of the service. The grievant argued that he was not informed of his right to union representation at the investigation which resulted in disciplinary action and, therefore, his suspension should be overturned. The Arbitrator found that the grievant's right to union representation was not violated and he sustained the suspension. Accordingly, the Arbitrator denied the grievance.
The American Federation of Government Employees, Council 242, (the Union) filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The U.S. Food and Drug Administration, Region II, (the Agency) did not file an opposition.
We conclude that the Union has not established that the Arbitrator's award is contrary to law, rule, or regulation or is deficient on grounds similar to those applied by the Federal courts in private sector labor arbitration cases. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant was suspended for 5 days without pay for the unauthorized taking of Government property. Arbitration was invoked on the issue of whether the grievant was suspended for such cause as would promote the efficiency of the service. The Union alleged that the Agency violated the grievant's right to union representation by failing to give him the annual notice concerning representation rights required under the Statute. Additionally, the Union asserted that the grievant's rights were violated by the manner in which Agency officials conducted the investigatory interview.
The Arbitrator concluded that the Agency did not violate section 7114(a)(3) of the Statute by failing to inform employees on a yearly basis of their right to union representation. Award at 20. Consequently, the Arbitrator concluded that the Agency did not violate the grievant's right to representation under section 7114(a)(2)(B). Furthermore, the Arbitrator found that the grievant had the opportunity to seek representation when he realized that he was the focus of the investigatory interview, but he did not do so. Award at 22.
The conduct of the interview, according to the Arbitrator, was immaterial because the sole basis for the suspension was the grievant's written statement that he took Government property, 15 rolls of film, for personal use. Award at 19. Considering the grievant's testimony and the facts surrounding the investigation, the Arbitrator found that the Union failed to prove that the written statement was procured under circumstances which made it inadmissible. The Arbitrator also concluded that the Agency proved, by a preponderance of the evidence, that the penalty should be sustained. Therefore, the Arbitrator denied the grievance.
The Union contends that the Arbitrator's award violates section 7114(a)(2)(B) and (3) of the Statute and the Federal Personnel Manual (FPM), Chapter 711-10, Section 2-8 (7)(b)(2). The Union also argues that the Agency did not prove its case by a preponderance of the evidence.
The Union asserts that since the grievant argued that he was not informed of his right to union representation, the burden shifted to the Agency to prove with written documentation that management complied with section 7114(a)(3) of the Statute and FPM, Chapter 711-10, Section 2-8 (7)(b)(2). The Union notes that the Arbitrator found that it was unclear whether the Agency gave the required notice between 1983 and April 1, 1987, the date the grievant was interviewed. Based on this conclusion, the Union argues that the Arbitrator should have found the grievant's statement inadmissible. In finding the statement admissible, the Union argues that the Arbitrator misinterpreted the statutory and FPM requirement and improperly denied the grievant his right to union representation.
IV. Analysis and Discussion
Section 7114(a)(2)(B) provides that in any examination of a unit employee by an agency representative in connection with an investigation, the employee shall have the right to have a union representative present if the employee reasonably believes that the investigation may result in disciplinary action and requests representation. Section 7114(a)(3) provides that an agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection. FPM Chapter 711, subchapter 2-8, b(2) reiterates the requirement in section 7114(a)(3).(*)
We note that the Arbitrator concluded that the Agency did not violate section 7114(a)(3) based on the testimony of management officials. These officials testified that the Agency's regional personnel office annually distributed notices to employees advising them of their right to union representation. In addition, an official testified that the grievant received, and signed for, a copy of the parties' agreement which includes a statement of employees' representation rights in connection with an investigation. Award at 11-12 and 20. Finally, we note that the Arbitrator found that the grievant failed to request representation despite his realization that he was the focus of the investigation.
As we stated above, the Arbitrator found that the suspension was based solely on the grievant's written statement. The Arbitrator found that the grievant was not required to copy the statement drafted by the investigators, but that he did so. Furthermore, the Arbitrator stated that the grievant was "an intelligent man in a professional position. I cannot accept his assertion he signed the statement because he did not realize the difference between being responsible for the film, which he admits he was, and having made personal use of government property." Award at 24. Thus, the Arbitrator concluded that the Agency proved, by a preponderance of the evidence, that the penalty should be sustained.
Based on the Arbitrator's conclusions, we find that the Union has failed to establish that the