48:0849(88)AR - - VA Medical Center, Asheville, NC and AFGE, Local 446 - - 1993 FLRAdec AR - - v48 p849
[ v48 p849 ]
The decision of the Authority follows:
48 FLRA No. 88
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
ASHEVILLE, NORTH CAROLINA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
November 3, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Gordon W. Ludolf filed by the Union 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 Agency filed an opposition to the Union's exceptions.
The Union filed a grievance alleging that the Agency had denied the grievant's right to Union representation during a counseling session. The Arbitrator denied the grievance. For the following reasons, we conclude that the exceptions provide no basis for finding the award deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
On July 9, 1992, the grievant, a radiology technologist, was called to his supervisor's office for counseling. After telling the grievant that he was giving him oral counseling, the supervisor gave the grievant a written counseling memorandum concerning aspects of his job performance. The memorandum concluded by stating:
It is of the utmost importance that we all work together cooperatively and equitably, to provide the best possible care for our patient population. This written confirmation of counselling is for your benefit. It will not be placed in your [official personnel file]. My aim is to clarify established employer/employee guidelines and solicit a more cooperative attitude and effort on your part.
Exceptions, Attachment J-3-A, paragraph 9.
Upon receiving the memorandum, the grievant requested the presence of a Union representative. The supervisor denied the grievant's request. Following the denial, the grievant remained at the counseling session until it was completed.
On July 23, 1992, the Union filed a grievance alleging that the grievant was denied his right to Union representation at the counseling session. The grievance was not resolved and was submitted to arbitration. The Arbitrator framed the issue as follows:
Was the denial of [U]nion representative [sic] at the counseling session for [the grievant] on July 9, 1992, a violation of the [parties' Master Agreement or Local Agreement][?] If so, what is the appropriate remedy?
Award at 2.(1)
The Arbitrator noted that the Agency withdrew the counseling memorandum 6 months after it had been given to the grievant. The Arbitrator stated that although he could not "withdraw a counseling that has already been withdrawn," he would nonetheless consider the merits of the dispute because "it may be significant for the grievant and Union to have a ruling regarding the right of the grievant to have a [U]nion representative present during the counseling session." Id. at 6.
The Arbitrator stated that "[t]he key to a resolution of the current dispute is the recognition of the distinction made [in the parties' agreements] between counseling and a disciplinary action." Id. (emphases in original). The Arbitrator found that: (1) under Article 10 of the parties' Master Agreement, counseling sessions are not to be viewed as disciplinary action and are to be accomplished during a private interview with the employee and the appropriate supervisor whenever possible and practical; and (2) a different provision of the parties' Master Agreement, Article 12, pertains to investigation and discipline and provides for Union representation if requested by an employee.(2)
The Arbitrator noted that he could not "make a decision which conflicts with the clear language of the agreement" but rather "must assume that the negotiation of the agreement had a real purpose in distinguishing between a counseling and a disciplinary action, and that there was an intentional purpose when the language was reinforced by the Local Agreement." Id. at 7. Therefore, the Arbitrator found that the meeting between the grievant and his supervisor on July 9, 1992, constituted a counseling session under Article 10 of the parties' Agreement. The Arbitrator also found that the Union had not presented any evidence demonstrating that the counseling session had not been reasonable, fair and constructive as required by Article 10 of the parties' agreement. The Arbitrator stated his conclusion and award as follows:
Based on a careful consideration of all arguments and evidence presented by both parties, it is the conclusion of the [A]rbitrator that the counseling of [the grievant] on July 9, 1992, for which [U]nion representation was denied, did not violate the [parties' collective bargaining agreement] or relevant law.
Therefore, the [grievant's] grievance must be denied.
Id. at 9.
III. Positions of the Parties
A. Union's Exceptions
In its first exception, the Union contends that the award is deficient because it is contrary to section 7114(a)(2)(B) of the Statute.(3) The Union argues that the grievant was entitled to Union representation during the counseling session because: (1) the grievant was questioned by an Agency official concerning his conduct; (2) the grievant reasonably believed that the counseling session might result in disciplinary action against him; and (3) the grievant requested Union representation.
In its second exception, the Union contends that the award is deficient because the Arbitrator's conclusions and findings are not supported by the evidence presented at the hearing. In particular, the Union argues that the Arbitrator incorrectly found that he "cannot withdraw a counseling that has been withdrawn." Exceptions at 5. According to the Union, the Arbitrator "reached the wrong conclusion based on the evidence of record by not requiring the withdrawal of [a] January 11, 1993, letter which continue[d] the written counseling in violation of the Master Agreement[.]" Id.
B. Agency's Opposition
The Agency contends that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's reasoning, conclusions, and findings. The Agency argues that such disagreement does not provide grounds for review.
Specifically, with respect to the Union's first exception, the Agency argues that the Arbitrator correctly found that the grievant was not entitled to Union representation under section 7114(a)(2)(B) of the Statute. The Agency states that the Arbitrator interpreted the parties' agreements and found that, under those agreements, "the meeting at issue constituted a counseling session and not an 'examination of an employee in the unit in connection with an investigation.'" Opposition at 1 (quoting section 7114(a)(2)(B) of the Statute).
As to the Union's second exception, the Agency argues that it provides no basis for review of the award. According to the Agency, the Arbitrator was precluded from considering the January 11, 1993, letter because that letter "was issued some six months after the original counseling and more than four months subsequent to the Union's August 31, 1992, request for arbitration[.]" Id. at 2.
IV. Analysis and Conclusions
We conclude that the Union has not demonstrated that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.
Section 7114(a)(2)(B) of the Statute applies to examinations in connection with investigations and provides that during such examinations, employees have a right to union representation if they reasonably believe that the examination may result in discipline, and they request representation. Once an employee makes a valid request for representation, an agency may: (1) grant the request; (2) discontinue the interview; or (3) offer the employee the choice between continuing the interview without representation or having no interview. See U.S. Department of the Air Force, Hanscomb Air Force Base, Massachusetts and National Association of Government Employees, 45 FLRA 484, 487 (1992).
The Arbitrator found that the meeting between the grievant and his supervisor on July 9, 1993, constituted a counseling session under the parties' agreements. The Arbitrator further found that the parties' agreements precluded Union representation during a counseling session. Therefore, the Arbitrator concluded that the grievant was not entitled to Union representation during the counseling session.
Accordingly, in view of the Arbitrator's findings and conclusions with respect to the counseling session and absent any demonstration by the Union that, as a matter of law, the meeting constituted an examination in connection with an investigation such that a right to representation attached under section 7114(a)(2)(B) of the Statute, we find that the Union has not shown that the award conflicts with section 7114(a)(2)(B) of the Statute. See also United States Air Force, 2750th Air Base Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 10 FLRA 97, 99 (1982) (Authority held that a meeting in which an employee was made aware of performance deficiencies was a counseling session and did not constitute an examination within the meaning of section 7114(a)(2)(B) of the Statute). Rather, the Union's exception in this regard constitutes nothing more than disagreement with the Arbitrator's interpretation and application of the parties' agreements. See, for example, U.S. Department of the Navy, Naval Mine Warfare Engineering Activity, Yorktown, Virginia and National Association of Government Employees, Local R4-97, 39 FLRA 1207, 1212 (1991).
Similarly, the Union's contention that the Arbitrator's findings and conclusions are not supported by the evidence presented at the hearing provides no basis for finding the award deficient. The Union does not demonstrate how the Arbitrator's conclusions are inconsistent with his consideration of, and resolution of, the issue before him. In our view, the Union's contention constitutes nothing more than disagreement with the Arbitrator's findings of fact and his evaluation of the evidence and testimony, and is an attempt to relitigate the merits of the case before the Authority.
Accordingly, the Union's exceptions provide no basis for finding the award deficient.
The Union's exceptions are denied.
The relevant portions of Article 10 of the parties' Master Labor Agreement state:
ARTICLE 10 - EMPLOYEE RIGHTS
Section 10 - Counseling
A. Verbal - When it is determined that verbal counseling is necessary, the counseling will be accomplished during a private interview with the concerned employees and the appropriate supervisor whenever possible and practical. At the conclusion of a one-on-one counseling session between a management official and an employee, if the employee is dissatisfied the employee is entitled, upon request, to a meeting between the management official, the employee, and his/her [U]nion representative to discuss the counseling. A meeting will be held as soon as possible if requested. If, after such a meeting, the employee is still dissatisfied and wishes to pursue the grievance, the employee may proceed to either Step 1 or to Step 2 of the grievance procedure. However, the provisions of the paragraph should not discourage an individual from exercising his/her discretion to include the employee's [U]nion representative during a counseling session. If there is to be more than one management official involved in a counseling session with an employee, the employee will be so notified in advance and the employee may have a [U]nion representative at the session.
1. The written counseling will be accomplished in the same manner as specified above, except that a written statement will be given to the employee. The employee will be given two copies of any written counseling.
2. A written counseling for misconduct may only be kept or used to support other personnel actions for up to six months unless additional misconduct occurs, and then it may be retained [for] up to one year.
3. Written counseling(s) for performance may only be retained and used beyond the appeal period of the annual performance rating to support a timely personnel action related to that rating or any timely action taken during that period.
C. Counselings shall be reasonable, fair, and used constructively to encourage an employee's improvement in areas of conduct and performance. It should not be viewed as disciplinary action.
Article 12, Section 5 of the parties' Master Labor Agreement states:
ARTICLE 12 - INVESTIGATIONS, DISCIPLINE AND ADVERSE ACTION
Section 5 - The Union shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the [Agency] in connection with an investigation, if the employee reasonably believes that the examination may result in disciplinary action against him/her and the employee requests representation. If any supervisor or management official of the [Agency], in advance of or during the questioning of an employee, contemplates the likelihood of disciplinary action, the employee shall be informed of his/her right to [U]nion representation prior to or before further questioning of the employee. This is not intended to interfere with the routine questions supervisors ask employees in the normal course of a workday. If the employee desires a representative, the management official will wait a reasonable period of time before proceeding.
Article XXXIII, Section 4 of the parties' Local Agreement states:
ARTICLE XXXIII - SUPERVISOR-EMPLOYEE RELATIONS
Section 4 - Corrective counseling of an employee will normally be on a 1 to 1 basis. If two or more supervisors are present, a Union representative may be requested when the employee considers such representation necessary for the protection of his own employment interests.
(If blank, the decision does not have footnotes.)
1. The Arbitrator noted that the grievance also responded to the charges in the counseling memorandum. However, the Arbitrator found that the content of the counseling memorandum was not the primary issue in the grievance and there was not sufficient testimony regarding the charges against the grievant for the Arbitrator to make a fair ruling. Accordingly, the Arbitrator found that "[t]he issue which was emphasized and which the [A]rbitrator believes he is asked to decide concerns the denial of a [U]nion representative at the counseling session when requested by the grievant." Id.
2. The pertinent text of the parties' Master Labor Agreement and Local Agreement is set forth in the Appendix to this decision.
3. Section 7114(a)(2)(B) provides that an exclusive representative shall be given an 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.