American Federation of Government Employees, Council, of Prison Locals, Local 1286 (Union) and U.S. Department of Justice, Federal Bureau of Prisons and Federal Prison Industries, Inc. (Agency)

[ v56 p861 ]

56 FLRA No. 143

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, COUNCIL
OF PRISON LOCALS, LOCAL 1286
(Union)

and

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS AND
FEDERAL PRISON INDUSTRIES, INC.
(Agency)

0-AR-3112

_____

DECISION

September 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Samuel Spencer Stone 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 Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the Agency did not violate the parties' agreement when the grievants were not allowed Union representation during a criminal investigation conducted by the Federal Bureau of Investigation (FBI).

      For the reasons set forth below, we remand the decision to the Arbitrator for a clarification of the basis of the award.

II.     Background and Arbitrator's Award

      The two grievants were called at their duty stations by their supervisor and told to report (separately) to the Agency's local Special Investigations Supervisor's (SIS) Office. Once there, they were questioned about drugs that were found at the workplace.

      Two people were present during both instances of questioning, an FBI Agent and an SIS Lieutenant. The local Union President came to the room prior to the questioning and told the SIS Lieutenant that she was there to represent the employees. However, she was told by the SIS Lieutenant that the investigation was criminal in nature and that the FBI Agent told him that she could not be in the room. Prior to being questioned, each grievant also requested that a Union representative be present, with each request denied. Subsequent to that, each grievant was questioned by the FBI Agent. The SIS Lieutenant was present in each instance and did not ask any questions, but (according to one of the grievants) during the interview pulled up information on a computer for the FBI Agent to look at and locked/refused to unlock the door to the room in which the interview took place.

      The Union subsequently filed a grievance on behalf of the two employees because of the Agency's failure to grant the employees' request for union representation. The matter was not resolved and proceeded to arbitration. The Arbitrator's award does not expressly define the issue and does not reflect a stipulated definition of the matter before him. However, the award notes that the grievants claimed the Agency "violated the Agreement between [the parties]," and asked that the Agency be ordered to comply with the "right to Union representation provision in the Agreement." Award at 1.

      The Arbitrator found that the FBI and the Bureau of Prisons are separate entities within the Department of Justice and that the examination of the two grievants was a criminal investigation conducted by the FBI Agent. Id. at 12-13. The Arbitrator also found that the grievants did reasonably believe that the examination might result in disciplinary action and that they requested representation. Id. at 13. However, the Arbitrator concluded that since the examination was conducted by the FBI and not a representative of the Agency, the grievants did not have a right to union representation during the examination. [n1]  The Arbitrator stated that:

The rights of the grievants apply when the Employer conducts an examination about matters within the scope of collective bargaining. Those rights have no application to matters beyond the scope of collective bargaining. An FBI examination concerning an Employee's alleged criminal conduct does not require the Employer to grant the grievants a Union representative.

Id. As a result, the Arbitrator denied the Union's grievance.

III.     Position of the Parties

A.     Union's Exceptions

      The Union contends that the award is contrary to 5 U.S.C. section 7114(a)(2)(B) and FLRA precedent. It claims that the Agency violated the Statute because the examination was facilitated by and participated in by the Agency (the SIS Lieutenant) and because of the denial of the grievant's individual requests for union representation. [ v56 p862 ] Exceptions at 3-4. The Union further contends that the award conflicts with Headquarters, National Aeronautics and Space Administration, Washington, D.C., 50 FLRA 601, 607 (1995) (NASA), enforced sub nom. FLRA v. NASA, 120 F.3d 1208 (11th Cir. 1997), aff'd sub nom. NASA v. FLRA, 119 S. Ct. 1979 (1999). In that regard, the Union argues that the FBI Agent should be considered as a representative of the Agency.

B.     Agency's Opposition

      The Agency claims that the Union's contrary to law argument is unproven and that the exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and application of the law. [n2]  Opposition at 2. Specifically, the Agency argues that the Union's arguments as to Agency involvement in the employee questioning are directly contradicted by the Arbitrator's specific finding that "the Federal Bureau of Investigation (FBI) conducted the criminal investigation during which the grievants were questioned." Id. at 3.

      Based on this, the Agency also asserts that the award is not in conflict with 5 U.S.C. section 7114(a)(2)(B) because the Arbitrator clearly concluded that the examination was conducted by the FBI, and not a representative of the Agency. Id. at 5.

      Finally, the Agency asserts that the Arbitrator correctly applied FLRA case law regarding who may be considered a "representative of the Agency[]" under 5 U.S.C. § 7114(a)(2)(B). Id. The Agency cites two cases mentioned by the Arbitrator in his award: FLRA v. U.S. Department of Justice, 125 F.3d 106 (2nd Cir. 1997); and U.S. Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994). Opposition at 6-7. The Agency also argues that NASA does not apply to this case because NASA involved agency inspector general personnel, rather than the FBI. In that regard, the Agency points out that the FBI is specifically excluded from the definition of an "agency" under 5 U.S.C. section 7103(a)(3)(B). Id. at 7.

      Therefore, the Agency claims that the Union's exceptions must be denied.

IV.     Analysis

A Remand is Necessary to Determine Whether the Award is Contrary to Law, Rule or Regulation

      The Union alleges that the award is contrary to 5 U.S.C. § 7114(a)(2)(B) and Authority precedent because the Agency violated the Statute when the grievants requested Union representation during an examination, which the Union argues was facilitated by, and participated in by the Agency. This is an allegation that the award is contrary to law.

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it is contrary to any law, rule, or regulation. In reviewing arbitration awards for consistency with law, rule, or regulation, the Authority reviews the questions of law raised in a party's exceptions and the arbitrator's award de novo. See National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Here, the Arbitrator concluded that the grievants did not have a right to Union representation when each grievant was separately interviewed by an FBI Agent and an SIS Lieutenant. However, in making this determination, it is unclear whether the Arbitrator based his decision on 5 U.S.C. § 7114(a)(2)(B) or on Article 6 of the parties' agreement. If the Arbitrator based his decision on Article 6 of the parties' agreement, it is also unclear whether the Arbitrator interpreted that provision to provide the same benefit as section 7114(a)(2)(B), or whether he interpreted the contractual provision to provide rights or obligations distinct from those set forth in section 7114(a)(2)(B).

      Therefore, we conclude that it is necessary to remand the award to the Arbitrator so he can clarify the basis of his award in connection with statutory and/or contractual requirements. Without such clarification, we are unable to determine whether the Arbitrator's award is contrary to law. Additionally, if the Arbitrator based his decision on 5 U.