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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 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
    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
    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
          (i) the employee reasonably believes that the examination may
       result in disciplinary action against the employee;  and
          (ii) the employee requests representation.