32:1151(153)AR - - Federal Correctional Institution, El Reno, OK and AFGE Local 171 - - 1988 FLRAdec AR - - v32 p1151

[ v32 p1151 ]
The decision of the Authority follows:

32 FLRA No. 153






Case No. 0-AR-1519


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Barnett M. Goodstein. The Arbitrator determined that the grievant's suspension was not for just and sufficient cause as set forth in the parties' collective bargaining agreement. The Arbitrator also found that the Agency violated the agreement by failing to inform the grievant of his right to Union representation prior to the administration of a breathalyzer test.

The Agency 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 Agency's sole exception is based on its view that the portion of the Arbitrator's award pertaining to the grievant's right to representation is inconsistent with section 7114(a)(2)(B) of the Statute. The Agency did not except to the portion of the award pertaining to the grievant's suspension. The Union did not file an opposition to the exceptions.

For the reasons discussed below, we conclude that the Agency has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant, a senior correctional officer, was suspected of reporting for work under the influence of alcohol. The warden at the correctional facility directed that a breathalyzer test be administered to the grievant. The breathalyzer test showed a positive reading for alcohol and the grievant was given a 7-day suspension. The grievant then filed a grievance contesting the fact that he was not permitted to have a Union representative present before he was questioned and tested and that he was forced to submit to a breathalyzer test without the assistance of a Union representative. The grievance requested that the charges against the grievant be withdrawn and that employees be allowed to have Union representation when disciplinary action is to be taken. The parties disagree as to whether or not the grievant requested Union representation. In any event, no such representation was provided.

The issue before the Arbitrator, as stipulated by the parties, was whether "the disciplinary/adverse action [was] taken for just and sufficient cause, or if not what shall the remedy be." Award at 4.

The Arbitrator concluded that the action taken was not for just cause. Rather, the Arbitrator found that the action was violative of the parties' agreement and published Agency regulations. In reaching this result, the Arbitrator noted the absence of published Agency regulations which clearly set forth the Agency's policy regarding the consumption of alcoholic beverages prior to reporting for duty and which advised employees of the potential ramifications of a positive breathalyzer test.

The Arbitrator also addressed the Union's contention that the Agency refused to permit the grievant to have Union representation before being requested to take the breathalyzer test. The Agency's position was that the grievant was obligated to request representation but failed to do so. The Agency claimed that it was not obligated to offer Union representation to the grievant.

The Arbitrator determined that the issue presented was not whether the grievant requested representation. Instead, the Arbitrator looked to the parties' agreement to address the issue of whether notice of the right to request Union representation was required to be given to the grievant under the terms of the parties' agreement.

The agreement provides that "[s]upervisors should also remind employees of their right to request a Union representative prior to any examination which is likely to result in disciplinary action against the employee." Award at 11. The Arbitrator interpreted this provision to mean that the supervisor was required to notify the grievant of his right to have a Union representative present, particularly since only the supervisor was in a position to know whether disciplinary action might result from a positive breathalyzer test. By failing to advise the grievant that disciplinary action could result, the Arbitrator concluded that the Agency violated the grievant's right to due process and his right to representation under the collective bargaining agreement. Award at 12.

As his award, the Arbitrator ordered that the grievant's suspension be withdrawn, that the grievant be made whole for all pay and benefits lost as a result of the suspension, and that references to the suspension be removed from the grievant's record.

III. Agency's Exceptions

The Agency excepts only to that portion of the award concerning the grievant's right to Union representation. The Agency claims that the Arbitrator presumed that management's action in administering the breathalyzer test constituted an examination in connection with an investigation within the meaning of section 7114(a)(2)(B). Exceptions at 5. The Agency argues that the Arbitrator erred as a matter of law in concluding that the administration of a breathalyzer test constitutes an examination within the meaning of section 7114(a)(2)(B) of the Statute. In support of its view that a breathalyzer test is not an examination, the Agency claims that an examination involves the questioning of an employee. The Agency maintains that the administration of a breathalyzer test, which does not involve any questioning, cannot constitute an examination.

IV. Analysis and Conclusions

We conclude that the Agency has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Specifically, the Agency has failed to establish that the award is contrary to any law, rule, or regulation or that the award is defi