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45:0484(39)AR - - Air Force, Hanscomb AFB, MA and NAGE - - 1992 FLRAdec AR - - v45 p484

[ v45 p484 ]
The decision of the Authority follows:

45 FLRA No. 39











July 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Arnold M. Zack 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 did not file an opposition to the Union's exception.

The Arbitrator denied a grievance contesting a 2-day suspension. For the following reasons, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

On November 27, 1990, the grievant and two of his supervisors met to discuss several topics. During the meeting, one of the supervisors told the grievant that failing to comply with a certain order given the grievant on November 3 "appeared to be insubordination." Award at 4. The grievant requested Union representation. The grievant "got up to leave; [grievant's supervisor] ordered him to stay and discuss the remaining tasks and [the grievant] left saying he wouldn't speak to either supervisor unless his Union representative was present." Id. Later that day, one of the supervisors asked the grievant to return to the meeting to discuss "other taskings." Id. The grievant did not return and, although the grievant was "ordered to stay and discuss the tasks several times . . . he repeatedly refused to do so." Id.

On November 28, 1990, one of the grievant's supervisors called a staff meeting at which employees were issued, and were asked to sign for receipt of, two policy letters. The grievant did not sign the receipt and was asked by the supervisor to remain in the meeting room. When the grievant refused to meet without a Union representative, the supervisor stated that the meeting involved "day to day work related issues and that a Union representative was not required." Id. The supervisor asked the grievant to remain and sign the receipt, the grievant refused, and left the room. Thereafter, two supervisors asked the grievant to return to the meeting and the grievant refused. After being ordered by the supervisors to "continue discussing work related issues[,]" the grievant left the building. Id.

On December 3, 1990, a "similar incident occurred." Id. In particular, the grievant "declined to attend a discussion on work related tasks[,] . . . apparently walked out of the room and declined a direct order to discuss taskings . . . ." Id. at 4-5.

Subsequently, the grievant was suspended for 2 days for insubordination. The Union filed a grievance over the suspension and, when the grievance was not resolved, it was submitted to arbitration on the following stipulated issue:

Was the discipline of [the grievant] for just cause? If not, what shall be the remedy?

Id. at 1.

As relevant here, the Arbitrator concluded that the events of November 27, November 28, and December 3, 1990, were "separable[]" and that "[i]nsubordination on any one of those dates could lead to the imposition of discipline." Id. at 8. The Arbitrator also concluded that the grievant's actions on those days were not privileged by Article 21(H) of the parties' collective bargaining agreement.1/ In this regard, the Arbitrator found that Article 21(H) "limits the employee's right to Union representation to situations when [m]anagement is conducting an investigatory interview, and when the employee, during that investigatory interview, believes it may result in disciplinary action." Id. at 9.

The Arbitrator found "no evidence" that the three disputed meetings "were, or were intended to be investigatory interviews." Id. According to the Arbitrator, "the [g]rievant's distrust . . . or fear . . . that a normal business meeting might become an investigatory interview is not grounds for refusing a direct order to participate in routine meetings with Management." Id. at 9-10 (emphasis in original). The Arbitrator also stated the following:

This is not a case where [the grievant] was in an investigative interview when he reasonable came to believe that it could lead to disciplinary action, or where the Employer refused to stop such interview to enable him to secure Union representation. Indeed, it could be argued that even in those situations, the doctrine of obey now and grieve later would have obligated him to remain and later challenge the violation . . . .

Id. at 10.

The Arbitrator concluded that the grievant's actions constituted insubordination and that the Agency had established just cause for the grievant's 2-day suspension. Accordingly, the Arbitrator denied the grievance.

III. Union's Exception

The Union claims that the award conflicts with section 7114(a)(2)(B) of the Statute.2/ In particular, the Union claims that the grievant was entitled under section 7114(a)(2)(B) to Union representation during the disputed meetings and, as such, the grievant cannot properly be disciplined for refusing to participate in the meetings without representation.3/ The Union disputes what it characterizes as the Arbitrator's finding that, even if the meetings constituted investigatory interviews, the grievant was required "to participate . . . and thereafter file a grievance." Exception at 2.

IV. Analysis and Conclusions

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 Norfolk Naval Shipyard, Portsmouth, Virginia, 35 FLRA 1069, 1077 (1990).

The Arbitrator found "no evidence" in the record before him that the three disputed meetings "were, or were intended to be investigatory interviews[,]" within the meaning of Article 21(H) of the parties' agreement. Award at 9. According to the Arbitrator, these meetings "were routine tasking meetings or meetings where the Grievant was asked to sign forms already signed by others." Id.

The Arbitrator did not address section 7114(a)(2)(B) of the Statute. However, in view of the Arbitrator's findings regarding the nature of the disputed meetings, we have no basis on which to conclude that the award conflicts with section 7114(a)(2)(B). In particular, the Union has not shown that, as a matter of law, the meetings constituted examinations in connection with an investigation such that a right to representation under section 7114(a)(2)(B) attached. As such, the Union has not demonstrated that the Arbitrator's award conflicts with section 7114(a)(2)(B) of the Statute.4/

V. Decision

The Union's exception is denied.

(If blank, the decision does not have footnotes.)

1/ Article 21(H) provides, in pertinent part:

Management acknowledges that an employee has a right to Union representation upon request when Management conducts an investigatory interview if the employee reasonably believes that the interview may result in disciplinary action. . . .

Award at 5.

2/ Section 7114(b)(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.

3/ Although it is unclear from the Union's exception whether the Union contests the Arbitrator's conclusions regarding all three meetings, we assume, in view of the Arbitrator's finding that the meetings were "separable," that the exception relates to all three. Award at 8.

4/ In view of our decision, we do not address further either the Arbitrator's statement regarding the grievant's obligation to "obey now and grieve later" if the meetings had constituted investigatory interviews under Article 12(H) or the Union's exception to that statement.