Food and Drug Administration, Region II and American Federation of Government Employees, Council 242 (Authority decision, October 31, 1988)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award sustaining a five-day suspension. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

An FDA Region II employee was suspended for five days after an investigation into his taking of government film for personal use. AFGE Council 242 argued that the agency failed to give the required annual notice of representation rights and that the investigatory interview violated the employee's rights. The arbitrator found that the agency had distributed notices, that the employee received an agreement describing his rights, and that he did not request representation. The arbitrator also found the employee's written statement admissible and sustained the suspension. The Authority held that the union's exceptions mainly challenged the arbitrator's assessment of the evidence and did not show a legal defect in the award, so it denied them.

Decision snapshot

• Authority: Investigatory representation rights under 5 U.S.C. § 7114(a)(2)(B) and annual notice under § 7114(a)(3).
• Outcome: Union's exceptions denied; five-day suspension sustained.
• Key point: Disagreement with an arbitrator's evidentiary findings did not establish a basis to set aside this award.

Full text (FLRA public release)

[ v33 p622 ]
33:0622(79)AR

The decision of the Authority follows:

33 FLRA No. 79

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

FOOD AND DRUG
ADMINISTRATION

REGION II

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

COUNCIL 242

0-AR-1552

DECISION

October 31, 1988

Before Chairman Calhoun and Member
McKee.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Charles Feigenbaum. The issue before the Arbitrator was whether the grievant's suspension for 5 days was for such cause as would promote the efficiency of the service. The grievant argued that he was not informed of his right to union representation at the investigation which resulted in disciplinary action and, therefore, his suspension should be overturned. The Arbitrator found that the grievant's right to union representation was not violated and he sustained the suspension. Accordingly, the Arbitrator denied the grievance.

The American Federation of Government Employees, Council 242, (the Union) 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 U.S. Food and Drug Administration, Region II, (the Agency) did not file an opposition.

We conclude that the Union has not established that the Arbitrator's award is contrary to law, rule, or regulation or is deficient on grounds similar to those applied by the Federal courts in private sector labor arbitration cases. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant was suspended for 5 days without pay for the unauthorized taking of Government property. Arbitration was invoked on the issue of whether the grievant was suspended for such cause as would promote the efficiency of the service. The Union alleged that the Agency violated the grievant's right to union representation by failing to give him the annual notice concerning representation rights required under the Statute. Additionally, the Union asserted that the grievant's rights were violated by the manner in which Agency officials conducted the investigatory interview.

The Arbitrator concluded that the Agency did not violate section 7114(a)(3) of the Statute by failing to inform employees on a yearly basis of their right to union representation. Award at 20. Consequently, the Arbitrator concluded that the Agency did not violate the grievant's right to representation under section 7114(a)(2)(B). Furthermore, the Arbitrator found that the grievant had the opportunity to seek representation when he realized that he was the focus of the investigatory interview, but he did not do so. Award at 22.

The conduct of the interview, according to the
Arbitrator, was immaterial because the sole basis for the suspension was the grievant's written statement that he took Government property, 15 rolls of film, for personal use. Award at 19. Considering the grievant's testimony and the facts surrounding the investigation, the Arbitrator found that the Union failed to prove that the written statement was procured under circumstances which made it inadmissible. The Arbitrator also concluded that the Agency proved, by a preponderance of the evidence, that the penalty should be sustained. Therefore, the Arbitrator denied the grievance.

III. Exceptions

The Union contends that the Arbitrator's award violates section 7114(a)(2)(B) and (3) of the Statute and the Federal Personnel Manual (FPM), Chapter 711-10, Section 2-8 (7)(b)(2). The Union also argues that the Agency did not prove its case by a preponderance of the evidence.

The Union asserts that since the grievant argued that he was not informed of his right to union representation, the burden shifted to the Agency to prove with written documentation that management complied with section 7114(a)(3) of the Statute and FPM, Chapter 711-10, Section 2-8 (7)(b)(2). The Union notes that the Arbitrator found that it was unclear whether the Agency gave the required notice between 1983 and April 1, 1987, the date the grievant was interviewed. Based on this conclusion, the Union argues that the Arbitrator should have found the grievant's statement inadmissible. In finding the statement admissible, the Union argues that the Arbitrator misinterpreted the statutory and FPM requirement and improperly denied the grievant his right to union representation.

IV. Analysis and Discussion

Section 7114(a)(2)(B) provides that in any examination of a unit employee by an agency representative in connection with an investigation, the employee shall have the right to have a union representative present if the employee reasonably believes that the investigation may result in disciplinary action and requests representation. Section 7114(a)(3) provides that an agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection. FPM Chapter 711, subchapter 2-8, b(2) reiterates the requirement in section 7114(a)(3).(*)

We note that the Arbitrator concluded that the Agency did not violate section 7114(a)(3) based on the testimony of management officials. These officials testified that the Agency's regional personnel office annually distributed notices to employees advising them of their right to union representation. In addition, an official testified that the grievant received, and signed for, a copy of the parties' agreement which includes a statement of employees' representation rights in connection with an investigation. Award at 11-12 and 20. Finally, we note that the Arbitrator found that the grievant failed to request representation despite his realization that he was the focus of the investigation.

As we stated above, the Arbitrator found that the suspension was based solely on the grievant's written statement. The Arbitrator found that the grievant was not required to copy the statement drafted by the investigators, but that he did so. Furthermore, the Arbitrator stated that the grievant was "an intelligent man in a professional position. I cannot accept his assertion he signed the statement because he did not realize the difference between being responsible for the film, which he admits he was, and having made personal use of government property." Award at 24. Thus, the Arbitrator concluded that the Agency proved, by a preponderance of the evidence, that the penalty should be sustained.

Based on the Arbitrator's conclusions, we find that the Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Specifically, the Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by the Federal courts in private sector labor relations cases. Rather, the Union's contentions constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate this case before the Authority. Such contentions provide no basis for setting aside an arbitrator's award. See, for example, Carswell Air Force Base and American Federation of Government Employees, Local 1364, 32 FLRA 789 (1988) (exceptions which attempt to relitigate the merits of the case before the Authority and constitute nothing more than disagreement with the arbitrator's evaluation of the evidence and testimony provide no basis for finding the award deficient).

V. Decision

The Union's exceptions are denied.

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

*/ The Union's citation of this regulation was
incorrect.