39 FLRA No. 60

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Robert H. Brunner. A grievance was filed over a 3-day suspension of the grievant for insubordination. The Arbitrator concluded that there was no just cause for a 3-day suspension and sustained the grievance.

The Agency filed an exception 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 Union did not file an opposition to the Agency's exception.

For the following reasons, we conclude that the Agency's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.

II. Background and Arbitrator's Award

Prior to the incident involved in this case, the grievant, an employee in the Agency's dietetic department, was checking the temperature of the food prepared for patients. The grievant had authority to return to the kitchen food that did not meet the temperature standard. When the grievant rejected a food tray, his supervisor "allegedly countermanded the [g]rievant." Award at 2. When the grievant protested his supervisor's countermand, the supervisor "became angry, and said, 'Shut up, or I'll write you up[.]'" Id. The grievant filed a grievance against his supervisor to protest the "abusive treatment." Id.

A meeting was held to consider the grievance. At the conclusion of the meeting, the grievant's supervisor said to the grievant, "'I want you in my office one-on-one, at 11:30. That is a direct order and you will be disciplined if you do not obey.'" Id. The supervisor would not tell the grievant the purpose of the meeting. When the grievant reported to his supervisor's office, the grievant again asked the purpose of the meeting and requested that a Union representative attend the meeting. The supervisor would not reveal the purpose of the meeting. The grievant left the office and immediately returned with a Union steward. The supervisor informed the grievant and the Union steward that he had a "contractual right to a one-on-one meeting with his employee without union representation." Id. at 2-3. The grievant then left the supervisor's office.

Subsequently, the grievant received notification of a 3-day suspension for insubordination. After a former Medical Center Director upheld the 3-day suspension, the grievant filed a grievance. The grievance was not resolved and was submitted to arbitration, resulting in the award that is now before us.

The Arbitrator framed the issue as follows: "Was the discipline administered for just cause and if not, what is the remedy?" Id. at 1. As relevant here, the Arbitrator determined that the case was a "Weingarten rights case[,] . . . a landmark 1975 U.S. Supreme Court decision [which] held that employees had the right to union representation at interviews during which an employee reasonably believes disciplinary action may result." Id. at 11.

The Arbitrator found that the parties' collective bargaining agreement gives management the right to conduct one-on-one counseling sessions in addition to ensuring employees their "Weingarten" rights. Id. at 12. The Arbitrator determined that "[t]he line between a conversation between a supervisor and his employee for discussing various job aspects; and an interview that may result in discipline; admittedly can be at times a fine one. To discern which is which requires a look at the totality of circumstances." Id. at 11.

The Arbitrator rejected the Agency's argument that the supervisor wanted to meet with the grievant to counsel him on his job performance. In addition, the Arbitrator rejected the Agency's argument that the grievant did not raise the "feared-discipline" defense until the arbitration hearing. Id. at 12. Based on testimony at the arbitration hearing, the Arbitrator determined that "[t]here [was] too strong a nexus between the February 16 hot food incident; February 24, when the [g]rievant's harassment charge against Hunter was considered at a meeting ending at 11, and the 11:30 time Hunter sought to counsel the [g]rievant about job performance." Id. at 13. Therefore, the Arbitrator found that the grievant's "misgivings were reasonable" under the circumstances. Id.

The Arbitrator also rejected the Agency's assertion that "the [g]rievant had no right to engage in self-help." Id. at 14. The Arbitrator considered "self-help" to be synonymous with the "'obey now, grieve later'" rule. Id. The Arbitrator stated that this rule "carries particular weight when insubordination is charged for refusing to carry out work assignments, because production must go forward." Id. However, the Arbitrator found that the rule did not apply here because of the "recognized exception dealing with union representation[.]" Id. at 16. Furthermore, the Arbitrator determined that "[the grievant's] insubordination did not 'hold up production,' as in not carrying out a work assignment[.]" Id. at 16-17.

In conclusion, the Arbitrator found that the 3-day suspension was without just cause. Accordingly, the Arbitrator sustained the grievance, and ordered that the grievant "be made whole by having restored his pay and any accumulated benefits . . . ." Id. at 17.

III. Agency's Exception

The Agency argues that the Arbitrator's award is contrary to section 7114(a)(2)(B) of the Statute because the Arbitrator "applie[d] the 'Weingarten' right . . . to a supervisor-employee meeting where there [was] no examination of the employee . . . ." Exception at 2. The Agency contends that "the [A]rbitrator did not find that the supervisor-grievant meeting in this case involved an 'examination' or an investigatory interview, as required by section 7114(a)(2)(B) and the Weingarten case." Id. at 3. Therefore, the Agency contends that the Arbitrator's award should be set aside.

IV. Analysis and Conclusion

We conclude that the Agency fails to establish that the award is contrary to law.

Section 7114(a)(2)(B) of the Statute provides that an exclusive representative shall be given the opportunity to be represented at any examination of a unit employee in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action and requests representation. The purpose of section 7114(a)(2)(B) is to create representational rights for Federal employees similar to rights provided by the National Labor Relations Board in interpreting the National Labor Relations Act. See 124 Cong. Rec. 29184 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Committee Print 96-7) (1979), where Congressman Udall explained that the purpose of the House bill provisions which led to enactment of section 7114(a)(2)(B) was to reflect the Supreme Courts's decision in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975) (Weingarten). See also United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 438-40 (1990) (Bureau of Prisons), for a discussion of the purposes and policies underlying section 7114(a)(2)(B).

The Arbitrator found, based on testimony at the arbitration hearing, and the totality of the circumstances, that the Agency denied the grievant his rights under section 7114(a)(2)(B) of the Statute. The Agency has not demonstrated that the Arbitrator's conclusion conflicts with law.

The Arbitrator rejected the Agency's argument that the supervisor wanted to meet with the grievant to counsel him on his job performance. Instead, the Arbitrator found credible the grievant's testimony that if he had attended the meeting with his supervisor without the presence of a Union representative, "a scenario would have been devised to impose discipline essentially retaliatory for the [g]rievant's prior grievance . . . ." Award at 15. The Arbitrator concluded, in this regard, that the grievant "had a recognized Weingarten right that was thwarted[]" by the Agency. Id. at 16. It is apparent, from a reading of the award as a whole, that the Arbitrator found that there would have been an examination that the grievant reasonably feared would result in discipline, within the meaning of section 7114 of the Statute, if the grievant had gone, "unaccompanied, into a closed-door session with [the supervisor.]" Id. at 15.

There is no dispute that the grievant requested Union representation during the meeting with his supervisor. There also is no dispute that the grievant's supervisor denied the grievant's request for representation. Accordingly, as the Arbitrator found that the other requirements of section 7114(a)(2)(B) of the Statute were satisfied, the Arbitrator concluded correctly that the grievant's rights under section 7114(a)(2)(B) of the Statute were violated. Compare Social Security Administration and American Federation of Government Employees, Local 1923, 35 FLRA 160, 164-66 (1990) (as arbitrator found that the grievant was given an opportunity to secure union representation, and as the union did not seek to grieve the allegedly unlawful denial of representation, there was no basis to set aside award upholding suspension of grievant for insubordination). Moreover, as it is clear that the grievant was disciplined for exercising his rights under section 7114(a)(2)(B), there is no basis on which to disturb the Arbitrator's remedy. See Bureau of Prisons, 35 FLRA at 441-44.

The Agency has not demonstrated that the Arbitrator's award conflicts with section 7114(a)(2)(B) of the Statute. Therefore, we find that the Agency's exception fails to show that the award is deficient under section 7122(a) of the Statute and we will deny the exception.

V. Decision

The Agency's exception is denied.

FOOTNOTES:
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