09:0935(133)CA - Army Health Clinic, Fort Ritchie, MD and NFFE Local ll53 -- 1982 FLRAdec CA



[ v09 p935 ]
09:0935(133)CA
The decision of the Authority follows:


 9 FLRA No. 133
 
 U.S. ARMY HEALTH CLINIC
 FORT RITCHIE, MARYLAND
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1153
 Charging Party
 
                                            Case No. 3-CA-803
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE
 CERTAIN AFFIRMATIVE ACTION.  THEREAFTER, THE RESPONDENT FILED EXCEPTIONS
 TO THE JUDGE'S DECISION AND A BRIEF IN SUPPORT THEREOF.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
 JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
 HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS
 MODIFIED HEREIN.
 
    THE JUDGE FOUND THAT THE RESPONDENT FAILED TO COMPLY WITH AN
 ARBITRATOR'S AWARD WHEN IT BASED CERTAIN DISCIPLINARY ACTION AGAINST AN
 EMPLOYEE IN PART UPON AN EARLIER WRITTEN REPRIMAND WHICH THE ARBITRATOR
 HAD ORDERED REMOVED FROM THE EMPLOYEE'S RECORD.  HE FOUND THAT SUCH
 CONDUCT CONSTITUTED A FAILURE TO COMPLY WITH SECTION 7122(B) OF THE
 STATUTE /1/ IN VIOLATION OF SECTION 7116(A)(1) AND (8).  /2/ THE
 AUTHORITY ADOPTS THE JUDGE'S DECISION IN THIS REGARD.  SEE, E.G.,
 DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND, 4 FLRA NO.
 96(1980);  NATIONAL TREASURY EMPLOYEES UNION, 3 FLRA 623(1980);  AND
 HEADQUARTERS, U.S. ARMY COMMUNICATIONS COMMAND, ET AL., FORT HUACHUCA,
 ARIZONA, 2 FLRA 785(1980).  /3/ ACCORDINGLY, THE AUTHORITY SHALL ORDER
 THE RESPONDENT TO CEASE AND DESIST FROM ITS VIOLATIVE CONDUCT AND TO
 TAKE CERTAIN AFFIRMATIVE ACTION.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
 HEREBY ORDERED THAT THE U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND,
 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING OR REFUSING TO COMPLY WITH THE MAY 15, 1979 FINAL AWARD
 OF ARBITRATOR MILLARD CASS OR WITH ANY ARBITRATOR'S FINAL AWARD ISSUED
 PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    (B) RELYING ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN
 TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 AS THE BASIS FOR IMPOSING
 PROGRESSIVELY SEVERE PENALTIES FOR OTHER OFFENSES IN FORMAL DISCIPLINARY
 ACTIONS.
 
    (C) IN ANY LIKE OR RELATED MANNER FAILING OR REFUSING TO COMPLY WITH
 ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    (D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD
 CASS AND ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    (B) REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P.  HARRIS'
 FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST
 14, 1978 FROM HER OFFICIAL PERSONNEL FILE AND FROM ALL FORMAL
 DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P. HARRIS SUBSEQUENT TO
 AUGUST 14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED
 SUSPENSION AND THE SEPTEMBER 17, 1979 NOTICE OF PROPOSED REMOVAL, AND
 REVISE SUCH ACTIONS ACCORDINGLY TO THE EXTENT REQUIRED BY LAW AND
 REGULATIONS.
 
    (C) ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS CONSIDERATION
 IN THE CASE OF JOHANNA P. HARRIS V. U.S. DEPARTMENT OF THE ARMY, OF THE
 ACTIONS TAKEN TO COMPLY WITH THE ARBITRATOR'S DECISION PURSUANT TO THIS
 ORDER.  /4/
 
    (D) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO
 BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER, U.S. ARMY
 HEALTH CLINIC, FORT RITCHIE, MARYLAND, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO
 EMPLOYEES ARE CUSTOMARILY POSTED.  THE COMMANDER SHALL TAKE REASONABLE
 STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED
 BY ANY OTHER MATERIAL.
 
    (E) PURSUANT TO SECTION 2424.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., AUGUST 16, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                        FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
                                 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL OR REFUSE TO COMPLY WITH THE MAY 15, 1979 FINAL
 AWARD OF ARBITRATOR MILLARD CASS OR WITH ANY OTHER ARBITRATOR'S FINAL
 AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.
 
    WE WILL NOT RELY ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO
 RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 AS THE BASIS FOR
 IMPOSING PROGRESSIVELY SEVERE PENALTIES FOR OTHER OFFENSES IN FORMAL
 DISCIPLINARY ACTIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER FAIL OR REFUSE TO COMPLY
 WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR
 MILLARD CASS AND WITH ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT
 TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P.
 HARRIS' FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON
 AUGUST 14, 1978 FROM HER OFFICIAL PERSONNEL FILE AND FROM ALL FORMAL
 DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P. HARRIS SUBSEQUENT TO
 AUGUST 14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED
 SUSPENSION AND THE SEPTEMBER 17, 1979 NOTICE OF PROPOSED REMOVAL, AND
 REVISE SUCH ACTIONS ACCORDINGLY TO THE EXTENT REQUIRED BY LAW AND
 REGULATIONS.
 
    WE WILL ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS
 CONSIDERATION IN THE CASE OF JOHANNA P. HARRIS V. U.S. DEPARTMENT OF THE
 ARMY, OF THE ACTIONS TAKEN TO COMPLY WITH THE ARBITRATOR'S DECISION
 PURSUANT TO THIS ORDER.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF THE EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR
 COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
 WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION
 III, 1111 18TH STREET, NW., SUITE 700, WASHINGTON, D.C., 20036, AND
 WHOSE TELEPHONE NUMBER IS (202) 653-8507.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    SAM HORN, ESQUIRE
    JOHN C. GREENHAUGH, ESQUIRE
    FOR THE RESPONDENT
 
    HEATHER GOTTS, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  GARVIN LEE OLIVER
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE REGIONAL DIRECTOR,
 REGION THREE, FEDERAL LABOR RELATIONS AUTHORITY, WASHINGTON, D.C.,
 AGAINST THE U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND
 (RESPONDENT), BASED ON A CHARGE FILED BY THE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL 1153 (CHARGING PARTY OR UNION).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
 SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE BY FAILING TO COMPLY
 WITH AN ARBITRATOR'S AWARD.  RESPONDENT DENIED THE ALLEGATIONS AND
 ASSERTED THAT IT HAD COMPLIED WITH THE ARBITRATOR'S AWARD.
 
    A HEARING WAS HELD IN THIS MATTER IN WASHINGTON, D.C.  THE PARTIES
 ENTERED INTO A STIPULATION OF FACT AT THE HEARING BASED ON SUPPORTING
 EXHIBITS.  BASED ON THE STIPULATION AND SUPPORTING EXHIBITS, AND BRIEFS
 FILED BY THE RESPONDENT AND GENERAL COUNSEL, FLRA, I MAKE THE FOLLOWING
 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  RESPONDENT HAS RECOGNIZED THE UNION AS THE EXCLUSIVE
 REPRESENTATIVE OF AN APPROPRIATE UNIT OF ITS EMPLOYEES SINCE 1970.  THE
 CURRENT COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE PARTIES BECAME
 EFFECTIVE DECEMBER 12, 1973.  THE AGREEMENT CONTAINS A GRIEVANCE
 PROCEDURE WHICH PROVIDES FOR THE SUBMISSION OF UNRESOLVED GRIEVANCES TO
 ARBITRATION.  (JOINT EX. 1).
 
    2.  FORT RITCHIE REGULATIONS 690-11, IN EFFECT AT ALL TIMES MATERIAL,
 PROVIDED, IN PART, AS FOLLOWS:
 
    3.  DEFINITIONS.
 
    A.  INFORMAL DISCIPLINARY ACTION.  ORAL ADMONITIONS AND WARNINGS ARE
 THE FIRST STEP IN
 
    CONSTRUCTIVE DISCIPLINE.  AS A GENERAL RULE, SUCH ACTIONS ARE TAKEN
 BY THE SUPERVISOR ON HIS
 
    OWN INITIATIVE IN SITUATIONS OF A MINOR NATURE INVOLVING INFRACTIONS
 OF A RULE, REGULATION,
 
    STANDARD OF CONDUCT, SAFETY PRACTICE OR AUTHORITATIVE INSTRUCTION . .
 . .
 
    B.  FORMAL DISCIPLINARY ACTIONS CONSIST OF WRITTEN REPRIMANDS,
 SUSPENSIONS, AND
 
    REMOVALS. ALTHOUGH FORMAL DISCIPLINARY ACTIONS ARE INITIATED BY
 SUPERVISORS, SUCH ACTIONS MAY
 
    NOT BE ACCOMPLISHED WITHOUT ACTION ON THE PART OF THE CIVILIAN
 PERSONNEL OFFICE . . . .
 
    APPENDIX A TO THE REGULATION SETS OUT TABLES PERTAINING TO PENALTIES
 FOR VARIOUS OFFENSES.  THIS TABLE PROVIDED, IN PART, AS FOLLOWS:
 
    THIS TABLE OF PENALTIES FOR DELINQUENCY OR MISCONDUCT WILL BE USED AS
 A GENERAL GUIDE IN
 
    IMPOSING DISCIPLINARY ACTION TO ASSURE LIKE PENALTIES FOR LIKE
 OFFENSES THROUGHOUT THE
 
    DEPARTMENT OF THE ARMY.  THE LIST OF OFFENSES AND SUGGESTED PENALTIES
 SET FORTH BELOW MAY NOT
 
    SUCCESSFULLY MEET THE DEMANDS OF ALL SITUATIONS AND THEREFORE IS TO
 BE CONSIDERED AS
 
    SUGGESTIVE ONLY.  WHEN IMPOSING PROGRESSIVE PENALTIES FOR SECOND AND
 THIRD OFFENSES,
 
    CONSIDERATION MUST BE GIVEN TO WHETHER A REASONABLE PERIOD HAS
 ELAPSED SINCE THE PRIOR
 
    OFFENSE.  (WHAT IS REASONABLE WILL DEPEND ON THE FACTS AND
 CIRCUMSTANCES OF EACH INDIVIDUAL
 
    CASE.)
 
    WHERE THE PENALTY PROPOSED EXCEEDS THE SUGGESTED LEVEL OF PENALTY FOR
 A PARTICULAR OFFENSE
 
    AS SET FORTH BELOW, OR IN A LOCALLY DEVELOPED REGULATION, AN
 EXPLANATION OF THE REASON FOR
 
    DEVIATION MUST BE PROVIDED IN THE PROPOSED NOTICE TO THE EMPLOYEE.
 
        USERS OF THIS GUIDE SHOULD BE THOROUGHLY FAMILIAR WITH ALL
 
                         THE PROVISIONS OF CPR 751
 
 (GUIDE OMITTED)
 
    3.  ON NOVEMBER 16, 1976 JOHANNA P. HARRIS, A MEDICAL TECHNICIAN FOR
 THE RESPONDENT, WAS SUSPENDED FROM DUTY FOR ONE DAY FOR FAILING TO OBEY
 AN ORDER.  (JOINT EX. 15).
 
    4.  ON AUGUST 18, 1978 A PROPOSED OFFICIAL WRITTEN REPRIMAND WAS
 DIRECTED TO JOHANNA P. HARRIS BASED ON HER FAILURE TO OBEY AN ORDER TO
 RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 TO COMPLETE A
 COUNSELING SESSION.  THE PROPOSED REPRIMAND NOTED THAT, "IF SUSTAINED
 (THIS REPRIMAND) WILL BE MADE A MATTER OF RECORD IN YOUR OFFICIAL
 PERSONNEL FOLDER FOR A PERIOD OF ONE (1) YEAR." (JOINT EX. 2).
 
    5.  ON SEPTEMBER 13, 1978, AFTER CONSIDERING THE PROPOSED REPRIMAND
 AND MRS. HARRIS' REPLY, COLONEL WILLIAM B. BRUMLEY, FOUND THE PROPOSED
 ACTION TO BE WARRANTED.  HE STATED, IN PART, "THEREFORE, THE LETTER OF
 REPRIMAND IS SUSTAINED AND WILL BE MADE A MATTER OF RECORD IN YOUR
 OFFICIAL PERSONNEL FOLDER FOR A PERIOD OF ONE (1) YEAR." (JOINT EX.  3).
 
    6.  ON OR ABOUT OCTOBER 30, 1978 THE UNION INVOKED ARBITRATION ON THE
 MERITS OF HARRIS' GRIEVANCE RELATING TO THE SEPTEMBER 13, 1978 LETTER OF
 REPRIMAND.
 
    7.  ON MAY 15, 1979 ARBITRATOR MILLARD CASS ISSUED A SIX PAGE
 DECISION AND AWARD WHICH CONCLUDED AS FOLLOWS:
 
    BASED UPON THE ENTIRE RECORD, I FIND THAT JOHANNA HARRIS WAS GUILTY
 OF A POOR ATTITUDE AND
 
    FAILURE TO OBEY DR. FARMER'S ORDER.  THIS WAS IMPROPER, BUT NOT
 SERIOUS ENOUGH TO WARRANT
 
    FORMAL ACTION.  UNDER THE CIRCUMSTANCES, AN OFFICIAL REPRIMAND WAS
 NOT JUSTIFIED, AND IT IS
 
    ORDERED REMOVED FROM HARRIS' PERSONNEL FILE.  (JOINT EX. 8).
 
    8.  RESPONDENT DID NOT APPEAL THE DECISION OF THE ARBITRATOR.  ON OR
 ABOUT MAY 21, 1979, RESPONDENT REMOVED FROM HARRIS' OFFICIAL PERSONNEL
 FILE THE LETTER OF REPRIMAND ISSUED ON SEPTEMBER 13, 1978.
 
    9.  DURING THE TIME FROM HARRIS' RECEIPT OF THE SEPTEMBER 13, 1978
 LETTER OF REPRIMAND TO THE DATE OF THE ARBITRATOR'S DECISION, HARRIS WAS
 THE SUBJECT OF OTHER PERSONNEL ACTION.  ON SEPTEMBER 19, 1978 RESPONDENT
 ISSUED TO MRS. HARRIS A NOTICE OF A PROPOSED 5-DAY SUSPENSION FROM DUTY
 WITHOUT PAY FOR FAILURE TO FOLLOW A DIRECTIVE ON AUGUST 22, 1978 TO
 PERFORM A STAT WHITE BLOOD COUNT PROCEDURE.  THE LETTER NOTED THAT, "THE
 MAXIMUM PENALTY IS BEING PROPOSED BECAUSE THIS IS YOUR SECOND OFFENSE AS
 EVIDENCED BY A WRITTEN REPRIMAND THAT WAS ISSUED TO YOU ON 18 AUGUST
 1978 FOR A SIMILAR OFFENSE." (JOINT EX. 4).
 
    10.  ON OCTOBER 16, 1978, AFTER CONSIDERING THE PROPOSED SUSPENSION
 AND MRS. HARRIS' REPLY, RESPONDENT FOUND THE CHARGE SUPPORTED AND THE
 ACTION WARRANTED.  (JOINT EX. 5).  THERE IS NO EVIDENCE THAT MRS. HARRIS
 REQUESTED A REVIEW OF THIS DECISION.  ACCORDINGLY, MRS. HARRIS WAS
 SUSPENDED FROM DUTY WITHOUT PAY DURING THE PERIOD OCTOBER 23-27, 1978.
 
    11.  ONCE THE ARBITRATOR'S DECISION WAS RENDERED CONCERNING THE
 SEPTEMBER 13, 1978 LETTER OF REPRIMAND, THE UNION, BY LETTER DATED MAY
 23, 1979, WROTE TO RESPONDENT CONCERNING THE 5-DAY SUSPENSION.  THE
 UNION NOTED THAT THE PUNISHMENT OF SUSPENSION HAD BEEN IMPOSED BY
 RESPONDENT BECAUSE THE INCIDENT WAS STATED TO BE HARRIS' "SECOND OFFENSE
 AS EVIDENCED BY A WRITTEN REPRIMAND THAT WAS ISSUED TO YOU ON 18 AUGUST
 1978 FOR A SIMILAR OFFENSE." THE UNION ARGUED THAT SINCE THE ARBITRATOR
 HAD OVERTURNED THE LETTER OF REPRIMAND, THE INCIDENT WHICH TRIGGERED THE
 5-DAY SUSPENSION HAD BECOME THE FIRST OFFENSE.  THE UNION REQUESTED THAT
 THE 5-DAY SUSPENSION BE REDUCED TO A LETTER OF REPRIMAND AND THAT HARRIS
 BE RESTORED FIVE DAYS PAY.  (JOINT EX.  9).
 
    12.  BY LETTER DATED JULY 18, 1979 RESPONDENT INFORMED THE UNION OF
 ITS POSITION REGARDING MRS. HARRIS' 5-DAY SUSPENSION.  RESPONDENT
 STATED, IN PART, AS FOLLOWS:
 
    IT IS MANAGEMENT'S POSITION THAT THE 30 MARCH 1979 (SIC) DECISION AND
 AWARD RENDERED BY
 
    MR. MILLARD CASS REFERRED TO IN YOUR REFERENCED LETTER DID NOT STATE
 THAT A FIRST OFFENSE WAS
 
    NOT COMMITTED BY MRS. HARRIS.  MR. CASS' DECISION AND AWARD ONLY
 STATES THAT THE PUNISHMENT
 
    FOR THE FIRST OFFENSE WAS, IN HIS OPINION, TOO SEVERE.  HE DID NOT
 STATE THAT A FIRST OFFENSE
 
    DID NOT HAPPEN.  IN FACT, HE SPECIFICALLY STATES IN HIS LAST
 PARAGRAPH OF THE DECISION AND
 
    AWARD THAT "I FIND THAT JOHANNA HARRIS WAS GUILTY OF A POOR ATTITUDE
 AND FAILURE TO OBEY
 
    DR. FARMER'S ORDER." HE, THEREFORE, CLEARLY SAYS THAT AN OFFENSE WAS
 COMMITTED BY
 
    MRS. HARRIS. THEREFORE, MRS. HARRIS' ACT OF DISOBEDIENCE, SUBSEQUENT
 TO THE ACT OF
 
    DISOBEDIENCE ON 18 AUGUST 1978, WAS TRULY A SECOND OFFENSE FOR WHICH
 MANAGEMENT COULD IMPOSE A
 
    SUSPENSION WITHOUT PAY.  (JOINT EX. 10).
 
    13.  ON SEPTEMBER 17, 1979 MRS. HARRIS WAS GIVEN ADVANCE NOTICE OF
 HER PROPOSED REMOVAL FROM FEDERAL SERVICE.  THE REASONS ADVANCED FOR THE
 PROPOSED REMOVAL WERE HER REPEATED FAILURES TO OBEY THE ORDERS OF HER
 SUPERVISORS.  THE NOTICE DEVOTED THE MOST ATTENTION TO THE CHARGE THAT
 HARRIS HAD FAILED TO PERFORM QUALITY CONTROL AND/OR TO RECORD THE
 RESULTS OF QUALITY CONTROL IN SEROLOGY, HEMATOLOGY, AND URINALYSIS
 DURING THE PERIOD FROM AUGUST 18, 1979 TO JUNE 6, 1979 IN VIOLATION OF
 AN AUGUST 14, 1979 ORDER OF HER SUPERVISOR TO PERFORM SUCH PROCEDURES.
 RESPONDENT ALSO RELIED ON THREE PRIOR OFFENSES OF FAILURE TO OBEY
 ORDERS, INCLUDING THE OFFENSE THAT BECAME THE SUBJECT OF THE ARBITRATION
 AWARD.  RESPONDENT STATED THAT "ALTHOUGH THE WRITTEN REPRIMAND OF AUGUST
 18, 1978 WAS WITHDRAWN . . . THE ARBITRATOR DID SPECIFICALLY FIND THAT
 YOU WERE 'GUILTY OF A POOR ATTITUDE AND FAILURE TO OBEY DR. FARMER'S
 ORDER'." FOR THE OTHER TWO PRIOR OFFENSES, RESPONDENT RELIED ON THE
 5-DAY SUSPENSION FOR FAILURE TO OBEY AN ORDER AND THE 1-DAY SUSPENSION
 FOR FAILURE TO OBEY AN ORDER IN 1976.  (JOINT EX. 11).
 
    14.  ON OCTOBER 29, 1979, AFTER REVIEWING MRS. HARRIS' REBUTTAL,
 RESPONDENT SUSTAINED THE PROPOSED REMOVAL.  HARRIS WAS SEPARATED FROM
 FEDERAL SERVICE AND REMOVED FROM RESPONDENT'S PAYROLL ON NOVEMBER 2,
 1979.  (JOINT EX. 12).
 
    15.  MRS. HARRIS APPEALED HER SEPARATION TO THE MERIT SYSTEMS
 PROTECTION BOARD.  AN INITIAL DECISION SUSTAINING THE REMOVAL WAS
 RENDERED BY A PRESIDING OFFICIAL OF THE PHILADELPHIA FIELD OFFICE ON
 MARCH 21, 1980.  THE DECISION REFLECTS THAT THE PRESIDING OFFICIAL
 CONSIDERED AND DECIDED AN ISSUE DEALING WITH THE VALIDITY OF
 RESPONDENT'S RELIANCE ON PAST OFFENSES IN DETERMINING THE PENALTY TO BE
 IMPOSED, AND THE EFFECT OF THE ARBITRATOR'S DECISION AND THE VALIDITY OF
 CERTAIN OF THESE PAST OFFENSES.  THE PRESIDING OFFICIAL DETERMINED, IN
 PART, THAT BECAUSE OF THE ARBITRATOR'S DECISION, THE AUGUST 18, 1978
 LETTER OF REPRIMAND DID NOT CONSTITUTE A PAST DISCIPLINARY ELEMENT ON
 WHICH THE AGENCY COULD RELY.  (JOINT EX. 16).  THE STIPULATION REFLECTS
 THAT THE INITIAL DECISION HAS BEEN APPEALED TO THE MERIT SYSTEMS
 PROTECTION BOARD.
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    THE GENERAL COUNSEL ALLEGES THAT RESPONDENT VIOLATED SECTIONS
 7116(A)(1), (5), AND (8) OF THE STATUTE BY FAILING AND REFUSING TO
 COMPLY WITH AN ARBITRATOR'S AWARD.  THE GENERAL COUNSEL ASSERTS THAT
 ALTHOUGH RESPONDENT PHYSICALLY REMOVED THE REPRIMAND FROM THE PERSONNEL
 FILE, AS ORDERED BY THE ARBITRATOR, IT FAILED TO COMPLETELY VACATE THE
 DISCIPLINE AND THE EFFECTS THEREOF, AS INTENDED BY THE ARBITRATOR'S
 AWARD, AND, INSTEAD, USED THE REPRIMAND AS A BASIS FOR ADMINISTERING
 PROGRESSIVELY MORE SEVERE DISCIPLINE.
 
    RESPONDENT CONTENDS THAT IT COMPLIED WITH THE ARBITRATOR'S AWARD BY
 REMOVING THE REPRIMAND FROM THE FILE.  RESPONDENT ARGUES THAT THE
 ARBITRATOR ONLY FOUND THE PENALTY TO BE EXCESSIVE AND THAT IT WAS NOT
 PRECLUDED FROM CONSIDERING THE ARBITRATOR'S FINDING OF GUILT IN
 EVALUATING THE PENALTY FOR A SUBSEQUENT OFFENSE.
 
    THE DETERMINATION OF WHETHER OR NOT RESPONDENT COMPLIED WITH THE
 ARBITRATOR'S AWARD INVOLVES AN ANALYSIS OF THE ARBITRATOR'S AWARD IN
 LIGHT OF THE RELEVANT AGENCY AND CIVIL SERVICE REGULATIONS.  IT IS CLEAR
 FROM FORT RITCHIE REGULATION 690-11 THAT THERE ARE TWO CATEGORIES OF
 DISCIPLINARY ACTIONS:  INFORMAL AND FORMAL.  INFORMAL ACTIONS INVOLVE
 ORAL ADMONITIONS AND WARNINGS TAKEN BY A SUPERVISOR ON HIS OWN
 INITIATIVE IN SITUATIONS OF A MINOR NATURE.  FORMAL DISCIPLINARY ACTIONS
 CONSIST OF WRITTEN REPRIMANDS, SUSPENSIONS, AND REMOVALS AND MAY NOT BE
 ACCOMPLISHED BY A SUPERVISOR WITHOUT ACTION ON THE PART OF CIVILIAN
 PERSONNEL OFFICE.  THE GRADUATED SYSTEM OF PENALTIES FOR VARIOUS
 OFFENSES, REFLECTED ON THE TABLE ATTACHED TO THE REGULATION;  REFLECTS
 THAT THEY RANGE FROM WRITTEN REPRIMAND FOR THE FIRST OFFENSE, TO
 SUSPENSION FOR THE SECOND OFFENSE, AND REMOVAL FOR THE THIRD OFFENSE.
 ALL OF THESE PENALTIES INVOLVE OFFENSES UNDER THE FORMAL DISCIPLINARY
 ACTION PROCEDURE SINCE, AS NOTED, FORMAL DISCIPLINARY ACTIONS BY
 DEFINITION CONSIST ONLY OF WRITTEN REPRIMANDS, SUSPENSIONS, AND
 REMOVALS.  IT FOLLOWS, THEREFORE, THAT UNLESS AN OFFENSE RESULTS IN A
 FORMAL DISCIPLINARY ACTION IT CANNOT BE USED AS A BASIS FOR THE
 GRADUATED SYSTEM OF PENALTIES.
 
    AS NOTED, THE ARBITRATOR SPECIFICALLY FOUND, AS FOLLOWS:
 
    BASED UPON THE ENTIRE RECORD, I FIND THAT JOHANNA HARRIS WAS GUILTY
 OF A POOR ATTITUDE AND
 
    FAILURE TO OBEY DR. FARMER'S ORDER.  THIS WAS IMPROPER, BUT NOT
 SERIOUS ENOUGH TO WARRANT
 
    FORMAL ACTION.  UNDER THE CIRCUMSTANCES, AN OFFICIAL REPRIMAND WAS
 NOT JUSTIFIED, AND IT IS
 
    ORDERED REMOVED FROM HARRIS' PERSONNEL FILE.  (JOINT EX. 8).
 
    IN FINDING THAT MRS. HARRIS' ACTION "WAS IMPROPER, BUT NOT SERIOUS
 ENOUGH TO WARRANT FORMAL ACTION" AND THAT "AN OFFICIAL REPRIMAND WAS NOT
 JUSTIFIED," THE ARBITRATOR, IN EFFECT, FOUND THAT MRS. HARRIS' CONDUCT
 ONLY WARRANTED INFORMAL DISCIPLINARY ACTION UNDER ARMY REGULATIONS.
 SINCE THE CONDUCT WAS, IN EFFECT, DOWNGRADED BY THE ARBITRATOR TO
 INFORMAL DISCIPLINARY ACTION, IT COULD NOT SUBSEQUENTLY BE CONSIDERED AN
 OFFENSE UNDER THE FORMAL DISCIPLINARY ACTION PROCEDURE AND USED AS A
 BASIS FOR THE GRADUATED SYSTEM OF PENALTIES UNDER THE REGULATION.  THIS
 IS ALSO MADE CLEAR BY THE ARBITRATOR'S ACTION IN ORDERING THE REMOVAL OF
 THE REPRIMAND FROM HARRIS' PERSONNEL FILE.  5 C.F.R. 293.203 AND
 293.204(1978), REGULATIONS OF THE CIVIL SERVICE COMMISSION, PROVIDED AS
 FOLLOWS:
 
    SEC. 293.203 OWNERSHIP OF FOLDER.
 
    THE OFFICIAL PERSONNEL FOLDER OF EACH EMPLOYEE IN A POSITION SUBJECT
 TO CIVIL SERVICE RULES
 
    AND REGULATIONS IS UNDER THE JURISDICTION AND CONTROL OF, AND IS PART
 OF THE RECORDS OF, THE
 
    COMMISSION.
 
    SEC. 293.204 MAINTENANCE AND CONTENT OF FOLDER.
 
    THE HEAD OF EACH AGENCY SHALL MAINTAIN IN THE OFFICIAL PERSONNEL
 FOLDER THE REPORTS OF
 
    SELECTION AND OTHER PERSONNEL ACTIONS NAMED IN SECTION 2951 OF TITLE
 5, UNITED STATES
 
    CODE.  THE FOLDER SHALL ALSO CONTAIN PERMANENT RECORDS AFFECTING THE
 EMPLOYEE'S STATUS AND
 
    SERVICE AS REQUIRED BY THE COMMISSION'S INSTRUCTIONS.
 
    THUS, THE ARBITRATOR'S ORDER REMOVING THE REPRIMAND FROM HARRIS'
 PERSONNEL FOLDER WAS DESIGNED TO INSURE THAT THE INCIDENT WOULD NOT
 BECOME A "PERMANENT RECORD AFFECTING THE EMPLOYEE'S STATUS AND SERVICE."
 
    IT IS CONCLUDED, THEREFORE, THAT RESPONDENT'S ACTION IN USING THE
 INCIDENT AS A BASIS FOR ADMINISTERING PROGRESSIVELY MORE SEVERE
 DISCIPLINE CONSTITUTED A FAILURE AND REFUSAL TO TAKE THE ACTION REQUIRED
 BY THE ARBITRATOR'S AWARD.  SUCH FAILURE AND REFUSAL IS CONTRARY TO
 SECTION 7122(B) /5/ AND IS THEREFORE, AN UNFAIR LABOR PRACTICE UNDER
 SECTIONS 7116(A)(1), AND (8) OF THE STATUTE.  A VALID ARBITRATION AWARD
 CONSTITUTES AN EXTENSION OF THE PARTIES' NEGOTIATED AGREEMENT WHICH MAY
 BE MODIFIED ONLY BY MUTUAL AGREEMENT OF THE PARTIES.  THUS, RESPONDENT'S
 FAILURE TO COMPLY WITH THE AWARD ALSO CONSTITUTES A FAILURE TO BARGAIN
 IN GOOD FAITH IN VIOLATION OF SECTIONS 7116(A)(5), AND (1) OF THE
 STATUTE.
 
    BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS, IT IS
 RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER:
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE
 FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE
 U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING OR REFUSING TO COMPLY WITH THE MAY 15, 1979 FINAL AWARD
 OF ARBITRATOR MILLARD
 
    CASS.
 
    (B) RELYING ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN
 TO HER SUPERVISOR'S
 
    OFFICE AUGUST 14, 1978 AS THE BASIS FOR IMPOSING PROGRESSIVELY SEVERE
 PENALTIES FOR OTHER
 
    OFFENSES IN FORMAL DISCIPLINARY ACTIONS.
 
    (C) IN ANY LIKE OR RELATED MANNER FAILING OR REFUSING TO COMPLY WITH
 ANY PROVISION OF THE
 
    FEDERAL SERVICE LABOR- MANAGEMENT RELATIONS STATUTE.
 
    (D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 POLICIES AND PROVISIONS OF THE STATUTE:
 
    (A) COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD
 CASS AND ANY OTHER
 
    ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE
 LABOR- MANAGEMENT RELATIONS
 
    STATUTE.
 
    (B) REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P.  HARRIS'
 FAILURE TO OBEY AN
 
    ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 FROM
 HER OFFICIAL PERSONNEL FILE
 
    AND FROM ALL FORMAL DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P.
 HARRIS SUBSEQUENT TO AUGUST
 
    14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED
 SUSPENSION AND THE SEPTEMBER 17,
 
    1979 NOTICE OF PROPOSED REMOVAL, AND REVISE SUCH ACTIONS ACCORDINGLY
 TO THE EXTENT REQUIRED BY
 
    LAW AND REGULATIONS.
 
    (D) ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS CONSIDERATION
 IN THE CASE OF JOHANNA
 
    P. HARRIS V. U.S. DEPARTMENT OF THE ARMY, OF THE ACTIONS TAKEN TO
 COMPLY WITH THE ARBITRATOR'S
 
    DECISION PURSUANT TO THIS ORDER.
 
    (E) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE
 
    FURNISHED BY THE AUTHORITY.  UPON RECEIPT OF SUCH FORMS, THEY SHALL
 BE SIGNED BY THE
 
    COMMANDING OFFICER, U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND,
 AND SHALL BE POSTED AND
 
    MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING ALL
 
    BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE
 
    COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE
 NOT ALTERED, DEFACED, OR
 
    COVERED BY ANY OTHER MATERIAL.
 
    (F) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL
 DIRECTOR, FEDERAL LABOR
 
    RELATIONS AUTHORITY, REGION THREE, IN WRITING, WITHIN 30 DAYS FROM
 THE DATE OF THIS ORDER, AS
 
    TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                         GARVIN LEE OLIVER
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JULY 31, 1981
    WASHINGTON, DC
 
 
 
         APPENDIX PURSUANT TO A DECISION AND ORDER OF THE FEDERAL
 
         LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
              CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL OR REFUSE TO COMPLY WITH THE MAY 15, 1979 FINAL
 AWARD OF ARBITRATOR MILLARD CASS OR WITH ANY OTHER ARBITRATOR'S FINAL
 AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER FAIL OR REFUSE TO COMPLY
 WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR
 MILLARD CASS AND WITH ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT
 TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
                                (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION THREE, 1133
 15TH STREET, NW., WASHINGTON, D.C. 20005, TELEPHONE (202) 653-8452.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7122(B) PROVIDES:
 
    SEC. 7122.  EXCEPTIONS TO ARBITRAL AWARDS
 
   .          .          .          .
 
 
    (B) IF NO EXCEPTION TO AN ARBITRATOR'S AWARD IS FILED UNDER
 SUBSECTION (A) OF THIS SECTION
 
    DURING THE 30-DAY PERIOD BEGINNING ON THE DATE OF SUCH AWARD, THE
 AWARD SHALL BE FINAL AND
 
    BINDING.  AN AGENCY SHALL TAKE THE ACTIONS REQUIRED BY AN
 ARBITRATOR'S FINAL AWARD.  THE AWARD
 
    MAY INCLUDE THE PAYMENT OF BACKPAY (AS PROVIDED IN SECTION 5596 OF
 THIS TITLE).
 
    /2/ SECTION 7116(A)(1) AND (8) PROVIDES:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;
 
   .          .          .          .
 
 
    (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER.
 
    /3/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON
 THE JUDGE'S FURTHER FINDING THAT THE RESPONDENT ALSO THEREBY FAILED TO
 BARGAIN IN GOOD FAITH IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
 STATUTE.
 
    /4/ AT THE TIME OF THE JUDGE'S DECISION, MSPB HAD ISSUED AN INITIAL
 DECISION (NUMBER PH 075209115, MARCH 21, 1980).  THAT DECISI