32:1243(168)AR - - Army, Fort Carson, CO and AFGE Local 1345 - - 1988 FLRAdec AR - - v32 p1243
[ v32 p1243 ]
The decision of the Authority follows:
32 FLRA No. 168
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE ARMY
FORT CARSON, COLORADO
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1345
Case No. 0-AR-1529
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator John F. Sass. The Arbitrator found that the grievant's refusal to perform a job assignment was misconduct properly subject to disciplinary action. Further, he found that the 1-day suspension imposed by the Agency was not unreasonable under the parties' collective bargaining agreement. Thus, the Arbitrator denied the grievance.
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. On April 19, 1988, the Authority granted the Union the opportunity to complete its exception by submitting additional information. The Union subsequently amended its exceptions. The Activity did not file an opposition.
We conclude that the Union has not established that the award is contrary to 29 C.F.R. § 1613.261, which provides that an employee who participates in processing an Equal Employment Opportunity (EEO) complaint is protected from reprisal. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, an Engineering Equipment Operator, was suspended for 1 day for refusing a job assignment. At the time of this incident he had been a Federal employee for about 35 years, 19 of which he spent working for the military. For the past several years, his performance ratings were either "highly successful" or "exceptional."
In July 1986, the grievant operated a bucket loader for 18 days to remove industrial wastes from Biological Pond #1 at Ft. Carson. Although the wastes were not toxic, the fumes produced by the waste were foul smelling, and the grievant was required to work in close proximity to the fumes. He used a bucket loader to lift waste from the pond and put it into dump trucks which hauled it to a dump site. The Arbitrator found that this work was disliked by the employees. Award at 3.
The grievant stated that at first the job at the pond did not bother him, but later he developed a sore throat. According to the grievant, a doctor said that his sore throat might be due to the fumes. After taking 2 days of annual leave, the grievant returned to the job. At that time, the grievant asserted that he told the foreman he would finish Pond #1, but because of the fumes he said that another employee should be assigned to clean Pond #2.
The Arbitrator found that the grievant's outspokenness "has created at least some tension in his relationships with his superiors." Award at 2. The grievant complained to the foreman and higher levels of management about the assignment of W.A.E. (when actually employed) employees to do work that he felt should be done by regular civil service employees. In addition, the Arbitrator found that since 1984 the grievant testified in support of discrimination claims by nonwhite employees on three occasions. The Arbitrator also stated that the grievant felt that "[i]t is [the grievant's] feeling that, ever since he took up the cause of the non-white employees in his Section, [the foreman] has been 'after him' in subtle ways--giving him crummy job assignments, etc." Award at 3.
On November 21, 1986, the grievant's work crew assembled to get assignments from the foreman. According to testimony, 15 to 30 people were present. The foreman told the grievant to begin cleaning Biological Pond #2. The testimony concerning remarks made at the meeting conflicted. However, the Arbitrator found that all the witnesses agreed that the grievant said, loudly and using profanity, that he would not go to Pond #2 until every employee had worked there. Award at 4. At the arbitration hearing, the grievant admitted he "lost his cool." Award at 5.
Later that day, the grievant and the foreman met and the grievant again refused to work at Pond #2. However, at this meeting the grievant told the foreman that he had a sore throat when he previously worked at Pond #1. The foreman responded that he did not know the work affected the grievant's health and had not seen a doctor's statement to that effect. Again, the foreman instructed the grievant to work at Pond #2. The grievant refused and requested another job assignment.
Although the foreman directed the grievant to go home because he would not work at the pond, the grievant met with the branch chief. He told the branch chief that he refused the assignment because the foreman was not rotating the job and the work irritated his throat. The chief told him that if the work at the ponds related to a health problem, he should have obtained a doctor's statement to that effect. The grievant offered to apologize to the section; however, the chief said it was too late to do so. He stated that appropriate disciplinary action would be taken. The grievant returned to his section and was given another assignment. On November 24, 1986, he accepted an assignment to work at Pond #2. Subsequently, the foreman rotated that assignment among other employees.
The chief proposed a 3-day suspension. However, the division chief reduced the suspension to 1 day because of the grievant's offer to apologize, his prior work record, and his performance ratings.
The parties stipulated that the issues to be decided were as follows:
1. Whether there was some form of misconduct on the part of [the grievant], on 21 November, 1986 (i.e., refusal to obey orders, defiance of authority), and
2. Whether the choice of discipline is unreasonable. Award at 2.
Initially, the Arbitrator discussed the rights of both parties. He said employees may refuse a job if the job poses a significant threat to health or safety. The Arbitrator noted that employees may file good faith grievances and EEO complaints and assist in processing them without suffering reprisal. Management, however, has the right to make job assignments, as long as employee rights are not violated. The Arbitrator also stated that even if a job assignment does violate an employee right, an employee should follow proper procedures before an outright refusal of an assignment is justified. Award at 10-11. The Arbitrator also cited Article 13, Section 6 of the parties' agreement which states that "[a]n employee or a group of employees who believe that they are being required to work under conditions which are unsafe or unhealthy will report the condition to their immediate supervisor." Award at 9.
Before stating his conclusions, the Arbitrator found that the grievant "had at least some justification for feeling that this particular job assignment was unfair." Award at 10. The Arbitrator noted the following:
He had already worked 18 of 23 days at Pond #1; the fumes given off by the wastes in the pond bothered him; he was sure that [the foreman] was aware that the fumes at the pond bothered him; many other employees besides himself were qualified to do the work; he felt that the work should, as a matter of fairness, be rotated among the qualified people rather than given mostly to him; and he felt that, by assigning the work to him, [the foreman] was getting back at him for having supported [an employee's] claim of discrimination and for having complained to higher management about the job assignments being given to W.A.E. employees. Id.
The Arbitrator decided that the grievant's refusal to perform the job assigned constituted misconduct for which he properly could be disciplined. He concluded that the job did not pose any immediate danger to the health or safety of the grievant. He noted that the grievant had not produced a doctor's statement concerning the fumes and there was no "competent medical evidence" that the grievant's sore throat was directly related to the fumes at Pond #1. Award at 11.
Additionally, the Arbitrator noted that the grievant had not reminded the foreman about his problems with the fumes before he refused the assignment to Pond #2. Finally, the Arbitrator noted that it had been 3 1/2 months since the grievant worked at Pond #1 and the fumes only bothered the grievant after he had worked at the pond for some time.
The Arbitrator concluded that there was insufficient evidence to establish that the foreman assigned the grievant to Pond #2 in retaliation for the grievant's support of discrimination claims made by fellow employees or for his complaints about the assignments given to temporary employees. In addition, the Arbitrator stated that the evidence did not show that the grievant was given all of the work at the biological ponds by the foreman. Moreover, unpleasant jobs, such as broken sewer lines, were a regular part of the crew's work and "most, if not all, employees in the Section had done this type of work at some time or other in the past." Award at 12. The Arbitrator also stated that "there is no indication that [the foreman] felt, at the time he made the assignment that it was in any sense unfair." Id.
Finally, the Arbitrator found that the foreman needed someone to clean Pond #2 and that it was advantageous to assign the grievant because he knew how to perform the job. The Arbitrator concluded that had the grievant raised health and fairness concerns management likely would have given him some relief. Since the grievant had not gone through the proper channels before refusing the job assignment, the Arbitrator found that his refusal to accept the job assignment at Pond #2 was not justified "even though he had some basis for believing it to be unfair." Award at 13.
The Arbitrator concluded that "the seriousness of this incident clearly justifies the one day suspension that was imposed and, but for a number of mitigating factors, an even harsher penalty would have been justified." Award at 14. In support of his decision that a 1-day suspension was justified, the Arbitrator noted that the grievant initially refused the job assignment in loud and profane terms in the presence of a large number of other employees. Furthermore, although the grievant stated he "lost his cool" on that occasion, the Arbitrator found that he subsequently refused the assignment at two later meetings after he had a chance to cool down. Finally, the Arbitrator concluded that the seriousness of the incident clearly justified the 1-day suspension. Thus, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union asserts that the award is contrary to law because the Arbitrator failed to recognize that the foreman's order which was refused by the grievant was in retaliation for the grievant's testimony at EEO hearings in support of employees who asserted claims of discrimination against management. In its amended exceptions, the Union points out that the grievant's participation in the EEO process is protected from reprisal under 29 C.F.R. § 1613.261. According to the Union, the Arbitrator "was required to do more than conclude that he could not reach conclusions." Union's Amended Exceptions at 3.
The Union also asserts in its initial exceptions that there was a violation of law based on entrapment. In support, the Union states that the supervisor asked the grievant if he was still refusing to perform the work assignment at a time when the assignment was unavailable due to weather conditions. Finally, the Union asserts that the supervisor's order was a "deliberate intent by the supervisor to retaliate, provoke and entrap the Grievant" because the supervisor knew that the grievant would not like the a