35:1146(126)AR - - Air Force, Tinker AFB, OK and AFGE Local 916 - - 1990 FLRAdec AR - - v35 p1146



[ v35 p1146 ]
35:1146(126)AR
The decision of the Authority follows:


35 FLRA No. 126

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

TINKER AIR FORCE BASE, OKLAHOMA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 916

(Union)

0-AR-1605

DECISION

May 16, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to the award of Arbitrator Otis H. King.

The grievant, a union representative on 100 percent official time under the parties' collective bargaining agreement, was suspended for 14 days for interfering with the production of others and refusing to comply with a lawful order from a security police officer. The Arbitrator determined that the Activity had established that the grievant caused a work stoppage and that a 14-day suspension was an appropriate penalty for such misconduct. However, the Arbitrator concluded that the Activity did not have the right to take disciplinary action against an individual employee to whom it had granted 100 percent official time. Accordingly, he set aside the suspension and ordered the grievant made whole.

The Department of the Air Force (the Agency), on behalf of the Activity, filed an exception to the award 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 filed an opposition to the exception. The Office of Personnel Management (OPM) filed an amicus curiae brief in support of the Agency's exception.

We conclude that the award is contrary to the Statute.

II. Background

The grievant is an employee of the Activity who is granted 100 percent official time under the parties' collective bargaining agreement. The grievant uses official time to serve as a representative of the Union and perform representational activities when she otherwise would be in a duty status.

On May 18, 1987, the grievant visited building 95 at the Activity in her capacity as a Union representative. The grievant visited the building to discuss an insurance program with employees and to post information on the Union's bulletin boards. After her discussions with employees, the grievant entered the break room in the building to assemble the bulletin board materials.

The grievant was confronted by an Activity supervisor who disputed the grievant's right to be in the building and directed her to leave. The grievant refused this direction and the supervisor called the security police. The grievant also refused the requests of the security police officer, who responded to the call, to leave the building. Finally, the grievant departed when she was told that she would be physically removed if she did not depart.

On May 19, 1987, the grievant returned to the building and gave the supervisor a letter which demanded that management bargain over placement of a Union bulletin board in the break room. When the supervisor refused to acknowledge receipt of the letter, the grievant picked up the letter and began walking down the center aisle of the building holding a 9 by 12-inch file folder over her head. The following was printed in 3-inch letters on the file folder:

AFGE
UNITY IS
POWER

The grievant walked far enough down the aisle to be seen by most, if not all, of the 175-200 employees working in the building. The supervisor asked the grievant to leave and she refused. The supervisor returned to his office and called the security police. At that point, employees started chanting at the supervisor to come out of his office.

When the security police officers arrived, work had stopped and most, if not all, of the employees were watching the grievant. When she was approached by a security police officer, the grievant departed the building, escorted by the officer, without further disruption.

The Activity filed an unfair labor practice charge, alleging that the Union had caused a work stoppage on May 19. The General Counsel of the Authority issued an unfair labor practice complaint against the Union; the matter was subsequently settled.

The Activity suspended the grievant for 14 days for interfering with the production of others and refusing to comply with a lawful order from a security police officer. A grievance protesting the suspension was filed. The grievance was submitted to arbitration on the issue, among others, of whether the suspension was for just cause.(*)

III. The Arbitrator's Award

The Arbitrator set aside the suspension and ordered that the grievant be made whole with backpay, restoration of seniority, and other benefits.

The Arbitrator found that the grievant's conduct on May 19, 1987, "was totally unprofessional and not befitting that which is expected of a representative of the Union." Arbitrator's Award at 23. The Arbitrator also found that the Activity "met its burden of proof in establishing that the Grievant caused a work stoppage on May 19, 1987 and that a fourteen day suspension would be an appropriate penalty for such conduct." Id. at 25. However, the Arbitrator determined that the Activity "could not impose a direct disciplinary sanction against the Grievant." Id. The Arbitrator found that the Activity did not have the right "to take direct disciplinary action against an employee that it had provided 100% to the Union pursuant to their collective bargaining agreement." Id.

The Arbitrator concluded that the grievant "was not subject to the orders of Agency management in an employer-employee relationship" because as a Union representative on 100 percent official time, she was under the Union's "control and direction at all times material to this proceeding." Id. The Arbitrator acknowledged that there is some conduct that is so far beyond an agent's scope of duties that it is removed from the "umbrella" of matters chargeable to a principal, and the agent is individually responsible for such conduct. Id. at 16. However, the Arbitrator determined that the grievant's actions did not fall within that category. Accordingly, the Arbitrator held that the Activity "did not have the option of filing a disciplinary action against [the grievant] as an Agency employee" because "[i]t is the Union qua Union that is the actionable party and not the Grievant as an individual." Id. at 21, 22. In addition, the Arbitrator stated that a determination that the grievant's conduct was not protected activity under the Statute could not change her status as "a Union rather than an Agency Employee" who was not "subject to the direct control of Agency management." Id. at 17, 19.

IV. Positions of the Parties

A. The Agency and OPM

The Agency contends that the award is contrary to law. The Agency argues that the Arbitrator's conclusion that the Activity could not discipline the grievant because of her status as a union representative on 100 percent official time conflicts with the Statute and the definition of "employee" under 5 U.S.C. § 2105.

The Agency maintains that under the Statute, an employee's involvement in activities on behalf of an exclusive representative does not immunize the employee from discipline. The Agency notes that the Authority has held that a union representative who engages in flagrant misconduct loses the protection of the Statute. The Agency claims that the Arbitrator found that the grievant had engaged in flagrant misconduct. Accordingly, the Agency contends that the award must be found deficient.

The Agency further contends that the Arbitrator's reliance on the grievant's being on 100 percent official time as a basis for his award is contrary to the Statute. In the Agency's view, the discipline of union representatives who have engaged in flagrant misconduct cannot depend "on the fortuity of whether the union representative had the good fortune of being on 100 percent official time." Agency's Exception at 7-8.

The OPM supports the Agency's position.

B. The Union

The Union first contends that the Agency's exception must be dismissed because it fails to comply with the Authority's Rules and Regulations. The Union claims that the exception fails to set forth the address of the Arbitrator, as required by section 2425.2 of our Regulations.

On the merits, the Union contends that the award is not deficient. The Union maintains that the Arbitrator did not "re-define 'employee' in violation of the statutory definition." Union's Opposition at 7. Instead, the Union claims that the definition of employee and the grievant's status as an employee are simply inapposite to the Arbitrator's award.

The Union also maintains that the award does not conflict with the Statute. The Union disputes the Agency's claim that the Arbitrator found that the grievant had engaged in flagrant misconduct. Moreover, the Union argues that "there was no flagrant misconduct involved in this case." Id. at 12. In the Union's view, the Arbitrator "expressly interpreted the evidence as to the nature of the alleged misconduct and categorized it as falling within the 'umbrella' of appropriate labor-management interaction." Id. The Union claims that the Agency's exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence in reaching his conclusion that the grievant's conduct was within the "umbrella" of appropriate conduct. Id. at 10.

V. Analysis and Conclusions

A. The Agency's exception complies with our Regulations

The Agency includes the Arbitrator's address on the first page of its exception. Therefore, the exception complies with section 2425.2 of our Regulations.

B. The Arbitrator's award is deficient

We conclude that the award is contrary to the Statute because it conflicts with management's right to discipline. We find that the Arbitrator improperly set aside the grievant's suspension for conduct which exceeded the boundaries of protected activity under the Statute. The Arbitrator erroneously ruled that the Activity did not have the right to take direct disciplinary action against the grievant because she was an agent of the Union whose conduct was chargeable to the Union alone.

Neither party disputes that the grievant is an employee of the Activity, both within the meaning of 5 U.S.C. § 2105 and section 7103(a)(2)(A) of the Statute. The parties recognize that the grievant would not be entitled to official time under section 7131 of the Statute unless she was an employee within the meaning of the Statute. As an employee of the Activity, the grievant's conduct in May 1987 was subject to the disciplinary authority of the Activity. Contrary to the Arbitrator's finding that the Activity did not have the right to take direct disciplinary action against the grievant because she was entitled to 100 percent official time, there is no basis in the Statute for making management's right to take disciplinary action against employees dependent on the proportion of the employee's work time which the employee has been authorized to devote to representational activities. Rather, as a matter involving the discipline of an employee engaged in activities on behalf of an exclusive representative, this case is governed by section 7102 of the Statute. See U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, 32 FLRA 252, 254 (1988) (Tinker Air Force Base).

Section 7102 of the Statute provides, in part, that each employee shall have the right to assist any labor organization, freely and without fear of penalty or reprisal, and shall be protected in the exercise of that right. Therefore, union activities engaged in by employees are protected from interference by agency employers. Id. Although section 7102 guarantees employees the right to engage in activities on behalf of an exclusive representative without fear of penalty or reprisal, an employee's involvement in union activities does not immunize the employee from discipline. U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, 34 FLRA 385, 388 (1990) (AFGE Local 916). Management's right to take disciplinary actions under section 7106(a)(2)(A) of the Statute includes the right to discipline an employee union representative for activities which "are not specifically on behalf of the exclusive representative or which exceed the boundaries of protected activity such as flagrant misconduct." Id. at 389 (quoting Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987)).

Neither party disputes that the actions for which the grievant was disciplined were undertaken on behalf of the Union while the grievant was acting as a Union representative. The Arbitrator found that an employee acting for the Union could not be disciplined as an employee, and accordingly sustained the grievance. In our view, this analysis is incorrect under the Statute. In determining whether the employee was subject to discipline, the proper question is whether the actions for which the grievant was disciplined constituted protected activity or exceeded the boundaries of protected activity under the Statute. Although the Arbitrator failed to make this determination, the record in this case is sufficient for us to determine whether the grievant's conduct exceeded the boundaries of the protection of the Statute. See Tinker Air Force Base, 32 FLRA at 254. If the grievant's actions exceeded the boundaries of protected activity, the Arbitrator's award conflicts with management's right to discipline.

The Arbitrator found that the grievant's "conduct was totally unprofessional and not befitting that which is expected of a representative of the Union." Arbitrator's Award at 23. The Arbitrator also found that the grievant caused a work stoppage on May 19, 1987, and concluded that a 14-day suspension was an appropriate penalty for this conduct. Id. at 25. Based on these findings, we conclude that the grievant engaged in flagrant misconduct on May 19, 1987, that was beyond the protection of the Statute. See Veterans Administration Medical Center and American Federation of Government Employees, Local 2207, 32 FLRA 777, 780-81 (1988) (disciplining of a union steward for loud, disruptive behavior, disrespectful conduct, and threatening a management official not precluded by section 7102); compare AFGE Local 916, 34 FLRA at 390-91 (grievant's actions were not of such an outrageous and insubordinate nature so as to remove him from the protection of the Statute).

We reject the Union's contention that there was no flagrant misconduct involved in this case. The Union relies on the Arbitrator's finding that the grievant's conduct, as an agent, was not removed from the "umbrella" of matters chargeable solely to her principal. The Union argues that the Arbitrator found the grievant's conduct to fall "within the 'umbrella' of appropriate labor-management interaction" so that, in essence, the grievant did not engage in flagrant misconduct. Union's Opposition at 12. The Union's characterization of the Arbitrator's finding is erroneous and, therefore, misplaced. In our view, the Arbitrator's finding speaks solely to the relationship between a principal and an agent and does not concern whether the grievant's activities were protected under the Statute. As already noted, the Arbitrator expressly stated that the validity of his award was not dependent on whether the grievant's activities were protected under the Statute. To the contrary, we think that such determination is dispositive and the Union fails to persuade us by reference to the Arbitrator's findings that the grievant's conduct was protected. Compare AFGE Local 916 (although we did not condone the grievant's conduct, we were not persuaded that the grievant's refusal to immediately obey an order to depart was so insubordinate as to constitute flagrant misconduct).

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