39:1149(98)AR - - Army, HQ, XVIII Airborne Corps and Fort Bragg, NC and AFGE Local 1770 - - 1991 FLRAdec AR - - v39 p1149

[ v39 p1149 ]
The decision of the Authority follows:

39 FLRA No. 98











LOCAL 1770




March 14, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on exceptions to the award of Arbitrator Bruce R. Boals. A grievance was filed over a 5-day suspension of the grievant for discourteous and insubordinate behavior. 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. The Agency filed an opposition to the Union's exceptions.

For the following reasons, we conclude that the Union's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The grievant is employed as a data transcriber at the Agency's Central Issue Facility. The facility issues and receives military clothing and equipment. As part of the grievant's job duties, she is, on occasion, responsible for working on the "issue line" and issuing items to individual soldiers.

Sometime immediately prior to Monday, June 5, 1989, with knowledge that a co-worker was to be absent on that day, the grievant inquired as to whether she would be needed to assist on the issue line on June 5. She was advised that her help would not be required. Accordingly, on June 5, the grievant came to work in a skirt and blouse rather than wearing clothing appropriate for issue work. Nonetheless, when the grievant arrived at work that day she was directed to assist on the issue line. According to the grievant, while she was issuing items she observed higher-paid employees "idling time away." Award at 3. The grievant became progressively sweaty and irritated and she eventually approached her supervisor to request a conversation pursuant to the Agency's "open door" policy. Id. The two went into the foreman's office and the grievant proceeded to inform the supervisor that she was extremely angry. In a "raised voice" she related how she had been told that she would not have to work on the issue line that day and she "objected as 'stupid'" to the inclusion of issue duties in her job description. Id. The grievant asserted to her supervisor that others were available to do the work and when the supervisor refuted her assertion, she called him a "liar." Id. at 4. The grievant then left the office, allegedly slamming the door behind her.

Thereafter, the grievant's supervisor proposed that the grievant receive a 5-day suspension for her conduct in the office. The proposal was approved. The grievant, who was deemed to have excellent performance in her work assignments, had been counseled and disciplined previously for alleged incidents of discourtesy to servicemen and superiors. A grievance was filed over the 5-day suspension. The grievance was not resolved and was submitted to arbitration.

The parties stipulated that the Arbitrator was to decide the following issue: "Was [the grievant] appropriately disciplined when she received a 5-day suspension for discourteous and insubordinate conduct towards her supervisor? If not, what is the proper remedy?" Id. at 2.

Before the Arbitrator, the Union contended that the Agency could not "prove its burden that the grievant's conduct was insubordinate or discourteous." Id. at 5. The Union argued that management's conduct had been "unreasonable" because, despite the foreman's knowledge of the grievant's irritation, the foreman "took no action to calm her, warn her, or any other preventive measures, such as postponement." Id. at 6. The Union also asserted that because the Agency's "open door" policy is "per se . . . an invitation to an employee to broach a subject and express emotion privately without fear of reprisal[,] a certain immunity is granted [to the employee]," id., and the "Agency is trying to have it both ways, with the supervisor acting as an ombudsman and then retaliating against the employee when the offer for voicing complaints was exercised," id. at 6-7. The Union also argued that the "open door" policy itself violated the parties' agreement by allowing the Agency to bypass the Union and deal directly with employees. In addition, the Union maintained before the Arbitrator that the Agency's version of the incident and the events leading up to it were untrue and that the grievant was treated in a disparate manner in that other employees' "[d]efiant refusals to obey . . . orders" and "insulting language . . . have gone unpunished in the past." Id. at 6.

The Arbitrator concluded that, although the grievant was a conscientious, hard-working employee, her conduct on June 5, 1989, constituted insubordination and could not be condoned. The Arbitrator also found that "[c]ontrary to union allegations, the penalty was even-handed and not discriminatory." Id. at 9. In this regard, the Arbitrator noted that although "instances of insolence and disobedience from other workers towards the [f]oreman have not resulted in discipline[,] . . . [t]his [was] not adequate to mitigate the grievant's penalty." Id. Finally, the Arbitrator noted that the Agency's "open door policy did not preclude the grievant's accompaniment by a [s]teward if she so desired. Although an open door policy provides for a certain amount of confrontational conduct by an employee, such as argumentative language, this is not the same thing as discourteous, disrespectful behavior." Id. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

A. The Union's Exceptions

The Union contends that the "Arbitrator erred in his award since the Agency violated law, rule and/or regulation when it disciplined [the] grievant for her comments during her 'open door policy' meeting with her supervisor." Exceptions at 1. The Union argues that although the Arbitrator correctly noted that some leeway . . . should be provided to an employee during one of these 'employment conditions' discussions via the 'open door' process . . ., he inappropriately limited the employee during this protected time to far less participation rights than [that of] the union representative, had one been present." Id. at 1-2. The Union asserts that as the Agency has chosen to allow employees to complain about working conditions directly to management, the Agency "should not use this same process to retaliate or ambush a disgruntled employee [who] vigorously pursues his/her complaint." Id. at 2. The Union notes that employees can be found to be "engaged in protective [sic] activity in their dealings with the employer/agency notwithstanding the fact that an exclusive representative exists but is not present at the time." Id. at 1.

The Union also argues that the Arbitrator erred in not finding that the Agency discriminated against the grievant on the basis of her sex. The Union notes that the Arbitrator found that other workers had not been disciplined for similar infractions and asserts that those other incidents referenced by the Arbitrator occurred when male employees had been insubordinate. Accordingly, the Union asserts that the grievant was treated differently because she was female and that the Arbitrator should have found that she was the victim of discrimination.

B. The Agency's Opposition

The Agency states that the Union has not indicated what, if any, law, rule or regulation, the Agency violated when it disciplined the grievant. The Agency further notes that, although the Union appears to argue that the grievant was engaged in protected activity under the Statute, the grievant was not disciplined for engaging in protected activity, but for being discourteous and insubordinate in her manner toward her supervisor.

With respect to the Union's assertions regarding alleged discrimination against the grievant on the basis of her sex, the Agency states that the Arbitrator specifically "found that the penalty was evenhanded and nondiscriminatory despite instances of occasional insolence and disobedience from co-workers." Opposition at 2. Accordingly, the Agency argues that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony.

IV. Analysis and Conclusions

We construe the Union's exceptions as alleging that the award is contrary to the Statute and Title VII of the Civil Rights Act of 1964.

We are not persuaded that the grievant was engaged in activities protected under the Statute when she availed herself of the opportunity provided by the Agency to complain to her supervisor about her individual concerns about her working conditions. There has been no contention made, or evidence presented, that the grievant was acting on behalf or with the authorization of the Union or any of her co-workers or that she was attempting to pursue any rights accorded her under the collective bargaining agreement. Even assuming that the grievant was engaged in activities protected under the Statute, an employee's involvement in union activities does not immunize the employee from discipline. Veterans Administration Medical Center and American Federation of Government Employees, Local 2207, 32 FLRA 777, 780-81 (1988). Management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute includes the right to discipline a union representative or employee for activities which "are not specifically on behalf of the exclusive representative or which exceed the boundaries of protected activity such as flagrant misconduct." U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 385, 388-89 (1990) (Tinker Air Force Base) (quoting Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987)).

In the circumstances of this case, the Arbitrator found that the grievant was not precluded from seeking a union steward to accompany her to the meeting with her supervisor. The Arbitrator further found that "[a]lthough an open door policy provides for a certain amount of confrontational conduct by an employee, such as argumentative language, this is not the same thing as [the] discourteous, disrespectful behavior" in which the grievant had engaged. Award at 9. In view of the Arbitrator's findings, we conclude that the Union's argument constitutes mere disagreement with the Arbitrator's evaluation of the evidence and an attempt to relitigate the merits of this case before the Authority. This disagreement provides no basis on which to find the Arbitrator's award deficient under the Statute. See, for example, Veterans Administration Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 35 FLRA 553, 560-61 (1990) (an exception disagreeing with an arbitrator's evaluation of evidence relating to protected activities provided no basis for finding the award deficient).

We also find that the Union has not established that the award is contrary to Title VII of the Civil Rights Act of 1964. The Arbitrator recognized that other employees had engaged in insolent or discourteous conduct and had not been disciplined. However, the Union has not demonstrated that these individuals engaged in misconduct of the same degree or that they had been previously counseled as the grievant had been. Moreover, even assuming that these other employees were all males, as the Union now contends, the Arbitrator concluded that "[c]ontrary to the Union['s] allegations, the penalty [of a 5-day suspension] was even-handed and not discriminatory." Award at 9. The Arbitrator found that the grievant "vented her anger in a defiant, disrespectful and insulting manner towards a superior." <