40:0498(47)AR - - AFGE, Council of Prison Locals, Local 1612 and Justice, Federal Bureau of Prisons, Medical Center for Federal Prisoners, Springfield, MI - - 1991 FLRAdec AR - - v40 p498
[ v40 p498 ]
The decision of the Authority follows:
40 FLRA No. 47
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on exceptions to an award of Arbitrator John A. Zerboni filed by the Union 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 exceptions.
The Arbitrator denied a grievance over the 14-day suspension of a correctional officer employed by the Agency. For the following reasons, we find that the Union's exceptions do not establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
There are six towers at the Agency's facility, each staffed by one correctional officer or guard whose duties are to watch for unauthorized people in the courtyard below and generally to maintain constant surveillance. The towers are all connected by intercom to a control center with open telephone lines running to each tower and to each guard. Each correctional officer can leave the lines open and talk with each and every other guard. General conversation is encouraged by the Agency so that the guards will remain awake and alert to the happenings in the yard below. The ongoing conversations generally relate to personal experiences, talk about hunting or fishing and discussions of family matters, current affairs and matters of local interest.
During the evening watch on January 31, 1990, the grievant, a senior correctional officer, was talking over the intercom circuit to all of the other towers about equal employment opportunity, the NAACP, and black people, in general. His conversation was negative and he complained about lack of support for white males. The grievant then "selected as a target of racial abuse a fellow [s]enior [c]orrectional [o]fficer" who was on duty that night in one of the towers. Award at 3. The grievant "proceeded to harass this victim by calling him a 'nigger' on more than one occasion." Id. The grievant continued to make racially derogatory statements to and about the other guard.
The Agency conducted an investigation of the incident. The grievant was interviewed as part of the investigation. The grievant admitted that he did call the other guard a "nigger" once. He stated that he was surprised at the matter being investigated because he had apologized, and he and the other guard were friends and "all was forgiven." Id. at 4.
The grievant received a 14-day suspension for his conduct. The suspension was grieved. The grievance was not resolved and was submitted to arbitration. The issue before the Arbitrator was framed as: "Was the two week suspension imposed on the grievant for just and sufficient cause?" Id.
The Arbitrator determined that Article 30 of the parties' collective bargaining agreement governed the matter in dispute. Article 30, entitled Disciplinary and Adverse Actions, provides:
Section a. The Employer and the Union recognize that the public interest requires the maintenance of the highest standards of employee conduct. Maintenance of these standards may require the initiation of disciplinary or adverse action against employees. Such action will be taken only for just and sufficient cause and to promote the efficiency of the service.
Section b. Disciplinary actions are defined as written reprimands or suspensions of fourteen (14) days or less. Adverse actions are defined as removals, suspensions for more than fourteen (14) days, reductions in grade or pay, or furloughs of thirty (30) days or less.
Section c. The parties endorse the concept of progressive discipline designed primarily to correct and improve employee behavior, except that the parties recognize that there are offenses so egregious as to warrant severe sanctions for the first offense up to and including removal.
The Arbitrator noted that Section a. of Article 30 expresses the parties' acknowledgement that employees are required to display the highest standards of conduct. The Arbitrator also noted that the Agency, in its notice to the grievant of his suspension, stated that the evidence submitted fully supported the grievant's suspension and was in the interest of the efficiency of the service.
The Arbitrator found that although the Agency considered the Union's request for progressive discipline in accordance with Article 30, Section c., the Agency believed that the conduct of the grievant "clearly fell within the exception [in Article 30, Section c] because his offense was so egregious as to warrant the severity of a fourteen (14) day suspension." Id. at 6. The Arbitrator concluded that the grievant's acts were not isolated incidents but that the grievant engaged in on-going racial slurs and comments about blacks being "niggers" and that such conduct "was certainly not in the best interest of the service." Id. The Arbitrator fully acknowledged that "the '[t]ower [t]alk' as described by the five or six witnesses was a far cry from polite parlor talk." Id. at 7. However, the Arbitrator noted that witnesses had never heard a derogatory or racial remark made by another officer.
In conclusion, the Arbitrator explained that the quality of the guard service is dependent upon the relationship of the individuals and that there is no place in the service for an employee who offends or provokes another because such acts would cause dissension and, therefore, would be detrimental to the service.
In summary, the Arbitrator found that the grievant "by his own admission, called [a fellow guard] a 'nigger' on one occasion. Testimony of all of the [c]orrectional [o]fficers on duty that night declared that they heard him more than the one time and even further, some had heard him at times other than on January 31, 1990. [The grievant] is obviously an uncontrolled bigot and must be punished in order to deter this type of action from being committed by him again. And, further, as a determent [sic] to all others that this type of action will not be tolerated." Id. at 8.
Accordingly, the Arbitrator denied the grievance.
III. The Union's Exceptions
The Union argues that the Arbitrator's award is deficient "because it does not consider the negotiated Master Agreement, Federal Personnel Manual or Douglas factors." Exceptions at 1. The Union contends that the award "violates" Article 30 of the collective bargaining agreement because, although the Arbitrator found that progressive discipline "was not considered" because of the egregious nature of the grievant's offense, in his "findings" the Arbitrator stated that the suspension was necessary as a deterrent. Id. at 2. The Union states that the "concepts of punishment and example are contrary to the provisions of . . . Article ." Id.
Similarly, the Union argues that the award is contrary to FPM Letter 751-2 entitled "Taking Action on the Problem Employee." The Union maintains that this letter suggests that the remedy for rudeness to a fellow employee should be an informal discussion or a warning and that disciplinary action is recommended only if the misconduct continues. Finally, the Union contends that the award is deficient because the Arbitrator failed to consider the "so-called Douglas Factors" which are "generally recognized as relevant in determining the appropriateness of a penalty." Id.
IV. The Agency's Opposition
The Agency argues that the Union's exceptions fail to establish that the Arbitrator's award is deficient. The Agency contends that the Arbitrator appropriately found that the Agency had not violated the parties' agreement. The Agency maintains that the Agency's actions and the Arbitrator's award are consistent with the FPM because racial epithets are not the sort of minor acts of misconduct discussed in FPM Letter 751-2. Finally, the Agency asserts that it considered the factors set forth by the Merit Systems Protection Board (MSPB) in Douglas v. Veterans Administration, 5 MSPR 280 (1981) (Douglas) when the Agency determined the appropriate penalty for the grievant's misconduct. The Agency maintains that the evidence adduced at the arbitration hearing made it clear that the Agency had complied with the Douglas factors.
V. Analysis and Conclusions
We construe the Union's arguments that the award "violates" Article 30 of the collective bargaining agreement as a contention that the award fails to draw its essence from the parties' agreement. To establish that an award is deficient because it does not draw its essence from an agreement, the party making the allegation must demonstrate that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purposes of the agreement, as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard to the agreement; or (4) does not represent a plausible interpretation of the agreement. For example, U.S. Department of Transportation, Maritime Administration, James River Reserve Fleet and National Association of Government Employees, Local R4-47, 35 FLRA 1213, 1216 (1990).
The Union has not demonstrated that the award is deficient under any of these tests. Instead, we conclude that the Union's argument is an attempt to relitigate the merits of the grievance before the Authority and constitutes mere disagreement with the Arbitrator's decision that the Agency did not violate the agreement when it suspended the grievant because of the egregious nature of his misconduct. Disagreement with an arbitrator's evaluation of evidence and findings and conclusions based thereon provides no basis for finding an award deficient. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 774 (1990). Accordingly, this exception does not establish that the award is deficient.
The Union's contentions regarding FPM letter 751-2 are similarly without merit. The Union is apparently claiming that Section IV.A. of the letter relating to employee "conduct requiring lesser disciplinary action" requires progressive discipline. FPM Letter 751-2, Section IV.A. provides in pertinent part: "Many incidents of conduct are relatively minor, such as tardiness, rudeness to a fellow employee, . . . etc. They may require no more than informal discussion with an employee, . . . or a warning. . . . If misconduct continues, [the Agency] should consider some disciplinary action such as . . . a suspension of 14 days or less."
Nothing in the FPM letter requires an Agency to refrain from suspending an employee for even a "minor" offense. Rather, it is suggested that such offenses may require less severe discipline. Moreover, in this case, the Arbitrator concluded that the grievant's conduct was egregious, not merely minor rudeness, and was part of an ongoing pattern of similar behavior. Accordingly, it is clear that the Arbitrator's award is not contrary to FPM letter 751-2, and the Union's exception does not provide a basis for finding the award deficient.
Finally, contrary to the Union's assertion, the Arbitrator was not required in this case to consider the Douglas factors enunciated by the MSPB. We have repeatedly held that arbitrators are not bound by the same substantive standards as the MSPB when resolving grievances over actions not covered by 5 U.S.C. §§ 4303 and 7512. For example, U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National