48:0350(30)AR - - AFGE Local 3197 and VA Medical Center, Seattle, WA - - 1993 FLRAdec AR - - v48 p350
[ v48 p350 ]
The decision of the Authority follows:
48 FLRA No. 30
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF VETERANS AFFAIRS
August 20, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator R. A. Sutermeister 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 Union's exceptions.
The Arbitrator found that there was just cause for the Agency's 10-day suspension of the grievant for making inappropriate remarks about his supervisor. The Arbitrator denied the grievance. We conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is a food service worker in the Dietetic Services Section and is also a steward for the Union. In June 1992, the grievant's immediate supervisor, the Chief Administrative Dietician, "complained to the Equal Employment Opportunity [EEO] office that she was being harassed and her authority was being challenged by [the grievant]." Award at 1. While the EEO complaint was being investigated by the EEO Office, the Chief of Dietetic Services conducted a separate investigation of the matter and obtained written statements from employees concerning the remarks allegedly made by the grievant about the Chief Administrative Dietician.
The Chief of Dietetic Services proposed that the grievant be suspended for 14 days for making inappropriate and racially derogatory remarks about his supervisor.(1) The grievant had an opportunity to reply to the proposed suspension and denied making the remarks. The Agency reduced the proposed 14-day suspension to 10 days after it concluded that the grievant did not make the remarks directly to the supervisor but to other employees. The grievant filed a grievance over the matter. The grievance was not resolved and was submitted to arbitration on the following issue:
Did the [Agency] violate the collective bargaining agreement when it suspended [the grievant] for 10 days?
The Arbitrator noted that the parties' agreement provides that disciplinary action will not be imposed on an unfounded basis and will be imposed only for just and sufficient cause. The parties' arguments before the Arbitrator centered around the sufficiency of the evidence used to support the grievant's discipline. The Arbitrator found that there was some question as to the credibility of the testimony of certain witnesses who testified on behalf of the grievant. He found that the testimony of other witnesses in support of the Agency's position was "more credible because it is hard to imagine [that] their allegations would be a complete fabrication." Id. at 2. The Arbitrator concluded "that a preponderance of evidence supports the [Agency's] position and that there was just and sufficient cause for the suspension." Id. Consequently, the Arbitrator denied the grievance.
III. Positions of the Parties
A. The Union
The Union contends that the grievant was improperly disciplined for his exercise of his constitutional right to free speech and his protected activity on behalf of the Union. The Union states that the Arbitrator's award "should be reversed on the basis of clear constitutional error and because the decision is otherwise contrary to public policy." Exceptions at 1. Citing Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, ILA, AFL-CIO, Panama Canal Pilots Branch, 33 FLRA 15, 21 (1988) (Panama Canal Commission), the Union asserts that the Arbitrator failed "to balance the [grievant's] constitutional rights to free speech properly." Id. at 2. The Union also asserts that the Arbitrator failed to consider allegations of Union animus and maintains that the Agency's actions "were in clear retaliation for protected activity." Id. at 3.
As background for its exceptions, the Union states that the grievant has been a Union steward for several years and had filed numerous grievances and complaints on behalf of Agency employees. Also, the Union asserts that the grievant has filed three EEO complaints against his supervisor for discrimination on the basis of race--on November 2, 1987, December 31, 1991, and March 5, 1992. According to the Union, the March 5, 1992, complaint protested the Agency's failure to comply with an agreement settling the December 31, 1991, complaint and was pending before the Equal Employment Opportunity Commission (EEOC) at the time the exceptions in this case were filed.(2) Moreover, according to the Union, the remarks for which the grievant was disciplined were made in protest of the Agency's selection in 1989 of two persons to fill a higher-graded position for which the grievant had also applied. The Union notes that the written statements on which the Agency relied in disciplining the grievant were furnished by the two persons selected for the position and argues that the grievant had a legitimate interest in protesting those selections.
The Union contends that the Agency acted improperly by having the Chief of Dietetic Services conduct an investigation at the same time that an EEO claim was pending. The Union asserts that the testimony of the two employees as to the grievant's remarks referred to statements made by the grievant in 1989 and that those statements were not pertinent to the matter being investigated. The Union claims that a suspension based on that testimony "was clearly improper in that some of the basis for the proposed suspension, even if true, would have been clearly untimely since [the suspension] was based on alleged statements which were claimed to have occurred in 1989." Id. at 2. The Union also contends that the testimony of the witnesses was coerced by the Agency. The Union asserts that the Arbitrator "failed to consider . . . significant public policy issues" concerning the grievant's "allegations of union animus." Id. at 3.
B. The Agency
The Agency contends that the comments made by the grievant constituted racial remarks and racial stereotyping that are not protected activity under the Statute and Authority precedent. The Agency also contends that the grievant's remarks did not constitute protected free speech under the First Amendment of the U.S. Constitution because the remarks did not address matters of public concern. Further, the Agency maintains that, even if the grievant's offensive remarks addressed a public concern, the grievant's right to make the remarks did not outweigh "the Agency's interest in maintaining an effective and efficient working environment free of offensive racial name-calling . . . ." Opposition at 8. Finally, the Agency contends that the Union's exceptions relating to the Arbitrator's findings on, among other things, the credibility of the witnesses are an attempt to relitigate the grievance and constitute disagreement with the Arbitrator's findings and conclusions.
IV. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding the Arbitrator's award deficient.
A. First Amendment
The Union asserts that the award is deficient because the Arbitrator failed to find that the Agency's discipline of the grievant violated the grievant's First Amendment right of free speech. This claim is properly before the Authority under section 7122(a)(1) of the Statute, which requires the Authority to review arbitrators' awards to ascertain whether they are contrary to any law, rule, or regulation, including the U.S. Constitution. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, Local 1336, 37 FLRA 766, 770-71 (1990) (SSA); Panama Canal Commission, 33 FLRA at 21. In determining whether an employee's First Amendment rights have been violated, we apply the test set out in Connick v. Myers, 461 U.S. 138 (1983) (Connick). See Panama Canal Commission, 33 FLRA at 22, citing Rankin v. McPherson, 107 S. Ct. 2891 (1987). The threshold question under the test in Connick is whether the grievant's speech involves a matter of public concern. Connick, 461 U.S. at 146. Only if it is determined that the speech involves a matter of public concern, and thus it is constitutionally protected, does Connick require the application of a balancing test. Under the Connick balancing test, the employee's right to protected speech and the employer's right to pursue legitimate management objectives are weighed "to seek 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Id. at 142, quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1980).
In this case, the Union has not, as a threshold matter, shown, and the record does not otherwise reflect, that the statements which formed the basis of the disciplinary action against the grievant are statements involving matters of public concern. In this regard, we note that nothing in the record supports the Union's contention that the remarks for which the grievant was disciplined were made in protest of the Agency's decision to select other individuals instead of the grievant to fill a higher-graded position. Rather, the record shows only that the statements clearly expressed the grievant's personal feelings of animosity toward his supervisor. Consequently, because the grievant's remarks did not pertain to matters of public concern, it is not necessary to apply the Connick balancing test. See SSA, 37 FLRA at 771 (where speech in question involved purely personal concerns, the Authority did not apply the Connick balancing test). Accordingly, we conclude that the Union has not shown that the award is deficient on this basis.
B. Protected Activity
The Union contends that the Arbitrator failed to consider allegations of Union animus and maintains that the Agency's actions were in retaliation for the grievant's engaging in protected activity. We conclude that the Union has failed to establish that the award is deficient on this basis.
The issue before the Arbitrator was whether the Agency violated the parties' collective bargaining agreement in disciplining the grievant. From the record and the Arbitrator's award, it is apparent that the Arbitrator found that the grievant's remarks about his supervisor were inappropriate, as the Agency claimed. The Arbitrator applied the provisions of the parties' collective bargaining agreement that concern the discipline of employees and determined that the Agency had just cause under those provisions to impose discipline on the grievant.(3)
We find that the Union's exceptions in this regard constitute mere disagreement with the Arbitrator's evaluation of the evidence before him and his conclusions based thereon, and provide no basis for finding the award deficient. See U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals and American Federation of Government Employees, Council 215, 46 FLRA 1032, 1036 (1992).
C. Remaining Exceptions
The Union's exceptions alleging that the testimony of the witnesses relied on by the Arbitrator was coerced, based on hearsay, and referred to statements made in the past that were not timely for consideration in this grievance, merely constitute disagreement with the Arbitrator's evaluation of the evidence and his findings and conclusions. As such, these exceptions provide no basis for finding the award deficient. See id.
The Union's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. The Arbitrator did not describe the alleged remarks in his award. As part of its opposition to the Union's exceptions, the Agency submitted the memorandum of proposed suspension of the grievant from the Chief of Dietetic Services. That memorandum includes the following remarks that the grievant, who is a black male, was alleged to have made in June and July 1992 to other employees about his supervisor:
[A]lthough she is black, [the supervisor] in reality wishes to be white[.]
[The supervisor] is just a white person in a black person's skin[.]
[The supervisor] hates all black people[.]
Opposition, Exhibit F-1.
The memorandum also included the following remark that was alleged to have been made by the grievant in 1989:
[The supervisor] is a bitch and also is a very unattractive woman due to the lightness of her skin[.]
2. After filing its exceptions in February 1993, the Union submitted the EEOC's Recommended Decision in EEOC No. 380 93 8028X, dated June 11, 1993. The Recommended Decision finds that the Agency discriminated against the grievant by denying him a promotion to a WG-4 position as reprisal for filing EEO complaints on his own behalf and on behalf of other employees. The Recommended Decision recommends that the Agency, among other things, promote the grievant to a WG-4 position with backpay, retroactive to the date that two other employees were selected for similar positions.
The Agency objects to the Union's submission of the Recommended Decision on the grounds that the decision: (1) is not relevant; (2) is not final; and (3) was not evidence that was in existence at the time of the hearing and was not presented to the Arbitrator. We find that the Recommended Decision is relevant to the background of the grievance, regardless of the finality of the Decision, and that it relates to a complaint that was pending at the time of the hearing on the grievance. Consequently, we have accepted and considered the Union's supplemental submission pursuant to section 2429.26(a) of the Authority's regulations. See U.S. Customs Service, 46 FLRA 1080 (1992) (union permitted to file a supplemental submission addressing applicability of a court decision that was issued after the union filed its exceptions in an unfair labor practice case). We note that the EEOC's decision in EEOC No. 380 93 8028X concerns the Agency's failure to select the grievant for promotion in reprisal for his filing EEO complaints and does not concern the remarks alleged to have been made by the grievant in this case.
3. The Arbitrator did not discuss the Union's allegations of Union animus and its claim that the Agency's actions were in retaliation for the grievant's engaging in protected activity. However, the fact that the Arbitrator did not discuss the Union's contentions does not mean that he did not consider them in reaching his decision. See U.S. Department of the Air Force, 2750th Air Force Base Wing (AFLC), Wright-Patterson Air Force Base, Ohio and International Association of Machinists and Aerospace Workers, Local 2333, 48 FLRA No. 1 (1993), slip op. at 3 n.* (where union argued in grievance that employee was disci