49:0906(87)AR - - AFGE, National Council of EEOC Locals 216 and Equal Opportunity Commission - - 1994 FLRAdec AR - - v49 p906



[ v49 p906 ]
49:0906(87)AR
The decision of the Authority follows:


49 FLRA No. 87

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL COUNCIL OF EEOC LOCALS NO. 216

(Union)

and

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

(Agency)

0-AR-2528

_____

DECISION

May 9, 1994

_____

Before Chairman McKee and Member Armendariz.(1)

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Agency 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 Agency's exceptions.

The grievance challenged the Agency's 14-day suspension of the grievant for conduct adversely affecting the public's confidence in the integrity of the Agency and inattention to duty. The Arbitrator sustained the grievance in part and ordered the Agency to reduce the suspension to an oral reprimand.

For the following reasons, we conclude that the Agency'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 a GS-12 Investigator at the Agency's Philadelphia District Office and is the local Union President.

On June 26, 1989, an audit team composed of the District Director (Johnny Butler), an Enforcement Manager, and the grievant's first-line supervisor conducted a meeting with the grievant to audit her caseload. Following the audit, Butler sent the grievant a memorandum dated July 13, in which he concluded that the grievant was not managing her caseload effectively and efficiently.(2) Butler's memorandum noted alleged defects in the grievant's performance and stated in part that it was improper for the grievant to tell a party's attorney to contact Butler after the attorney expressed disagreement with the grievant's decision to close the party's case.

On August 14, the Union filed an unfair labor practice (ULP) charge in Case No. 2-CA-90451 alleging that the Agency violated section 7116(a)(1), (2), (4), (5), and (8) of the Statute by: (1) closely monitoring the grievant's conduct and performance as the result of her participation as a Union representative in charges against the Agency; (2) issuing an implied reprimand to the grievant in retaliation for her activities as local Union President; (3) retaliating against the grievant for telling national representatives of the Union that the Philadelphia District office had improperly implemented new production standards for bargaining unit employees; (4) unilaterally changing an established past practice whereby investigators would inform parties and their representatives that they could appeal to the District Director regarding the investigation of their charges; and (5) refusing to allow the grievant representation during the audit meeting which led to an implied disciplinary action.

On September 20, the grievant received an Advance Notice of Proposed Suspension stating that management proposed to suspend her for 14 days for conduct adversely affecting the public's confidence in the integrity of the Agency and for inattention to duty. The Notice provided the following specifications in support of Reason I, relating to conduct by the grievant adversely affecting the public's confidence in the integrity of the Agency, and Reason II, relating to the grievant's inattention to duty.

Reason I, Specification A stated that with respect to the "C" case, the grievant improperly disclosed internal case strategies to Harold Goodman, the attorney for a party in the case. According to the Agency, the grievant told Goodman that the case was 270 days old and for that reason it had to be closed by June 30. The Notice stated that the grievant's alleged "impropriety was highlighted in a letter" dated June 27 from Goodman to Butler in which Goodman protested the Agency's decision to close the case and stated in part:

I am aware of your performance appraisal standard under which all but two percent (2%) of your District's cases should be closed within 270 days of filing. Some cases however need further investigation before the [Agency] can in good faith make a proper conclusion regarding the merits of a charge. . . . The need for compliance with performance appraisal standards should never interfere with the need to properly investigate and evaluate a case. . . .

Award at 2-3.

Reason I, Specification B stated that with respect to the "C" case, certain of the grievant's actions "caused Goodman to feel that we were switching signal[s] on him . . . simply in order to close an 'aged' case." Id. at 4. The Notice stated that such actions "had the effect of causing a member of the public to question the integrity of the [Agency]." Exceptions, Exhibit 3 at 3.

Reason II, Specification A cited cases "R" and "J", which had been in the grievant's inventory for 6 years. According to the Notice, the grievant "had no acceptable explanation for the delay in closing out these cases." Award at 4. Specification B again referenced case "C" and stated that the case had been in the grievant's inventory for almost 250 days before she contacted witnesses and that she failed to take steps to obtain a copy of a witness' statement to the accused employer. Specification C concerned case "T" and stated that it was "inexcusable" that the grievant did not discuss the employer's position statement with the charging party in the case until 6 months after she first received the statement. Id. at 5.

With respect to the choice of penalty, the Notice stated that management was proposing a 14-day suspension based on "the seriousness of the grievant's offenses, even after considering her length of service, position and lack of any previous discipline." Id.

On October 2, the Union filed a ULP charge in Case No. 2-CA-00001 alleging that management violated section 7116(a)(1), (2), and (4) of the Statute by proposing to suspend the grievant in retaliation for her activities as Union President and that this action was having a chilling effect on unit employees' exercise of their rights under the Statute. On October 3, the Union filed a ULP charge in Case No. 2-CA-00002 alleging that management violated section 7116(a)(1) and (5) of the Statute by failing and refusing to provide the Union with information necessary for the Union to fulfill its representational functions.

On November 2, the Agency issued a Notice of Decision to suspend the grievant for 14 days.

On November 15, the grievant filed a grievance contesting the suspension. The parties were unable to resolve the grievance and the matter was submitted to arbitration. The Agency filed a motion to dismiss the grievance as barred by section 7116(d) of the Statute because, in the Agency's view, the grievant had elected to contest her suspension by filing a ULP charge prior to filing the instant grievance.(3)

On November 21, 1990, the Arbitrator denied the motion in a preliminary award. The Arbitrator found that the portion of the grievance concerning "whether the suspension was issued for sufficient cause as will promote the efficiency of the Federal service" was arbitrable. Preliminary Award at 1-2. However, the Arbitrator further found that the portions of the grievance concerning retaliation for Union activities, refusal to provide the grievant Union representation during meetings leading to the suspension, failure to provide requested information, and any other issues concerning the suspension that were previously raised by the ULP charges were barred by section 7116(d) of the Statute and, thus, not arbitrable.(4)

The Agency filed exceptions to the preliminary award with the Authority. In American Federation of Government Employees, National Council of EEOC Locals, Local 216 and Equal Employment Opportunity Commission, 41 FLRA 70 (1991), the Authority found that the award was interlocutory and dismissed the Agency's exceptions without prejudice to the timely filing of exceptions with the Authority after the Arbitrator rendered a final award.

Subsequently, the Arbitrator held a hearing on the merits of the portion of the grievance found not barred by section 7116(d) of the Statute. At the hearing, the Agency filed a motion requesting that the Arbitrator reconsider his preliminary conclusion that section 7116(d) of the Statute did not bar arbitration of that portion of the grievance in this case. The Arbitrator denied the motion. With respect to the merits of that portion of the grievance, the Arbitrator framed the issue as: "[W]hether the grievant's suspension was for sufficient cause as will promote the efficiency of the service; and if not, what is the appropriate remedy?" Award at 1.

The Arbitrator examined Reason I, Specification A and found that the Agency had not shown by a preponderance of the evidence that the grievant told Goodman of the Agency's 270-day performance standard. The Arbitrator noted that in a letter to the grievant dated September 25, Goodman stated that, contrary to the allegation in the Notice, the grievant did not reveal to him any internal case strategies or information on the performance standard. As the performance standard was known by staff and management in the District Office and as Goodman denied that the grievant had revealed it to him, the Arbitrator concluded that the Agency failed to satisfy its burden of proof with regard to Reason I, Specification A.

With respect to Reason I, Specification B, the Arbitrator concluded that the grievant was "primarily responsible for the incident described in Reason I, Specification B." Id. at 12.

With respect to Reason II, Specifications A, B, and C, the Arbitrator found that the grievant's actions related in the specifications reflected an inattention to duty resulting in mismanagement of her case inventory. On Specification A, the Arbitrator found that the grievant "was less than effective" in processing cases "R" and "J." Id. at 10. However, the Arbitrator found that management failed to issue the grievant "a clear order, in conjunction with a warning if necessary, to bring the charges to a close" and that "[w]ithout such a predicate, more severe disciplinary action cannot be justified[.]" Id. at 11. On Specifications B and C, the Arbitrator found that the grievant displayed inattention to duty by failing to obtain a corroborating statement from a witness in case "C", failing to log certain investigative actions in the case files of cases "C" and "T", and delaying in taking appropriate action to close case "T."

Having found that the grievant acted as alleged in Reason I, Specification B and Reason II, Specifications A, B, and C, the Arbitrator next examined whether the 14-day suspension was appropriate for the grievant's actions. The Arbitrator found that there was "no evidence that the grievant had been warned" that she could be disciplined for poor processing of her caseload. Id. at 13. The Arbitrator further found that management "had an on-going opportunity to point out the grievant's inattention to duty" and that its "failure to have done so in large part is responsible for the grievant's misconduct which adversely affected the confidence of the public as described in Reason I, Specification B." Id.

Moreover, the Arbitrator found that management "provided insufficient rationale to support a 14-day suspension." Id. The Arbitrator noted that management had initially considered giving the grievant a letter of reprimand and that management officials were not aware of any discipline having been issued to an employee for the type of actions committed by the grievant. The Arbitrator further found that the "disciplinary action d[id] not comport with the principle of progressive discipline" because the action was not corrective, but punitive. Id. at 14. The Arbitrator stated that management should have selected "the least stringent penalty thought necessary to get the employee's attention and motivate her to improve" and that, in this case, "management did not make a responsible determination that a less severe penalty, such as a warning or a reprimand, would be inadequate." Id. Noting that prior to the 14-day suspension "the grievant had 'a pretty clean record' with no discipline[,]" the Arbitrator concluded that "the 14-day suspension should be reduced to an oral reprimand which admonishes [the grievant] that any future failures to consider the best interests of the [Agency] in case processing and to properly manage her caseload will result in more severe discipline." Id. Accordingly, the Arbitrator sustained the grievance to the extent that he reduced the 14-day suspension to an oral reprimand.

III. Positions of the Parties

A. Agency

The Agency contends that the award is deficient because the grievance is barred by section 7116(d) of the Statute. The Agency maintains that under section 7116(d), the Union's ULP "charges alleging retaliatory suspension bar a subsequent grievance alleging unwarranted and retaliatory suspension." Exceptions at 6 (emphasis omitted). The Agency argues that, similar to the decision of the U.S. Court of Appeals for the District of Columbia Circuit in American Federation of Government Employees, Local 1411 v. FLRA, 960 F.2d 176 (D.C. Cir. 1992) (AFGE v. FLRA), denying petition for review sub nom. U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 38 FLRA 1345 (1991) (Member Talkin dissenting) (Department of the Army), motion for reconsideration dismissed, 40 FLRA 233 (1991), the issue in both the ULP charges and the grievance is whether the suspension "was imposed because of [the g]rievant's performance and conduct or in retaliation for her [U]nion activities." Id. at 8.

Further, the Agency argues that the grievance and the ULP charges arose from the same set of facts and that, contrary to the Arbitrator's finding, "[t]he grievance does not specifically raise the issue of whether the suspension was issued for sufficient cause as will promote the efficiency of the [F]ederal service." Id. at 5. The Agency asserts that the grievant's suspension was in fact raised in the ULP charges because the Agency "defended the merits of its proposal to suspend the [g]rievant in the Agency's response to her unfair labor practices charge [in Case No. 2-CA-00001]." Id. at 12. The Agency maintains that the Regional Director "necessarily" assessed the merits of the grievant's suspension in determining not to issue a complaint and that the grievant should not be permitted to "circumvent the purpose" of section 7116(d) of the Statute by "characterizing the issue of retaliation as an examination of the fairness of the alleged retaliatory action . . . ." Id. at 13.

Citing U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 36 FLRA 441 (1990) (VAMC), U.S. Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, Local 2724, 20 FLRA 743 (1985) (INS), and Federal Bureau of Prisons and American Federation of Government Employees, Local 3690, 18 FLRA 314 (1985) (Bureau of Prisons), the Agency asserts that the Authority has barred subsequently-filed grievances in cases similar to this one.

The Agency further contends that the award is deficient because the Arbitrator failed to apply the factors used by the Merit Systems Protection Board (MSPB) in Douglas v. Veterans Administration, 5 MSPR 280 (1981) (Douglas) in determining whether the discipline in this case was appropriate. The Agency argues that the Arbitrator was required to apply the Douglas factors to the instant case and that he improperly relied on the private sector standard of progressive discipline. Applying the Douglas factors to this case, the Agency argues that because the Arbitrator found that the grievant "had, in fact, engaged in misconduct and had significant performance problems, the 14[-]day suspension imposed by the Agency was not an unreasonable penalty." Id. at 17.

B. Union

The Union contends that the Arbitrator properly found that portions of the grievance were not barred by section 7116(d) of the Statute. The Union asserts that the portions of the grievance found arbitrable concerned alleged contractual violations and other matters not raised in the ULP charges and that, therefore, those portions should not be barred by section 7116(d).

The Union further contends that the Agency's argument that the Arbitrator was required to apply the standards used in actions before the MSPB "is erroneous." Opposition at 4.

IV. Analysis and Conclusions

A. Preliminary Matter

We note the Agency's preliminary argument that, contrary to the Arbitrator's finding, "[t]he grievance does not specifically raise the issue of whether the suspension was issued for sufficient cause as will promote the efficiency of the [F]ederal service." Exceptions at 5. It is well established that, in the absence of a stipulation by the parties, an arbitrator's formulation of the issues is accorded substantial deference. For example, U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Alderson, West Virginia and American Federation of Government Employees, Local 1494, 47 FLRA 95, 97 (1993). The parties in this case did not stipulate the issues to be resolved by the Arbitrator. Therefore, the Agency's disagreement with the Arbitrator's interpretation of the issue presented by the grievance does not demonstrate that the award is deficient. Id.

Moreover, the reference in Paragraph 21 of the grievance to Article 45, Section 45.01 clearly encompasses the issue as found by the Arbitrator in this case. In this regard, Paragraph 21 of the grievance alleges that the Agency violated Article 45, Section 45.01 of the parties' collective bargaining agreement by not considering the gravity of the alleged offense, mitigating circumstances, the frequency of the offense, and whether the 14-day suspension accorded with justice. Article 45, Section 45.01 of the parties' agreement provides in relevant part that in taking any adverse action, the Agency shall consider the factors noted above and that "[t]aking these factors into account, the [Agency] shall ensure that adverse actions are taken only for sufficient cause as will promote the efficiency of the Federal service." Opposition, Exhibit B at 66. Accordingly, we reject the Agency's argument.

B. Section 7116(d) of the Statute

In order for a grievance to be precluded under section 7116(d) of the Statute by an earlier-filed ULP charge: (1) the issue which is the subject matter of the grievance must be the same as the issue which is the subject matter of the ULP; (2) such issue must have been earlier raised under the ULP procedures; and (3) the selection of the ULP procedures must have been in the discretion of the aggrieved party. For example, U.S. Department of Defense, Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, Local 2317, 37 FLRA 1268, 1272 (1990). In determining whether a grievance and a ULP charge involve the same issue, we will look at whether the ULP charge and the grievance arose from the same set of factual circumstances and whether the legal theories advanced in support of the ULP charge and the grievance are substantially similar. Id.

The Arbitrator found that section 7116(d) of the Statute did not bar the portion of the grievance concerning whether the grievant's suspension was issued for sufficient cause as will promote the efficiency of the Federal service because he found that that issue was not raised in the earlier-filed ULP charges. The Agency excepts to this finding.

We agree with the Arbitrator that the portion of the grievance addressed by the Arbitrator is not barred from consideration by the earlier-filed ULP charges. Both the grievance and the ULP charge in Case No. 2-CA-00001 arose from the Agency's decision to suspend the grievant, but the legal theories advanced in the cases are different. The theory advanced in the relevant portion of the ULP charge is that management proposed to suspend the grievant in retaliation for her Union activity and that doing so constituted unlawful discrimination in violation of section 7116(a)(1), (2), and (4) of the Statute. In contrast, the theory advanced in the relevant portion of the grievance is that there was not sufficient cause under the parties' agreement to support issuing the grievant a 14-day suspension. Thus, the grievance raises a contractual matter not contained in the ULP charge.

As the theory advanced in the relevant portion of the grievance involved solely a question of contract interpretation and application, whereas the theory advanced in the ULP charge concerned solely a statutory violation based on retaliation and discrimination, we find that the issues in the two proceedings are clearly different. See U.S. Department of Defense, Defense Contract Audit Agency, Northeastern Region, Lexington, Massachusetts and American Federation of Government Employees, Council of Locals 163, 47 FLRA 1314, 1320-21 (1993) (where the legal theory advanced in the grievance involved solely a question of contract interpretation and application, and the theory advanced in the ULP charge concerned a violation of section 7116(a)(1) of the Statute based on discriminatory treatment of the union and unlawful interference with union activity, the issues in the two proceedings were different for purposes of section 7116(d)); AFGE v. FLRA, 960 F.2d at 178 (noting that the ULP charge and the grievance in Overseas Education Association v. FLRA, 824 F.2d 61 (D.C. Cir. 1987) (OEA) were based on different legal predicates because "the ULP charge in OEA alleged a violation of § 7116(a) [of the Statute], while the grievance claimed a breach of the collective bargaining agreement").

We reject the Agency's reliance on Department of the Army, VAMC, INS, and Bureau of Prisons as support for its argument that the grievance should be barred based on Authority precedent. In Department of the Army and Bureau of Prisons, the Authority found that the issues raised in the ULP and grievance proceedings were the same because in both proceedings the aggrieved parties alleged that management was taking, or proposing to take, disciplinary action against the grievants because of their union activity. Specifically, in Department of the Army, the Authority found that "[b]ecause the theory to support both [the ULP charge and the grievance] is that the grievant was disciplined because of [u]nion activities, . . . the grievance raised the same issue as had been raised previously in the ULP charge." 38 FLRA at 1352 (citing Bureau of Prisons, 18 FLRA at 315). Unlike those cases, the portion of the grievance addressed by the Arbitrator in this case does not raise the issue of retaliation for Union activities that was raised previously in the ULP charge.

This case is also distinguishable from VAMC because both the grievance and the ULP charge in that case alleged that the agency's actions violated the parties' collective bargaining agreement, whereas in this case, only the grievance, not the ULP charge, raised the issue of whether the Agency's actions violated the parties' collective bargaining agreement. Further, we find that the Agency has not shown that the circumstances in INS are sufficiently similar to this case so as to warrant the conclusion that the ULP charge bars the grievance here. In this regard, there is no indication that the grievance in INS raised a contractual issue not advanced in the earlier-filed ULP charge. On the contrary, the arbitrator in INS found that the issues raised in both proceedings were the same, whereas the Arbitrator in this case found that the issues in the ULP and grievance proceedings were, in part, different. Accordingly, we find that the Agency's reliance on Department of the Army, VAMC, INS, and Bureau of Prisons is misplaced.

Further, we reject the Agency's remaining assertions that the issue raised by the grievance was necessarily addressed by the Regional Director in the ULP proceedings and that allowing the grievance to proceed will permit the grievant to relitigate the issue of retaliation. We stated previously that the ULP charge alleged in relevant part that the Agency violated the Statute by proposing to suspend the grievant in retaliation for her Union activities and that the charge did not allege any separate contractual violation. We also stated that the Arbitrator addressed only that portion of the grievance alleging, through reference to Article 45, Section 45.01, that the suspension was not taken for sufficient cause as will promote the efficiency of the Federal service and did not address the portion of the grievance alleging retaliation. As we have found that the ULP charge and the relevant portion of the grievance addressed by the Arbitrator clearly concerned different issues, we reject the Agency's remaining assertions.(5)

For the foregoing reasons, we find that section 7116(d) of the Statute does not bar arbitration of the portion of the grievance addressed by the Arbitrator in this case. Accordingly, we will deny the Agency's exception in that regard.

C. The Arbitrator Was Not Required to Apply the Douglas Factors

The Agency argues that the award is deficient because the Arbitrator failed to apply the Douglas factors in determining that the 14-day suspension was too harsh. Contrary to the Agency's argument, the Arbitrator was not required to apply these factors in deciding the grievance in this case. The Douglas factors enunciated by the MSPB essentially constitute guidelines governing the appropriateness of penalties. The Authority has consistently held that arbitrators are bound by the same substantive standards as the MSPB only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. See American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1370-71 (1993); U.S. Department of the Army, III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 46 FLRA 609, 613 (1992). Suspensions of 14 days or less are not covered under 5 U.S.C. §§ 4303 or 7512. See American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Logistics Agency, Defense Contract Management District South, 47 FLRA 962, 967-68 (1993). Therefore, because the grievant in this case was given a 14-day suspension, the Arbitrator was not bound to follow the same substantive standards as the MSPB. Accordingly, we reject the Agency's argument that the award is deficient because the Arbitrator failed to apply the Douglas factors.

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Talkin did not participate in this decision as this case arose during her tenure as Chief of Staff of the Equal Employment Opportunity Commission.

2. Unless otherwise noted, all dates refer to 1989.

3. Section 7116(d) of the Statute provides in relevant part:

[I]ssues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.

4. Neither party excepted to this finding, and we will not address it further.

5. It is unclear whether the Agency argues that two other ULP charges filed by the Union bar consideration of the relevant portion of the grievance addressed in this case, but in any event we find that they do not. In this regard, the charge in Case No. 2-CA-90451 was filed prior to the Agency's proposal to take any action against the grievant and, thus, did not involve the same factual predi