49:1164(111)AR - - AFGE, Local 1867 & Air Force Academy, Colorado Springs, CO - - 1994 FLRAdec AR - - v49 p1164
[ v49 p1164 ]
The decision of the Authority follows:
49 FLRA No. 111
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
UNITED STATES AIR FORCE ACADEMY
COLORADO SPRINGS, COLORADO
May 31, 1994
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 John P. DiFalco 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 to discipline an employee for misconduct during a meeting with an Equal Employment Opportunity (EEO) counselor. The Arbitrator reduced the 10-day suspension imposed by the Agency to a suspension for 5 days. For the following reasons, we will deny the Union's exceptions to the Arbitrator's award.
II. Background and Arbitrator's Award
The grievant is the chief steward for the bargaining unit and also the shop steward for the Vehicle Maintenance Shop. He investigated the complaints of male employees who alleged that certain female employees were given preferential treatment by management in the recording of their time and attendance, including being allowed to take longer lunch breaks than the male employees. The grievant filed an EEO complaint with the Agency, naming himself as the complainant. According to the Arbitrator, the grievant explained that he named himself as the complainant "in order to preserve the anonymity of the complaining employees and to free himself to pursue a remedy that would satisfy all employees within the workplace." Award at 4.
The grievant met with the Agency's Chief EEO Counselor and requested that the Chief EEO Counselor handle the complaint himself "in order to preserve confidentiality to the maximum extent possible." Id. at 5. However, when the grievant was later asked to attend a counselling session, he found that another EEO counselor had been asked to handle the case. The grievant became upset and accused the Chief EEO Counselor of breaking his promise to handle the case himself. The other EEO counselor left the room at that point and the grievant continued his argument with the Chief EEO Counselor. During that time, the grievant told the Chief EEO Counselor "'if you continue with your explanation, in about five minutes I'm going to run you through like a railroad train.'" Id. at 6 (quoting testimony of the Chief EEO Counselor).
As a result of that remark, the Agency suspended the grievant for 10 days for discourteous conduct and threatening the Chief EEO Counselor. The disciplinary charge was later amended to add the claim that the grievant, in questioning the female employees and investigating their attendance records, "had engaged in disruptive behavior toward coworkers[,] creating a hostile, intimidating, and offensive work environment." Id. at 3. The Union filed a grievance denying that the grievant had threatened the counselor and asserting that the grievant had engaged in conduct protected under the Statute and EEO laws and regulations. The grievance was not resolved and was submitted to arbitration on the following issues:
1. Was there just cause for the ten day suspension of the Grievant? If not, what is the appropriate remedy?
2. Does the ten day suspension issued to the Grievant constitute retaliation for having filed an EEO complaint? If so, is [the] Grievant entitled to compensatory damages pursuant to the Civil Rights Act of 1991 and if so, how much are those damages?
Id. at 2.
The Arbitrator found that there was no dispute that the grievant had made the remark for which he was disciplined. However, the Arbitrator noted that the Union denied that the remark was intended as a threat to the Chief EEO Counselor. He also noted the Union's claim that the remark was made while the grievant was acting as a Union representative. The Arbitrator observed that the grievant was "a vigorous advocate for the Union who at times engages in behavior that is perceived as threatening by Agency officials." Id. at 29. The Arbitrator stated that the grievant's behavior in that regard "may be attributable to the fact that the [g]rievant began his career in California where the labor management climate is arguably more adversarial, and, one might suggest, more animated than has been the experience in Colorado Springs, Colorado . . . ." Id. The Arbitrator found that the statement made by the grievant was not perceived as an actual threat by the Chief EEO Counselor and that the Chief EEO Counselor was not concerned that he would be assaulted and harmed by the grievant. However, the Arbitrator concluded that the grievant's statement "taken as a whole [was] an attempt at intimidation and most assuredly a discourteous and disrespectful act beyond the bounds of common civility that is appropriate in such circumstances." Id. at 32.
Next, the Arbitrator examined the Union's assertions that the grievant's statement to the Chief EEO Counselor and the grievant's actions towards other employees constituted Union activity protected by the Statute. The Arbitrator held that the grievant was not entitled to protection under the Statute as a Union representative in the circumstances of this case "because the [g]rievant's status was as an EEO complainant and not a Union representative." Id. at 34. The Arbitrator noted that, "by choosing not to appear as a representative of the Union and giving no notice either actual or implied to the Agency that he was acting as a Union representative," the grievant was "not entitled to the protections of the law that would normally be available to an individual acting in [an] official capacity on behalf of the Union." Id. at 33. The Arbitrator found that the grievant chose to pursue the matter as his own EEO complaint, and thus was not acting "in his capacity as Union Steward because he never disclosed that basis as the grounds for his discussion with Agency officials." Id. The Arbitrator further found that even if the grievant had engaged in Union activity, "he most assuredly  stepped over the bounds of fair comment and Union activity into becoming a bully toward" the Chief EEO Counselor. Id. at 37.
With respect to the grievant's actions towards other employees, the Arbitrator found that "staring at employees, marking their time in a harassing manner, and making intimidating comments is not appropriate Union activity, and therefore is not protected under the law." Id. at 36. He stated that he credited "the testimony of the four female co-workers who, it is believed, were genuinely harassed and intimidated by the [g]rievant's manner of pursuing what he perceived to be his rights under the [c]ontract." Id. The Arbitrator found that, like the statement to the Chief EEO Counselor, the grievant's behavior toward other employees "also constitute[d] the kind of discourteous behavior in an effort to create a hostile, intimidating environment which should not be tolerated by the Agency." Id. at 32.
The Arbitrator next examined the Union's assertion that the grievant's conduct was protected by the parties' collective bargaining agreement and EEO laws and regulations. The Arbitrator found that the grievant's statement to the Chief EEO Counselor did not constitute activity protected under the parties' agreement and EEO laws and regulations. He found that "[t]he Agency is entirely correct in noting that the EEO protections of the [c]ontract and indeed of [F]ederal law are against reprisal for asserting rights under the EEO law and regulation." Id. at 34. The Arbitrator stated that he was aware of no law or regulation that permitted a complainant in an EEO matter "to attempt to intimidate, show disrespect, or otherwise be uncivil to a Chief EEO Counselor of the Agency." Id. The Arbitrator further stated that the "whole process of filing an EEO complaint for still unnamed complaining employees just does not give the [g]rievant's position the same credibility as the genuine anguish of his co-workers over his uncivil and intimidating behavior in the workplace." Id. at 36. The Arbitrator found that there was "insufficient evidence in the record based upon the totality of the circumstances to demonstrate that" the grievant's "conduct was protected by any applicable . . . EEO statute or regulation." Id. The Arbitrator concluded that the disciplinary action against the grievant was based on the grievant's "bullying and an attempt at intimidation" and was not taken in reprisal for his having filed an EEO complaint or engaged in protected EEO activity. Id. at 42.
Further, the Arbitrator rejected the Union's claim that the Agency amended the charge against the grievant to include his actions towards other employees as a reprisal for filing an EEO complaint. The Arbitrator noted that, in amending the charge, the Agency had not increased the grievant's original penalty and that the Agency had amended the charge as a means of "buttressing a case of misconduct [rather than] an act of reprisal as contemplated by the prohibitions of the EEO law and regulation." Id. at 35.
Finally, the Arbitrator concluded that although there was just cause for the Agency to discipline the grievant, "there does not appear to be grounds for the severity of discipline imposed by the Agency." Id. at 37. The Arbitrator determined that "the maximum reasonable penalty under all circumstances of this case considering all mitigating and aggravating factors is a five day disciplinary suspension." Id. at 43. Further, as the Arbitrator determined above that "the original ten day suspension did not constitute retaliation for having filed an EEO complaint[,]" he denied the grievant's claim for backpay and compensatory damages in that regard. Id.
III. Positions of the Parties
A. The Union
The Union contends that the award is deficient because it deprives the grievant of the protections to which he was entitled as both a Union representative and an EEO complainant. The Union maintains that the Arbitrator improperly made geographical location of the case a factor in determining what behavior was acceptable when he stated that the labor relations climate in California was more contentious than that in Colorado. The Union contends that, as a result, the Arbitrator erroneously found that the grievant was entitled to less protection in Colorado than he would have received in California.
The Union disputes the Arbitrator's finding that the grievant was not engaged in protected Union activity at the time he made the statement for which he was disciplined. The Union maintains that it is irrelevant whether the grievant specifically stated that he was representing other employees, because "there is no dispute that he was acting on behalf of his fellow employees as a [U]nion representative." Exceptions at 5. The Union also asserts that the remark for which the grievant was disciplined would not constitute conduct that was outside the protection of the Statute, if the grievant had been found by the Arbitrator to have been performing representational duties. In this regard, the Union cites decisions in which the Authority upheld the right of union representatives to employ strong language and gestures in their dealings with management officials.(*)
The Union further disputes the Arbitrator's finding that the grievant's close monitoring of the attendance of female employees constituted activity that was outside the protection of the Statute.
The Union also contends that the Arbitrator's award is contrary to EEO law and regulations that protect the rights of complainants against reprisal. The Union disagrees with the Arbitrator's findings that the grievant was not disciplined in reprisal for having engaged in protected EEO activity and that EEO law afforded the grievant "no protection during the incidents in question." Id. at 9. The Union maintains that the grievant "was assisting and participating in the EEO process when he gathered information on the activities of his co-workers and when he met in [the Chief EEO Counselor's] office as part of the EEO counseling process." Id. at 7-8. The Union contends that complainants in EEO cases are protected when they engage in conduct that might otherwise result in discipline.
The Union asks that the case be remanded to the Arbitrator in order for the Arbitrator to grant the grievant a remedy for the Agency's violation of the Statute and EEO law.
B. The Agency
The Agency contends that the Union's exceptions fail to establish that the award is deficient. The Agency asserts that the Union is merely disagreeing with the Arbitrator's findings of fact and evaluation of the evidence and is attempting to relitigate the grievance before the Authority. The Agency maintains that the Arbitrator correctly concluded, based on the record, that the grievant was acting on his own behalf as an EEO complainant and was not engaged in activity protected under the Statute. The Agency also contends that the Arbitrator properly found that the discipline was not imposed in reprisal for filing the EEO complaint and that the grievant was not deprived of any rights under EEO law.
IV. Analysis and Conclusions
We construe the Union's exceptions as contentions that the award is contrary to the Statute and Title VII of the Civil Rights Act of 1964 (Civil Rights Act). We find that the Union has failed to establish that the award is deficient for those reasons.
We find no merit in the Union's contention that the Arbitrator improperly made geographical location a factor in deciding this case. The Arbitrator merely observed, as a part of the discussion of the incident, that the grievant had come from a "more adversarial" and "more animated" labor relations climate in California. Award at 29. The Union has not demonstrated that the Arbitrator used the purported difference in labor relations climate as a basis for imposing a different standard of behavior on the grievant.
We further reject the Union's arguments that the Agency disciplined the grievant for engaging in activities protected by the Statute and that the Arbitrator's finding to the contrary conflicts with decisions of the Authority. We note the Arbitrator's findings that: (1) the grievant had filed an individual EEO complaint and was not engaged in representational functions protected under the Statute when he met with the Chief EEO Counselor to discuss that complaint; (2) even if the grievant had been engaging in representational functions, the grievant "ha[d] stepped over the bounds of . . . Union activity into becoming a bully toward" the Chief EEO Counselor; and (3) the grievant closely monitored the attendance of female employees by "staring at [the] employees, marking their time in a harassing manner, and making intimidating comments" to them. Id. at 36, 37. The Arbitrator examined the grievant's conduct noted above and concluded that, in the circumstances of this case, it was outside the protection of the Statute. Absent any demonstration by the Union that, as a matter of law, the gr