53:1751(157)AR - - SSA, Baltimore, Md. And AFGE Local 1923 - - 1998 FLRAdec AR - - v53 p1751



[ v53 p1751 ]
53:1751(157)AR
The decision of the Authority follows:


53 FLRA No. 157

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923

(Union)

0-AR-2860

_____

DECISION

March 31, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Ira F. Jaffe 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 Regulations. The Union did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance challenging a 14-day suspension. He directed the Agency to revoke the suspension and to pay the grievant backpay. For the reasons that follow, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is an employee who also served as a Union steward. She was suspended for 14 days for 3 acts of misconduct: (1) failure to attend a required training class; (2) inappropriate behavior towards a supervisor; and (3) inappropriate action and creating a disruptive atmosphere with respect to the posting of materials on a bulletin board.

The Arbitrator stated the issues as whether the grievant was suspended for just cause and whether the suspension was influenced by the grievant's exercise of her "protected Union activities." Award at 1.

The Arbitrator found that the Agency instituted disciplinary action against the grievant after the Union declined to remove her as a union representative. Specifically, he found that at a meeting the "Agency told the Union . . . that it was considering taking disciplinary action against the Grievant and would not do so if the Union agreed to remove the Grievant from further representational duties . . . ." Id. at 24-25. He also found that, in the proposed letter of suspension, which was issued shortly after this meeting, the Agency referenced the grievant's status as a Union representative in assessing the suspension.

Turning to the specific charges, the Arbitrator found that the second and third charges of inappropriate and disruptive behavior did not provide valid grounds for discipline. According to the Arbitrator, this conduct occurred while the grievant was engaged in protected activities and did not constitute flagrant misconduct, the standard for discipline involving protected activity.

As to the charge of failure to attend training, the Arbitrator found that the grievant's actions were insubordinate and unprotected by the Statute. The Arbitrator stated that under normal circumstances, such actions would have provided just cause for the imposition of some disciplinary action. The Arbitrator found, however, that a number of factors persuaded him to overturn the suspension. The Arbitrator found that the "record [was] devoid of any other similar examples of insubordination which would permit [him] to determine the level of disciplinary action which the Agency might initially have imposed upon the [g]rievant if it were not preoccupied with her continuing representational activities and status." Id. at 32. The Arbitrator further found that "taking into account the Agency's improper[] linkage of the [g]rievant's suspension with her representational activities and her status as a Union representative," the appropriate remedy was to direct the Agency to remove the suspension from the grievant's record. Id.

The Arbitrator concluded, therefore, that just cause did not exist for the grievant's suspension and that the Agency "discriminated against [her] in imposing the suspension" due to her representational activities in violation of the agreement and the Statute. Id. at 22 and 33.

III. Agency's Exceptions

The Agency asserts that the award violates section 7106(a)(2)(A) of the Statute, because it affects management's right to discipline employees. The Agency contends that the Arbitrator has substituted his judgment for the Agency's.

Next, the Agency argues that it met its burden of proving misconduct with respect to the first charge. According to the Agency, by finding that the grievant was insubordinate, but vacating the suspension and not allowing any discipline to be imposed, the award effectively allows the grievant and other Union officials to be insulated from possible discipline for insubordinate behavior.

The Agency also cites Merit Systems Protection Board (MSPB) and Authority precedent in support of its contention that it had sufficient cause to discipline the grievant for insubordinate behavior. The Agency argues that because the grievant was not acting in her capacity as a Union representative, discipline was appropriate under the circumstances.

Based on the above, the Agency contends that even considering the deficiency of the second and third charges, it had grounds to discipline the grievant based on the Arbitrator's finding of insubordination on the first charge of misconduct.

IV. Analysis and Conclusions

A. The Award Does Not Violate Management's Rights

The Authority applies a two-prong test to determine whether an arbitration award that implicates management's rights set out in section 7106(a)(2) of the Statute is deficient as contrary to those rights. First, an arbitrator must be enforcing either applicable law, within the meaning of section 7106(a)(2), or a contract provision that was negotiated pursuant to the exceptions to section 7106(a) that are set forth in section 7106(b). Second, the award must constitute a reconstruction of what management would have done had management acted properly. U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 153 (1997)(BEP); U.S. Department of Veterans Affairs, Medical Center, Birmingham, Alabama and American Federation of Government Employees, Local 2207, 51 FLRA 270, 274 (1995) (VAMC, Birmingham).

Applying this standard, the Authority has held that just cause contract provisions are appropriate arrangements for the exercise of management's right to discipline within the meaning of section 7106(b)(3). VAMC, Birmingham, 51 FLRA at 273-74. An arbitrator's enforcement of a just cause provision, setting aside or reducing the disciplinary action, "operates in effect to reconstruct what management would have done had the provision been followed." Id. at 274.

In this case, the Arbitrator enforced a just cause provision of the parties' agreement. The Arbitrator found that the Agency would not have proposed a suspension if the grievant had not also been a Union representative. Thus, the award satisfies both prongs of the BEP test and the award is not deficient as contrary to management's right under section 7106(a)(2)(A) of the Statute.

B. The Arbitrator Appropriately Applied the Authority's Letterkenny Test

The Agency also argues that the Arbitrator should not have set aside the grievant's entire 14-day suspension. According to the Agency, the Arbitrator's findings that the grievant had been insubordinate in failing to attend training and that this action was not protected union activity warranted a reduction in, rather than an elimination of, the suspension.

In holding that the employee's suspension should be overturned, even though she was insubordinate in failing to attend training, the Arbitrator applied the Authority's framework for resolving claims of discrimination based on union activity. Letterkenny Army Depot, 35 FLRA 113, 122-23 (1990) (Letterkenny). See Award at 19, 32, and 33. Under this framework, the party alleging discrimination must establish that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee. If the required prima facie showing is made, an agency may seek to establish the affirmative defense that there was a legitimate justification for its action and that the same action would have been taken even in the absence of protected activity. Letterkenny, 35 FLRA at 118.

The Arbitrator found that the Agency had "improperly link[ed]" the grievant's representational activities and her status as a Union steward with her suspension. Award at 32. See Letterkenny, 35 FLRA at 118. The Arbitrator concluded that the Agency "discriminated" against the grievant in imposing the suspension. Award at 33. Thus, even though the grievant's actions in refusing to attend the training were not protected, the Arbitrator's findings indicate that the grievant's representational activity was a motivating factor in the Agency's decision to discipline her, satisfying the employee's prima facie case. The Arbitrator found that the Agency did not establish that the grievant would have been disciplined in the absence of her protected activity. Id. at 32. Accordingly, he concluded that he could not sustain the suspension action.

The MSPB precedent relied on by the Agency does not address or relate to the issue of discipline motivated by union activity. Specifically, the case relied on by the Agency simply stands for the proposition that employees may be disciplined for failing to follow orders at work. See Rodriquez v. Department of Agriculture, 27 MSPR 79 (1985).

In addition, the Authority cases cited by the Agency hold that an employee cannot be disciplined for conduct that is protected activity unless the employee's conduct constitutes flagrant misconduct. See U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 385 (1990). The flagrant misconduct defense may be used by an agency to defend a disciplinary action that is based on protected activity. This defense does not, however, excuse an agency where, as here, it was motivated by protected activity and claims a separate, legitimate justification for the discipline. The agency's defense in that situation requires the establishment of both elements of the affirmative defense set out in Letterkenny. 35 FLRA at 118.

Here, while the Arbitrator found the specific actions of the grievant to be unprotected, he also found that she was generally engaged in protected representational activity and that this activity was "linked" to the discipline. The Agency thus had a burden to establish both that it had a legitimate justification for the discipline and that it would have taken the same action absent the protected activity. The Arbitrator found that the second of these elements had not been met, appropriately applying the Letterkenny test to the facts of this case.

Finally, the Agency's clai