American Federation of Government Employees, Local 1501 (Union) and U.S. Department of the Air Force, Mcchord Air Force Base, Washington (Agency)

[ v56 p632 ]

56 FLRA No. 101

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1501
(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE
MCCHORD AIR FORCE BASE, WASHINGTON
(Agency)

0-AR-3249

_____

DECISION

September 12, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Ronald L. Miller 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 Regulations. The Agency filed an opposition.

      The Arbitrator found that the Agency had just cause to orally admonish the grievant. For the reasons that follow, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant disagreed with a decision of his supervisor that the base's recycling program accept colored plastic. He sent out two base-wide e-mail messages stating that colored plastic would not be collected. Subsequently, the supervisor sent the grievant an e-mail (hereinafter the "supervisor's direction") stating that "NO releases of data to any of our commanders will be made over EMAIL unless I read it first." Award at 3 (emphasis in original). The grievant then sent a memorandum (hereinafter "the September 2 memo") to the squadron commander and the deputy squadron commander, in which he made several allegations regarding his supervisor.

      Later, the contractor that collected plastic for recycling sent a letter questioning the feasibility of recycling [ v56 p633 ] colored plastic, which was forwarded to the supervisor for review and comment. While the letter was still in the supervisor's in-box, the grievant went to the supervisor's office. The grievant was prevented from entering the office and searching the in-box by the supervisor's administrative assistant, who provided the grievant with a copy of the letter. The grievant subsequently e-mailed the supervisor (hereinafter "the October 6 e-mail"), with copies to higher command, stating that the letter confirmed his belief that colored plastic should not be recycled. The e-mail concluded, "TO DO OTHERWISE INVITES FRAUD, WASTE AND ABUSE CRITICISM." Id. at 4.

      The next day, the supervisor orally admonished the grievant for "insubordination[,]" based on the grievant's "unauthorized interception of official mail" addressed to the supervisor, and the October 6 e-mail. The grievant filed a grievance, and when the grievance failed to be resolved, it was submitted to arbitration.

      The grievant also filed a grievance challenging a separate oral admonishment that he received on November 3, 1998. [n1]  The Agency refused to process this grievance on the ground that it was filed untimely at the third step of the grievance procedure. The propriety of this refusal was also placed before the Arbitrator by the parties.

      The Arbitrator framed the issue in the first grievance as follows: "Was the discipline, oral admonishment, assigned to [the grievant] on 7 October 1998 for just cause? If not, what is the appropriate remedy?" Id. at 2. With regard to the second grievance, the Arbitrator stated the issue as follows: "Did [the Union] appeal the grievance in a timely manner? If it did, what is the appropriate remedy?" Second Award at 1.

      The Arbitrator found that, by sending the October 6 e-mail, the grievant "intentionally and wilfully disobeyed" the supervisor's direction, and thus committed insubordination. Id. at 5. The Arbitrator further found that it was inappropriate for the grievant to attempt to intercept the letter addressed to the supervisor.

      The Arbitrator applied "Seven Tests for Just Cause" and concluded that the Agency had just cause to discipline the grievant. Id. at 6. In this connection, the Arbitrator determined that the supervisor disciplined the grievant "for a legitimate reason, insubordination, not for [the grievant's] memorandum of 2 September 1998." Id. at 7.

      Additionally, the Arbitrator determined that the grievant's October 6 e-mail did not constitute a privileged communication, noting that the right to freely communicate allegations of fraud, waste and abuse "is not a shield for insubordinate conduct." Id. The Arbitrator determined that the grievant had a duty to comply with the supervisor's direction, and then, "if warranted," the grievant "could have exercised his right to bring the matter of possible fraud, waste and abuse to the attention of higher authority." Id. Accordingly, the Arbitrator denied the grievance.

      The Arbitrator found that the second grievance had not been timely appealed under Article 35, Section 9.b of the parties' agreement. [n2]  Accordingly, the Arbitrator dismissed the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union excepts to the award on seven grounds.

      First, the Union asserts that the Agency "acted in an arbitrary, capricious and retaliatory nature." Exceptions at 1. Specifically, the Union claims that the supervisor's direction "may violate [F]ederal law and could be perceived as reprisal" because it restricted the grievant's ability to communicate. Id.

      Second, the Union claims that the Arbitrator improperly prevented the Union from introducing crucial evidence regarding events that occurred after the grievant was orally admonished. The Union requests that the Authority consider this evidence.

      Third, the Union argues that the Arbitrator "misapplied" its arguments regarding protected disclosure. Id. at 2. In particular, the Union states that although it made its protected disclosure arguments with regard to the September 2 memo, the Arbitrator improperly applied those arguments to the October 6 e-mail.

      Fourth, the Union asserts that the grievant's September 2 memo meets the Merit Systems Protection Board's (MSPB's) definition of a "protected disclosure," and that, since that disclosure, the Agency has taken personnel actions against the grievant that "fit the definition of prohibited personnel actions[.]" Id.

      Fifth, the Union disputes the Arbitrator's finding that the Agency had just cause to discipline the grievant. The Union asserts that there was no just cause for the [ v56 p634 ] oral admonishment because: (1) the Agency did not warn the grievant of the possible disciplinary consequences of his conduct; (2) the supervisor's direction was an attempt to restrict the grievant's ability to communicate; (3) the Agency did not interview the grievant prior to disciplining him; (4) the Agency conducted no investigation and at no time attempted to determine the grievant's intent; (5) the grievant was pursuing his legal rights and professional responsibility to voice his concerns regarding colored plastics; (6) the Agency did not apply its rules fairly and had a "wrongful intent;" and (7) the Arbitrator ignored evidence indicating that the supervisor's "first inclination" was to issue more serious discipline. Id. at 2-3, 4.

      Sixth, the Union claims that the Arbitrator made an "error" regarding a "central adjudicative fact" -- the supervisor's direction. Id. at 4. In this connection, the Union asserts that the Agency: "never applied" that direction in admonishing the grievant; failed to make that direction available to the grievant at the time of discipline; did not warn the grievant of the possible disciplinary actions that would result if he disobeyed that direction; and arbitrarily applied that direction to the grievant. Id.

      Seventh, the Union maintains that the Arbitrator erred by dismissing the second grievance on timeliness grounds.

B.     Agency's Opposition

      With regard to the Union's first exception, the Agency contends that the Union argued, before the Arbitrator, that the Agency's action was "arbitrary, capricious, and retaliatory[,] . . . but, as indicated by his decision, [the Union] failed to support their position with facts or law." Opposition at 7.

      Second, the Agency claims that the Arbitrator appropriately limited the introduction of evidence. According to the Agency, the excluded evidence involved actions that post-dated the oral admonishment, which the Agency claims are not probative of the Agency's pre-admonishment motives.

      Third, the Agency asserts that the Union's protected disclosure arguments pertain to the grievant's September 2 memo, and that the Arbitrator specifically rejected these arguments when he found that the grievant was not disciplined because of that memo.

      Fourth, the Agency disputes the Union's claim that the September 2 memo constituted a protected disclosure. Further, the Agency argues that, even assuming that memo constituted a protected disclosure, there was no evidence that the oral admonishment was a response to that memo.

      With regard to the Union's fifth exception, the Agency asserts that "[t]he reasoning of the Arbitrator speaks for itself[,]" and the Arbitrator "properly rejected" the Union's allegation that the Agency did not have just cause to admonish the grievant. Id. at 10.

      Sixth, the Agency argues that: (1) the Arbitrator committed no factual error regarding the supervisor's direction; (2) the Union did not argue, before the Arbitrator, that the Agency inappropriately relied on that direction; (3) the direction was in response to the grievant's violation of a previous order; and (4) the probable disciplinary consequences for disobeying that order would have been clear to any reasonable person in the grievant's position.

      Seventh, the Agency claims that the Arbitrator correctly determined that the second grievance was untimely.

IV.     Preliminary Matter

      Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator. See, e.g., U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California and Laborers' International Union of North America, Local 1276, 55 FLRA 193, 195 (1999) (National Park Service). The Union's first and fourth exceptions concern the award's consistency with Federal law regarding protected disclosure. Although the Union could have raised these arguments before the Arbitrator, there is no indication in the record that it did so. In this connection, the Union argued before the Arbitrator that the admonishment of the grievant for sending the e-mail violated an Agency memorandum, rather than Federal law regarding protected disclosure. Accordingly, pursuant to section 2429.5 of our Regulations, we do not consider the Union's first and fourth exceptions.

V.     Analysis and Conclusions

A.     The Arbitrator Provided a Fair Hearing.

      We construe the Union's assertion that the Arbitrator precluded the Union from introducing certain evidence as an argument that the Arbitrator failed to provide the Union a fair hearing. An award will be found deficient on the ground that an arbitrator failed to provide a fair hearing where a party demonstrates that the arbitrator refused to hear or consider pertinent and [ v56 p635 ] material evidence, or that other actions in conducting the proceedings so prejudiced a party as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). An arbitrator's limitation of the submission of evidence does not, by itself, demonstrate that the arbitrator failed to provide a fair hearing. See U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 41 FLRA 535, 541 (1991).

      The issue before the Arbitrator was whether the Agency has just cause to orally admonish the grievant. In resolving that issue, he considered evidence concerning actions leading up to that discipline. Although the Union alleges that the Arbitrator erred by declining to consider evidence regarding subsequent actions, the Union has not demonstrated that such evidence was pertinent and material to the issue of whether the Agency had just cause to discipline the grievant at the time the discipline was imposed. The Union does not allege that the Arbitrator took any other actions that affected the fairness of the proceedings as a whole. As such, the Union has not demonstrated that the Arbitrator denied the Union a fair hearing, and we deny this exception.

B.     The Arbitrator Did Not Exceed His Authority.

      The Union asserts that the Arbitrator "misapplied" its arguments because, although the Union argued that the September 2 memo constituted a protected disclosure, the Arbitrator analyzed whether the October 6 e-mail constituted a protected disclosure. We construe the Union's assertion as an argument that the Arbitrator exceeded his authority.

      An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of the Army Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997).

      The Arbitrator formulated the issue as whether there was just cause for the oral admonishment. He found that the grievant was orally admonished for "insubordination, not for [the grievant's] memorandum of 2 September 1998." Award at 7. Given the Arbitrator's finding that there was cause for the oral admonishment and that the Union had not established its claim of retaliation, it is apparent that the Arbitrator resolved the issue as formulated. As such, the Union has not demonstrated that the Arbitrator exceeded his authority, and we deny this exception.

C.     The Award Draws its Essence from the Parties' Agreement.

      We construe the Union's argument that the Arbitrator erred in finding that the Agency had just cause to discipline the grievant as an assertion that the award fails to draw its essence from the just cause provision of the parties' agreement. To demonstrate that an award fails to draw its essence from the agreement, the appealing party must show that the award: (1) 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; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

      The Union has not established that the Arbitrator's conclusion that there was just cause for the oral admonishment -- a conclusion based on his analysis of seven specific factors -- is unfounded, implausible, irrational, or evidences a manifest disregard of Article 15, Section 1 of the parties' agreement. As such, the Union does not demonstrate that the award is deficient as failing to draw its essence from the just cause provision of the parties' agreement, and we deny this exception.

D.     The Award Is Not Based on Nonfacts.

      The Union argues that the Arbitrator made four, specific factual errors concerning the supervisor's direction. We construe these arguments as assertions that the award is deficient because it is based on nonfacts.

      To establish that an award is deficient because it is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination of any factual matter that the parties disputed at arbitration. [ v56 p636 ] See id. at 594 (citing National Post Office Mailhandlers v. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985)).

      The record indicates, as argued by the Agency, that the Union's argument that the Agency "never applied" the supervisor's direction in disciplining the grievant was not made to the Arbitrator and is raised for the first time before the Authority. See Award at 5. As such, pursuant to section 2429.5 of the Authority's Regulations, the Authority will not consider that argument. See National Park Service, 55 FLRA at 195.

      In its second factual challenge, the Union claims that the Agency failed to make the supervisor's direction available to the grievant at the time of discipline. The Arbitrator found, in this connection, that the supervisor's direction was communicated to the grievant "[i]n an e-mail message" at its inception. Award at 3. Even assuming that, at the time of the grievant's discipline, the Agency failed to re-supply that direction to the grievant, the Union has not explained how such a failure on the Agency's part demonstrates that a central fact underlying the award is clearly erroneous, but for which the Arbitrator would have reached a different result.

      With respect to the Union's third and fourth factual challenges -- that the Agency did not warn the grievant of the potential disciplinary consequences of not following that direction and that the Agency arbitrarily applied that direction to the grievant -- the Arbitrator specifically found that the supervisor's direction was "reasonable," "clear and specific," and that the grievant "knew what conduct was expected of him." Award at 6. Further, the Arbitrator determined that the grievant was treated "even-handedly and without discrimination." Id. The Union has not explained how these factual findings are erroneous.

      In these circumstances, the Union has not demonstrated that the award is based on a nonfact, and we deny the exception.

E.     The Arbitrator Did Not Err by Finding That the Second Grievance Was Untimely.

      An arbitrator's determination regarding the timeliness of a grievance constitutes a determination regarding the procedural arbitrability of that grievance. See, e.g., U.S. Department of Defense, Dependents Schools and Federal Education Association, 55 FLRA 1108, 1110 (1999). An arbitrator's determination as to procedural arbitrability may be found deficient only on grounds that do not challenge the determination of procedural arbitrability itself. See id. Such grounds include arbitrator bias or the fact that the arbitrator exceeded his or her authority. See id.

      The Union's sixth exception challenges the Arbitrator's determination that the second grievance was untimely, and thus constitutes a challenge to the Arbitrator's procedural arbitrability determination regarding that grievance. The Union does not allege that the Arbitrator's procedural arbitrability determination is deficient because the Arbitrator was biased or exceeded his authority, but only challenges the procedural arbitrability determination itself.