United States Information Agency, Broadcasting Board of Governors, Washington, D.C. (Agency) and American Federation of Government Employees, Local 1812 (Union)

[ v57 p261 ]

57 FLRA No. 54

UNITED STATES INFORMATION AGENCY
BROADCASTING BOARD OF GOVERNORS
WASHINGTON, D.C.
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1812
(Union)

0-AR-3318

_____

DECISION

June 13, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

Decision by Chairman Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on an exception to the award of Arbitrator Leroy D. Clark filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exception.

      The Arbitrator determined that the Agency improperly disciplined the grievant using the procedures set forth in 5 U.S.C. § 7501, et seq (Chapter 75). For the reasons explained below, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for further proceedings consistent with this decision.

II.     Background and Arbitrator's Award

      The grievant, a Russian language broadcaster, on two occasions during a live broadcast, made on-air comments concerning co-workers. The grievant's supervisor told her that the on-air comments were inappropriate and that such comments undermined the credibility of the Agency with its audience.

      The Agency initially proposed suspending the grievant for ten days pursuant to Chapter 75 based on the two comments. The Agency later reduced the proposed suspension to five days. Award at 4. The grievant subsequently sought arbitration.

      The Arbitrator framed the issue as follows:

Did the Agency have authority to suspend the grievant for five days based on two inappropriate on-air comments? If not, what is the remedy?

Award at 1.

      In his award, the Arbitrator determined that the Agency, in taking action against the grievant, wrongfully used the procedures of Chapter 75. Specifically, the Arbitrator determined that the subject matter of the discipline related to the grievant's performance under standards pertaining to making on-air fluffs and consistently [leading] out reports and [providing] an appropriate transition to the next piece of material. Award at 4, 11. Applying Lovshin v. Dept. of the Navy, 767 F.2d 826 (Fed. Cir. 1985) (Lovshin), the Arbitrator concluded that the discipline solely concerned the grievant's performance and should have been processed under 5 U.S.C. § 4301, et seq (Chapter 43), rather than under Chapter 75. Therefore, the Arbitrator reversed the suspension, finding that it constituted a prohibited personnel practice. He also awarded backpay and retained jurisdiction to hear any request for attorney fees.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency argues that the Arbitrator incorrectly determined that the Agency could not take action against the grievant pursuant to Chapter 75. The Agency contends that the employee engaged in misconduct and, therefore, was subject to Chapter 75 disciplinary proceedings. Exception at 7.

      The Agency also asserts that, even to the extent the Arbitrator determined that the employee's conduct was considered to be a performance related deficiency, the Agency could still discipline the employee pursuant to Chapter 75. To support this contention, the Agency cites Lovshin, which states:

[o]ne further consideration in construing Chapter 75 to include performance-based cases is that agencies will continue to be able to discipline employees with lesser sanctions for poor performance than removal or demotion, the only sanctions authorized in Chapter 43. If Congress intended to eliminate lesser penalties in all performance-related cases, again we would expect some indication to that effect by Congress.

Lovshin, 767 F.2d at 843; Exception at 6. [ v57 p262 ]

      The Agency further argues that the award is contrary to United States Dep't of the Interior, Nat'l Park Serv., Fire Island Nat. Seashore, 34 FLRA 659 (1990). It contends that, pursuant to this decision, an agency may proceed under either Chapter 43 or Chapter 75 when taking performance-based disciplinary actions.

      Further, the Agency asserts that it was not until after the hearing that a question as to whether this matter should fall under Chapter 75 or Chapter 43 arose. According to the Agency, the parties had both pursued this as a Chapter 75 matter. As such, for the Arbitrator to then determine that this matter could only be pursued under Chapter 43 was contrary to law. Exception at 7-8, citing Hanratty v. FAA, No. 84-1754 (Fed. Cir., Dec. 26, 1985).

      Finally, the Agency argues that, to the extent the Arbitrator may have found that it did not follow procedural requirements under Chapter 43, such a finding is incorrect. In support, the Agency cites Fairall v. Veterans Admin., 33 M.S.P.R. 33 (1987) (Fairall) aff'd, 844 F.2d 775 (Fed Cir. 1987) which states that an action against an employee for deficient performance under Chapter 75 is not subject to the procedural requirements of Chapter 43. Exception at 7.

B.     Union's Opposition

      The Union contends that the Agency does not have absolute discretion in deciding whether to proceed with employee discipline for performance reasons under Chapter 75. It cautions that, as the Arbitrator determined, it is a prohibited personnel practice for the Agency to pursue an action based on employee performance under Chapter 75 where to do so would effectively bypass employee merit system principles, also citing Lovshin. Opposition at 6-7.

      Accordingly, the Union argues that the grievant's inappropriate conduct pertains solely to her performance. Specifically, the Union argues that under the grievant's performance appraisal report, a critical element when conducting live shows includes keeping on-the-air-fluffs to a minimum. Opposition at 8, Grievant's Exhibit 3. The Union argues that this conduct, i.e., inappropriate on-air comments, is thus performance related. The Union contends that it is a prohibited personnel practice for the Agency to charge the grievant with misconduct so as to impermissibly avoid the protections to which the grievant is entitled.

      Moreover, the Union argues that both Fairall and Hanratty are distinguishable. Specifically, the Union distinguishes Hanratty on the ground that in this case the question as to whether the case should proceed under Chapter 75 or Chapter 43 was brought up during the hearing by the Arbitrator and that the parties were asked to brief both issues. Moreover, the Union argues that the Arbitrator determined that if this was a Chapter 75 matter, the grievant prevailed because the Arbitrator found that the Agency had engaged in a prohibited personnel practice which is an affirmative defense.

      Finally, the Union argues that unlike Fairall, the Arbitrator did not set aside the grievant's suspension because the Agency failed to follow the procedural requirements of Chapter 43. Moreover, the Union argues that Fairall supports the Arbitrator's conclusion that agencies must provide some safeguards pursuant to Chapter 43 in an effort to avoid committing a prohibited personnel practice. Opposition at 12.

IV.      Analysis and Conclusions

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFEE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      The resolution of this matter hinges on whether the Arbitrator failed to properly apply Chapter 75 in the circumstances of this case. For the following reasons, the Authority will remand this matter to the parties for resubmission to the Arbitrator.

      In general, disciplinary actions under Chapter 75 may be based upon an employee's inappropriate behavior while engaged in the performance of a job duty. See Coyle v. Dep't of the Treasury, 62 M.S.P.R. 241 (1994) (Coyle) (employee, a Tax Examining Assistant, removed for misconduct when she acted in an unprofessional manner during a telephone conversation with a taxpayer, and hung up on another taxpayer in mid-conversation). Moreover, an agency may legitimately pursue charges of misconduct based on an employee's intentional or negligent failure to properly perform a job duty. The Federal Circuit stated that [w]here the record, as here, clearly indicates levels of negligence, whether gross or otherwise, it is not a case of performance deficiency simpliciter but rather is one also of misconduct, neglect of duty, or malfeasance. Fairall v. Veterans Admin., 844 F.2d at 776 (determining that a medical [ v57 p263 ] technologist who was negligent in writing test results could be removed under Chapter 75). Finally, the Board has held that Chapter 75 procedures apply to conduct expressly covered by an employee's job elements. See Hernandez v. Dep't of Agriculture, 83 M.S.P.R. 371, 374 (1999) (the Board found that a grievant who failed to properly follow instructions for making billing calculations, which were critical elements of his performance evaluation, nonetheless engaged in misconduct relat[ed] to his duties under Chapter 75).

      Here, the Arbitrator determined that the Agency was limited to pursuing this matter solely as unacceptable performance under Chapter 43, not under Chapter 75. However, based on decisions of the Board and the Federal Circuit as discussed above, Chapter 75 may be used to address an employee's behavior, even where that behavior relates to the performance of the employee's job elements. Accordingly, consistent with Lovshin, agencies are able to use Chapter 75 where, as here, the matter arises out of conduct related to and touching upon an employee's job elements.

      Therefore, the Arbitrator's determination that Chapter 75 was not available to the Agency in the circumstances of this matter is inaccurate. We are unable, however, to determine whether, applying Chapter 75, the Arbitrator would still find the suspension improper. [n1]  As such, the matter is remanded for the Arbitrator's assessment of the Agency's actions consistent with applicable laws, rules, regulations and any pertinent contract provisions.

V.     Decision

      Consistent with the above, this matter is remanded to the parties for resubmission, absent settlement, to the Arbitrator.



Footnote # 1 for 57 FLRA No. 54

   We note that, in Lovshin, the Court held that a Chapter 75 action may not be sustained if it is based solely on performance that is governed by and meets the critical elements set forth for the employee's position. Lovshin, 767 F.2d at 842. In this case, while the Arbitrator noted this standard, he did not specify that this was the basis of his finding that the Agency e