United States, Department of the Army, Norfolk District, Army Corps of, Engineers, Norfolk, Virginia (Agency) and National Federation of Federal Employees, Local 1028 (Union)

[ v59 p906 ]

59 FLRA No. 164

UNITED STATES
DEPARTMENT OF THE ARMY
NORFOLK DISTRICT, ARMY CORPS OF
ENGINEERS, NORFOLK, VIRGINIA
(Agency)

and

NATIONAL FEDERATION
OF FEDERAL EMPLOYEES,
LOCAL 1028
(Union)

0-AR-3764

_____

DECISION

May 6, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Seymour Strongin 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 exceptions.

      The Arbitrator sustained the grievance, which alleged that the grievant's five-day suspension was not for just cause. For the reasons set forth below, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      The grievant, the local Union president, became the target of harassing conduct. As relevant here, her office was vandalized and computer equipment was stolen. During an investigation into the stolen computer equipment, the grievant indicated to the investigator that she believed her second-line supervisor was behind "all of this." Award at 4.

      Upon learning of the grievant's statements, her second-line supervisor suspended her for five days for "[k]nowingly making false or malicious statements against supervisors or government officials with the effect of harming or destroying the reputation, authority, or official standing of that individual." Id. at 1-2. In response to the suspension, the Union filed a grievance, which was unresolved and was submitted to arbitration. The Arbitrator did not explicitly frame the issue to be resolved, but he determined that the grievant's suspension was a "disciplinary action" that was required to "be based on just cause and be fair and equitable". Id. at 10. He further determined that Article 9 of the parties' agreement required consideration of "whether the disciplinary penalty is consistent with applicable regulations and is proportionate to the offense" and "whether the employee committed the offense with which she is charged." [n1]  Id. at 11.

      Before addressing the merits of the grievance, the Arbitrator made several findings regarding the grievant's background with the Agency. He determined that the grievant had filed several actions against the Agency, including a successful Equal Employment Opportunity ("EEO") claim on her own behalf concerning discriminatory promotion practices. The Arbitrator also determined that, on the day the grievant was suspended, the Agency padlocked the Union office, "apparently in connection with an ongoing dispute with [the] grievant over the legitimacy of her status as [l]ocal Union [p]resident." Award at 6. The padlocking became the subject of an unfair labor practice (ULP) charge, "apparently since settled." Id. at 7.

      Before the Arbitrator, the grievant disputed the Agency's allegations that she made false and malicious statements that harmed her supervisor's reputation. She denied making any negative statements about her supervisor, but admitted offering her opinion to the investigator that management must be responsible for the harassment, because she did not believe her coworkers would harass her. Id. at 5, 8.

      The Arbitrator determined that the grievant did state that her supervisor was "out to get her," but credited the grievant's testimony that her statements were only her opinion regarding the source of the ongoing harassment. Id. at 11. The Arbitrator further determined that the "grievant had good reason to fear a conspiracy against her[,]" and that she "truly believe[d] that management [was] out to get her[.]" Award at 15. Accordingly, the Arbitrator found that the grievant's statements of opinion did not rise to the level of being knowingly false or malicious.

      As additional support for the suspension, the Agency offered evidence that the grievant, in the [ v59 p907 ] months prior to her statements to the investigator, had made similar statements to her first-line supervisor and to her co-workers that management was "out to get her." Id. at 5. The grievant's first-line supervisor alleged that she responded to these statements by counseling the grievant against making unsubstantiated accusations about her supervisor. The Arbitrator found that, because the Agency was aware of the previous statements but took no formal action until the grievant's second-line supervisor decided to suspend the grievant for her statements to the investigator, the evidence was included as "make weight" evidence in an effort to make the suspension "stick[,]" and was not credible. Id. at 14.

      The Agency also argued that, because the grievant had been repeatedly counseled against making unsubstantiated statements about her supervisor, the suspension was in the appropriate range of discipline established by the Agency's Table of Penalties. Id. at 7. The Arbitrator rejected this argument, finding that the grievant's counseling by her first-line supervisor was informal discipline and that, under Army Regulation 690-700 (AR 690-700), it would be inappropriate for the prior unsubstantiated statements to be the subject of both informal discipline, in the form of counseling sessions, and formal discipline, in the form of a suspension. [n2]  Id.

      The Arbitrator concluded that the five-day suspension was not for just cause because the Agency did not meet its burden of proving the grievant acted out of malice, knew her statements to be false, or harmed the supervisor's reputation. Accordingly, the Arbitrator sustained the grievance and ordered the suspension to be rescinded in its entirety.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator's findings that the grievant's statements were not actionable because they were her opinion and did not harm her supervisor's reputation, are contrary to law. Specifically, the Agency argues that the grievant's statements are actionable, regardless of whether they were the grievant's opinion. For support, the Agency cites Bieber v. Dep't of the Army, 287 F.3d 1358 (Fed. Cir. 2002) (Bieber); Thompson v. Dep't of the Treasury, No. 98-3159, 1998 WL 388858 (Fed. Cir. July 10, 1998) (Thompson); and Holmes v. West, Sec'y, Dep't of the Army, No. 98-2013, 2000 WL 365400 (4th Cir. Mar. 31, 2000) (Holmes). See Exceptions at 4, 6.

      The Agency further contends that the award is contrary to AR 690-700. In this connection, the Agency maintains that the counseling sessions the grievant received for making unsubstantiated statements about her supervisor were warnings, not informal discipline, and that AR 690-700 does not prohibit the use of the prior unsubstantiated statements as a basis for the suspension at issue here. Id. at 7.

      The Agency also argues that the award is contrary to 5 U.S.C. § 7116(d) because the Arbitrator considered a prior ULP charge arising out of the same incidents as those involved in the present dispute. Id. at 7-8. The Agency further argues that the award is contrary to the principle of res judicata because the Arbitrator considered a prior EEO case involving the grievant. Id. at 3.

      In addition, the Agency contends that the award is "contrary to the law and evidence" and is based on nonfacts. See id. at 1, 2. Specifically, the Agency argues that the Arbitrator's finding that the grievant did not knowingly make false or malicious statements is based on a nonfact because the grievant had been counseled not to make unsubstantiated statements about her supervisor and, thus, any statements the grievant made after that point were knowingly false. Id. at 5-6. The Agency also argues that the Arbitrator's finding that the grievant's statements were not harmful to her supervisor's reputation is contrary to the evidence because the grievant's statements are, by their nature, malicious and destructive. Id. at 2. The Agency further argues that the award is based on a nonfact because the Arbitrator did not credit the grievant's testimony that she did not make any negative statements against her supervisor, and, thus, he should have discredited all of the grievant's testimony. Id. at 3-4.

      The Agency maintains that the award is contradictory because, although the grievant denied making any negative statements about her supervisor, the Arbitrator found that the grievant made negative statements of opinion regarding her supervisor. Id. at 4. The Agency further maintains that the award is contradictory because, although the grievant was counseled against making unsubstantiated allegations, the Arbitrator found that there was no basis to conclude that the grievant's statements, made subsequent to the counseling, were [ v59 p908 ] knowingly made. Id. at 5. Finally, the Agency maintains that the Arbitrator was biased because he did not consider Agency evidence that animosity existed between the grievant and other members of the bargaining unit. Id. at 6.

B.     Union's Opposition

      The Union claims that the award is not contrary to any law, rule, or regulation. With regard to AR 690-700, the Union maintains that the Arbitrator correctly found that the counseling sessions were informal discipline and that the grievant's allegedly unsubstantiated allegations could not be used as a basis for formal discipline under AR 690-700. Opposition at 16. With regard to 5 U.S.C. § 7116(d) and the principle of res judicata, the Union maintains that the Arbitrator did not decide any issues relating to the previous ULP and EEO charges. Id. at 16.

      The Union further disputes the Agency's claim that the award is based on nonfacts. In this connection, the Union contends that the Agency's exceptions challenge determinations of facts that were disputed before the Arbitrator and that the Agency has failed to demonstrate that any of the Arbitrator's findings of fact are clearly erroneous, but for which a different result would have been reached. Id. at 10.

IV.     Analysis and Conclusions

A.     The award is not contrary to law.

      The Agency claims that the award is contrary to law in various respects. When an exception involves an arbitration award's consistency with law, the Authority reviews the question of law raised by the exceptions and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     Federal Case Law

      The Agency argues that the award is contrary to case law providing that defamatory statements are actionable, regardless of whether such statements are the speaker's opinion. In two of the decisions cited by the Agency, the appellants were removed for making statements that their supervisors were racist, corrupt, untruthful and incompetent. The Merit Systems Protection Board found that, because the appellants' statements were intentional or unreasonably founded, the appellants had made false and malicious statements about their supervisors. The Court of Appeals for the Federal Circuit upheld the MSPB, finding that substantial record evidence supported the Board's conclusions. See Bieber, 287 F.3d at 1365; and Thompson, 1998 WL 3888858, at *2. In the third decision cited by the Agency, the court noted, but did not address, the lower court's finding that the appellant's statement was knowingly false and not an innocent error. See Holmes, 2000 WL 365400, at *3-4.

      Contrary to the Agency's arguments, the decisions cited by the Agency do not establish that a grievant's statements are actionable regardless of whether they constitute the grievant's opinion. Instead, the cited decisions indicate that a grievant's statements are not actionable as knowingly false or malicious statements if the grievant reasonably believes the statements are true. Here, the Arbitrator found that the "grievant had good reason to fear a conspiracy against her," and that she "truly believe[d] that management [was] out to get her[.]" Award at 15. He concluded that the grievant's statements were not actionable because they did not rise to the level of being knowingly false or malicious. As none of the decisions cited by the Agency demonstrate that the Arbitrator erred in finding that the grievant's statements were not actionable because they represented her reasonable belief regarding the source of the on-going harassment, the Agency has failed to provide a basis for finding that the award is contrary to law. Accordingly, we deny the exception.

2.     Army Regulation 690-700

      The Agency argues that the award is contrary to AR 690-700 because the counseling sessions the grievant received for making unsubstantiated statements about her supervisor were warnings, not informal discipline, and AR 690-700 does not prohibit use of such warnings as a basis for a suspension. AR 690-700 provides, in relevant part, that oral admonishments and written warnings are not considered formal disciplinary action for the purpose of determining a first, second, or third offense under the Table of Penalties. The regulation permits informal discipline to be considered when determining an appropriate penalty. AR 690-700, Chapter 751, Subchapter 1, Section 1-4(c).

      The Arbitrator found that the grievant's counseling sessions were informal discipline and that, under AR 690-700, it would be inappropriate for the prior unsubstantiated [ v59 p909 ] statements to be the subject of both informal discipline, in the form of counseling sessions, and formal discipline, in the form of a suspension. The Arbitrator further found that the grievant's informal discipline may be considered in fashioning an appropriate penalty for a subsequent offense of knowingly making false or malicious statements, but may not be considered formal disciplinary action for the purpose of determining a first, second, or third offense of knowingly making false and malicious statements under the Agency's Table of Penalties. See Award at 14 (citing AR 690-700, Chapter 751, Section 1-4(c)). As the Agency provides no basis for finding that the Arbitrator erred in determining that AR 690-700 prohibited the Agency from using the counseling sessions as a basis for formal discipline, we deny the exception.

3.     Section 7116(d) of the Statute

      The Agency argues that the award is contrary to § 7116(d) of the Statute. In order for a grievance to be precluded under § 7116(d) by an earlier-filed unfair labor practice 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 unfair labor practice; (2) such issue must have been earlier raised under the unfair labor practice procedure; and (3) the selection of the unfair labor practice procedures must have been in the discretion of the aggrieved party. See United States Dep't of Health & Human Servs., Soc. Sec. Admin., Office of Hearings & Appeals, Region II, 36 FLRA 448, 451 (1990).

      Here, the Arbitrator made no findings relating to the prior ULP charge. He referred to the charge only to provide background information. Furthermore, the Agency provides no evidence that the prior ULP charge and the present grievance involve the same issue. As the Agency does not demonstrate that the award is contrary to § 7116(d), we deny the exception.

4.     Res Judicata

      The Agency contends that the award is contrary to the principle of res judicata which precludes "a second litigation of the same issues of fact or law even in connection with a different claim or cause of action." United States Dep't of the Air Force, Scott AFB, Ill., 35 FLRA 978, 982 (1990).

      The record indicates that the EEO case noted by the Arbitrator concerned the grievant's allegation that she was not selected for a promotion in reprisal for her involvement in protected activity. The Arbitrator did not resolve whether the grievant was not selected for a promotion based on her protected activity. Thus, the Agency does not establish that the instant grievance is a second litigation of the same issues of fact or law that were involved in the grievant's EEO claim, and we deny the exception.

B.     The award is not based on nonfacts.

      The Agency argues that the award is based on nonfacts. Additionally, the Agency contends that the award is "contrary to the law and evidence," which we construe as arguments that the award is based on nonfacts. See Exceptions at 1, 2. To establish that an award is based on 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 United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993). The Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties had disputed at the hearing. Id. at 594. Furthermore, disagreements with an arbitrator's determinations regarding the credibility of a witness provide no basis for finding the award deficient. See United States Dep't of Veterans Affairs, Med. Ctr., Northport, N.Y., 49 FLRA 630, 637 (1994) (VA, Northport).

      Before the Arbitrator, the grievant disputed the Agency's argument that she knowingly made false and malicious statements against her supervisor. See Award at 8. Because the grievant's subjective motivation for her statements was disputed before the Arbitrator, the Agency's argument does not demonstrate that the award is based on nonfact. Also, because the parties disputed before the Arbitrator whether the grievant's supervisor suffered harm to his reputation as a result of the grievant's statements, the Agency's argument challenging the Arbitrator's determination that there was no actual harm to the supervisor's reputation provides no basis for finding that the award is based on nonfact. Accordingly, we deny the exceptions.

      In addition, the Agency argues that the Arbitrator's decision to credit the grievant's testimony that any negative statements she made were her opinion is based nonfact because the grievant's testimony was untruthful and should have been disregarded. This argument challenges the Arbitrator's credibility determinations, and is an attempt to relitigate the case before the Authority. See United States Small Bus. Admin., Charlotte Dist. Office, Charlotte, N.C., 49 FLRA 1656, 1661 (1994); VA, Northport, 49 FLRA at 637. As such, this exception provides no basis for finding that the award is deficient as based on nonfact, and we deny the exception. [ v59 p910 ]

C.     The award is not incomplete, ambiguous, or contradictory.

      For an award to be found deficient as incomplete, ambiguous, or contradictory, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. See AFGE, Local 3342, 58 FLRA 448, 449 (2003) (AFGE, Local 3342).

      The Agency argues that the award is contradictory because the Arbitrator discredited part, but not all, of the grievant's testimony. The Agency also argues that the award is contradictory because the Arbitrator considered evidence that the grievant had been counseled against making unsubstantiated allegations, but concluded that the grievant's statements were not knowingly made. These arguments do not explain how implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. Accordingly, the Agency has not established that the award is deficient as incomplete, ambiguous, or contradictory, and we deny the exceptions.

D.     The Arbitrator was not biased.

      To demonstrate that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See AFGE, Local 3342, 58 FLRA at 450. An arbitrator's decision to credit one party's testimony over the other party's testimony is not sufficient to demonstrate that the Arbitrator is biased. See Nat'l Ass'n of Gov't Employees, Local R3-32, 59 FLRA 458, 460 (2003) (NAGE, Local R3-32).

      The Agency maintains that the Arbitrator was biased because he did not consider Agency testimony establishing that animosity existed between the grievant and other members of the bargaining unit. This argument challenges the Arbitrator's decision to credit the grievant's testimony over other witness testimony. Consistent with precedent, the Agency does not demonstrate that the Arbitrator was biased, and we deny the exception. See NAGE, Local R3-32, 59 FLRA at 460.

V.     Decision

      We deny the Agency's exceptions.



Footnote # 1 for 59 FLRA No. 164 - Authority's Decision

   Article 9, Section 1 of the parties' agreement provides that, "[d]isciplinary and adverse actions must be based on just cause and be fair and equitable." See Opposition, Attachment at 4 (Union's Closing Brief).


Footnote # 2 for 59 FLRA No. 164 - Authority's Decision

   AR 690-700 provides the suggested range of penalties for the charge of "[k]nowingly making false or malicious statements against co-workers, supervisors, subordinates, or government officials with the effect of harming or destroying the reputation, authority, or official standing of that individual or organization