United States, General Services Administration, Northeast and Caribbean Region, New York, New York (Agency) and American Federation of Government Employees, Council 236, Region 2 (Union)

[ v60 p864 ]

60 FLRA No. 160

UNITED STATES
GENERAL SERVICES ADMINISTRATION
NORTHEAST AND CARIBBEAN REGION
NEW YORK, NEW YORK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 236, REGION 2
(Union)

0-AR-3900

_____

DECISION

April 18, 2005

_____

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 Joan Ilivicky 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. [n1] 

      The Arbitrator found no just cause for a 14-day suspension and she mitigated the suspension to a letter of warning. For the following reasons, we deny the Agency's exceptions.

II.      Background and Arbitrator's award

      The grievant is the Union Vice President. On March 27, 2003, the grievant requested that a certain Labor Relations Specialist (LRS) sign a notice of intention to go to impasse. Near the end of the work day, the LRS had not signed the notice. In order to obtain the LRS's signature, the grievant and the Union President entered a conference room where the LRS was engaged in unrelated negotiations. A dispute arose between the grievant and another Agency representative attending the negotiations, which prompted an investigation. As a result, the grievant was charged with disorderly conduct and providing a false statement during an official inquiry, and he was suspended for 14 days without pay.

      A grievance was filed alleging that the suspension was not for just cause because the grievant's conduct constituted protected activity. The grievance also alleged that the Agency misapplied the Douglas factors and disregarded the rules of progressive discipline. [n2]  In this connection, the grievance alleged that the Agency should have considered the grievant's prior promotions, years of service, and unblemished disciplinary record. The grievance was unresolved and submitted to arbitration, where the Arbitrator resolved the following issues: "Was there just cause for the fourteen (14) day suspension of [the grievant]? If not, what shall be the remedy?" Award at 2.

      Initially, the Arbitrator made several findings regarding the circumstances surrounding the incident between the grievant and the Agency representative. According to the Arbitrator, after the grievant entered the conference room, the Agency representative became upset and began "screaming" at the Union President in protest of the grievant's presence. Id. at 4. The grievant then started to leave the room but, on his way out, he told one of the Union representatives to "[h]ang in there, brother[.]" Id. at 5.

      The Arbitrator further found that, after the grievant left the room, the Agency representative said to the Union President, "don't you ever pull a stunt like that again. I'll have your job. I'll discipline you." Id. Having heard the comments, the grievant re-entered the room and told the Agency representative that "the issue was personal between the two of them and it should be dealt [with] by them as men away from other people." Id. When the Agency representative responded that he was not talking to the grievant, the grievant "moved to the [m]anagement side of the table, pointed his finger" at the Agency representative and reiterated that they should "settle this like men away from others." Id. (quoting Transcript at 318). The Arbitrator found that, at that point, the "[g]rievant heard [the Agency representative] [ v60 p865 ] state in a `barely audible tone'" a particular racial epithet. Id. Subsequently, the "[g]rievant's expression changed, he appeared to be upset and was escorted out of the room by" two Union representatives. Id.

      The Arbitrator found that "[m]onths later" an investigation was conducted, in which the grievant and each person attending the negotiations were asked to provide a statement. Id. at 9, 14. The investigation was concluded with the Agency finding that the grievant had acted in a "hostile" and "threatening" manner during the incident and that his allegation that the Agency representative made a "racial remark" to him was "not supported by the statements of other individuals present that day." Id. at 7.

      According to the Arbitrator, the Agency charged the grievant with providing a false statement during an official inquiry because the Agency found that the "[g]rievant's testimony was not supported by other unidentified persons present at the time." Id. at 23. The Arbitrator found, however, that the Agency's determination was "unsupported by the totality of the evidence" because the Agency's investigation was "inadequate, incomplete and untimely[.]" Id. at 23-24. According to the Arbitrator, because the investigation was untimely, the witnesses' memories may have faded, which rendered "suspect" their claims that the racial remark was not spoken. Id. at 24.

      As to the charge of disorderly conduct, the Arbitrator found that the grievant's presence in the conference room and his comment to the Union representative to "hang in there" did not warrant discipline because they were protected activities. Id. at 18-19. In this connection, the Arbitrator explained that "the Agency is left with a single burden, namely, to demonstrate the existence of a `physical response' in the instant matter." Id. at 16. Nevertheless, the Arbitrator also found that, "[i]nasmuch as [the g]rievant's business was completed when he secured [the LRS's] signature," id. at 20, his actions thereafter did not constitute "protected activity[.]" Id. at 25. As such, the Arbitrator found that the Authority's "flagrant misconduct" precedent was "inapplicable[.]" Id. The Arbitrator determined that "the issue . . . is whether [the g]rievant's behavior violated the rules of conduct set forth in [the parties'] [c]ollective [b]argaining [a]greement[.]" Id. at 27.

      The Arbitrator determined that, upon re-entering the room, the grievant's comments to the Agency representative together with pointing his finger at the Agency representative was misconduct that warranted discipline. In this connection, the Arbitrator found that the grievant's actions caused two Agency representatives to be "fearful" and that the Agency had just cause to discipline the grievant for his behavior. Id. at 22, 28.

      However, the Arbitrator found that the 14-day suspension was "excessive." Id. at 28. In this regard, the Arbitrator applied the Douglas factors and determined that the grievant's discipline "should be minimal" given his "seventeen years of unblemished service" and his two promotions. Id. at 27. The Arbitrator explained that she was "bound by the rules governing progressive discipline" as set forth in Article 32, § 3 of the parties' agreement. [n3]  Id. Applying those rules, the Arbitrator mitigated the 14-day suspension to a letter of warning.

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency argues that the award is contrary to law because the Arbitrator "impose[d] a legal burden on the Agency . . . to demonstrate the existence of a `physical response'" from the grievant during the incident at issue. Exceptions at 7-8 (quoting Award at 16). According to the Agency, this burden does not apply because the grievant was not engaged in protected activity. The Agency asserts that the Arbitrator also erred by finding that the Agency conceded that the burden was applicable. In addition, the Agency argues that the Arbitrator imposed a nonexistent contractual burden to show that the grievant engaged in conduct that violated the parties' agreement. According to the Agency, the parties' agreement does not contain any rules concerning appropriate or inappropriate behavior.

      The Agency also argues that the award fails to draw its essence from Article 34, § 10.D. of the parties' agreement because the Arbitrator did not apply the standard of review prescribed by that provision. [n4]  According to the Agency, because it is undisputed that the Agency considered the Douglas factors before imposing the 14-day suspension, the Arbitrator was required to either sustain the discipline or find that the penalty was arbitrary, capricious, or a clear error of judgment. The [ v60 p866 ] Agency claims that the Arbitrator did not make the necessary findings to overturn the discipline and, in fact, made findings that should have resulted in her sustaining the discipline with respect to the second charge.

      Finally, the Agency argues that the award is based on nonfacts. Specifically, the Agency asserts that the Arbitrator incorrectly found that the Agency conducted an investigation "[m]onths" after the grievant alleged that a racial remark was made. Exceptions at 14. The Agency also disputes the Arbitrator's conclusion that the Agency followed up "at an unidentified point in time after receipt of [g]rievant's statement" that the Agency representative made a racial remark. Id. at 15 (quoting Award at 24). Also, the Agency claims the Arbitrator erred in finding that the Agency relied on statements from "unidentified persons[,]" when in fact, it identified the witnesses as those who were present during the incident. Id. (quoting Award at 23).

B.      Union's Opposition

      The Union disputes the Agency's claim that the award is contrary to law. According to the Union, after the Arbitrator determined that the grievant's actions were not protected activities, she correctly resolved the matter as a "traditional disciplinary case" under the parties' agreement. Opposition at 11-12. The Union also disputes that the award fails to draw its essence from the parties' agreement, and asserts that the Arbitrator "repeatedly made reference to the parties' . . . agreement" and applied the Douglas factors, consistent with Article 32, § 3(D) of that agreement. Id. at 12. Finally, noting that the incident at issue occurred in March and the investigation occurred in August, the Union disputes the Agency's claim that the award is based on a nonfact. Id. at 15.

IV.      Analysis and Conclusions

A.      The Award Is Not Contrary To Law

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception 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 an arbitrator's legal conclusions are consistent with the applicable standard of law. See DOD, Dep'ts of the Army and 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.

      The Agency claims that the Arbitrator improperly imposed "burdens" of proof required in unfair labor practice (ULP) cases "regarding the scope of protected activity[.]" Exceptions at 8. While arbitrators are required to apply a statutory burden of proof when resolving an alleged ULP, see, e.g, AFGE, Local 940, 52 FLRA 1429, 1438-39 (1997), the Arbitrator in this case found, as the Agency points out, that the "[g]rievant was not engaged in protected activity[.]" Award at 25. Therefore, in assessing the propriety of the discipline, the Arbitrator applied the burden of proof established "under the disciplinary rules" of the parties' agreement. Award at 26. The Authority has long held that, unless a specific burden of proof is required, an arbitrator may establish and apply whatever burden the arbitrator considers appropriate in resolving claims under a collective bargaining agreement. See, e.g., Bureau of Indian Affairs, 25 FLRA 902, 906 (1987). Consequently, the Agency has not established that the Arbitrator imposed an improper burden of proof, and the award is not contrary to law. [n5] 

B.      The Award Draws Its Essence from the Parties' Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576. [ v60 p867 ]

      According to the Agency, the parties' agreement does not contain any rules governing behavior and, therefore, the Arbitrator erred by requiring it to show that the grievant's behavior violated the parties' agreement. Contrary to the Agency's claim, the parties' agreement expressly incorporates rules that govern behavior. Specifically, Article 32, § 1.A. of the parties' agreement provides that: "The expected behavior of GSA employees is set forth in the Standards of Conduct and GSA Penalty Guide. Actions or behavior which are contrary to these principles may be subject to the Agency disciplinary process." Joint Ex. 1 at 90. Consequently, the Agency's claim is unsupported and does not demonstrate that the award is irrational, unfounded, or implausible, or that it evidences a manifest disregard of the parties' agreement.

      The Agency also argues that, because it considered the Douglas factors, the Arbitrator was required by Article 34, § 10(D) of the parties' agreement to find that the 14-day suspension was arbitrary, capricious, or a clear error of judgment. Although the Arbitrator did not expressly make this finding, she clearly assessed the discipline under the Douglas factors, and rejected the Agency's assessment based on those factors. See Award at 27. The Arbitrator also rejected the Agency's choice of discipline because she found that the Agency did not establish the charge of providing a false statement. Id. at 24. Consequently, we conclude that the Arbitrator implicitly found that the 14-day suspension was "arbitrary, capricious, or a clear error of judgment[,]" as required by the parties' agreement. As the Agency's arguments do not rebut this implicit finding, we conclude that the Agency has not demonstrated that the award fails to draw its essence from the parties' agreement. See, e.g., United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, 55 FLRA 152, 156 (1999) (award not deficient under essence standard where exceptions did not dispute arbitrator's implicit findings).

C.      The Award Is Not Based On a Nonfact

      To establish that an award 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 NFFE, Local 1984, 56 FLRA 38, 41 (2000). However, 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. See id.

      As for the Agency's claim that the Arbitrator erred by finding that it conceded it had a burden to show that there was a "threat of physical confrontation[,]" Exceptions at 9, whether or not the Agency conceded this fact is not central to the award because the Arbitrator did not impose this burden upon the Agency. As for the Agency's claim that the Arbitrator erred by finding that it relied on statements from unidentified persons, this fact also is not central to the award. In this regard, the Arbitrator rejected the statements concerning the derogatory racial remark because she found that the "memories" of the people providing the statements "may have faded[,]" not because the people making the statements were unidentified. Award at 24. As such, even if erroneous, these facts do not establish that the award is deficient.

      Furthermore, the Agency misreads the award in claiming that the Arbitrator found that the investigation occurred months after the allegation of a racial remark. In fact, the Arbitrator found that the investigation took place months after the incident, not after the allegation that a racial remark was made. See Award at 9, 14. This factual finding is supported by the record, which shows that the investigation was not initiated until July 31, 2003, when a member of management sent the grievant's immediate supervisor an email instructing him to "conduct an inquiry regarding the alleged incident that occurred on March 27, 2003[.]" Agency Ex. 1. Further, inasmuch as the Agency is challenging the Arbitrator's conclusion that the investigation was untimely, and her reference to an "unidentified point in time," the arguments provide no basis for finding the award deficient because the timeliness of the investigation was disputed below. Exceptions at 15. Consequently, the Agency has not established that the award is based on any nonfacts.

V.      Decision

      The Agency's exceptions are denied. [ v60 p868 ]


Appendix

ARTICLE 32 - DISCIPLINE

Section 1.       Coverage, Definition and Policy

A.      The expected behavior of GSA employees is set forth in the Standards of Conduct and GSA Penalty Guide. Actions or behavior which are contrary to these principles may be subject to the Agency disciplinary process.

B.      Any discipline taken will be consistent with the nature and severity of the offense, with the primary goal to correct rather than punish behavior. If counseling and attempts to modify behavior are unsuccessful, or in instances of severe misconduct, the Employer may terminate an employee.

. . .

Section 3.      Progressive Discipline and Application of the GSA Penalty Guide

A.      The Parties recognize that disciplinary actions shall be progressive in nature to correct an offending employee. Major offenses may be cause for severe action, including removal, irrespective of whether previous discipline has been taken against the offending employee.

B.      The GSA Penalty Guide is intended to help ensure reasonable uniformity in administering disciplinary action. It is expected that penalties will generally/normally conform to the Guide, since the range of penalties provide latitude for the exercise of judgment. However, in unusual circumstances, a greater or lesser penalty may be imposed unless the violation is one for which the penalty is specified by law.

C.      When the past record involves an offense or offenses unrelated to a present offense, or when two or more unrelated offenses have occurred at the same time, a greater penalty than would be imposed for a first offense will normally/generally be appropriate. The severity of the penalty will take into account the total number of offenses, but will also involve a careful judgment as to the extent to which the several infractions indicate a pattern of irresponsible behavior.

D.      A number of factors are relevant for the Employer's consideration in determining the appropriateness of a penalty. Those generally/normally recognized as relevant include the following:

1.     the nature and seriousness of the offense and its relation to the employee's position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
2.     the employee's job level and type of employment, including supervisory or fiduciary role, contacts with the public and prominence of the position;
3.     the employee's past disciplinary record;
4.     the employee's past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
5.      the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon the supervisor's confidence in the employee's ability to perform assigned duties;
6.      consistency of the penalty with those imposed upon other employees for the same or similar offenses;
7.      consistency of the penalty with any applicable Agency table of penalties;
8.      the notoriety of the offense or its impact upon the reputation of the Agency;
9.      the clarity with which the employee was put on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
10.      potential for the employee's rehabilitation;
11.      mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
12.      the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Not all these factors will be pertinent in every case. Some of the factors may weigh in the employee's favor, while others may not or may even constitute aggravating circumstances. Selection of an appropriate penalty involves a responsible balancing of the relevant factors in the individual case.

. . .

Section 6. Time Limits

Disciplinary action must be timely. Timely does not mean that disciplinary action should be taken in haste.

Joint Ex. 1 at 90-92.



Footnote # 1 for 60 FLRA No. 160 - Authority's Decision

   Subsequent to the award in this case, the Arbitrator issued an award of attorney fees. Exceptions to the attorney fee award are pending before the Authority and will be resolved in a separate decision.


Footnote # 2 for 60 FLRA No. 160 - Authority's Decision

   The Douglas factors, enunciated by the Merit Systems Protection Board in Douglas v. Veterans Admin., 5 MSPR 280 (1981), govern the appropriateness of penalties in adverse actions under 5 U.S.C. §§ 4303 and 7512. See United States Dep't of the Army, III Corps and Fort Hood, Fort Hood, Tex., 46 FLRA 609, 613 (1992). Generally, arbitrators are not required by law to apply the Douglas factors for adverse actions that do not fall under these statutory provisions. See id. However, Article 32, § 3 of the parties' agreement requires consideration of the Douglas factors. See infra at n.3.


Footnote # 3 for 60 FLRA No. 160 - Authority's Decision

   Relevant portions of Article 32 are set forth in the appendix.


Footnote # 4 for 60 FLRA No. 160 - Authority's Decision

   Article 34, § 10.D. of the parties' agreement provides:

In evaluating adverse actions based on misconduct, the arbitrator will uphold the Agency's choice of penalty so long as the penalty was based on a consideration of all the relevant factors (as listed in Article 32, [§] 3D) and the decision reached by the [Agency] is not arbitrary, capricious or a clear error of judgment.

Joint Ex. 1 at 106.


Footnote # 5 for 60 FLRA No. 160 - Authority's