American Federation of Government Employees, Local 987 (Union) and United States, Department of the Air Force, Warner Robins, Air Logistics Center, Warner Robins, Georgia (Agency)

[ v61 p245 ]

61 FLRA No. 47

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 987
(Union)

and

UNITED STATES
DEPARTMENT OF THE
AIR FORCE, WARNER ROBINS
AIR LOGISTICS CENTER
WARNER ROBINS, GEORGIA
(Agency)

0-AR-3925

_____

DECISION

September 16, 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 Craig L. Williams filed by the Union under § 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 to the Union's exceptions.

      The Arbitrator denied the grievance alleging that the grievant's fourteen-day suspension was without just cause. For the reasons set forth below, we dismiss the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant was suspended for fourteen days for posting a defamatory article on a bulletin board and for public contempt of a supervisor. The grievant filed a grievance over the suspension (the suspension grievance). [n1]  The parties were unable to resolve the suspension grievance and it was submitted to arbitration, where the Arbitrator stated the issue to be: "[W]hether there was just cause for [g]rievant's 14-day suspension; and if not, what should be the remedy." Award at 2. The Arbitrator determined that there were three questions to be resolved. "First, did the [g]rievant make comments regarding fellow employees. Second, if so, are they defamatory. Third, if so, is the 14-day suspension just or not." Id. at 5.

      With regard to the first question, the Arbitrator determined that the grievant posted the disputed article on the bulletin board and that the grievant had written the article about two other employees. As such, the Arbitrator found that the grievant had made comments about fellow employees. Regarding the second question, the Arbitrator found that the grievant's comments were defamatory because they "impugn[ed]" the employees' "character, honest[y], integrity, and reputation." Id. at 8. With respect to the third question, the Arbitrator noted that he ruled "at the outset of the arbitration hearing that the first charge [public contempt of a supervisor] was not arbitrable[.]" [n2]  Id. Nevertheless, he determined that, even without this charge, the grievant's posting of the article justified the fourteen-day suspension. See id 8-9. In this connection, the Arbitrator found that the grievant's action disrupted the Agency's "workforce, productivity, and efficiency" and was "thoughtless, immature, hurtful, and serious misconduct." Id. at 9. Accordingly, the Arbitrator denied the grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union claims that the grievant was denied a fair hearing because the Arbitrator refused to address the claim that the fourteen-day suspension was taken in reprisal for the grievant's union activity. See Exceptions at 2. The Union also claims that the Arbitrator erred in finding that the Union ULP precluded the grievance over the public contempt of a supervisor charge because "the Union filed the Unfair Labor Practice and the grievant filed the grievance." Id. at 6. The Union further claims that there was no just cause for the grievant's fourteen-day suspension. See id. at 7. In this regard, the Union asserts that the Arbitrator limited his [ v61 p246 ] analysis to three issues and disregarded the Union's contentions that the fourteen-day suspension was an "act[] of reprisal against the grievant for his union activities" and that the Agency had violated the grievant's right to freedom of speech. See id.

B.      Agency's Opposition

      The Agency asserts that the exceptions should be dismissed. According to the Agency, the grievant was a party to a settlement agreement, which waived "any claims arising out of [the grievant's] employment" with the Agency. See Opposition at 2. The Agency notes that the settlement agreement excepts the removal grievance from the waiver of claims, but not the suspension grievance, thereby supporting the conclusion that the suspension grievance was waived. See id. In anticipation of a claim by the Union that the settlement agreement is not binding because the Union was not a party, the Agency contends that the grievance was filed by the grievant, not the Union, under the provision of the parties' agreement providing for employee grievances and that the remedies sought in the grievance were personal to the grievant and did not involve the Union. See id at 2-3.

      With regard to the merits of the exceptions, the Agency disputes the Union's claim that the Arbitrator failed to consider the claim that the grievant's discipline was a result of union animus and asserts that the award indicates that the Arbitrator "discounted the grievant's claim of reprisal[.]" Id. at 4. In addition, the Agency contends that the Union's challenges to the Arbitrator's arbitrability determination and finding of just cause are "deficient." Id. at 4, 5.

IV.     Order to Show Cause and Union Response

      Based on the Agency's claim concerning the settlement agreement, the Authority issued an Order to Show Cause directing the Union to state why the exceptions should not be dismissed. See Show Cause Order dated April 5, 2005 at 1-2. In response, the Union disputes that the settlement agreement, resolving an age discrimination suit, covered the suspension grievance. In this regard, the Union provides an affidavit from the attorney who represented the grievant during the settlement agreement negotiations, asserting that "the language of the settlement agreement was intended to apply to claims within the scope of claims pending in the [civil] action and to be silent on the issue of grievances." Union's Response to Show Cause Order dated April 19, 2005 (Response) at 4. The Union also asserts that it was not a party to the settlement agreement and that "[t]he resolution of an unrelated civil suit does not resolve everything the Union complained of in the case of the fourteen day suspension." Id. at 3. The Union further asserts that exceptions should not be dismissed because the fourteen-day suspension "was a necessary first step" in the grievant's termination and, if the Authority reverses the suspension, then "the appropriate progressive punishment" for the grievant would be an action "less severe" than removal. Id. at 5.

V.      The Union's exceptions are not properly before the Authority.

      Under Authority precedent, settlement agreements excluding a grievance from the negotiated grievance procedure and arbitration process are enforceable. See AFGE, Local 1592, 57 FLRA 882, 883 (2002); AFGE, Local 2207, 52 FLRA 1477, 1481 (1997). Here, under the explicit terms of the settlement agreement, the grievant agreed to release "all claims and causes of action, whether administrative or judicial" that could have been asserted by the grievant against the Agency "with respect to, or in connection with, or which arise out of . . . his employment[.]" Response, Attachment 2 at 3-4. The terms of the agreement provide that the "sole and exclusive claim excluded" from the general release and wavier of claims is the "grievance submitted by [the grievant] under the negotiated grievance procedure on December 6, 2004, only to the extent it challenges, on the merits, the decision to remove him from federal service dated November 17, 2004[.]" Id. at 4.

      The settlement agreement unambiguously states that the "sole and exclusive claim excluded" from the general waiver of claims is the removal grievance. Response, Attachment 2 at 3-4. It is undisputed tha