34:0385(72)AR - U.S. AIR FORCE LOGISTICS COMMAND, TINKER AIR FORCE BASE OKLAHOMA CITY, OKLAHOMA and AFGE, LOCAL 916 AFL-CIO -- 1990 FLRAdec AR
[ v34 p385 ]
The decision of the Authority follows:
34 FLRA NO. 72 U.S. AIR FORCE LOGISTICS COMMAND TINKER AIR FORCE BASE OKLAHOMA CITY, OKLAHOMA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 916 AFL-CIO 0-AR-1582 DECISION January 19, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on an exception to the award of Arbitrator John P. Owen, as clarified. In his original award, the Arbitrator denied the grievance over the reprimand of the grievant for failing to comply with a lawful order from a security police officer. American Federation of Government Employees Local 916 (the Union) filed an exception to the award under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. In U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, 32 FLRA 252 (1988) (Tinker Air Force Base), the Authority remanded the award to the parties to have them obtain a clarification of the award from the Arbitrator because the Authority was unable to determine whether the Arbitrator sustained disciplinary action for conduct which is protected under the Statute. In the award as clarified, the Arbitrator explained that the grievance was denied because the grievant attempted to invoke "self-help" and because the reprimand was just and proper. The Union filed an exception to the award as clarified. The Department of the Air Force (the Agency) filed an opposition to the exception on behalf of the U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma (the Activity). We conclude that the award is deficient because it is contrary to section 7102 of the Statute. II. Background Neither the original award of the Arbitrator nor the award as clarified is accompanied by any opinion or discussion of the award or the grievance. Accordingly, the background of this case is based on the record presented by the parties in their submissions. The grievant, a Union official, was issued a letter of reprimand for failing "to comply with a lawful order from a security policeman" on April 16, 1987. Exceptions at 4. The reasons stated for the reprimand concerned conduct of the grievant in attempting to personally serve copies of unfair labor practice charges filed by the Union on Activity supervisors who were named in the charges. The grievant's actions took place in a work area after completion of the grievant's workday. While the grievant was serving the charges, he was confronted by several supervisors who questioned what he was doing. When the grievant refused to leave the work area, he was detained and security police were called to remove the grievant from the area. The grievant then refused the instruction of a security police officer to leave the area. The grievant explained to the officer that he was acting on behalf of an exclusive representative under the Statute. After another security police officer arrived, the grievant agreed to depart the area. In response to the proposed reprimand, the grievant maintained that the reprimand was not warranted because, among other things, he: (1) was engaged in activities as a Union official; (2) was not in a restricted area; and (3) was not interfering with the work of bargaining-unit employees. After the grievant was issued the letter of reprimand, a grievance was filed over the reprimand. Subsequently, the parties submitted the issue of whether the reprimand was just and proper to expedited arbitration. Under the expedited arbitration procedures of the parties' collective bargaining agreement, the arbitrator must render a written award postmarked not later than 3 workdays after the conclusion of the arbitration hearing. III. Arbitrator's Original Award The entire expedited award was as follows: "The grievance is denied." The award was not accompanied by any opinion or discussion of the award. IV. Authority's Decision in 32 FLRA 252 In its exception to the original award, the Union contended that the award was contrary to law and the collective bargaining agreement. The Authority concluded that it was unable to determine whether the Arbitrator sustained discipline for conduct which is protected by the Statute. Accordingly, the Authority remanded the award to the parties to have them request the Arbitrator to clarify and interpret his award to specify: (1) Whether the grievant was disciplined for conduct while he was engaged in activities protected by the Statute and, if so, (2) the basis on which the employee's conduct was removed from the protection of the Statute. Tinker Air Force Base, 32 FLRA at 255. V. Arbitrator's Award as Clarified In response to the remand, the Arbitrator clarified the original award. The entire clarification and interpretation of the original award is as follows: (1) The Grievance in the instant case was denied because the Grievant attempted to invoke self-help rather than to comply with a clear order and to Grieve (sic) later. (2) In the Arbitrator's judgement (sic), the reprimand issued to the Grievant was just and proper, (he was disturbing the work place and not following previous customary procedures). VI. Positions of the Parties A. The Union The Union contends that the Arbitrator's award, as clarified, is contrary to law and is in excess of the Arbitrator's authority. The Union argues that the award is deficient because (1) the grievant did not disobey a lawful order of a police officer and (2) the conduct for which the Arbitrator sustained discipline was protected by the Statute. The Union also argues that the Arbitrator exceeded his authority by finding that the reprimand was for just cause. B. The Agency The Agency contends that the award, as clarified, is not contrary to section 7102 of the Statute. The Agency argues that the Statute does not protect a union official from discipline for insubordination. The Agency asserts that by resorting to "self-help," instead of obeying the police officer's order and resorting to the negotiated grievance procedure, the grievant removed his conduct from the protection of the Statute. Opposition at 4. The Agency cites Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas and American Federation of Government Employees, Local 1617, AFL - CIO, 13 FLRA 66 (1983) (Kelly Air Force Base), as support for its position that "self-help" is not protected activity. VII. Analysis and Conclusions We conclude that the award is contrary to section 7102 of the Statute because the conduct for which the Arbitrator sustained discipline constituted protected activities under the Statute. Although section 7102 of the Statute guarantees employees the right to engage in activities on behalf of an exclusive representative without fear of penalty or reprisal, an employee's involvement in union activities does not immunize the employee from discipline. Veterans Administration Medical Center and American Federation of Government Employees, Local 2207, 32 FLRA 777, 780-81 (1988); Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri and American Federation of Government Employees (AFL - CIO), Local No. 3399, 14 FLRA 103, 104 (1984). Management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute includes the right to discipline a union representative for activities which "are not specifically on behalf of the exclusive representative or which exceed the boundaries of protected activity such as flagrant misconduct." Long Beach Naval Shipyard, Long Beach, California and Long Beach Naval Station, Long Beach, California, 25 FLRA 1002, 1005 (1987). An arbitration award which sustains discipline for conduct which is protected under the Statute is deficient because the award is contrary to law. See Overseas Federation of Teachers and Department of Defense Dependents Schools, Mediterranean Region, 21 FLRA 757 (1986) (an arbitration award which restrains and interferes with protected employee rights is deficient as contrary to section 7102 of the Statute). The conduct for which the grievant was disciplined occurred while the grievant was serving copies of unfair labor practice charges filed by the Union on the Activity supervisors who were named in the charges. Neither party disputes that the grievant's actions were undertaken on behalf of the Union. In addition, neither party disputes that the service of unfair labor practice charges constitutes protected activity. Rather, the Agency argues that the grievant's failure to comply with a clear order of a police officer while the grievant was attempting to serve copies of the unfair labor practice charges constituted insubordination and, therefore, was not protected activity. A refusal to comply with a management directive constitutes insubordination. See, for example, H. Roberts, Roberts Dictionary of Industrial Relations (3d ed. 1986). A refusal to comply with an order may also be referred to as "self-help." See, for example. "Use of Grievance Procedure Versus Self - Help," F. Elkouri & E. Elkouri, How Arbitration Works 199 (4th ed. 1985) ("(E)mployees must not take matters into their own hands but must obey orders . . . , then turn to the grievance procedure for relief."). The Authority does not condone an employee's refusal to comply with orders. Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278, 280 (1986) ("Self help--that is, disobeying supervisory instructions--cannot be condoned if the purposes and policies of the Statute are to be met."). The Arbitrator found that the grievant "attempted to invoke self-help rather than to comply with a clear order and (g)rieve later." The Union argues that the grievant did not "disobey a lawful order because none was given." Union's Exceptions at 5. This argument constitutes disagreement with the Arbitrator findings of fact. Disagreement with an arbitrator's findings of fact provides no basis for finding an award deficient. See Marine Corps Base, Civilian Personnel Division, Camp Lejeune, North Carolina and American Federation of Government Employees, AFL - CIO, Local 2065, 33 FLRA 397 (1988). Based on the Arbitrator's finding that the grievant failed to comply with a clear order, we conclude that the grievant's initial refusal to leave the work area constituted insubordination. We reject the Agency's assertion that because the grievant's actions constituted insubordination, the actions cannot be protected under the Statute. Because the grievant was disciplined for activities he performed on behalf of the Union, the issue is not merely whether the grievant was insubordinate. It must be determined whether the grievant's actions constituted flagrant misconduct: whether the actions were "of such an outrageous and insubordinate nature to remove them from the protection of the Statute(.)" Federal Aviation Administration, St. Louis Tower, Bridgeton, Missouri, 6 FLRA 678, 687 (1981). Compare Kelly Air Force Base, 13 FLRA 66, 66 (1983) (where the Authority sustained discipline of an employee who was not acting as a union representative for engaging in "the self help of abruptly leaving (a counseling session) and refusing to be counseled."). In our view, the grievant's actions were not of such an outrageous and insubordinate nature so as to remove him from the protection of the Statute. The grievant explained to the supervisors and security officers who questioned him that he was engaged in serving unfair labor practice charges, an activity protected by the Statute. There is no basis in the record on which to conclude that the grievant was impolite, antagonistic, or disrespectful in his refusal to leave the work area. Although we do not condone the grievant's conduct, we are not persuaded that the grievant's refusal to immediately obey the order to depart was so insubordinate as to constitute flagrant misconduct. See Department of Treasury, Internal Revenue Service, Memphis Service Center, 16 FLRA 687 (1984) (where the Authority adopted the judge's finding that although the union representative exhibited disrespect, the conduct did not constitute flagrant misconduct); Philadelphia Naval Shipyard, 4 FLRA 255 (1980) (where the Authority adopted the judge's findings that a union official was engaged in protected activity and that the official's failure to have an escort in a secure location and his retention of visitor passes to use during future visits, both in violation of Shipyard security regulations, did not constitute flagrant misconduct). Compare Veterans Administration Medical Center and American Federation of Government Employees, Local 2207, 32 FLRA 777 (1988) (where the Authority denied exceptions to an arbitration award sustaining the discipline of the grievant, a union steward, for disruptive behavior and failing to comply with procedures of the collective bargaining agreement regarding contacts between stewards and employees); United States Forces Korea/Eighth United States Army, 17 FLRA 718 (1985) (where the Authority adopted the judge's finding that the local union president's statements criticizing the installation commander were so derogatory or defamatory so as to lose the protection of the Statute); Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71 (1985) (where the Authority adopted the judge's finding that a union representative's remarks constituted flagrant misconduct which justified her discipline because the remarks were a deliberate, excessive abuse of supervisory staff based on personal antagonism). The grievant's activity was protected by the Statute. Therefore, the grievant may not be disciplined for that activity. See Overseas Federation of Teachers and Department of Defense Dependents Schools, Mediterranean Region, 21 FLRA 757 (1986) (where the Authority found that an arbitrator interfered with protected employee rights by requiring the union to cease and desist from the protected activity and file a grievance instead). As the award sustains discipline for conduct which is protected by section 7102 of the Statute, the award is contrary to law and must be modified to sustain the grievance. 1 See Federal Correctional Institution and American Federation of Government Employees, AFL - CIO, Local 1286, 12 FLRA 34 (1983). VIII. Decision The Arbitrator's award is vacated and the following is substituted in its place: The grievance is sustained. The Activity is directed to rescind the grievant's reprimand and to remove any mention of it from the grievant's personnel files.