[ v34 p385 ]
34:0385(72)AR
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.