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The decision of the Authority follows:
50 FLRA No. 39
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 28, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Barry Feiden filed by the Agency under section 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.(1)
The Arbitrator sustained a grievance contesting the grievant's 7-day suspension for allegedly making false, malicious and unfounded statements against other employees. The Arbitrator concluded that the grievant's statements were protected under the Statute.
For the following reasons, we conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, the Union's president, distributed a letter through the inter-office mail system to bargaining unit employees in which he repeatedly alleged, among other things, that two named supervisors had lied about certain matters.(2) Subsequently, the grievant was suspended for "[m]aking false, malicious, and unfounded statements against other employees with disregard for, or intent to damage, their reputation, authority and official position." Award at 2. The grievant filed a grievance claiming that he was suspended for engaging in activity protected by the Statute. When the grievance was not resolved, it was submitted to arbitration on the following issues, as stipulated by the parties:
1. W[ere] the [grievant's] actions protected by the [Statute]?
2. Did [the grievant's] action constitute '[f]lagrant misconduct' which would allow disciplinary action to be taken against him by the Employer?
3. Does the Arbitrator have the authority to rule on the issue of severity of penalty? If so, was [the grievant] suspended by the Agency for just cause? If not suspended for just cause, what shall the remedy be?
Id. at 1-2.
Although the Agency contended that, under the parties' collective bargaining agreement, the Union is required to submit a copy of all material prior to posting or distribution, the Arbitrator stated that it was his "belief" that this requirement pertained only to material posted on a bulletin board and not to the distribution of other materials or information by the Union. Id. at 7. Moreover, the Arbitrator determined that the "method of how the letter was delivered is not germane to this arbitration[,]" and that the issue before him was "whether the contents of the letter . . . constitute protected activities." Id. at 7, 8.
The Arbitrator found, as relevant here, that although the grievant's statements contained excessively abusive language, they did not constitute flagrant misconduct and, therefore, were protected under section 7102 of the Statute.(3) Accordingly, the Arbitrator sustained the grievance and directed the Agency to pay the grievant backpay, reinstate any benefits that he may have lost as a result of the disciplinary action, and remove the disciplinary record from the grievant's file.
A. Agency's Contentions
The Agency argues that the award is contrary to law because: (1) the Arbitrator should have concluded that the grievant's statements constituted flagrant misconduct; and (2) the grievant failed to prove an affirmative defense to the disciplinary action, as required by 5 U.S.C. § 7701(c)(2)(C).(4) The Agency also argues that the Arbitrator exceeded his authority by: (1) questioning the propriety of the charge brought against the grievant instead of determining whether the grievant's actions constituted flagrant misconduct; and (2) considering evidence and deciding issues in a related grievance filed by the Agency concerning whether the grievant violated the parties' agreement by distributing the letter prior to furnishing the Agency with a copy. Further, the Agency contends that the Arbitrator made erroneous findings of fact regarding the Union's means of communicating with its bargaining unit employees.
Next, the Agency claims that the Arbitrator's framing of the third issue in terms of "'just cause'" rather than as an "affirmative defense" demonstrates that the Arbitrator was "predisposed." Exceptions at 5, 6. The Agency also claims that the Arbitrator mischaracterized several Agency arguments made at the hearing and made incorrect credibility determinations with respect to the testimony of various witnesses at the hearing.
B. Union's Opposition
The Union contends that the award is not contrary to law. In addition, the Union asserts that the Agency has not established that the Arbitrator exceeded his authority or was biased. The Union notes that both parties signed a stipulation of the issues to be resolved and that the Arbitrator addressed only those issues. Finally, the Union asserts that the Agency's challenges to the Arbitrator's credibility determinations and findings of fact are unsupported.
IV. Analysis and Conclusions
Consistent with section 7102 of the Statute, an employer has the right to discipline a union representative who is engaged in otherwise protected activities for actions which "exceed the boundaries of protected activity such as flagrant misconduct." U.S. Air Force Logistics Command, Tinker Air Force Base, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 916, AFL-CIO, 34 FLRA 385, 389 (1990) (Tinker). Only those remarks or actions which are of such an "outrageous and insubordinate nature" so as to remove them from the protection of the Statute constitute flagrant misconduct. Id. at 390.
The Agency has not demonstrated that the Arbitrator erred in concluding that the grievant's statements were protected by the Statute. The Agency relies, in this regard, on Department of Defense, Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 17 FLRA 71, 81 (1985) (Defense Mapping Agency), where the Authority adopted an Administrative Law Judge's decision which noted the following factors to be considered in determining whether an action constitutes flagrant misconduct: (1) the place and subject matter of the discussion; (2) whether the employee's outburst was impulsive or designed; (3) whether the outburst was in any way provoked by the employer's conduct; and (4) the nature of the intemperate language and conduct.
As noted by the Judge in Defense Mapping Agency, the balance between an employee's right to engage in protected activity and an employer's right to maintain order and respect for its supervisory staff "must be struck in each case with an eye to the special facts presented by it." 17 FLRA at 81. The factors outlined in Defense Mapping Agency address how to assess such special facts. However, Authority decisions since the issuance of Defense Mapping Agency demonstrate that it is not necessary to cite the factors or apply them in any particular way.
Further, even if a requirement to apply the factors set forth in Defense Mapping Agency existed, it is clear that the Arbitrator considered the factors and that his conclusion is consistent with section 7102 of the Statute. Specifically, although the Arbitrator found that the letter was not written impulsively or in response to a specific act by the supervisors, the Arbitrator also found that the grievant believed he was obligated as Union president to alert employees to a potential problem, that the letter was an attempt to warn employees of a legitimate concern, and that the letter was not an attempt to undermine the reputations of the supervisors. The Arbitrator also found that the grievant did not publicly announce his concerns but, instead, mailed individual letters only to the unit employees he thought were affected.
Consistent with these arbitral findings, we conclude that the grievant's statements were not of such an outrageous or insubordinate nature as to remove them from the protection of the Statute. See Tinker, 34 FLRA at 390-91. Compare U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 39 FLRA 1149 (1991) (exception denied to award upholding suspension of employee for discourteous and insubordinate conduct toward her supervisor; employee not engaged in protected activity at time of conduct).
Finally, 5 U.S.C. § 7701(c) does not apply to suspensions of 14 days or less. See U.S. Department of the Air Force, Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA 776, 779 (1993) (Oklahoma City Air Logistics Command). As such, it does not apply in this case.
Based on the foregoing, we deny the Agency's exception that the award conflicts with law.
B. Arbitrator's Authority
An arbitrator exceeds his or her authority when, among other things, the arbitrator fails to resolve an issue submitted to arbitration or issues an award that exceeds the scope of the matter submitted to arbitration. See, for example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 49 FLRA 1096, 1102 (1994).
It is clear from the record that the Arbitrator's award is directly responsive to the issues stipulated by the parties. Moreover, the Agency has not established that the Arbitrator resolved issues concerning the Agency's grievance against the Union. Although the Arbitrator noted the Agency's contention that the grievant violated the contract, he did not make a determination on this issue.
The Agency has not demonstrated that the Arbitrator exceeded his authority. Accordingly, we deny this exception. See U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky and National Association of Government Employees, Local R5-184, 47 FLRA 498, 503 (1993).
We construe the Agency's contentions that the Arbitrator made erroneous findings of fact as contentions that the award is based on nonfacts. To establish that an award is deficient on this ground, a party must show that the award is based on a clearly erroneous finding of fact, but for which the arbitrator would have reached a different result. See, for example, U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593-94 (1993).
The Agency has not established that the Arbitrator's findings concerning the Union's means of communication are clearly erroneous, or that, even if they are, the Arbitrator would have reached a different result but for his error. Accordingly, the Agency has not demonstrated that the award is based on a nonfact. See id. at 594.
We construe the Agency's allegation that the Arbitrator was predisposed as a contention that the Arbitrator was biased. To demonstrate that an award is deficient on this ground, it must be shown 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 a party. See Department of the Army, Headquarters, 101ST Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, 7 FLRA 18, 19 (1981).
The Agency has not demonstrated that the Arbitrator was biased under any of these criteria. Accordingly, we deny this exception. See id.
E. Fair Hearing
We construe the Agency's contention that the Arbitrator failed to accord the proper weight to witnesses' testimony as a contention that the Arbitrator failed to consider evidence, and, as such, failed to provide a fair hearing. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceedings as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA No. 25, slip op. at 3 (1995).
The Agency has not established that, in making his credibility determinations, the Arbitrator refused to hear or consider pertinent or material evidence, or took any actions in conducting the proceeding which prejudiced the Agency so as to affect the fairness of the proceedings as a whole. Accordingly, we deny this exception. See id.
The Agency's exceptions are denied.
The relevant paragraph of the letter provides as follows:
I have found both [first supervisor] and [second supervisor] to be somewhat less than honest or forthright in our meetings. In fact, [first supervisor] appears to derive a perverse pleasure from lying. The more flagrant and bare faced the lie, the more he appears to enjoy it. I have found both him and [second supervisor] to be overbearing and abusive in the treatment of their subordinates on a regular basis. It is the quintessential and classic case of "management by fear". If anyone doubted TQM was dead, then based on their comportment, there should be no longer any doubt. The problem with liars is that they alter and fabricate "facts" and this precludes all possibility of reaching the truth and achieving a modicum of justice in any attempt at resolving disputes. Working as a team they represent a tremendous threat for the law requires a two level concurrence in any adverse action and, when two consecutive line supervisors as venal and malevolent as these two lie and scheme in concert, then just about any subordinate who does not take proper precautions becomes fair game.
Attachment to Award (emphasis in original).
(If blank, the decision does not have footnotes.)
1. Both the Agency and the Union filed supplemental submissions. As the Authority's Regulations do not provide for the filing of such submissions and, as no other basis for accepting the submissions has been established, we have not considered them.
2. The relevant portion of the letter is set forth in the Appendix to this decision.
3. Section 7102 of the Statute provides, in pertinent part:
Each employee shall have the right to form, join, or assist any labor organization, . . . freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. Except as otherwise provided under this chapter, such right includes the right--
(1) to act for a labor organization in the capacity of a representative . . . .
4. 5 U.S.C. § 7701(c)(2)(C), which pertains to certain adverse actions, such as suspensions of more than 14 days, provides, in pertinent part:
Notwithstanding paragraph (1), the agency's decision may not be sustained under subsection (b) of this section if the employee . . . .
. . . .
(C) shows that the decision was not in accordance with law.