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54:1109(95)AT - - VA and AFGE, Local 1151 [ Veterans Affairs ] - - 1998 FLRAdec AT - - v54 p1109

[ v54 p1109 ]
The decision of the Authority follows:

54 FLRA No. 95








LOCAL 1151




September 8, 1998

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Daniel J. Hussey 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 did not file an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance asserting that the grievant's seven-day suspension for using e-mail for personal communications was not for good and sufficient cause. The Arbitrator converted the suspension to a counseling letter. For the reasons set forth below, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

While at work, the grievant sent several messages, via e-mail, to a co-worker. These messages contained a number of negative statements regarding other Agency personnel and supervisors. The Arbitrator found that although the grievant and her co-worker intended the messages to remain private, they were printed and mailed anonymously to the employees and management officials discussed therein.

The Agency proposed that the grievant be suspended for 14 calendar days, on the following grounds: (1) "using government property for other than official purposes" and "divert[ing] time from [her] official duties"; and (2) "making unfounded, defamatory statements about other [Veterans Affairs] personnel and supervisors[.]" Award at 4.(1) The Agency subsequently mitigated the proposed 14-day suspension to a seven-day (five working day) suspension. A grievance was filed over the seven-day suspension, and when the grievance was unresolved, it was submitted to arbitration.

The Arbitrator framed the issue as follows: "Was the suspension of the grievant[] . . . for just and sufficient cause under the terms of the contract? If not, what shall be the remedy?" Award at 1.

The Arbitrator noted that "part of the charge [of using government property for official purposes] rested on diversion of time [from] her official duties[.]" Id. at 8. With regard to this point, the Arbitrator found that "no proof was offered" that the messages were composed during work hours. Id. at 12. The Arbitrator credited the grievant's testimony that these messages were composed off company time, and noted that "[i]t was . . . admitted [at] the hearing that this charge could not be proven." Id. at 8. Additionally, the Arbitrator found that it was common practice among the Agency's employees and management officials to use e-mail for personal purposes, and that the Agency had no written or verbal limitation on such conduct. Accordingly, the Arbitrator dismissed this charge.

With regard to the charge that the e-mail messages contained defamatory statements, the Arbitrator stated that "the overriding factor is that the grievant and her correspondent had an expectation of privacy in their use of the e-mail and they acted consistent with that belief . . . by directing the letters solely to each other and by not printing them out." Id. at 10.

The Arbitrator found that, under the Douglas factors, a suspension was excessive.(2) Additionally, the Arbitrator noted that the Agency failed to demonstrate how the grievant's messages disrupted the efficiency of the Agency's service. Finally, the Arbitrator found that the suspension was not consistent with the concept of progressive discipline.

The Arbitrator concluded that "the imposition of a suspension on the grievant was not for good and sufficient cause." Id. at 12. Accordingly, the Arbitrator set aside the suspension and directed that the grievant be made whole. The Arbitrator stated that the Agency "may issue a counseling letter to the grievant as to the length and frequency of personal use of e-mail and the appropriate content of such messages." Id. Additionally, the Arbitrator determined that "[t]he entire record of this matter may be placed in [the grievant's] personal file subject to any contractual provisions addressing that subject." Id.

III. Agency's Exceptions (3)

According to the Agency, the Arbitrator's finding that the grievant was off-duty when she composed the e-mail messages is based on a mistake of fact. Although the Agency concedes that it "admitted at the hearing that it could not prove the time of day at which six out of the seven [e]-mail messages were entered[,]" the Agency nevertheless maintains that the award is flawed because it "ignores the testimony" of the Agency's assistant director. Exceptions at 4. As "[i]t was established at the hearing that an employee could not be on a break while working at the front desk[,]" the Agency concludes that the Arbitrator erred in finding that the grievant was off duty at the time she sent that particular e-mail message. Id.

Next, the Agency asserts that "the arbitrator based his decision on the premise that [the grievant] had an expectation of privacy in her use of the [e]-mail[,]" and that "this premise is not consistent with applicable constitutional law." Exceptions at 5. Citing United States v. Hamdan, 891 F. Supp. 88 (E.D.N.Y. 1995), the Agency contends that an individual's expectation of privacy must be one that society deems reasonable. In turn, according to the Agency, determining whether an individual's expectation of privacy is reasonable "requires first that the individual demonstrate a subjective desire to keep her effects private, and that second the individuals [sic] subjective expectation be one that society accepts as reasonable." Exceptions at 5 (citing United States v. Corcoran, 855 F. Supp. 1359 (E.D.N.Y. 1994), cert. denied, 517 U.S. 1228 (1996)). According to the Agency, because the grievant did not meet these standards, the Arbitrator's reliance on the grievant's privacy rights in mitigating her suspension constituted a misapplication of constitutional law. The Agency also asserts that National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), requires the Authority to weigh the employee's expectation of privacy against the government's interest in the efficiency of its service.

IV. Analysis and Conclusions

A. The Agency Has Not Demonstrated that the Award IsBased On A Nonfact

The Agency contends that the Arbitrator's finding that the grievant was off duty when she composed the e-mail messages is inconsistent with the testimony of the Agency's assistant director. As such, the Agency argues that the award "contains a mistake of fact." Exceptions at 3. We construe this argument as asserting that the award is based on a nonfact.

To establish that an award is based on a nonfact, the excepting party must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See 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 (1993). A party may not raise nonfact allegations concerning a matter that was disputed below. See, e.g., U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997) (Bureau of Mines).

The award and the Agency's exceptions indicate that the parties disputed, before the Arbitrator, whether the grievant was off-duty when she composed the e-mail messages. In his award, the Arbitrator noted the Agency "fail[ed] . . . to prove that [the messages were composed] on company time[.]" Award at 12. As the parties disputed this issue at the hearing, the Agency has not demonstrated that the award is based on a nonfact. See Bureau of Mines, 53 FLRA at 40. Accordingly, we deny this exception.

B. The Award Was Not Based On The Grievant's Constitutional Right to Privacy

The Agency maintains that the Arbitrator's reliance on the grievant's right to privacy is "not consistent with [applicable] constitutional law." Exceptions at 5. We construe this argument as asserting that the award is deficient because it is contrary to the United States Constitution.

The Agency's reliance on the Constitution in this case is misplaced. The Arbitrator did not frame the issue in terms of, or decide the case on the basis of, whether the Agency deprived the grievant of her constitutional rights. Rather, the Arbitrator stated that the issue was whether the grievant's suspension was for just and sufficient cause under the terms of the parties' contract. In this regard, the Arbitrator reviewed the grievant's discipline against the just and sufficient cause standard, and concluded that the grievant's suspension was excessive. A review of the award indicates that the Arbitrator relied on at least three grounds in reaching his conclusion: (1) the discipline was not consistent with the Douglas factors; (2) the Agency failed to establish that the grievant's behavior disrupted the efficiency of the service; and (3) a suspension was inconsistent with the notion of progressive discipline. Thus, the constitutional analysis concerning expectation of privacy urged by the Agency does not provide a basis for finding the award deficient. Accordingly, we deny this exception.

V. Decision

The Agency's exceptions are denied.


1. The Agency also charged the grievant with "using sick leave for other than its intended purpose." Award at 4. The Arbitrator found that the Agency failed to meet its burden of proof as to that charge, and the Agency does not except to that finding. Accordingly, we will not address the propriety of this portion of the award.

2. The Douglas factors articulated by the Merit Systems Protection Board essentially constitute guidelines governing the appropriateness of penalties. See American Federation of Government Employees, National Council of EEOC Locals No. 216 and U.S. Equal Employment Opportunity Commission, 49 FLRA 906, 917 (1994). Arbitrators are not required to apply the Douglas factors in cases, such as the instant case, involving suspensions of 14 days or less. See, e.g., American Federation of Government Employees, Local 3947 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Medical Center, Rochester, Minnesota, 47 FLRA 1364, 1370-71 (1993). There are no exceptions to the Arbitrator's application of the Douglas factors in the instant case.

3. In addition to the arguments included here, the Agency asserts that "[t]he [A]rbitrator's unfounded conclusion that [the grievant's] privacy interest should prevail in this case has deprived management of its lawful right to discipline the employee." Exceptions at 5. Other than its assertion pertaining to privacy, which we address in Part IV.B. of this decision, the Agency does not make any argument in support of its contention concerning management's right to discipline the employee. Therefore, even assuming that the Agency has raised this contention as an exception, it does not provide a basis for finding the award deficient, and accordingly, the Agency's exception is summarily denied. See American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, U.S. Immigration and Naturalization Service, United States Border Patrol, 54 FLRA No. 89, slip op. at 3 n.3 (1998) (union's unsupported assertion that award failed to draw its essence from the parties' agreement did not

provide a basis for finding the award deficient).