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55 FLRA No. 59
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2145
U.S. DEPARTMENT OF VETERANS AFFAIRS
HUNTER HOLMES MCGUIRE MEDICAL CENTER
April 26, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S.Wasserman and Dale Cabaniss, Members.
Decision by Member Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Mollie H. Bowers filed by the Union under section 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 found that the grievant's 3-day suspension for the use of disrespectful language was for just cause and denied the grievance. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
At the time of the incidents that gave rise to this case, the grievant was the Union Vice President and served as its Equal Employment Opportunity (EEO) Fair Practice Coordinator. In November 1997, the Agency suspended the grievant for 3 days based on her alleged: (1) use of disrespectful language to another Agency employee during a telephone conversation; (2) use of disrespectful language to another Agency employee in an E-mail transmission; and (3) performance of representational activities while on duty time. Thereafter, the Union grieved the Agency's action and, when the grievance was not resolved, it was submitted to arbitration on the following issue:
Whether the November 12, 1997, three-day disciplinary suspension of the [g]rievant was for just cause; if not, what shall be the remedy?
Award at 2.
As concerns the first allegation, the record shows that it was based on statements made by the grievant to an Agency staff attorney. As relevant here, the incident report filed by the attorney states:
On July 1, 1997, at approximately 9:55 a.m., I received a telephone call from [the grievant]. She did not identify herself although I recognized her voice. She began the conversation in a loud voice with words to the effect of "I just sent you a blistering message." She said "How dare you try and give me orders, who do you think you are" or words to that effect. She used foul language including "bitch" and "hell". She continued to yell and scream. Her voice was loud and her tone was belligerent. She did not let me speak. I found her behavior to be rude, abrasive and abusive . . . .
Id. at 7. The statements were made during a telephone conversation that was initiated by the grievant in connection with an EEO matter that she had been working on.
At the hearing, the grievant acknowledged that during her telephone conversation with the attorney, she had been agitated and "may have spoken in a raised voice[.]" Id. at 13. The grievant further acknowledged having made the comment concerning the "`blistering E-mail'" and explained that she "`didn't like the fact that the attorney was trying to tell me how to do my job as an EEO representative.'" Id. However, the grievant denied having called the attorney a "bitch."
The Arbitrator determined that the Agency's suspension of the grievant was for just cause and, accordingly, denied the grievance. In so doing, the Arbitrator first found that "[d]iscipline of [u]nion officials is always a sensitive matter which requires careful scrutiny because of the legal and contractual relationship of the parties." Id. at 18. However, the Arbitrator further found that "it is also well recognized that a [u]nion official is not immune from discipline for conduct unrelated to the lawful pursuit of official [u]nion duties, if such conduct consists solely of misconduct for which any employee would be subject to discipline under accepted principles of just cause." Id. at 19.
The Arbitrator concluded that in this case, the most serious of the charges for which the grievant was disciplined was the charge concerning her oral abuse of the [ v55 p367 ] Agency attorney. In this connection, the Arbitrator credited the attorney's testimony and that of another witness that the grievant did use abusive language. Consequently, the Arbitrator determined that the crucial inquiry was whether the grievant's use of such language warranted the discipline imposed.
The Arbitrator stated that the use of profane or abusive language by a union official does nothing to promote constructive labor-management relations. Rather, in the Arbitrator's view, "such abuse has an opposite, corrosive effect, creating ill will, and chilling the parties' overall relationship." Id. at 20. According to the Arbitrator, "the use of such profanity was beyond acceptable behavior, cannot be tolerated, and warrants discipline." Id. The Arbitrator, therefore, upheld the first charge against the grievant.
As concerns the second and third charges, the Arbitrator determined that the conduct on which they were based was not sufficient to warrant the discipline imposed. However, in assessing the disciplinary action based on the misconduct set forth in the first charge, the Arbitrator considered the fact that the grievant had been disciplined for similar misconduct only three months before. Based on this fact, the Arbitrator concluded that further "corrective and progressive discipline" was appropriate. Id. at 22. She, accordingly, upheld the 3-day suspension.
III. Positions of the Parties
A. Union's Exceptions
The Union maintains that the Arbitrator's award is flawed in two respects. First, the Union contends that the award is contrary to law because the Arbitrator failed to apply the correct legal standard. Second, the Union maintains that the Arbitrator erred by failing to reduce the grievant's suspension despite the fact that two of the three charges were not sustained.
In connection with its first claim, the Union argues that the standard applied by the Arbitrator is inconsistent with the flagrant misconduct standard employed by the Authority in assessing whether a union representative's conduct is protected under section 7102 of the Statute. According to the Union, where a union official is acting in his or her representational capacity, the official "has the right to use `intemperate, abusive, or insulting language without fear of restraint or penalty' if he or she believes such rhetoric to be an effective means to make the union's point." Exceptions at 4 (quoting Department of the Air Force, Grissom Air Force Base, Indiana and American Federation of Government Employees, AFL-CIO, 51 FLRA 7, 11 (1995) (Grissom)). Applying that standard to the facts of this case, the Union contends that even assuming that the grievant did call the Agency attorney a "bitch," the use of such language was not sufficient to raise it to the level of flagrant misconduct.
The Union also claims, citing White v. U.S. Postal Service, 71 MSPR 521 (1996) (White), that the Arbitrator erred in determining not to reduce the grievant's suspension even though only one of three charges was sustained. [n1] According to the Union, "by placing the same penalty on the [g]rievant as the [A]gency initially imposed, the Arbitrator is acting contrary to the laws necessary to implement 5 U.S.C. [§] 7102." Exceptions at 8. The Union points out that in her decision, the Arbitrator found that it would violate the grievant's rights as a representative to sustain the other two charges. Despite this finding, the Union contends that the Arbitrator's award has the same effect as "sustaining the two charges that she held to be improper." Id.
B. Agency's Opposition
The Agency disputes the Union's claim that the Arbitrator's award is contrary to law. According to the Agency, it is evident that the Arbitrator considered all of the relevant facts and, based thereon, correctly concluded that the grievant's behavior was abusive and exceeded the boundaries of protected activity.
With regard to the penalty, the Agency submits that the Arbitrator properly considered the fact that the grievant had engaged in similar misconduct only months prior to the misconduct involved here. The Agency also asserts that the Union has failed to cite any law, rule or regulation with which the penalty conflicts. [ v55 p368 ]
IV. Analysis and Conclusions
A. Section 2429.5 of the Authority's Regulations Bars the Union's Exception Pertaining to Section 7102
The Union contends that the award is contrary to law because the Arbitrator failed to apply the correct legal standard. We do not find that the award is deficient on this basis.
Under section 2429.5 of the Authority's Regulations, we will not consider issues that could have been, but were not, presented to the arbitrator. See, e.g., International Association of Fire Fighters, Local F-89 and U.S. Department of the Army, Headquarters, Fort Sam Houston, Fort Sam Houston, Texas, 50 FLRA 327, 328 (1995).
There is no indication in the record that the Union argued to the Arbitrator, as it has in its exceptions, that the Agency's discipline of the grievant violated section 7102 of the Statute or that the grievant did not engage in flagrant misconduct under Authority precedent, as set forth in Grissom, 51 FLRA 7. Rather, the Arbitrator formulated the issue in terms of the Agency's compliance with the just cause provision of the parties' collective bargaining agreement. As the Union's claimed violation of section 7102 of the Statute relates to the Agency's conduct, it clearly could have, and should have, been presented to the Arbitrator. See American Federation of Government Employees, Local 3627 and Social Security Administration, Office of Hearings and Appeals, Orlando, Florida, 53 FLRA 1351, 1351 n.* (1998). Accordingly, this issue is barred from consideration by the Authority under section 2429.5. See id.; Office and Professional Employees International Union, Local 268 and U.S. Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 54 FLRA 1154, 1157-58 (1998).
B. The Award Is Not Contrary To Law
The Union additionally claims that the award is deficient because the Arbitrator did not reduce the grievant's suspension even though only one of the three charges was sustained. In support of this contention, the Union relies on MSPB precedent as set forth in White, 71 MSPR 521.
In White, the MSPB held that in cases where fewer than all of the charges are sustained, it will apply a "reasonable" penalty standard. See note *, supra. Under this standard, the MSBP balances the factors set forth in Douglas v. Veterans Administration, 5 MSPR 280, 302 (1981) (Douglas) to ascertain a reasonable penalty. However, under Authority precedent, arbitrators are not required to apply the Douglas factors in cases 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). As the grievant was only suspended for 3 days, the MSPB precedent on which the Union relies does not apply. Therefore, we deny this exception.
The Union's exceptions are denied.
Footnote # 1 for 55 FLRA No. 59
In White, the Merit Systems Protection Board (MSPB) held that in cases where fewer than all of the charges are sustained, it will apply a "reasonable" penalty standard. Under this standard, the MSPB "independently and responsibly balance[s] the relevant Douglas factors to determine a reasonable penalty." 71 MSPR at 527.