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55 FLRA No. 81
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2612
U.S. DEPARTMENT OF THE AIR FORCE
ROME LABORATORY (AFMC)
ROME, NEW YORK
May 27, 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 James A. Cashen 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 denied a grievance, which sought to overturn a 14-day suspension.
For the following reasons, we conclude that the Union's exceptions fail to establish 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 is an employee and the local Union vice-president. He made a telephone call to the Agency's Consumer Support Section which is the worksite of the local Union president. The supervisor of the Union president answered the telephone. The grievant requested to speak to the Union president. When the supervisor responded that the Union president was not present, the grievant began a conversation with the supervisor concerning the administration of official time for the Union president. During that conversation, the grievant stated to the supervisor that she had turned into a 'prick' and should 'grow balls.' Award at 2, 11. The grievant also stated that his comments were simply 'some unofficial friendly advice' and that administering official time against the Union president could subject the supervisor to a 60-day suspension for committing a prohibited personnel practice. Id. at 3. The grievant further stated that, if the supervisor was suspended, her child would not have any food to eat. See id. at 3.
The Agency conducted an investigation into the incident. According to the Arbitrator, Article 25, Section 5 of the parties' collective bargaining agreement provides that any meeting between the Agency and an employee concerning matters which could lead to a disciplinary action against the employee "will be 'restricted to the employee and one supervisor or management official.'" Id. at 4. In the course of the investigation, the Agency interviewed the grievant. Four Agency representatives and one Union representative were present at the interview. See id. at 4. The Union representative stated at the interview that the number of Agency representatives present "might be a violation" of Article 25, Section 5 of the parties' collective bargaining agreement. Id. at 4. The Agency responded that the number of Agency representatives present did not constitute a violation of the agreement "'due to the severity' of the matter [under investigation]." Id. The Union did not raise any other objections regarding the number of Agency representatives at the interview then or later during the grievance procedure.
Based upon the investigation, as well as a prior 7-day suspension of the grievant for a similar offense, the Agency suspended the grievant for 14 days for the use of inappropriate language and making intimidating statements to a supervisor.
The grievance over the suspension was submitted to arbitration, and the Arbitrator framed the issues as follows:
1. Did the agency fail to process the grievance in accordance with the contract so as to require dismissal of the charges against Grievant?
2. Has the employer shown that the charged misconduct of "Use of Inappropriate Language" is supported by a preponderance of the evidence, notwithstanding Protected Rights under the statute?
3. Has the employer shown that the charged misconduct of "Making Intimidating Statements to a Management Official" is supported by a preponderance of the evidence, notwithstanding Protected Rights under the statute? [ v55 p484 ]
4. If either, or both, of the misconduct charges is affirmed is the penalty of a 14 day suspension appropriate?
Id. at 1-2.
The Arbitrator denied the grievance. With respect to the first issue, the Arbitrator concluded that the Agency did not violate the parties' agreement or Agency procedures so as to require a dismissal of the complaint. The Arbitrator rejected the Union's contention that the Agency violated Article 25, Section 5 of the parties' agreement because the number of Agency representatives present at the interview of the grievant exceeded the limits of that contractual provision. The Arbitrator concluded that the grievant, and his representatives, waived their rights under the agreement "to now object to the presence of additional management representatives." Id. at 4-5. The Arbitrator reached this conclusion, even though he found that the grievant's representative at the time of the interview "called attention to the fact" that the number of Agency representatives might constitute a violation of the parties' agreement. Id. at 4.
The Arbitrator also rejected the Union's contention that the Agency incorrectly applied the Douglas factors. He found that there was evidence that the Agency considered the Douglas factors prior to its final decision on the grievance. The Arbitrator further rejected the Union's contention that the Agency violated its own procedures in not considering evidence submitted by the Union in reaching its final decision to suspend the grievant. He found that, prior to making its final decision, the Agency considered evidence in defense of the grievant submitted by the Union.
With respect to the second issue, the Arbitrator concluded that the charge of misconduct against the grievant for the use of inappropriate language is supported by the preponderance of the evidence. The Arbitrator rejected the Union's contention that the grievant was engaged in protected activity when he talked by telephone with the supervisor. In particular, the Arbitrator found that the grievant was not acting in his capacity as a Union Official during the conversation. In this regard, the Arbitrator found that the grievant's telephone conversation with the supervisor "was not the conversation of a Union official with a management person but rather was a conversation between two employees and therefore not protected." Id. at 10. The Arbitrator noted that the grievant originally requested to speak to the Union president and never indicated that the conversation that then ensued with the supervisor related to official Union business. See id. The Arbitrator added that the grievant denied having the telephone conversation with the supervisor throughout the grievance procedure until the arbitration proceeding. In this connection, the Arbitrator stated that "if he was speaking on official Union business I believe he would want to claim [that] fact as early on as possible[.]" Id. The Arbitrator found that another individual, and not the grievant, was the designated representative of the Union president for purposes of the dispute with the supervisor over the use of official time.
The Arbitrator further concluded that, even if the grievant had engaged in protected activity during the telephone conversation, the grievant's language still was inappropriate and did not constitute 'protected speech.' Id. at 12. The factors the Arbitrator considered in determining whether there was protected speech included "the place and subject matter of the discussion; whether the employee's outburst was impulsive or designed; whether the outburst was in any way provoked by the employer's conduct; and the nature of the intemperate language and conduct." Id. In applying those factors to the facts, the Arbitrator noted that the supervisor did not provoke the incident, the grievant was previously suspended for the use of abusive language, the discussion did not include any lively debate, and the language used was "foul and indecent." Id.
With regard to the third issue, the Arbitrator concluded that the charge of misconduct against the grievant for the use of intimidating language is supported by the preponderance of the evidence. The Arbitrator found that the testimony of the supervisor, as well as the testimony of those who came into contact with her, indicates that "she was scared and intimidated after speaking to [the Grievant]." Id. The Arbitrator also found that the testimony at the arbitration hearing indicates that the grievant "intended to intimidate [the supervisor] in discussing with her the ramifications of a possible charge against her" if she continued to pursue charges against the Union president related to the use of official time. Id. at 13.
Finally, with respect to the fourth issue, the Arbitrator concluded that the penalty of a 14-day suspension was appropriate for the offenses committed. The Arbitrator found, among other things, that the penalty was consistent with "the table of penalties" in the Agency's instructions. Id.
Accordingly, the Arbitrator denied the grievance. [ v55 p485 ]
III. Positions of the Parties
A. Union's Exceptions
First, the Union contends that, in concluding that the grievant waived his rights, under Article 25, Section 5 of the parties' agreement, to limit the number of Agency representatives at the interview of the grievant, the Arbitrator "add[ed] to the meaning" of the parties' agreement. Exceptions at 1. The Union argues that the Arbitrator improperly added the words 'due to the severity [of the matter under investigation' to that contractual provision. Id. at 2. In support, the Union notes the Arbitrator's finding that at the interview the Agency stated that the number of Agency representatives present did not constitute a violation of the agreement 'due to the severity of the matter [under investigation].'
The Union asserts that the purpose of language in Article 25, Section 5 of the parties' agreement is "to protect the employee from being frightened, intimidated and coerced by an overwhelming number of management officials." Id.
Next, the Union contends that the Arbitrator failed to apply properly the Douglas factors. The Union argues that the Agency did not apply the Douglas factors until the day after the grievant received his Notice of Proposed Suspension.
Finally, the Union argues that the Arbitrator failed to apply properly Letterkenny Army Depot and International Brotherhood of Police Officers, Local 358, 35 FLRA 113 (1990) (Letterkenny). The Union argues that it established a prima facie case based upon Letterkenny in that the grievant was disciplined for engaging in protected activities. It asserts that the Arbitrator failed to note the undisputed facts that the grievant had the telephone conversation with the supervisor while the grievant was on official time and in the Union office.
The Union states that the Authority's decision in United States Air Force Academy, Colorado Springs, Colorado and American Federation of Government Employees, Local 1867, 52 FLRA 874 (1997) is distinguishable from this case. The Union asserts that the employee in that case, unlike the grievant here, was not on official time and acting in the capacity of a Union official.
B. Agency's Opposition
First, the Agency contends that the Arbitrator's conclusion that the grievant waived his rights under the parties' agreement is supported by his factual findings concerning this issue. In this regard, the Agency notes the Arbitrator's specific findings of fact that the Union did not object to the number of management representatives at the time of the interview or during the grievance step procedure. The Agency asserts that the factual determinations of arbitrators are entitled to a substantial deference.
The Agency maintains that the Arbitrator did not add the words 'due to the severity [of the matter under investigation]' to the parties' agreement. The Agency asserts that these words were referenced by the Arbitrator only as testimony given by a management official as to the propriety to having more than one management official present at the interview.
Second, the Agency contends that the Arbitrator made a factual determination that the Agency considered the Douglas factors prior to his final decision which should be afforded deference. In the alternative, the Agency argues that there is no requirement that an arbitrator consider the Douglas factors in cases involving suspensions of 14 days or less. In support, the Agency cites National Air Traffic Controllers Association MEBA/NMU and U.S. Department of Transportation Federal Aviation Administration Memphis, Tennessee, 52 FLRA 787 (1996) (FAA, Memphis).
Finally, the Agency contends that the Arbitrator properly applied Letterkenny in making his decision. The Agency argues that the Arbitrator's finding that the grievant was not engaging in protected activity is supported by his findings of fact and credibility determinations.
IV. Analysis and Conclusions
A. The Award Draws Its Essence From the Agreement
The Union contends that, in concluding that the grievant waived his rights, under Article 25, Section 5 of the parties' agreement, to limit the number of Agency representatives at the interview of the grievant, the Arbitrator added the words "due to the severity [of the matter under investigation]" to that contractual provision. Exceptions at 2. We construe the Union's contention as a claim that the award fails to draw its essence from the parties' collective bargaining agreement.
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find [ v55 p486 ] that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
In our view, the Union's contention is based on a misstatement of the Arbitrator's award. Contrary to the Union's claim, the record demonstrates that the Arbitrator did not base his conclusion regarding Article 25, Section 5 upon the severity of the matter under investigation. Rather, the Arbitrator determined that the grievant had waived his rights under Article 25, Section 5 based upon the conduct of the grievant and his representative at the interview of the grievant. See Award at 4-5. In any event, the Arbitrator's determination that the grievant and his representative waived the grievant's rights under the parties' agreement is an interpretation and application of the parties' agreement, to which we defer. The Union has not demonstrated that the award fails to draw its essence from the parties' agreement on any of the aforementioned grounds. Accordingly, we deny this exception.
B. The Arbitrator Did Not Err by Failing to ApplyProperly the Douglas Factors
The Arbitrator was not required to consider the Douglas factors enunciated by the Merit Systems Protection Board in deciding the matter before him. The Douglas factors 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). The Authority has consistently held that arbitrators are not required to consider the Douglas factors in cases, such as in the instant case, involving suspensions of 14 days or less. FAA, Memphis, 52 FLRA at 792; American Federation of Government Employees, Local 3887, National Council of Department of Education Locals, Council 252 and U.S. Department of Education, Institutional Review Branch, Office of Student Financial Assistance, Region IV, 48 FLRA 717, 721 (1993). Although the Arbitrator did consider the Douglas factors when he was not required to do so, the Union's contention that he failed to properly apply them does not provide a basis for finding the award deficient. See FAA, Memphis, 52 FLRA at 792; U.S. Department of Justice, Immigration and Naturalization Service, Honolulu District Office, Honolulu, Hawaii and American Federation of Government Employees, Local 2886, National Immigration and Naturalization Council, 41 FLRA 207, 211-12 (1991) (arbitrator's misapplication of the harmful-error rule when he was not required to apply that rule constituted, among other things, the arbitrator's reasoning and did not provide a basis for finding the award deficient). Accordingly, we deny this exception.
C. The Exception Pertaining to the Authority's Decision in Letterkenny is Barred by Section 2429.5 of the Authority's Regulations
The Union contends that the Arbitrator failed to apply properly Letterkenny, in which the Authority set forth the framework for resolving claims of discrimination based on union activity in violation of section 7116(a)(2) of the Statute. 35 FLRA at 122-23. Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. 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) (Ft. Sam Houston). There is no indication in the record that the Union argued to the Arbitrator, as it has in its exceptions, that the discipline in question violated section 7116(a)(2) of the Statute. Rather, the Union argued that conduct that was otherwise improper was protected under the Statute because it occurred during the course of union activities. Analyzing the case in the context of the Union's claim that the grievant's offensive remarks were protected as "robust debate", the Arbitrator's factual finding that the grievant was not acting as a Union representative during the conversation in question is dispositive. 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, 593-94 (1993) (the Authority accords deference to an arbitrator's factual findings because the parties bargained for the facts to be found by an arbitrator chosen by them).
As the issue in this exception relates to the Agency's conduct in disciplining the grievant, 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, 1351-52 n.* (1998). Accordingly, this exception is barred from consideration by the Authority under section 2429.5. See Id.; Sam Houston, 50 FLRA at 328.
The Union's exceptions are denied.