United States Information Agency, Broadcasting Board of Governors, Washington, D.C. (Agency) and American Federation of Government Employees, Local 1812 (Union)

[ v57 p261 ]

57 FLRA No. 54







June 13, 2001


Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

Decision by Chairman Cabaniss for the Authority.

I.     Statement of the Case

      This matter is before the Authority on an exception to the award of Arbitrator Leroy D. Clark filed by the Agency under § 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 exception.

      The Arbitrator determined that the Agency improperly disciplined the grievant using the procedures set forth in 5 U.S.C. § 7501, et seq (Chapter 75). For the reasons explained below, we remand the award to the parties for resubmission to the Arbitrator, absent settlement, for further proceedings consistent with this decision.

II.     Background and Arbitrator's Award

      The grievant, a Russian language broadcaster, on two occasions during a live broadcast, made on-air comments concerning co-workers. The grievant's supervisor told her that the on-air comments were inappropriate and that such comments undermined the credibility of the Agency with its audience.

      The Agency initially proposed suspending the grievant for ten days pursuant to Chapter 75 based on the two comments. The Agency later reduced the proposed suspension to five days. Award at 4. The grievant subsequently sought arbitration.

      The Arbitrator framed the issue as follows:

Did the Agency have authority to suspend the grievant for five days based on two inappropriate on-air comments? If not, what is the remedy?

Award at 1.

      In his award, the Arbitrator determined that the Agency, in taking action against the grievant, wrongfully used the procedures of Chapter 75. Specifically, the Arbitrator determined that the subject matter of the discipline related to the grievant's performance under standards pertaining to making on-air fluffs and consistently [leading] out reports and [providing] an appropriate transition to the next piece of material. Award at 4, 11. Applying Lovshin v. Dept. of the Navy, 767 F.2d 826 (Fed. Cir. 1985) (Lovshin), the Arbitrator concluded that the discipline solely concerned the grievant's performance and should have been processed under 5 U.S.C. § 4301, et seq (Chapter 43), rather than under Chapter 75. Therefore, the Arbitrator reversed the suspension, finding that it constituted a prohibited personnel practice. He also awarded backpay and retained jurisdiction to hear any request for attorney fees.

III.     Positions of the Parties

A.     Agency's Exception

      The Agency argues that the Arbitrator incorrectly determined that the Agency could not take action against the grievant pursuant to Chapter 75. The Agency contends that the employee engaged in misconduct and, therefore, was subject to Chapter 75 disciplinary proceedings. Exception at 7.

      The Agency also asserts that, even to the extent the Arbitrator determined that the employee's conduct was considered to be a performance related deficiency, the Agency could still discipline the employee pursuant to Chapter 75. To support this contention, the Agency cites Lovshin, which states:

[o]ne further consideration in construing Chapter 75 to include performance-based cases is that agencies will continue to be able to discipline employees with lesser sanctions for poor performance than removal or demotion, the only sanctions authorized in Chapter 43. If Congress intended to eliminate lesser penalties in all performance-related cases, again we would expect some indication to that effect by Congress.

Lovshin, 767 F.2d at 843; Exception at 6. [ v57 p262 ]

      The Agency further argues that the award is contrary to United States Dep't of the Interior, Nat'l Park Serv., Fire Island Nat. Seashore, 34 FLRA 659 (1990). It contends that, pursuant to this decision, an agency may proceed under either Chapter 43 or Chapter 75 when taking performance-based disciplinary actions.

      Further, the Agency asserts that it was not until after the hearing that a question as to whether this matter should fall under Chapter 75 or Chapter 43 arose. According to the Agency, the parties had both pursued this as a Chapter 75 matter. As such, for the Arbitrator to then determine that this matter could only be pursued under Chapter 43 was contrary to law. Exception at 7-8, citing Hanratty v. FAA, No. 84-1754 (Fed. Cir., Dec. 26, 1985).

      Finally, the Agency argues that, to the extent the Arbitrator may have found that it did not follow procedural requirements under Chapter 43, such a finding is incorrect. In support, the Agency cites Fairall v. Veterans Admin., 33 M.S.P.R. 33 (1987) (Fairall) aff'd, 844 F.2d 775 (Fed Cir. 1987) which states that an action against an employee for deficient performance under Chapter 75 is not subject to the procedural requirements of Chapter 43. Exception at 7.

B.     Union's Opposition

      The Union contends that the Agency does not have absolute discretion in deciding whether to proceed with employee discipline for performance reasons under Chapter 75. It cautions that, as the Arbitrator determined, it is a prohibited personnel practice for the Agency to pursue an action based on employee performance under Chapter 75 where to do so would effectively bypass employee merit system principles, also citing Lovshin. Opposition at 6-7.

      Accordingly, the Union argues that the grievant's inappropriate conduct pertains solely to her