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59 FLRA No. 127
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE AIR FORCE
97TH MOBILE WING
ALTUS AIR FORCE BASE, OKLAHOMA
February 27, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exception to an award of Arbitrator Patrick E. Zembower filed by the Union under § 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 exception.
The grievant is a Union Vice President who was disciplined for the way he spoke to a supervisor at the base exchange (BX). The Arbitrator sustained the grievance in part, replacing a 2-day suspension with a letter of reprimand. For the reasons that follow, we remand the award to the parties, absent settlement, for resubmission to the Arbitrator for clarification of the award.
II. Background and Arbitrator's Award
When a power outage occurred at the BX, a retail facility which is operated by the Army and Air Force Exchange Service (AAFES), a supervisor ordered the staff into the stock room with flashlights to retrieve boxes of goods to resupply the BX shelves. Employees were concerned about the safety of working under such conditions. When an on-site steward was not successful in addressing these concerns with the supervisor, the Union contacted the Union Vice President, who was an employee of the Air Force rather than AAFES. Because the BX phones were not functioning, the Union Vice President went directly to the BX.
When the Union Vice President arrived at the BX, the power had just been restored, and he attempted to talk to the store manager about the safety concerns. However, the manager refused to talk to him, as she was busy trying to get the BX opened and to restart the computer system that operates the BX cash registers. During his attempt to engage the store manager in discussion, the Union Vice President waved a printed copy of the parties' collective bargaining agreement in the air and talked to the store manager in a loud voice which made her feel threatened. He then followed her to her office and she attempted to close the door behind her, but his foot was in the door frame. After seeing that he had followed her to her office, the store manager ordered the Union Vice President to leave and he left after she began calling the police.
The Agency imposed a 2-day suspension on the Union Vice President for misconduct. The discipline was grieved, not resolved, and submitted to arbitration. The Arbitrator stated that the parties stipulated the following issue for arbitration: "whether [the grievant] engaged in conduct unbecoming a federal employee . . . and if not what is the appropriate remedy?" See Award at 1.
The Arbitrator found that the Union Vice President was engaged in representational activity. Nevertheless, the Arbitrator determined that some discipline was warranted for the Union Vice President's actions, but that a 2-day suspension was too severe. The Arbitrator concluded that a written reprimand was sufficient to advise the Union Vice President of the importance of keeping his temper "in check", of not allowing his presence to "poison" the work environment, and to treat all employees with utmost respect. See Award at 10. The Arbitrator noted that there was an already strained relationship between the store manager and the Union; therefore, the Union Vice President should have known that he would not resolve the issue while the store manager was busy trying to get the BX open to serve its clientele. The Arbitrator's award determined that the grievant should only receive a letter of reprimand and ordered that the grievant be made whole for the 2-day suspension.
III. Positions of the Parties
A. Union's Exception
The Union contends that the award is contrary to § 7102 of the Statute because a union official acting in his representational capacity has the right to engage in full and vigorous discussion. The Union asserts that the [ v59 p701 ] Union Vice President was engaged in protected activity and that no discipline may be imposed for his conduct. The Union points out various alleged contradictions in the award that the Union believes support its position. See Exception at 2-3.
The Union argues that the test set forth in Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7, 11-12 (1995) (Grissom AFB) should be used to determine whether the Union Vice President engaged in flagrant misconduct and that the Authority must determine whether the Union Vice President was acting on behalf of the Union and whether he engaged in flagrant misconduct. The Union contends that the Union Vice President was acting on behalf of the Union and that his conduct did not constitute flagrant misconduct. Therefore, the Union argues that no discipline was warranted.
B. Agency's Opposition
The Agency first asserts that the de novo standard of review is applicable here. The Agency states that the Air Force lacks incentive to engage in reprisal against the Union Vice President for his representational activities on behalf of AAFES employees because the two agencies are entirely separate, sharing no responsibility for one another's management decisions or the direction of one another's employees.
The Agency also contends that the discipline of the Union Vice President was appropriate. The Agency asserts that his conduct exceeded the bounds of protected activity. The Agency further asserts that flagrant misconduct is not the only way an employee can exceed the boundaries of protected activity. The Agency states that both parties informed the Arbitrator of the four factors in the flagrant misconduct test discussed in Grissom AFB. The Agency argues that an arbitrator need not recite each factor and that, in this case, the Arbitrator applied at least one of the factors in the Union Vice President's favor, but found that discipline was warranted based on the other three factors.
Finally, the Agency emphasizes that the supervisor felt threatened by the Union Vice President's conduct. The Agency asserts that the Arbitrator, in weighing all the evidence, found the Union Vice President's conduct to be inappropriate and outside the bounds of statutory protection.
IV. Analysis and Conclusions
The Authority's role in reviewing arbitration awards depends on the nature of the exception raised by the appealing party. See United States Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In NTEU, Chapter 24, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged, as it is here, on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id; see also, United States Dep't of Commerce, Patent & Trademark Office, 52 FLRA 358, 367 (1996); United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (discussing Supreme Court's articulation of deferential standard of review of arbitration awards in United Paperworkers v. Misco, Inc., 484 U.S. 29 (1987)).
In this case, the Arbitrator did not clearly state the rationale for his decision. More specifically, it is not apparent from the award whether the Arbitrator was resolving the parties' dispute under the Statute or under the parties' collective bargaining agreement. As such, we are unable to determine which standard of review to apply in resolving the exception to the award, and we will remand the award to the parties for further action as specified below.
If the Arbitrator resolved the parties' dispute under the Statute, the Authority would review the matter de novo. NTEU, Chapter 24, 50 FLRA at 332. In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. In making such a determination, the Authority defers to the arbitrator's underlying factual findings. See NFFE, Local 1437, 53 FLRA at 1710.
If de novo review were appropriate in this case, the standards governing protected activity and flagrant misconduct would apply. In this regard, the Authority has recently held that where there is a challenge to an agency's discipline of an employee for conduct occurring during protected activity, "a necessary part of the [agency's] defense is that the conduct constituted flagrant misconduct or otherwise exceeded the boundaries of protected activity." United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan Air Force Base, Tucson, Ariz., 58 FLRA 636 (2003) (emphasis in the original) (adopting 315th Airlift Wing, 294 F.3d 192). If conduct that exceeds the boundaries of protected activity is established, the conduct loses its protection under the Statute and can be the basis for discipline. See id. [ v59 p702 ]
In determining whether an employee has engaged in flagrant misconduct, the Authority balances the employee's right to engage in protected activity, which "permits leeway for impulsive behavior, . . . against the employer's right to maintain order and respect for its supervisory staff on the jobsite." Dep't of Def., Def. Mapping Agency Aerospace Ctr., St. Louis, Mo., 17 FLRA 71, 80 (1985) (citation omitted). Relevant factors to be considered in striking this balance include: (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. See Grissom AFB, 51 FLRA at 12.
If, on the other hand, the Arbitrator resolved the dispute in this case based on his interpretation of the parties' collective bargaining agreement, de novo review would not be appropriate. Rather, the analysis would involve a determination of whether the Agency's action was consistent with the discipline provision of the parties' agreement. In this instance, the Authority applies the deferential "essence" standard of review that the federal courts apply in reviewing awards in the private sector. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (DOL). In order for an award to be found deficient as failing to draw its essence from the agreement, it must be established 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 agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. DOL, 34 FLRA at 575. The Authority defers to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
As noted above, in this case it is not clear from the award whether the Arbitrator was resolving the parties' dispute under the Statute or under the parties' agreement. As such, it is not clear which analytical framework to apply in resolving the exception. While the Arbitrator set forth much of the testimony that he heard, he did not make factual findings sufficient to either explain the basis for his actions, or to allow us to determine which standard of review to apply. In these circumstances, in the absence of a determination by the Arbitrator as to whether he was resolving a statutory or a contractual issue, and in the absence of sufficient factual findings, we are unable to resolve the exception before the Authority.
Consequently, we remand the award to the parties, absent settlement, for resubmission to the Arbitrator so that he can clarify the basis of his award. In clarifying the basis for his award, the Arbitrator should specify whether his award was resolving a dispute under the Statute or under the parties' agreement, and should apply the relevant principles discussed above. Moreover, the Arbitrator should set forth sufficient factual findings to support the award.
We remand the award to the parties, absent settlement, for resubmission to the Arbitrator for clarification of his award, consistent with this decision.