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61 FLRA No. 47
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF THE
AIR FORCE, WARNER ROBINS
AIR LOGISTICS CENTER
WARNER ROBINS, GEORGIA
September 16, 2005
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 exceptions to an award of Arbitrator Craig L. Williams 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 exceptions.
The Arbitrator denied the grievance alleging that the grievant's fourteen-day suspension was without just cause. For the reasons set forth below, we dismiss the Union's exceptions.
II. Background and Arbitrator's Award
The grievant was suspended for fourteen days for posting a defamatory article on a bulletin board and for public contempt of a supervisor. The grievant filed a grievance over the suspension (the suspension grievance). [n1] The parties were unable to resolve the suspension grievance and it was submitted to arbitration, where the Arbitrator stated the issue to be: "[W]hether there was just cause for [g]rievant's 14-day suspension; and if not, what should be the remedy." Award at 2. The Arbitrator determined that there were three questions to be resolved. "First, did the [g]rievant make comments regarding fellow employees. Second, if so, are they defamatory. Third, if so, is the 14-day suspension just or not." Id. at 5.
With regard to the first question, the Arbitrator determined that the grievant posted the disputed article on the bulletin board and that the grievant had written the article about two other employees. As such, the Arbitrator found that the grievant had made comments about fellow employees. Regarding the second question, the Arbitrator found that the grievant's comments were defamatory because they "impugn[ed]" the employees' "character, honest[y], integrity, and reputation." Id. at 8. With respect to the third question, the Arbitrator noted that he ruled "at the outset of the arbitration hearing that the first charge [public contempt of a supervisor] was not arbitrable[.]" [n2] Id. Nevertheless, he determined that, even without this charge, the grievant's posting of the article justified the fourteen-day suspension. See id 8-9. In this connection, the Arbitrator found that the grievant's action disrupted the Agency's "workforce, productivity, and efficiency" and was "thoughtless, immature, hurtful, and serious misconduct." Id. at 9. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union claims that the grievant was denied a fair hearing because the Arbitrator refused to address the claim that the fourteen-day suspension was taken in reprisal for the grievant's union activity. See Exceptions at 2. The Union also claims that the Arbitrator erred in finding that the Union ULP precluded the grievance over the public contempt of a supervisor charge because "the Union filed the Unfair Labor Practice and the grievant filed the grievance." Id. at 6. The Union further claims that there was no just cause for the grievant's fourteen-day suspension. See id. at 7. In this regard, the Union asserts that the Arbitrator limited his [ v61 p246 ] analysis to three issues and disregarded the Union's contentions that the fourteen-day suspension was an "act of reprisal against the grievant for his union activities" and that the Agency had violated the grievant's right to freedom of speech. See id.
B. Agency's Opposition
The Agency asserts that the exceptions should be dismissed. According to the Agency, the grievant was a party to a settlement agreement, which waived "any claims arising out of [the grievant's] employment" with the Agency. See Opposition at 2. The Agency notes that the settlement agreement excepts the removal grievance from the waiver of claims, but not the suspension grievance, thereby supporting the conclusion that the suspension grievance was waived. See id. In anticipation of a claim by the Union that the settlement agreement is not binding because the Union was not a party, the Agency contends that the grievance was filed by the grievant, not the Union, under the provision of the parties' agreement providing for employee grievances and that the remedies sought in the grievance were personal to the grievant and did not involve the Union. See id at 2-3.
With regard to the merits of the exceptions, the Agency disputes the Union's claim that the Arbitrator failed to consider the claim that the grievant's discipline was a result of union animus and asserts that the award indicates that the Arbitrator "discounted the grievant's claim of reprisal[.]" Id. at 4. In addition, the Agency contends that the Union's challenges to the Arbitrator's arbitrability determination and finding of just cause are "deficient." Id. at 4, 5.
IV. Order to Show Cause and Union Response
Based on the Agency's claim concerning the settlement agreement, the Authority issued an Order to Show Cause directing the Union to state why the exceptions should not be dismissed. See Show Cause Order dated April 5, 2005 at 1-2. In response, the Union disputes that the settlement agreement, resolving an age discrimination suit, covered the suspension grievance. In this regard, the Union provides an affidavit from the attorney who represented the grievant during the settlement agreement negotiations, asserting that "the language of the settlement agreement was intended to apply to claims within the scope of claims pending in the [civil] action and to be silent on the issue of grievances." Union's Response to Show Cause Order dated April 19, 2005 (Response) at 4. The Union also asserts that it was not a party to the settlement agreement and that "[t]he resolution of an unrelated civil suit does not resolve everything the Union complained of in the case of the fourteen day suspension." Id. at 3. The Union further asserts that exceptions should not be dismissed because the fourteen-day suspension "was a necessary first step" in the grievant's termination and, if the Authority reverses the suspension, then "the appropriate progressive punishment" for the grievant would be an action "less severe" than removal. Id. at 5.
V. The Union's exceptions are not properly before the Authority.
Under Authority precedent, settlement agreements excluding a grievance from the negotiated grievance procedure and arbitration process are enforceable. See AFGE, Local 1592, 57 FLRA 882, 883 (2002); AFGE, Local 2207, 52 FLRA 1477, 1481 (1997). Here, under the explicit terms of the settlement agreement, the grievant agreed to release "all claims and causes of action, whether administrative or judicial" that could have been asserted by the grievant against the Agency "with respect to, or in connection with, or which arise out of . . . his employment[.]" Response, Attachment 2 at 3-4. The terms of the agreement provide that the "sole and exclusive claim excluded" from the general release and wavier of claims is the "grievance submitted by [the grievant] under the negotiated grievance procedure on December 6, 2004, only to the extent it challenges, on the merits, the decision to remove him from federal service dated November 17, 2004[.]" Id. at 4.
The settlement agreement unambiguously states that the "sole and exclusive claim excluded" from the general waiver of claims is the removal grievance. Response, Attachment 2 at 3-4. It is undisputed that the parties were aware of the suspension grievance and the related exceptions pending before the Authority when they entered into the settlement agreement. [n3] As argued by the Agency, the fact that the settlement agreement specifically excludes only the removal grievance, and not the suspension grievance, from the general waiver of claims indicates that the suspension grievance was intended to be included in the waiver. Without regard to whether the grievant's fourteen-day suspension was a "first step" in his removal, the Union has not demonstrated that the suspension grievance was intended to be included in the exception to the waiver of claims for the removal grievance. Response at 5.
The Union claims that "the language of the settlement agreement was intended to apply to claims within the scope of claims pending in the [civil] action and to be silent on the issue of grievances." Response at 4. However, the agreement is not silent on the issue of [ v61 p247 ] grievances -- it specifically excludes the removal grievance from the general waiver of claims. To permit the Union's interpretation of the waiver exception would render meaningless the grievant's release of "any and all claims and causes of action" arising out of his employment with the Agency, other than the removal grievance. See Demarais v. Prudential Ins. Co. of America, 2002 WL 31185918 at *3 (D. Minn. 2002) (where plaintiff's interpretation of waiver exception in a settlement agreement would render exception "meaningless," such interpretation was not adopted); see also McCall v. United States Postal Serv., 839 F.2d 664, 669 (Fed. Cir. 1988) (upholding Merit Systems Protection Board's determination that employee agreed, in a settlement agreement, to waive his appeal rights where determination was consistent with unambiguous terms of the settlement agreement).
The Union also claims that it cannot be bound by the settlement agreement because the grievant was the party to the settlement agreement, while the Union is the party to the arbitration of the suspension grievance, and because the settlement agreement does not resolve all of the Union's claims. Under the Statute and Authority precedent, while only the Union can invoke arbitration, an individual can file a grievance on his or her own behalf. See 5 U.S.C. § 7121(b)(C)(iii); NFFE, Local 1437, 17 FLRA 615, 617-18 (1985). As argued by the Agency, the grievant filed the grievance under the provision of the parties' agreement providing for individual employee grievances. See Exceptions, Joint Exhibit 2, December 9, 2002 Letter at 1. The Union acknowledges that the grievant, in his individual capacity, had the authority to, and did, file an individual grievance regarding the suspension. See Exceptions at 6. The grievant then resolved all of his interests in the suspension grievance through the settlement agreement. The Union did not have any separate claims included in the suspension grievance. See Exceptions, Joint Exhibit 2, December 9, 2002 grievance. Accordingly, after the settlement agreement, no issues remained for resolution in the arbitration process. To find otherwise would permit the Union to litigate claims that the grievant had clearly waived.
As the grievant waived his right to pursue the suspension grievance, we find that the exceptions are not properly before the Authority, and we dismiss the exceptions. [n4]
The Union's exceptions are dismissed.
Footnote # 1 for 61 FLRA No. 47 - Authority's Decision
While arbitration of the suspension grievance was pending, the Agency proposed to remove the grievant from service. The grievant was removed and he filed a grievance regarding his removal (the removal grievance).
Footnote # 2 for 61 FLRA No. 47 - Authority's Decision
Prior to the proposed fourteen-day suspension, the Agency proposed to suspend the grievant for five days for public contempt of a supervisor. The Union filed an unfair labor practice (ULP) over the proposed five-day suspension. While the award does not explain the basis for the Arbitrator's conclusion that the charge of public contempt of a supervisor was not arbitrable, the parties' briefs indicate that the Arbitrator found that the ULP precluded a challenge to the contempt charge in the grievance procedure, pursuant to 5 U.S.C. § 7116(d). See Exceptions, Attachment, Post-Hearing Brief; Opposition, Enclosure 1.
Footnote # 3 for 61 FLRA No. 47 - Authority's Decision
The suspension grievance was filed on November 12, 2002. The Arbitrator issued his award denying the grievance on December 1, 2004. The Union filed exceptions to the award on January 12, 2005. The parties entered into the settlement agreement on February 7, 2005.
Footnote # 4 for 61 FLRA No. 47 - Authority's Decision