[ v48 p74 ]
48:0074(8)AR
The decision of the Authority follows:
48 FLRA No. 8
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE FLIGHT TEST CENTER
EDWARDS AIR FORCE BASE, CALIFORNIA
(Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 3854
(Union)
0-AR-2385
_____
DECISION
August 6, 1993
_____
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Charles S. Bunker filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union did not file an opposition to the Agency's exceptions.
The Arbitrator sustained in part a grievance alleging that an employee had been subjected to sexual harassment at the workplace. As a remedy, the Arbitrator ordered that any and all future job and work assignments made to the employee by specific first and second-line supervisors be subject to the approval of higher-level management and that those supervisors attend, on a regular basis, workshops or seminars on sexual harassment.
For the following reasons, we conclude that the portion of the award requiring that any and all future job and work assignments made to the employee by specific first and second-line supervisors be subject to the approval of higher-level management is deficient and, therefore, must be modified. Accordingly, we will modify the award by setting aside that portion of the award. We deny the Agency's exceptions as to the remainder of the award.
II. Background and Arbitrator's Award
The grievant has worked for the Agency as an Aircraft Mechanic for over 5 years. For approximately 5 months during the summer and fall of 1990, the grievant worked on military aircraft at the Phase Dock. The Phase Dock is a work unit within the Agency. During that time, the grievant was the only female employee working at the Phase Dock. In the fall of 1990, the grievant complained to her second-line supervisor, the Aircraft Production Supervisor, of sexual harassment by her first-line supervisor, the Phase Dock Maintenance Crew Supervisor. The grievant's complaint alleged that the first-line supervisor's actions and behavior towards her constituted disparate treatment and created a hostile working environment. The second-line supervisor did not investigate the grievant's complaint.
In the fall of 1991, the grievant returned to work at the Phase Dock. In January of 1992, the grievant complained to her second-line supervisor that her first-line supervisor was continuing to sexually harass her. The second-line supervisor did not investigate this complaint. On January 24, 1992, the grievant called the Chief Steward of the Union and told him that she was being sexually harassed by her first-line supervisor.
On February 3, 1992, pursuant to the recommendation of the first-line supervisor, the second-line supervisor detailed the grievant to the position of Tool and Parts Attendant in the T & O Technical Library.(2) The detail was to last 120 days.(3) On February 24, 1992, the second-line supervisor received a first step grievance from the Union alleging that the grievant's first and second-line supervisors were subjecting the grievant to sexual harassment by creating a hostile working environment. The grievance further alleged that the grievant was detailed on February 3, 1992, in retaliation for having complained to her second-line supervisor about sexual harassment, working conditions, and favoritism shown by the first-line supervisor to other mechanics. Subsequently, on March 9, 1992, the grievant's detail was cancelled and she was placed as an Aircraft Mechanic in a different work unit, the Flight Line.
The parties were unable to resolve the grievance and the matter was submitted to arbitration.
The parties did not agree on how to frame the issues before the Arbitrator. The Arbitrator framed the issue as follows: "Was the [g]rievant . . . subjected to [s]exual [h]arassment (Hostile Environment, Disparate Treatment)?" Award at 2.
The Arbitrator stated that the instant complaint of sexual harassment involved a "hostile environment" case "in which sexually-related conduct in the work place, whether by a supervisor and/or by a co-worker(s) [is alleged to] create[] an 'intimidating, hostile, or offensive working environment[']" to the employee filing the complaint. Id. at 13. The Arbitrator examined Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988 & Supp. III 1991) (Title VII), the Equal Employment Opportunity Commission (EEOC) regulations, and the standard under Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (Meritor Savings Bank) and other Federal court decisions for a finding of sexual harassment based upon a hostile working environment.
Applying the standard set forth in Meritor Savings Bank and other Federal court decisions to the instant grievance, the Arbitrator found that "the evidence in the [o]fficial [r]ecord during the [a]rbitration [h]earing clearly substantiates the Union's claim of [s]exual [h]arassment . . . ." Id. at 17. In this regard, the Arbitrator found that foul, vulgar language and comments were typically used around the grievant in the workplace and that it was unrefuted that on one or more occasions her first-line supervisor "called her a 'stupid bitch' in front of her (male) co-workers and also told her . . . to 'get your ass back to the (Phase) Dock.'" Id. at 14.
The Arbitrator further found that the first-line supervisor applied a double standard in the way that he treated the grievant, who was the only woman at the Phase Dock at the time, and that the application of such a double standard constituted "[h]arassment and [d]iscrimination because of [the grievant's] sex." Id. at 16. The Arbitrator found that the official record was "replete with examples of [the first-line supervisor's] different, dissimilar treatment of the [g]rievant in comparison to how he treated the other (male) employees working in the Phase Dock when [the grievant] was working under [his] supervision[.]" Id. In this regard, the Arbitrator found that the first-line supervisor: (1) had a "condescending attitude" toward the grievant and would admonish her on her work in front of the grievant's male co-workers "so as to purposefully embarrass" the grievant; (2) required the grievant to "'account for her every moment'" while not requiring the same accountability of the male co-workers; (3) sent someone to interrupt the grievant while she was on a break and to instruct her to return to work while allowing the male co-workers to "return to work in a natural manner at the end of their [b]reak[s]"; (4) required the grievant to strictly account for her leave usage without requiring the male co-workers to do the same; (5) "[b]elittl[ed,]" "[d]egrad[ed,]" and "[c]riticiz[ed]" the grievant and her work in front of the male co-workers "so as to make an example of" the grievant; and (6) made other employees talking to the grievant "run[] off" but did not make them do so when they were talking to the male co-workers. Id.
Next, the Arbitrator stated that in hostile working environment cases, "the employer will only be liable if the employer 'knew or should have known'" of the conduct creating the hostile working environment. Id. at 14 (emphasis omitted). The Arbitrator found that the record in this case showed that the grievant's allegations of sexual harassment were made known to her second-line supervisor at least once during the fall of 1990, again in early January of 1992, and again on or about January 24, 1992, when the Union's Chief Steward telephoned the grievant's second-line supervisor and told him that he had received a complaint from the grievant concerning sexual harassment by her first-line supervisor. The Arbitrator found that despite the second-line supervisor's knowledge of the grievant's allegations of sexual harassment before the grievant filed a formal grievance on February 24, 1992, the second-line supervisor "failed to investigate" those allegations. Id. at 17. Because he found that the second-line supervisor clearly had knowledge of the grievant's allegations, the Arbitrator found that management knew of the conduct creating the hostile working environment and held management liable for subjecting the grievant to "[h]arassment and [d]iscrimination because of her . . . sex." Id. at 16.
Having found that the record "clearly substantiate[d]" the Union's claim of sexual harassment, the Arbitrator ordered that any future work assignments made to the grievant by those specific first and second-line supervisors be subject to the approval of higher-level management and that those supervisors attend, on a regular basis, workshops or seminars on sexual harassment. Id. at 17.
The Arbitrator further concluded, however, that the Agency's decision to detail the grievant to the T & O Technical Library on February 3, 1992, was not in retaliation for the grievant's complaints of sexual harassment. Rather, the Arbitrator found that the detail "was an honest effort to place the [g]rievant in a 'light duty,' less physically stressful work assignment in compliance with the [m]edical limitations/restrictions imposed by the physicians who had examined her[.]" Id. at 17 (citations omitted).
III. Exceptions
The Agency contends that the Arbitrator was biased and failed to conduct a fair hearing because the Arbitrator failed to announce, prior to the presentation of evidence, that he would be determining the issues as framed by the Union. According to the Agency, matters relating to the Union's claim of a hostile working environment apart from the claim relating to the grievant's detail to the T & O Technical Library were new issues raised by the Union. The Agency argues that it was prejudiced because the Arbitrator did not give the Agency the opportunity to "obtain any rebuttal evidence [on the Union's new issues] prior to or during the hearing." Exceptions at 10 (citing U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103 (1991) (Hill Air Force Base)). The Agency further asserts that because it was unable to obtain such evidence, "the Agency cannot be held responsible for any misapprehension of the facts by the Arbitrator or incorrect analysis." Id. at 11.
The Agency also contends that the Arbitrator improperly failed to address its threshold claim that the Union's issues could not be considered at arbitration because the Union breached Article 31 of the parties' agreement.(4) In this regard, the Agency argues that the Union failed to provide a factual basis for the instant grievance during the initial steps of the grievance procedure. The Agency maintains that because the Arbitrator "made no attempt to interpret this provision of the contract or address this issue[,]" the Arbitrator "acted directly contrary to the essence of the contract." Id. at 11.
Further, the Agency argues that the award is contrary to law because the Arbitrator "misapplied the elements and standards of proof from [Meritor Savings Bank]." Id. at 6. The Agency states that under Meritor Savings Bank, conduct that constitutes sexual harassment by creating a hostile environment "must be unwelcome and of a sexual nature." Id. The Agency maintains that the "only conduct of [a] sexual nature alleged at the arbitration [hearing] was minimal[,]" involving the use of vulgar language by one of the grievant's co-workers. Id. at 7. The Agency notes that when the Agency's representative asked the grievant if her first or second-line supervisor "ever made any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature[,]" the grievant responded, "No." Id., Attachment 4. The Agency contends that, in these circumstances, the Arbitrator improperly ruled that a hostile environment existed because "the [g]rievant denied[,] and the [A]rbitrator did not find, that any sexual type of conduct created the hostile environment." Id. at 6. Moreover, the Agency argues that the Arbitrator exceeded his authority when he found "sexual harassment through 'hostile environment' without sexual conduct." Id. at 10.
The Agency contends that the award is also contrary to law because the Arbitrator incorrectly used a disparate treatment analysis to find sexual harassment and gender discrimination. The Agency asserts that the alleged misconduct of the first-line supervisor "indicate[d] a possible personality problem between the employee and her supervisor" but did not constitute gender discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas) or sexual harassment under Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983) (Katz). Id. at 9.
Finally, the Agency excepts to the remedies ordered by the Arbitrator. The Agency argues that the portion of the remedy requiring the first and second-line supervisors to attend sexual harassment workshops directly interferes with, and abrogates, management's right to discipline under section 7106(a)(2)(A) of the Statute and management's right to assign work under section 7106(a)(2)(B). See id. at 4 (citing National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797 (1987) (Proposal 16) (BLM, Boise District Office)). Further, the Agency contends that the portion of the remedy requiring that any future work assignments made to the employee by the first and second-line supervisors be subject to the approval of higher-level management directly interferes with, and abrogates, management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute. In this regard, the Agency argues that this portion of the remedy is deficient because "it would require assignment of work to supervisors." Id. (citing Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 26 FLRA 375 (1987) (VAMC), request for reconsideration dismissed, 27 FLRA 277 (1987)).
IV. Analysis and Conclusions
A. The Arbitrator Did Not Deny the Agency a Fair Hearing and Was Not Biased
The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See, for example, American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 46 FLRA 1191, 1195 (1993) (Randolph Air Force Base); Hill Air Force Base. An arbitrator has considerable latitude in the conduct of a hearing, however, and the fact that an arbitrator conducted a hearing in a manner that a party finds objectionable does not, in and of itself, provide a basis for finding an award deficient. See, for example, U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center and American Federation of Government Employees, Local 3407, 44 FLRA 103, 108-09 (1992). Further, Federal courts have held that arbitrators are required only to grant parties a fundamentally fair hearing which provides adequate notice, a hearing on the evidence, and an impartial decision by the arbitrator. See, for example, U.S. Department of Defense Dependent Schools, Mediterranean Region and Overseas Federation of Teachers, AFT, AFL-CIO, 47 FLRA 3, 8 (1993).
We conclude that the Agency has not established that the Arbitrator acted improperly so as to deny the Agency a fundamentally fair hearing. The Agency argues that the Arbitrator failed to conduct a fair hearing because he did not announce, prior to the presentation of evidence, that he would be considering the issues suggested by the Union. The Agency maintains that it was prejudiced because the Arbitrator did not give the Agency the opportunity "to obtain any rebuttal evidence" on those issues prior to or during the hearing. Exceptions at 10 (citing Hill Air Force Base).
It is well established that, in the absence of a stipulation by the parties, an arbitrator's formulation of the issues is accorded substantial deference. For example, U.S. Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Alderson, West Virginia and American Federation of Government Employees, Local 1494, 47 FLRA 95, 97 (1993). The parties in this case did not stipulate the issues to be resolved by the Arbitrator. Accordingly, the Agency's disagreement with the Arbitrator's decision to accept the issues suggested by the Union and to do so without providing prior notice of that acceptance to the parties does not demonstrate that the award is deficient. See id.
Moreover, although the Agency claims that it was unable to obtain evidence to rebut the Union's case, the Agency stated in its closing statement to the Arbitrator that it chose not to address on cross-examination the grievant's allegations that "she was treated differently than the men[,]" that her first-line supervisor "spoke loudly to her, didn't allow her to talk with others, questioned her about her leave usage, and criticized her work publicly" because, in the Agency's view, these allegations "would not constitute sexual harassment." Exceptions, Attachment 4. In these circumstances, we find that the Agency has not shown that the actions of the Arbitrator affected the fairness of the arbitration proceeding as a whole. See generally Newark Stereotypers' Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, 600 (3d Cir. 1968), cert. denied, 393 U.S. 954 (1968). Finally, this case is distinguishable from Hill Air Force Base because the Agency in this case has neither shown nor alleged that the Arbitrator refused to hear evidence that he acknowledged was pertinent and material and that the Agency was ready to present at the time of the hearing.
We further conclude that the Agency has not established that the Arbitrator was biased. To demonstrate that an award is deficient because of bias on the part of the arbitrator, it must be shown, for example, that the award was procured by corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of a party. National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 46 FLRA 451, 455 (1992). The Agency argues that the Arbitrator's failure to announce, prior to the presentation of evidence, that he would be considering the issues suggested by the Union indicates that he was biased. In essence, the Agency disagrees with the Arbitrator's decision to accept the issues suggested by the Union and to do so without providing prior notice of that acceptance to the parties. The Agency's argument does not show that the award is deficient under any of the above-noted tests because, as we noted previously, in the absence of a stipulation by the parties, an arbitrator's formulation of the issues is accorded substantial deference.
Accordingly, for the foregoing reasons, we conclude that this exception provides no basis for finding the award deficient.
B. The Award Does Not Fail to Draw Its Essence from the Parties' Agreement
To demonstrate that an award fails to draw its essence from the parties' collective bargaining agreement, a party must show 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 the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, Randolph Air Force Base, 46 FLRA at 1194.
The Agency has not demonstrated that the award fails to draw its essence from the parties' agreement under any of these tests. The Agency argues that the Arbitrator "made no attempt to" address its threshold claim that the Union's issues could not be considered at arbitration because the Union breached Article 31 of the parties' agreement. Exceptions at 11. In this regard, the Agency asserts that the Arbitrator failed to determine whether, as required by Article 31, the Union provided an adequate factual basis for the instant grievance during the initial steps of the grievance procedure.
An arbitrator's failure to set forth specific findings does not provide a basis for finding an award deficient. See, for example, U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 41 FLRA 1042, 1049 (1991). We find that by addressing the merits of the grievance, the Arbitrator implicitly rejected the Agency's claim that the Union failed to comply with Article 31.
Accordingly, we conclude that this exception provides no basis for finding the award deficient.
C. The Award Is Not Contrary to Law
1. The Arbitrator Properly Applied Meritor Savings Bank
Under Meritor Savings Bank, "hostile environment" sexual harassment is a form of sex discrimination prohibited by Title VII. Meritor Savings Bank, 477 U.S. at 65. For sexual harassment based on a hostile working environment to be actionable under Title VII, it must be sufficiently severe or pervasive to alter the employee's conditions of employment and create an abusive working environment. Id. at 67. Moreover, the conduct or advances complained of must be unwelcome. Id. at 68. See generally Schlei & Grossman, Employment Discrimination Law Ch. 12, at 152-53 (David A. Cathcart et al. eds, 2d ed. Cum. Supp. 1989). An employer is liable for the acts of a supervisor "'where the [employer] knew or should have known of the harassment and failed to take prompt remedial action.'" Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990) (Andrews) (quoting Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989)). If an employee establishes the above factors, an employer "may rebut the [employee's] case by producing evidence that the conduct did not occur, or that it was genuinely 'trivial' in nature or was an isolated incident, or that the [employee] did not indicate that the conduct was unwelcome (or, conversely, that the [employee's] conduct demonstrated that the behavior was welcome)." Employment Discrimination Law at 153.
The Arbitrator applied EEOC's regulations on sexual harassment,(5) the Supreme Court's decision in Meritor Savings Bank, and decisions of other Federal courts in concluding that the grievant had been subjected to sexual harassment in violation of Title VII. The Agency argues that the award is contrary to law because the Arbitrator "misapplied the elements and standards of proof from [Meritor Savings Bank]." Exceptions at 6. According to the Agency, the Arbitrator improperly ruled that a hostile environment existed because "the [g]rievant denied[,] and the [A]rbitrator did not find, that any sexual type of conduct created the hostile environment." Id. The Agency notes that when the Agency's representative asked the grievant if her first or second-line supervisor "ever made any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature[,]" the grievant responded, "No." Exceptions, Attachment 4.
Contrary to the Agency's argument, several Federal circuit courts have stated that harassment may constitute sex discrimination even if the offending conduct or language is not sexual in nature. See Andrews, 895 F.2d at 1485 (where the court stated that to establish a sexually hostile working environment "the offensive conduct is not necessarily required to include sexual overtones" and that the Supreme Court's decision in Meritor Savings Bank "in no way limited th[e] concept [of sexual harassment] to intimidation or ridicule of an explicitly sexual nature"); Hall v. Gus Construction Co., 842 F.2d 1010, 1014 (8th Cir. 1988) (Hall) (the court agreed with the rationale of other courts that harassment does not have to be sexual in nature because "[i]ntimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances"); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415 (10th Cir. 1987) (Hicks) (where the court rejected the view that the acts underlying a sexual harassment claim had to be clearly sexual in nature). See also McKinney v. Dole, 765 F.2d 1129, 1138 (D.C. Cir. 1985) (McKinney) (where the court stated that it has "never held that sexual harassment or other unequal treatment of an employee . . . that occurs because of the sex of the employee must, to be illegal under Title VII, take the form of sexual advances or of other incidents with clearly sexual overtones").(6)
Accordingly, we find that the Agency's argument that the Arbitrator improperly relied on conduct that was not clearly of a sexual nature to conclude that the grievant established the existence of a hostile working environment constitutes mere disagreement with the Arbitrator's evaluation of the evidence and provides no basis for finding the award deficient. See, for example, American Federation of Government Employees, Local 2142 and U.S. Department of Army, Corpus Christi Army Depot, Corpus Christi, Texas, 46 FLRA 61, 64 (1992). Moreover, to the extent that the Agency disputes the weight that the Arbitrator gave to the grievant's answer regarding the presence of conduct of a sexual nature, such a dispute constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and testimony. As such, it provides no basis for finding the award deficient. See, for example, National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252, 272 (1992).
We reject the Agency's claim that the Arbitrator improperly applied Meritor Savings Bank. In particular, we note that the Arbitrator relied on the following findings to conclude that sexual harassment occurred and that it was sufficiently severe or pervasive to alter the grievant's conditions of employment and create a hostile or abusive working environment. As found by the Arbitrator, foul, vulgar language and comments were typically used around the grievant in the workplace and on one or more occasions, her first-line supervisor "called her a 'stupid bitch' in front of her (male) co-workers and also told her . . . to 'get your ass back to the (Phase) Dock.'" Award at 14. Further, the Arbitrator found that the first-line supervisor: (1) had a "condescending attitude" toward the grievant and would admonish her on her work in front of the grievant's male co-workers "so as to purposefully embarrass" the grievant; (2) required the grievant to "'account for her every moment'" while not requiring the same accountability of the male co-workers; (3) sent someone to interrupt the grievant while she was on a break and to instruct her to return to work while allowing the male co-workers to "return to work in a natural manner at the end of their [b]reak[s]"; (4) required the grievant to strictly account for her leave usage without requiring the male co-workers to do the same; (5) "[b]elittl[ed,]" "[d]egrad[ed,]" and "[c]riticiz[ed]" the grievant and her work in front of the male co-workers "so as to make an example of" the grievant; and (6) made other employees talking to the grievant "run[] off" but did not make them do so when they were talking to the male co-workers. Id. at 16. Further, based on the Arbitrator's findings as a whole, including his finding of prior complaints by the grievant, we conclude that the Arbitrator implicitly determined that the conduct was unwelcome. Moreover, as found by the Arbitrator, management was clearly aware of the grievant's complaints of sexual harassment and failed to investigate them or otherwise act to end the harassment.
We conclude that the Arbitrator's findings in this case support his conclusion that the grievant was subjected to a hostile working environment under Meritor Savings Bank and its progeny and that the Agency did not rebut those findings. Accordingly, we reject the Agency's argument that the Arbitrator "misapplied the elements and standards of proof from [Meritor Savings Bank]." Exceptions at 6.
2. The Arbitrator Did Not Improperly Find that the Grievant Was Subjected to a Double Standard
The Agency argues that the award is also contrary to law because the Arbitrator incorrectly used a disparate treatment analysis to find sexual harassment and gender discrimination. The Agency asserts that the alleged misconduct of the first-line supervisor did not constitute gender discrimination under McDonnell Douglas or sexual harassment under Katz. In our view, the Agency has misinterpreted the Arbitrator's conclusion regarding disparate treatment in this case. The Arbitrator did not apply the test for disparate treatment under McDonnell Douglas because, with respect to the sexual harassment claim that was separate from the claim over the grievant's detail to the T & O Technical Library, the Arbitrator was not faced with the issue of whether the grievant was subject to discrimination under McDonnell Douglas. Rather, the issue before the Arbitrator was whether the alleged sexual harassment constituted sex discrimination under Meritor Savings Bank. In these circumstances, the Arbitrator examined allegations of disparate treatment only to determine whether, based on the evidence, a "double standard" was applied to the grievant because she was a woman and, if so, whether such "double standard" pervaded the work environment. Award at 15. As it was unnecessary for the Arbitrator to apply McDonnell Douglas to find that the grievant had been subjected to sexual harassment under Meritor Savings Bank, we find that the Agency's argument provides no basis for finding the award deficient.
We have already found that the Arbitrator's findings in this case support his conclusion that the grievant was subjected to a hostile working environment under Meritor Savings Bank and its progeny. Accordingly, we find that the Agency's argument challenging the Arbitrator's conclusion in this regard simply constitutes disagreement with the Arbitrator's reasoning and conclusions and provides no basis for finding the award deficient. See, for example, U.S. Department of the Army, Red River Army Depot, Texarkana, Texas and National Association of Government Employees, Local R14-52, 44 FLRA 1205, 1210 (1992).
D. The Arbitrator Did Not Exceed His Authority
An arbitrator exceeds his or her authority when, for example, an arbitrator resolves an issue not submitted to arbitration or awards relief to persons who did not file a grievance on their own behalf and did not have the union file a grievance for them. See U.S. Department of the Air Force, Air Force Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 47 FLRA No. 62, slip op. at 6 (1993). The Agency argues that the Arbitrator exceeded his authority when he found "sexual harassment through 'hostile environment' without sexual conduct." Exceptions at 10. The Agency has not established that the Arbitrator's award relates to matters which were not submitted to arbitration, awards relief to persons who did not file a grievance and did not have the Union file a grievance for them, or in any other manner exceeds the Arbitrator's authority. Accordingly, the Agency's argument that the Arbitrator exceeded his authority provides no basis for finding the award deficient.
E. Remedies
1. Workshops on Sexual Harassment
As part of the remedy, the Arbitrator ordered the first and second-line supervisors to attend, on a regular basis, "training workshops/seminars, etc. on [s]exual [h]arassment for the purpose of being/becoming informed as to what their [l]egal [o]bligations are, as [Agency] representatives[, on] this extremely important [i]ssue." Award at 18. The Agency argues that this portion of the remedy directly interferes with, and abrogates, management's rights to discipline and assign work.
Arbitrators have great latitude in fashioning remedies. For example, U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288, 1296 (1991) (Bureau of Prisons), petition for review denied, 981 F.2d 1339 (D.C. Cir. 1993). We find that the Agency's exception to the portion of the remedy requiring the first and second-line supervisors to attend workshops or seminars on sexual harassment constitutes disagreement with the Arbitrator's fashioning of the remedy and provides no basis for finding the award deficient.
We also reach the same result with respect to the Agency's argument that this portion of the remedy directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute because that right encompasses only the right to discipline "employees," and section 7103(a)(2) of the Statute expressly excludes supervisors from the definition of "employee." See Bureau of Prisons, 39 FLRA at 1298.
We further reject the Agency's argument that this portion of the remedy directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that under the Authority's decision in BLM, Boise District Office, management's right to assign work encompasses any training assignments, including sexual harassment training. However, in American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 567 (1991) (DMA), the Authority specifically stated that it would no longer follow BLM, Boise District Office to the extent that that case indicated that all proposals requiring agencies to conduct sessions intended to convey information would be treated as training proposals. Rather, in DMA the Authority found that proposals merely requiring an agency to provide information that concerned conditions of employment and was otherwise disclosable did not concern the assignment of training. See id. at 563. See also American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405 (1992) (Proposal 6) (HCFA).
The Arbitrator stated that the first and second-line supervisors were to take workshops or seminars on sexual harassment "for the purpose of . . . becoming informed as to what their [l]egal [o]bligations are . . . ." Award at 18 (emphasis added). Although such workshops or seminars may assist the supervisors in better performing certain facets of their jobs, we find that the Arbitrator clearly intended this portion of the remedy to require the Agency to ensure that the supervisors obtain information on a matter, sexual harassment, that concerns conditions of employment and is otherwise disclosable. See HCFA, 44 FLRA at 1432 (information on sexual harassment "clearly concerns conditions of employment" and is otherwise disclosable). In these circumstances, we conclude that this portion of the remedy does not concern the assignment of training under the standard set forth in DMA.(7)
We note the Agency's argument that under VAMC an arbitration award requiring the assignment of work to supervisors is deficient. However, as we noted above, this portion of the remedy does not concern the assignment of work, but merely the provision of information that clearly concerns conditions of employment and is otherwise disclosable.
Accordingly, for the foregoing reasons, the Agency's exception to the portion of the remedy requiring the first and second-line supervisors to attend workshops or seminars on sexual harassment provides no basis for finding the award deficient.
2. Approval of Future Work Assignments
As part of the remedy, the Arbitrator ordered that "ANY/ALL future job/work assignments while the [g]rievant . . . works for i.e., remains under the supervision of [the Phase Dock Maintenance Crew Supervisor] AND [the Aircraft Production Supervisor] will be subject to the approval of higher[-]level Management." Award at 18. The Agency contends that this portion of the remedy directly interferes with, and abrogates, management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute.
Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 42 FLRA 542, 553, 561 (1991). Proposals that require an agency to assign particular tasks to particular individuals, or preclude management from assigning particular functions to particular individuals, directly interfere with management's right to assign work. National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1179 (1991), vacated in part and remanded as to other matters, No. 91-1217 (D.C. Cir. Feb. 28, 1992) (order), decision on remand, 45 FLRA 1132 (1992). This portion of the remedy requires that before the grievant's first or second-line supervisors may exercise management's right to assign a particular task to the grievant, such assignment must be approved by higher-level management. By requiring that any and all future job and work assignments made to the grievant by her first and second-line supervisors be subject to the approval of higher-level management, this portion of the remedy precludes the first and second-line supervisors from assigning tasks unless a stated condition is met and thereby directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
Accordingly, as this portion of the remedy directly interferes with management's right to assign work, we conclude that the portion of the remedy requiring that any and all future job and work assignments made to the grievant by her first and second-line supervisors be subject to the approval of higher-level management is contrary to law. Consequently, we will modify the award to set aside that portion of the remedy.
In view of our conclusion that this portion of the remedy is contrary to management's right to assign work, we need not address the Agency's argument that this portion of the remedy is also contrary to management's right to assign employees.
V. Decision
The award is modified to delete the following sentence from the award: "ANY/ALL future job/work assignments while the [g]rievant . . . works for i.e., remains under the supervision of [the Phase Dock Maintenance Crew Supervisor] AND [the Aircraft Production Supervisor] will be subject to the approval of higher[-]level Management." The exceptions as to the remainder of the award are denied.
Concurring Opinion of Member Talkin
I concur in the majority's decision to deny the Agency's exception to the Arbitrator's remedy ordering the first-line and second-line supervisors to attend, on a regular basis, "training workshops/seminars, etc. on [s]exual [h]arassment for the purpose of being/becoming informed as to what their [l]egal [o]bligations are, as [Agency] representatives[, on] this extremely important [i]ssue." Award at 18. However, I write separately to express my disagreement with my colleagues' determination that this remedy does not concern training and, therefore, does not concern management's right to assign work under section 7106(a)(2)(B) of the Statute.
In my view, it is evident that the Arbitrator's order that the supervisors attend workshops on sexual harassment is directly concerned with their performance in managing and supervising employees within the Agency. It also is evident to me that this remedy is specifically intended to correct and cure the supervisors' deficiencies and to prevent any recurrence of similar problems in the future. Accordingly, I disagree with my colleagues that the training required by the Arbitrator's award can be compared to meetings held simply to convey information. Because the remedy directly pertains to improving the supervisors' job performance, I would find that, consistent with Authority precedent, the remedy concerns the assignment of training and management's assignment of work.
Although I would find that the remedy concerns the assignment of training and management's right to assign work, I, nevertheless, would find no basis for determining that the award is deficient. In my view, this is just the type of relief that Congress intended arbitrators to be authorized to award when Congress provided bargaining unit employees with the option in section 7121(d) of the Statute of filing a grievance raising an allegation of employment discrimination of the kind prohibited by any law administered by the Equal Employment Opportunity Commission (EEOC).
In the area of equal employment opportunity, the Federal Government strives to be a model employer. It is the stated policy of the Federal Government to provide equal employment opportunity to all persons and to prohibit discrimination in employment because of race, color, religion, sex, or national origin. 29 C.F.R. §§ 1613.202, 1614.101. The head of each agency is directed to exercise personal leadership in establishing, maintaining, and carrying out a continuing program designed to promote equal employment opportunity in every aspect of agency personnel policy and practice. 29 C.F.R. §§ 1613.203, 1614.102. Under the terms of this program, each agency, among other things, is to conduct a continuing campaign to eradicate every form of prejudice or discrimination based upon race, color, religion, sex, or national origin from the agency's personnel policies, practices, and working conditions, including action against employees who engage in discriminatory practices. In addition, each agency is to review, evaluate, and control managerial and supervisory performance in such manner as to ensure a continuing affirmative application and vigorous enforcement of the policy of equal opportunity and to provide orientation, training, and advice to managers and supervisors to assure their understanding and implementation of the equal employment opportunity policy and program. Id.
In administering the statutory equal employment opportunity complaint procedure, the EEOC recognizes that the basic effectiveness of its law enforcement program is dependent upon securing prompt, comprehensive, and complete relief for all individuals directly affected by violations of the statutes that it enforces. 29 C.F.R. part 1613, appendix A (Policy Statement on Remedies and Relief for Individual Cases of Unlawful Discrimination). The EEOC also recognizes that, as appropriate, remedial measures need to be designed to prevent recurrence of similar unlawful employment practices. In addition, Title VII of the Civil Rights Act of 1964 grants Federal courts broad power to enjoin employers from engaging in unlawful employment practices and to order such affirmative action and equitable relief as the court deems appropriate. 42 U.S.C. § 2000e-5(g)(1). "[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (quoting Bell v. Hood, 327 U.S. 678, 684 (1946). As noted by my colleagues, such necessary relief has included ordering the appropriate training of supervisors. EEOC v. Murphy Motor Freight Lines, 488 F. Supp. 381, 390 (D. Minn. 1980).
I believe that the same relief must also be available when employees affected by prohibited employment discrimination elect to raise their allegation as a grievance, instead of filing a complaint of discrimination under the statutory equal employment opportunity complaint procedures. In my view, this is precisely the remedial authority that Congress intended that arbitrators have in resolving employment discrimination grievances when Congress granted employees the choice provided by section 7121(d) of the Statute. Otherwise, the choice granted by the Statute would be rendered illusory. The U.S. Court of Appeals for the D.C. Circuit recently addressed the similar choice of forums granted in section 7116(d) of the Statute where the aggrieved party has the option of raising an issue as an unfair labor practice or of filing a grievance. The court found that "[b]y providing for a choice of forum, section 7116(d) assumes that a similar analytical approach would be followed--if not the same result reached--by both the arbitrator and the Authority with respect to matters over which there is concurrent jurisdiction." Internal Revenue Service v. FLRA, 963 F.2d 429, 438 (D.C. Cir. 1992) (emphasis in original). On the basis of these findings of the court with respect to the similar option of section 7116(d), I believe that to deny the authority of an arbitrator to grant full relief for a finding of discrimination, as would the EEOC or the Federal courts, would destroy the promise of a choice of forums with similar--if not identical--remedial authority, as intended by Congress.
Moreover, it has long been recognized that arbitration of disputes is faster, less costly, less formal, more responsive to workplace needs, and more conducive to the preservation of ongoing employment relations than is formal litigation. Devine v. White, 697 F.2d 421, 435 (D.C. Cir. 1983). In my view, Congress intended arbitration to function as a preferred means of resolving disputes in the Federal sector, and Congress specifically acted to make arbitration available to employees to raise allegations of prohibited employment discrimination. I believe that were the Authority to restrict the remedial power of arbitrators to grant relief to victims of employment discrimination, more formal litigation would replace the use of arbitration to resolve these disputes. To me, a proliferation of litigation is not only undesirable, it is not in the public interest and ignores the purposes and policies of the Statute of facilitating the settlement of disputes and of recognizing the centrality of final and binding arbitration to the resolution of those disputes under the Statute.
The disputed relief ordered by the Arbitrator is fully consistent with the policy and programs of the Federal Government as a model employer and is fully consistent with the remedial policies of the EEOC and the Federal courts. I would not find remedies of arbitrators that direct relief consistent with their finding of a violation of Title VII of the Civil Rights Act of 1964 to be deficient because the relief implicates the exercise of a management right. In my view, in providing relief to employees affected by prohibited employment discrimination, arbitrators are not exercising any additional authority beyond that which they routinely exercise in resolving other grievances, including those that involve the exercise of a management right. For example, arbitrators routinely resolve under the Statute grievances over whether disciplinary action was warranted and, if so, whether the penalty assessed was appropriate. I believe that the authority to provide full relief for victims of employment discrimination is consistent with congressional intent concerning the functions performed by arbitrators resolving grievances under the Statute. To the extent that the resolution of grievances by arbitrators in this manner may affect the exercise of a management right under section 7106, such effect results from implementation of congressionally mandated and expanded grievance and arbitration procedures, which permit Federal employees to file grievances over allegations of prohibited employment discrimination. Accordingly, I would not find deficient appropriate relief ordered by arbitrators for violations of Title VII or other laws administered by the EEOC solely because the relief intrudes upon the exercise of a management right.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Talkin's concurring opinion is set forth at the end of this decision.
2. The record does not indicate what "T & O" means.
3. The record indicates that the grievant had back surgery "[s]ometime prior to the instant [a]rbitration" and that her physician imposed some "minor physical restrictions" on her work assignments. Award at 2.
4. Article 31 states in relevant part that the written grievance must include "the basis for the grievance." Exceptions, Attachment 4.
5. The EEOC's Guidelines on Discrimination Because of Sex provide in relevant part that:
[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute harassment when . . . (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
29 C.F.R. § 1604.11(a) (1992).
6. Both the Third and D.C. Circuits have noted that the EEOC regulation concerning sexual harassment appears to emphasize explicitly sexual behavior but found that their interpretation of what constitutes sexual harassment was consistent with the wording of Title VII and prevailing case law. See Andrews, 895 F.2d at 1485 n.6 (reading the EEOC guideline to mean that only explicit sexual harassment is actionable "does not appear to be consistent with either the wording of the EEOC guideline or the prevailing case law"); McKinney, 765 F.2d at 1139 n.20 (even assuming the EEOC regulation does not cover harassment that is not overtly sexual, the court does "not believe that an EEOC regulation that identifies certain activities as prohibited by Title VII can or should be taken to mean that any other activities are allowed").
7. In reaching this conclusion, we are not determining whether this portion of the remedy would be deficient if it concerned the assignment of training. However, we note in this regard that a remedy requiring supervisors whose conduct violated Title VII to take sensitivity training is equitable relief that would appear to be consistent with Title VII by appropriately addressing the harm to the grievant created by the statutory violation. See 42 U.S.C. § 2000e-5(g)(1) (Supp. III 1991) (authorizing court to order affirmative action, including equitable relief as the court deems appropriate, to remedy violations of Title VII); EEOC v. Murphy Motor Freight Lines, 488 F. Supp. 381, 390 (D. Minn. 1980) (to remedy racial harassment creating an intimidating work environment, the court ordered the employer to educate its supervisors and managers on, among other things, racial and national origin discrimination and the legal requirements of Title VII).