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  • American Federation of Government Employees, Local 2052 (Union) and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia (Agency)

American Federation of Government Employees, Local 2052 (Union) and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia (Agency)

[ v56 p604 ]

56 FLRA No. 95

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2052
(Union)

and

U.S. DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
PETERSBURG, VIRGINIA
(Agency)

0-AR-3257

_____

DECISION

August 31, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

Decision by Chairman Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator George R. Gray 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 grievant filed a grievance, which claimed that a letter of reprimand was retaliatory and that the Agency condoned an environment of harassment, intimidation, and discrimination. The Arbitrator denied the grievance. We conclude that the Union fails to establish that the award is deficient. Accordingly, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      On February 2, 1999, the grievant and her supervisor had a confrontation over the grievant's failure to properly deliver mail and her use of sick leave. As a result of the confrontation, the grievant filed a complaint accusing her supervisor of workplace violence. On February 5, the grievant was informed that her approval for certain training had been revoked, and she was not given any explanation. On February 9, the grievant's supervisor was counseled about the confrontation with the grievant. Subsequently, also as a result of the confrontation, the grievant's supervisor was required to take [ v56 p605 ] training to improve communication and manage conflict. In addition, the grievant's supervisor received a lowered performance appraisal that resulted in a loss of pay. On February 22, the grievant was counseled about inappropriate communication with her supervisor during the confrontation.

      On March 19, the grievant was issued a letter of reprimand for failure to follow mail delivery policy. The grievant filed a grievance over the reprimand, claiming that the disciplinary action was in retaliation for having filed the workplace violence complaint and that the Agency, with the condonation of the warden, had perpetuated a pattern of harassment, intimidation, and discrimination. The warden denied the grievance and informed the grievant that her workplace violence complaint and harassment complaint had been referred to the Office of Internal Affairs (OIA) for investigation in accordance with agency regulations.

      The Arbitrator framed the issues on the merits as whether the Agency had retaliated against the grievant as a result of her reporting an incident of workplace violence, and whether the Agency condones, with the concurrence of the warden, an environment of intimidation, harassment, and discrimination. The Arbitrator first addressed whether the grievant's behavior warranted discipline. Noting that the grievant admitted that on three separate occasions within a short period of time, she failed to properly deliver the mail, the Arbitrator found that the discipline of the grievant was warranted. The Arbitrator rejected the grievant's claim that she could have delivered the mail during her lunch break, but was prevented from doing so by her supervisor. He found that the grievant's supervisor had a right to deny the grievant the opportunity to deliver the mail during lunch.

      The Arbitrator next addressed whether the Agency's actions violated the parties' collective bargaining agreement, as claimed by the Union. The Union had claimed that the Agency had violated Article 6, Sections (b)(1)-(4) and Article 30, Section i by disciplining the grievant and by supporting the grievant's supervisor in her acts of harassment, intimidation, and discrimination against the grievant. [n1] 

      The Arbitrator found no violation of Article 30, Section i because the grievant's supervisor did not make any notations in the grievant's performance log. The Arbitrator rejected the grievant's claim of a negative reaction by the Agency to her workplace violence complaint and found no violation of Article 6, Section (b)(1). The Arbitrator determined that the Agency had promptly reported the grievant's workplace violence complaint to OIA and that there was no evidence of workplace violence or a hostile environment in the mail department. The Arbitrator found no violation of Section (b)(2) because both the grievant and her supervisor were counseled and suffered harm as a result of their confrontation.

      The Arbitrator also found no violation of Sections (b)(3) or (b)(4). The Union had argued that the Agency's failure to change the grievant's supervision because of her supervisor's violence violated the agreement. The Arbitrator found that prior to the confrontation between the grievant and her supervisor, the Agency was unaware of any conflict because no one had ever complained about the supervisor. In addition, he noted that there was no evidence that the supervisor was violent, rather than merely confrontational.

      Accordingly, the Arbitrator ruled that the Union failed to establish any agreement violation in the Agency's discipline of the grievant or the Agency's treatment of the grievant. He also found no evidence of a pattern or practice of workplace violence, a perpetuation by the Agency of a hostile environment, or any reprisal by the Agency against the grievant. Therefore, the Arbitrator denied the grievance.

III.     Position of the Parties

A.     Union's Exceptions

      The Union contends that the award is deficient on four grounds:

1.     The award violates the general concept of "Double Discipline."
2.     The Arbitrator's award doesn't draw its essence from the agreement.
3.     The Arbitrator's discussion was partly based on a nonfact.
4.     The Arbitrator's decision has a managerial bias, based on the evidence presented in the arbitration hearing related to the regulations and agreements governing the parties of the arbitration dispute.

Exceptions at 1-2.

      The Union argues that the grievant suffered double punishment for failing to deliver the mail. The Union claims that in addition to being reprimanded, the grievant [ v56 p606 ] was removed from scheduled training because of the failure to deliver mail.

      In apparent support of the asserted essence ground, the Union maintains that under Article 18, Section a of the collective bargaining agreement, employees have a right to determine how they utilize their time during their lunch period. Accordingly, the Union claims that the Arbitrator erred when he concluded that the grievant's supervisor had a right to deny the grievant the opportunity to deliver the mail during lunch. In addition, the Union argues that the memorandum documenting the grievant's counseling is contrary to Article 17, Section a and Article 14, Section (c)(1)(a). [n2] 

      The Union contends that the award is deficient because the Arbitrator utilized information, which was based on a nonfact. The Union argues that "[t]he agency stated that it reported promptly the grievant's report of workplace violence to OIA. This is not a fact . . . ." Exceptions at 11. The Union asserts that the investigation was not conducted until four months later. The Union also disputes that the agency took seriously the grievant's workplace violence concerns and that they were referred in accordance with agency procedures.

      The Union contends that "[t]he Arbitrator's managerial bias is clear." Id. at 15. The Union maintains that the Arbitrator disregarded all of the Union's evidence.

      Although it does not fit within any of the grounds on which the Union asserts that the award is deficient, the Union's most extensive argument is that it "clearly established that an incident of workplace violence occurred . . . ." Id. at 5. In support of this argument, the Union relies on Program Statement 3730.04, the Agency's instruction on workplace violence. The Union argues that the Arbitrator's view of workplace violence is inconsistent with the definition of "workplace violence" set forth in Program Statement 3730.04. The Union maintains that although the Agency never acknowledged it, the confrontation between the grievant and her supervisor constituted workplace violence, as defined in the program statement, and should have been addressed accordingly. The Union asserts that the Agency failed to address the incident under the terms of the program statement and that the Arbitrator failed to apply the program statement in resolving the grievance.

      In another argument that does not fit within its asserted grounds, the Union argues that under "the concept of the Douglas Rule of Discipline in this situation, the grievant should have received a written performance log entry." Id. at 11.

B.     Agency's Opposition

      The Agency contends that the Union's exceptions provide no basis for finding the award deficient and should be denied.

      The Agency argues that the issue of whether the grievant received multiple discipline for having failed to properly deliver the mail was never raised before the Arbitrator and should be barred by section 2429.5 of the Authority's Regulations. In support of its claim that the issue was not raised, the Agency has submitted affidavits from two agency representatives who attended the arbitration hearing.

      The Agency argues that the Union fails to establish that the award does not draw its essence from the agreement. The Agency maintains that the Union has not shown that the award is implausible, unfounded, irrational, or manifests any disregard of the collective bargaining agreement. The Agency argues that the Union's assertions regarding Article 14, Article 17, and Article 18 of the collective bargaining agreement also were not raised before the Arbitrator and should be barred under section 2429.5 of the Authority's Regulations.

      The Agency argues that the Union fails to establish that the award is based on a nonfact. The Agency asserts that the Union's allegations pertain to matters that were disputed and resolved at arbitration.

      The Agency argues that the Union fails to establish that the Arbitrator was biased because the Union fails to identify anything in the record to support its claim.

      The Agency maintains that the Union's arguments concerning workplace violence provide no basis for finding the award deficient because the arguments merely disagree with the Arbitrator's factual finding that the Union failed to establish that workplace violence occurred. [ v56 p607 ]

IV.     Analysis and Conclusions

A.     Consideration of the "double discipline" exception and the issue pertaining to Article 14 and Article 17 are barred by section 2429.5

      Under section 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, raised before the arbitrator. See, e.g., U.S. Department of the Interior, National Park Service, Golden Gate National Recreation Area, San Francisco, California and Laborers' International Union of North America, Local 1276, 55 FLRA 193, 195 (1999). There is no indication in the record that the Union argued to the Arbitrator, as it has in its exception, that the grievant "suffered double punishment" for failing to properly deliver the mail. Exception at 2. In addition, the Agency has presented evidence to support its contention that the issue was not presented to the Arbitrator. As the issue clearly could, and should, have been presented to the Arbitrator, we are barred from considering this exception under section 2429.5.

      There is also no indication in the record that the Union presented to the Arbitrator, as it has in its exceptions, the issues pertaining to Article 14, Article 17, and Article 18 of the collective bargaining agreement, and the Agency presents evidence that these issues were not presented to the Arbitrator. The Union's assertions regarding Article 14 and Article 17 relate to the Agency's actions in counseling the grievant on February 22. As they relate to the Agency's actions, this issue clearly could, and should, have been presented to the Arbitrator. See, e.g., Office and Professional Employees International Union, Local 268 and U.S. Department of Energy, Oak Ridge Operations, Oak Ridge, Tennessee, 54 FLRA 1154, 1157-58 (1998). Accordingly, we are barred from considering this issue under section 2429.5.

      The issue of Article 18 is different. The Union's assertion is that the Arbitrator erred when he concluded that the grievant's supervisor had a right to deny the grievant the opportunity to deliver the mail during lunch. As the issue pertains to the award, the issue is not precluded by section 2429.5 because it is an issue that arose only after the Arbitrator issued his award and could not have been presented at arbitration. See U.S. Department of the Army, Fort Polk, Louisiana and National Association of Government Employees, Local R5-168, 44 FLRA 1548, 1566 (1992).

B.     The award does not fail to draw its essence from the agreement

      With the Union's assertions regarding Article 14 and Article 17 barred by section 2429.5, the only apparent essence argument the Union makes is that the award is inconsistent with Article 18, Section a. However, the Union fails to establish that the Arbitrator's determination that the grievant's supervisor had a right to deny the grievant an opportunity to deliver the mail during her lunch period is in manifest disregard of an employee's right under Article 18 to determine how the employee will utilize the lunch period or is otherwise irrational, implausible, or unfounded. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (award not deficient as failing to draw its essence from the parties' collective bargaining agreement when excepting party fails to establish that the award cannot in any rational way be derived from the agreement; is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement so as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or evidences a manifest disregard of the agreement). Accordingly, we deny this exception.

C.     The award is not based on a nonfact

      The Union disputes as nonfacts the Arbitrator's findings that the Agency promptly referred the grievant's complaint to the office of internal affairs in accordance with agency procedures and that the Agency took the complaint seriously. As these matters were disputed before the Arbitrator, they cannot constitute nonfacts. 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, 594 (1993) (award not deficient as based on a nonfact when excepting party challenges a factual matter that was disputed at arbitration). Accordingly, the Union fails to establish that the award is deficient, and we deny this exception.

D.     The Union fails to establish that the Arbitrator was biased

      The extent of the Union's argument on bias is that the Arbitrator disregarded the Union's evidence. Without more support, the exception is merely a bare assertion that provides no basis for finding the award deficient. See, e.g., National Federation of Federal Employees, local 1437 and U.S. Department of the Army, U.S. Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 55 FLRA 1166, 1173 n.4 (1999). Accordingly, we deny this exception. [ v56 p608 ]

E.     The award is not deficient on the basis of Program Statement 3730.04

      The Union argues that the Arbitrator's view of workplace violence is inconsistent with Program Statement 3730.04, the Agency's instruction on workplace violence. For purposes of our analysis, we construe the policy statement as an Agency rule or regulation. See, e.g., National Association of Government Employees, Local R5-168 and U.S. Department of the Army, Fort Polk, Louisiana, 55 FLRA 654, 656 (1999). The Arbitrator found that the Union failed to establish that workplace violence had occurred in the mail department. Rather than challenging whether the award is consistent with the policy statement, the Union essentially challenges the Arbitrator's factual findings to which we defer. Accordingly, no basis is provided for finding that the award is contrary to the program statement, and we deny this exception. See id.

V.     Decision

      The Agency's exceptions are denied. [n3] 

Appendix

      Article 30, Section i provides: "Supervisors are not required to annotate oral counseling sessions in an employee's performance log."

      Article 6, Sections (b)(1)-(4) pertinently provides:

The parties agree that there will be no restraint, harassment, intimidation, reprisal, or any coercion against any employee in the exercise of any employee rights provided for in this Agreement and any other applicable laws, rules, and regulations, including the right:
1.     to bring any matters of personal concern to the attention of any Management official, any other officials of the executive branch of government, the Congress, and any other authorities. . . . ;
2.     to be treated fairly and equitably in all aspects of personnel management;
3.     to be free from discrimination based on their political affiliation, race, color, religion, national origin, sex, marital status, age, handicapping condition, Union membership, or Union activity;
4.     to direct and pursue their private lives without interference by the Employer or the Union, except in situations where there is a nexus between the employee's conduct and their position.

Footnote # 1 for 56 FLRA No. 95

   These provisions of the agreement are set forth in an appendix to this decision.

Footnote # 2 for 56 FLRA No. 95

   Article 17, Section a provides in part: "No derogatory material of any nature which might reflect adversely upon the employee's character or career will be placed in any official personnel file, written or electronically maintained, without the employee's knowledge." Article 14, Section (c)(1)(a) provides: "[R]ating officials must record specific incidents in the performance log within fifteen (15) working days of becoming aware of the incident."

Footnote # 3 for 56 FLRA No. 95

   To the extent that the Union's argument citing the Douglas factors is viewed as an exception, the exception provides no basis for finding the award deficient. As we have repeatedly recognized, the Douglas factors essentially constitute guidelines governing the appropriateness of penalties for adverse actions under 5 U.S.C. § 7512. See U.S. Department of the Army, III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 46 FLRA 609, 613 (1992). As this case does not involve an adverse action under section 7512, no basis is provided for finding the award deficient. See, e.g., American Federation of Government Employees, Local 2612 and U.S. Department of the Air Force, Rome Laboratory (AFMC), Rome, New York, 55 FLRA 483, 486 (1999).