FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 02-10852

NTEU CHAPTER 208,

Union,

and

U.S. NUCLEAR REGULATORY COMMISSION,

Agency.
___________________________________________/

OPINION OF THE ARBITRATOR

January 7, 2003

After a Hearing Held October 24, 2002

In the NRC Region II Office in Atlanta, Georgia

For the Union: For the Agency:

Karen M. Tanner Karl L. Farrar

Assistant Counsel, NTEU Senior Attorney, NRC
2801 Buford Highway, Suite 430 15B18 OWFN
Atlanta, GA 30329 Washington, DC 20555
 Background

Grievant is employed as a senior project engineer, by the U.S. Nuclear

Regulatory Commission (“NRC”, “Agency”, or “Employer”) in its Region II

office in Atlanta, Georgia. He is a member of Chapter 208 of the National

Treasury Employees Union (“Union”), which represents Agency employees.

At the time of the events in dispute, Grievant served as the Union’s Region

II Vice-President. In the spring of 2001, he was assigned to lead a team in

conducting the annual Problem Identification and Resolution (“PI&R”)

inspection at the Hatch Nuclear Power Plant in Baxley, Georgia,

approximately 200 miles from the Agency’s Atlanta office. The inspection

was scheduled to take place in two phases, November 13-16 and 26-30,

2001, with time in between for review and assessment.

The first phase of the inspection proved uneventful. Grievant was on

leave during Thanksgiving week, November 19-23, 2001, vacationing in

Orlando, Florida. He had his laptop computer with him and so could check

his office email. On November 22, Thanksgiving day, Grievant sent his

supervisor, Stephen J. Cahill (“Supervisor”), an email stating, “I’ll be in the

office Monday to do some union work. I’ll go to Hatch following Current

Events.” Currents Events was a reference to the Agency’s monthly regional

2
employee meeting, routinely held on the last Monday of each month. The

email indicated a time of 9:19PM.

The Supervisor did not receive the email until he went into work the

next morning. Initially he sought to ascertain the need to attend to Union

business on Monday morning. The human resources team leader for Region

II, Alma C. “Buffy” Allen, suggested that any business could be

rescheduled. The Supervisor then attempted to telephone Grievant’s home

but received a recorded message that the phone had been disconnected. The

Supervisor next sought to call Grievant on his cell phone but couldn’t find

Grievant’s cell phone number.

Finally, at 3:53PM on Friday afternoon, the Supervisor responded to

Grievant’s email with the following pertinent remarks:

This does not work. Leaving after Current Events is done at 11:30
essentially shoots the whole day. You have been assigned as the Hatch
PI&R lead and you need to be there. You do not have my permission
to come into the office Monday. If you have critical union activities to
perform when you are supposed to be at a site, as we’ve discussed
previously and per the NTEU contract, you need to discuss them with
me. Edwin or Larry [Union stewards] should be able to take care of
any emergent things on Monday. If something requires your
individual attention we need to discuss it and arrange an amenable
compromise. Buffy did not know of any critical NTEU business
scheduled for next week. She also noted that anything that was could
be rescheduled to accommodate your inspection schedule.

The Supervisor also left a message on Grievant’s office voice mail, which

Grievant could access externally.

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 Grievant’s workday was scheduled to begin at 7:15 Monday

morning.1 The Supervisor testified that Grievant’s office was still dark at

7:30. The Supervisor heard from Plant Hatch about 8:00 and learned that

Grievant had left a message indicating that he would arrive there in late

afternoon. Shortly afterward the Supervisor went to Grievant’s office and

found him in the hallway. When the Supervisor inquired as to why he was

not at Plant Hatch, Grievant would say only that he was in the office to

handle Union business and to attend the Current Events meeting. The

Supervisor told Grievant, “You need to be at Plant Hatch.”

The Supervisor discussed the situation with George Gregory Benoit,

the director of resource management and administration for Region II

(“Director”), an Agency executive with substantial training and experience

in labor relations. The Director suggested a meeting among the three of them

in his office, to which Grievant was summoned. What ensued is a matter of

some controversy, to be analyzed later. As the Supervisor himself described

the meeting, “[A] lot of stuff happened in a short period of time … .” TR @

55.

At the very least, it appears that, from the outset, Grievant tried to

involve other Union officers in the discussion and reached across the

1
The Supervisor testified that the workday was to have begun at 7:00. TR @ 40. However, in its
brief @ 5, the Agency indicates that starting time was 7:15. The arbitrator gives Grievant the

4
Director’s desk and began dialing Union headquarters on the Director’s

telephone, using the phone’s speaker function. The Director interrupted

Grievant’s attempt, by lifting the receiver from its cradle. The Director

insisted that a fact-finding discussion precede any further Union

involvement. Sometimes-heated exchanges took place, in which profanity

was used.

Grievant’s position was that he was not required to seek permission to

attend to Union business or to reveal its nature, but had merely to inform

management that he was engaged in such business. Management’s position,

as articulated by the Supervisor and the Director, was that Grievant’s

Agency work comes first and that Union business is to be conducted in

accordance with the Collective Bargaining Agreement (JX 1, “CBA”). The

Supervisor directed Grievant to proceed to Plant Hatch immediately, and the

Director cautioned Grievant that his conduct bordered upon insubordination.

The meeting broke up with no resolution.

Following this meeting, Grievant contacted the Union President, who

apparently persuaded Grievant to leave for Plant Hatch, which he did about

9:37 Monday morning. A Union steward attended the Current Events

benefit of the doubt.

5
meeting in Grievant’s stead. Grievant arrived at Plant Hatch about 1:30 that

afternoon. The PI&R inspection was completed without further interruption.

By memorandum dated January 7, 2002 (JX 2, Tab D), the Supervisor

proposed that Grievant be suspended without pay for 14 calendar days, for

“Inappropriate Conduct”. On February 26, 2002, Victor M. McCree, deputy

director of reactor projects for Region II (“Deputy Director”) and the

deciding official with respect to Agency action in this matter, reduced the

suspension to 10 calendar days, because of Grievant’s 15 years of service

and absence of prior disciplinary record (JX 2, Tab B). The Deputy Director

stated that he had analyzed the factors recognized in Douglas v Veterans

Administration, 5 MSRP 280 (1981), although Agency policy is not to

commit the analysis to writing. By letter dated March 8, 2002 (JX 2, Tab A),

the Union invoked arbitration. A hearing was held on October 24, 2002. The

parties have filed briefs, and the matter is ripe for decision.

The Collective Bargaining Agreement

Not surprisingly, the parties take rather different perspectives of the

events in controversy. Fortunately for the arbitrator, the provisions of the

Collective Bargaining Agreement specifically address the principal issues

presented. Moreover, admissions by the parties, through statements or

6
conduct, serve to further resolution of the dispute. Pertinent provisions of the

CBA are set forth below.

Article 7, § 7.6, Steward Functions in Relation to Official Duties:

Union stewards will arrange to perform their representation functions at a

time that will present minimum interference with duties assigned by their
supervisors. The supervisor may deny a steward’s request to interrupt work
on his/her assigned duties in order to engage in representational functions
for reasons related to the steward’s workload. Performance appraisals of
stewards and Union representatives shall be based solely upon the
performance of their NRC assigned duties in the available time to perform
such assigned duties. (Emphasis supplied.)

Article 8, § 8.4, Official Bank Time Functions:

Time spent performing the following representational functions shall be

charged against official bank time:

8.4.1 Confer with affected unit employees about matters for which they can
receive remedial relief under the Agreement;

8.4.2 Prepare and investigate grievances, including interviewing of

witnesses;

8.4.3 Prepare for arbitration;

8.4.4 Attendance at Union sponsored training on labor-management

relations providing that no more than 24 hours of official bank time
per representative for such purposes, per agreement year. In addition,
a pool consisting of a maximum of 120 hours of official time per
agreement year to allocate to all stewards;

8.4.5 To prepare and issue reports required by the Department of Labor;

8.4.6 To contact members of Congress and their staffs to discuss legislative

and related matters affecting the NRC and its employees (this time
may not be used to conduct internal Union business or lobbying); and

7
8.4.7 To maintain Union office hours (agency hours) in the main NTEU
office.

Article 8, § 8.5, Official Time Functions:

With respect to the following matters only, Union representatives at NRC

Headquarters and Regional Offices are granted reasonable official time
which is in addition to the official time which is to be charged against an
allocated bank of time and the official time to which Union representatives
are entitled under Title 5, U.S.C., Section 7131(a) and (c):

8.5.1 For one Union representative to attend any formal discussion pursuant
to 5 U.S.C., Section 7114(a)(2)(A);

8.5.2 For one Union representative to attend any examination, pursuant to 5

U.S.C., Section 7114(a)(2)(B), of an employee by a representative of
NRC in connection with an investigation if the employee requested
such attendance;
8.5.3 For one Union representative to attend any grievance meeting and any
arbitration hearing in case of an appeal; however, by mutual
agreement, a maximum of 2 Union representatives may attend a
grievance meeting;

8.5.4 To represent an employee with respect to a reply to a notice of

proposed disciplinary action, or a notice of proposed removal or
reduction in grade based on unacceptable performance; and

8.5.5 For not more than 2 Union representatives to prepare for and
participate in mid-term negotiations, including discussions on the
impact and implementation of proposed changes in personnel policies,
practices, and matters affecting working conditions; and

8.5.6 Time spent traveling to and from the places where discussions or
meetings are to be held as set forth above.

Article 8, § 8.6, Requests for Representational Time:

A Union representative must request and be granted permission from his/her

supervisor or supervisor’s designee to take time away from work to perform
Union representation functions, unless such time is expected to be less than

8
10 minutes. He/she will specify the purpose by referencing the appropriate
provision of (either Sections 8.4 or 8.5), expected length of such time off
from official duties, the office he/she intends to visit, and a telephone
number where he/she can be reached (if leaving his/her normal work area).
Permission will be granted unless the representative’s absence would cause
a work interruption or if an emergency exists. Union representatives shall
furnish the information described in this paragraph on a form which will be
maintained by the supervisor. In the event the Union representative’s
supervisor is unavailable, the Union’s representative shall leave a message
for the supervisor or designee furnishing the information described in this
paragraph. (Emphasis supplied.)

Analysis Of CBA Provisions And The Nature Of The Dispute

Grievant and the Union take the position that, so long as a Union

official is engaged in “Union business”,2 then all he has to do is so inform

management and he is privileged to engage in it on Agency time. The plain

language of the CBA does not admit of such an interpretation. First, no such

generic category as “Union business” is listed in the CBA. To the contrary,

only specific categories of activities constituting Union business are

enumerated. Indeed, were there a generic category covering “Union

business” in general, then the specific categories actually enumerated

would be rendered superfluous. Fundamental considerations of contract

interpretation compel the conclusion that a Union official must fit himself

within the specific categories of Union business sanctioned by the CBA.

Under cross-examination, Grievant admitted as much:

2
Also described as “Union activity” or “Union work”.

9
 Q … But it says specifics. It says specify. That means specifics;
right?

A Yes, it does.

Q So he’s within his rights to ask you to specify --

A Yes.

Q -- pursuant to the Collective Bargaining Agreement.

A I guess in that regard, that’s correct. TR @ 253.

In its brief @ 12, the Union effectively concedes the requirement of

specificity:

[T]he Collective Bargaining Agreement, Article 8, Section 8.6

explained the protocol for a Union Official to request representational
time.

It is undisputed that Grievant did not follow that protocol.

While the particular manner of specification is not described in the

CBA itself, the form which the Supervisor devised for that purpose,

[CWR]’S DAILY WORKLOAD ASSIGNMENTS (AX 1), at least sheds

light on what he expected from Grievant. Under NTEU BUSINESS appear 4

columns: Estimated time to complete, Applicable Provision, Location, and

Telephone #. Based upon the format of the form and the amount of space

allotted for insertion of the Applicable Provision, it is a fair inference that

the Supervisor required only the relevant section number from the CBA;

e.g., 8.4.2 for Union business related to a grievance.

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 At no time did Grievant attempt to bring himself and his activities

within the specific confines of the CBA, at least certainly not with the

requisite degree of specificity. The Union’s response (JX 2, Tab C) to the

proposed suspension (JX 2, Tab D) makes no reference whatsoever to the

CBA; indeed, it does not even plead “Union business”. Similarly, in its brief,

the Union does not cite any specific section of the CBA within which

Grievant’s conduct fell; rather the Union interposes 5 USC § 7102,

concerning protected Union activity, a point addressed below. Thus, his

conduct clearly violated the CBA.

Even in those instances in which a Union official’s business falls

squarely within the ambit of the CBA, authorization to proceed with that

business is not automatic, a proposition with which Grievant was compelled

to agree upon cross-examination:

Q Now, with regards to this, whether the Agency has the right to
deny you representation time to perform Union activities, you do
understand that they do have that right, don’t you?

A Yes, they have that right under certain conditions.

Q But they do have that right?

A Yes.

Q They can deny it --

A Yes.

11
 Q -- when it interferes with work; right?

A Yes. TR @ 233-234.

It is undisputed that Grievant did not have his Supervisor’s permission to

attend to Union business before leaving for Plant Hatch.

Grievant and the Union urge that the Agency was well aware that he

wanted to attend the Current Events meeting. Assuming that is correct, the

CBA does not give him that absolute right. What it grants to the Union is the

right to be represented at such a meeting, a right the Agency never disputed.

See, for example, AX 5 (“we concede such a right, have always provided

such a right”).

However, the CBA does not grant to any particular Union official the

absolute right to be the Union’s representative at a specific meeting. In each

case, a Union official’s right to attend a particular meeting depends upon his

Agency workload. Absent a work conflict, he may attend the meeting. Given

a conflict, he must attend to Agency work and let another Union official

attend the meeting in his place, as ultimately happened in this case.

The Statutory Provisions Governing Federal Disciplinary Actions

The Agency’s actions must be judged against the provisions of the

CBA and the statutory scheme for federal disciplinary actions set forth in

Title 5, Chapter 75 of the United States Code. Section 7512 provides:

12
 This subchapter applies to -

(1) a removal;

(2) a suspension for more than 14 days;

(3) a reduction in grade;

(4) a reduction in pay; and

(5) a furlough of 30 days or less;

but does not apply to -

(A) a suspension or removal under section 7532 of this title,

(B) a reduction-in-force action under section 3502 of this title,

(C) the reduction in grade of a supervisor or manager who has

not completed the probationary period under section 3321(a)(2)
of this title if such reduction is to the grade held immediately
before becoming such a supervisor or manager,

(D) a reduction in grade or removal under section 4303 of this

title, or

(E) an action initiated under section 1215 or 7521 of this title.

Thus, 5 USC § 7512 does not apply to this arbitration, because the offense

charged involved a suspension of 14 days or less. However, many of the

authorities cited by the parties arose under that section.

The section that does apply is 5 USC § 7503, which provides:

(a) Under regulations prescribed by the Office of Personnel

Management, an employee may be suspended for 14 days or less for
such cause as will promote the efficiency of the service (including
discourteous conduct to the public confirmed by an immediate

13
 supervisor's report of four such instances within any one-year period
or any other pattern of discourteous conduct).

(b) An employee against whom a suspension for 14 days or less is

proposed is entitled to -

(1) an advance written notice stating the specific reasons for

the proposed action;

(2) a reasonable time to answer orally and in writing and to

furnish affidavits and other documentary evidence in support of
the answer;

(3) be represented by an attorney or other representative; and

(4) a written decision and the specific reasons therefor at the

earliest practicable date.

(c) Copies of the notice of proposed action, the answer of the

employee if written, a summary thereof if made orally, the notice of
decision and reasons therefor, and any order effecting the suspension,
together with any supporting material, shall be maintained by the
agency and shall be furnished to the Merit Systems Protection Board
upon its request and to the employee affected upon the employee's
request.

Cases arising under 5 USC § 7512 may be appealed to the Merit

Systems Protection Board or pursued through arbitration under 5 USC §

7701, whereas cases arising under 5 USC § 7503 may be pursued only

through arbitration and thence to the Federal Labor Relations Authority

under 5 USC § 7122. See generally Elkouri & Elkouri, How Arbitration

Works (ABA/BNA 5th ed 1997) @ 76-83. As a result, FLRA precedents

carry great weight with the arbitrator.

14
 In US Dept of Justice, Fed Bur of Prisons, Fed Correctional Inst,

Cumberland, Maryland and AFGE, Council of Prisons Local 4010, 53

FLRA No. 38 (1997),3 the FLRA explained the scope of review as follows:

5 U.S.C. § 7503(a) states: "Under regulations prescribed by the Office

of Personnel Management [OPM], an employee may be suspended for
14 days or less for such cause as will promote the efficiency of the
service . . . ." (Emphasis added.) The underscored language is not
defined in 5 U.S.C. chapter 75, in the legislative history to 5 U.S.C.
chapter 75, or in OPM's regulations. See 5 U.S.C. § 7501; S. Rep. No.
95-969, at 47 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2769; 5
C.F.R. § 752.101, 752.201-752.203. In addition, the MSPB has not
interpreted the underscored language because suspensions of 14 days
or less are not appealable to it. See Pugh v. U.S. Postal Service, 55
MSPR 32, 34 n.2 (1992); 5 C.F.R. § 1201.3(a). Such suspensions, as
relevant here, are appealable only through grievance and arbitration
procedures negotiated under section 7121 of the Statute. See 5 C.F.R.
§ 752.203(f).

Under Authority precedent, arbitrators are not required to apply a

particular standard or burden of proof in reviewing disciplinary action
taken under section 7503(a). E.g., U.S. Department of Justice,
Immigration and Naturalization Service, New York District Office
and American Federation of Government Employees, Immigration
and Naturalization Service Council, Local 1917, 42 FLRA 650, 655
(1991). In addition, contrary to the Activity's assertion, arbitrators
need not apply section 7503(a) in the same manner that the MSPB
applies 5 U.S.C. § 7513. See National Air Traffic Controllers
Association, MEBA/NMU and U.S. Department of Transportation,
Federal Aviation Administration, Memphis, Tennessee, 52 FLRA
787, 791-92 (1996).

As the Activity points out, the effect of Authority precedent is to give

arbitrators the same broad discretion to interpret and apply section
7503(a) that they have to interpret and apply collective bargaining
agreement provisions. See, e.g., American Federation of Government

3
http://www.flra.gov/decisions/v53/53-038-4.html/

15
 Employees, Local 1760 and Social Security Administration,
Northeastern Program Service Center, 22 FLRA 195, 198 (1986)
(stating that contractual "just cause" provision "constituted the parties'
capsulation of [section 7503(a)]" and that arbitrator's contract
analysis, therefore, disposed of the section 7503(a) issue).

The clear implication of the FLRA’s precedents is that an arbitrator

reviewing an agency’s disciplinary action under 5 USC § 7503 may treat the

matter as an ordinary labor arbitration. In particular, an arbitrator need not

apply any “harmful-error” rule of the type he would be required to apply to

an action under 5 USC § 7512. Cornelius v Nutt, 472 US 648, 660-661

(1985).

The parties agree that the Agency must prove by a preponderance of

the evidence that Grievant is guilty of Inappropriate Conduct. This

agreement on the burden of proof comports with general understanding.

Elkouri & Elkouri, supra, @ 447-449, 905-906; Hill & Sinicropi, Evidence

in Arbitration (BNA 2nd ed 1987) @ 39-41 (“As a general practice, … in

disciplinary cases the burden is on management both to proceed first with its

evidence and to prove employee guilt or wrongdoing.”). Although the

standard may vary with the nature of the case, the preponderance standard is

common and will be applied here by agreement of the parties. Cf. 5 USC §

7701(c)(1)(B).

16
 What The Agency Has And Has Not Proved

In its brief @ 16-21, the Agency divides Grievant’s behavior into

three instances of alleged misconduct, according to the sequence of events:

(1) The Manner that Grievant Changed His Scheduled Inspection without

the Permission of his supervisor was inappropriate.

(2) Grievant’s Refusal To Travel to The Hatch PI&R Inspection on

Monday, November 26, 2001 was Inappropriate Conduct.

(3) Grievant’s Conduct During His Meeting With Cahill and Benoit Was

Inappropriate.

“Inappropriate Conduct” is not defined in the CBA, and neither party

has provided the arbitrator with a definition. Whatever it means, it no doubt

encompasses blatant violations of the CBA. Cf. Article 51, §§ 51.1.2 and

51.1.2.1 (“a grievance means any complaint … concerning … a claim of

breach of this Collective Bargaining Agreement”).

As explained above, Grievant’s conduct (1) clearly violated the CBA.

He failed to follow the very explicit protocol for requesting authorization to

engage in Union business on Agency time. He did not have his Supervisor’s

permission to do so. Moreover, at least some of the business in which

Grievant engaged did not even qualify for authorization under the CBA.

Apparently one of the first items of Union business that he conducted

17
upon arriving at the Agency on Monday morning, November 26, 2001, was

to confer with an Agency official about office space. TR @ 214-215

(“something of particular interest to the NTEU”). Such “Union business”

does not fit into any of the categories listed in Section 8.4 or 8.5 of the CBA.

Grievant insists that he did not learn of his Supervisor’s denial of

permission until he arrived in the office Monday morning. If that is the case,

then Grievant himself must be faulted on several counts. First, he had no

reasonable expectation that permission would be granted. Under the plain

language of the CBA, Agency work comes first. PI&R inspections are an

integral part of the NRC’s mission. TR @ 103. Grievant was presumptuous

in assuming that he would be excused from such an important Agency

function.

Grievant failed to make a reasonable effort to ascertain whether he

had his Supervisor’s permission. Grievant claims that he checked his email

on Friday afternoon but had received no reply at that time. He further claims

that he was unable to check his email after that, but provides no explanation

as to why not. He could have checked his voice mail externally, using the

Agency’s toll-free telephone number, or called his Supervisor’s cell phone,

which the Supervisor has with him at virtually all times. There is just no

good explanation for Grievant’s conduct.

18
 On Monday morning, once Grievant learned that he did not have

permission to attend to Union business, he had a duty either (i) to leave for

Plant Hatch posthaste, or (ii) to provide his Supervisor with a suitable

explanation of the urgency of his proposed Union business. Grievant did

neither, despite repeated efforts by both the Supervisor and the Director to

elicit an explanation. At most Grievant argued that his immediate presence

at the PI&R inspection was unnecessary, but that excuse deserves short

shrift. As Grievant himself admitted, “[A]ll inspections are important.” TR

@ 238.

The arbitrator submits that, if members of the public were asked

whether NRC personnel should show up for scheduled inspections of this

country’s nuclear power plants, then the response would be unanimous.

Grievant’s initial intent on November 26, 2001, was not to show up at Plant

Hatch until the end of the workday; he thereby would have missed an entire

day’s inspection. Grievant’s misconduct was egregious,4 and its punishment

promoted the efficiency of the service. 5 USC § 7503(a).

Had the Agency merely charged Grievant with a deliberate failure to

appear timely for a scheduled inspection of a nuclear power plant, the

4
A PI&R inspection is a programmatic inspection of how well a licensee identifies and corrects problems
at a nuclear power plant, “a very paperwork-intensive inspection.” TR @ 28. It does not entail an
examination of a nuclear plant’s hardware or an assessment of the plant’s vulnerability to external threats.
had the Hatch inspection involved either, then Grievant’s deliberate failure to leave on time would have

19
arbitrator would have no difficulty in upholding a 10- or even 14-day

suspension. However, a large portion of the Supervisor’s recommendation,

of the Deputy Director’s determination, and of the testimony at the

arbitration hearing revolved around Grievant’s behavior during the meeting

with the Director and the Supervisor on Monday morning. It is not at all

clear that the ensuing altercation was Grievant’s fault, as the Agency would

have it appear.

In the Supervisor’s original notes on the meeting (AX 3), he wrote:

Curt said (cordially) “let’s get the chapter on the phone” … . …

Although Benoit raised his voice first, Curt quickly responded in kind.

At the arbitration hearing, the Supervisor testified that “when Greg slammed

the phone down and told him [Grievant] to sit down, that kind of set an

emotional tone … .” With this type of evidence in the record, it just is not

clear that Grievant was at fault.

While the Supervisor noted that Grievant exclaimed, “[T]his is

complete bullshit,” his notes are devoid of any mention of profanity by the

Director. Grievant testified that the Director used profanity and, when

queried on the subject, the Director conceded, “I may have.” TR @ 115. In

general, the Supervisor’s raw notes appear to have been edited for his formal

proposal, to paint Grievant as the culprit in the altercation.

been far more serious.

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 The Union urges that, in meeting with the Director and the

Supervisor, Grievant was engaged in Union activity protected by 5 USC §

7102 and cites unfair labor practice cases, such as Dept of the Air Force and

AFGE, 51 FLRA No. 2, 51 FLRA 7, 95 FLRR 1-1078 (1995) (“You can’t be

that f--ing stupid, lady … I always knew you was stupid, I knew you was

goddamn stupid[.]”), for the proposition that a bit of profanity must be

tolerated in labor-management exchanges. In this matter, the arbitrator

deems it unnecessary to explore the limits of conduct protected by the

federal statute.

Instead, the arbitrator observes that Grievant’s lone expletive was

mild, impersonal, and not directed at any Agency official. Harry Truman

suggested that, if you can’t stand the heat, then stay out of the kitchen, sound

advice for those engaged in labor-management relations. Most importantly,

had the Director agreed to allow the Union President to participate in the

discussion by telephone, then there likely would not have been any

altercation at all. Although there is no direct evidence as to what the Union

President advised Grievant to do, it seems a fair inference from Grievant’s

conduct that he gave Grievant the same advice as the Supervisor and the

Director: Go to Plant Hatch.

The arbitrator concludes that the Agency has not born its burden of

21
proving that Grievant engaged in “Inappropriate Conduct” in the Director’s

office (3). While his conduct may not have pleased Miss Manners, it did not

merit suspension, as discussed below. Grievant’s misconduct consisted of

deliberately failing to leave for Hatch Plant on time. It is that offense, as

described by the Agency in (1) and (2) above, and that alone, for which he

should be penalized.

The Appropriate Penalty

In Office of the Sheriff, 107 LA 972, 24 LAIS 3328 (Cornelius Arb

1996), the arbitrator was confronted with a situation in which the grievant was

charged with 4 offenses and assessed a single penalty for all 4, only one of

which charges the arbitrator upheld. Because the charges were not made in the

alternative (i.e., because the grievant was not told that any one of the charges

would merit the full penalty), the arbitrator substantially reduced the penalty.

He did not do so pro rata (i.e., he did not simply reduce the penalty by ¾),

because the charges were not of equal gravity. Rather, he assessed a penalty

based upon the gravity of the one charge sustained.

In the instant case, the arbitrator is faced with a similar situation. As

noted above, for purposes of this arbitration, the Agency has broken down

Grievant’s behavior into 3 incidents of alleged misconduct, (1)-(3), the first

two charges which the arbitrator upholds. As previously explained, the

22
arbitrator considers the first two to be far more serious than the third. In

order to arrive at an appropriate penalty, the arbitrator assigns the weights of

4, 4, and 2 to the respective incidents of misconduct, to correspond to the 10-

day penalty assessed by the Agency. Because the third charge is not upheld,

the penalty must be reduced by 2 days to an 8-day suspension.

Conclusion

These parties have a history of harmonious work relations, in the

sense that there appear to have been relatively few previous disciplinary

actions. Grievant himself has no prior history of misconduct. This dispute

seems to have been precipitated by his perception that management was

attempting to determine which Union representatives could attend meetings.

However, the facts of this case do not support such an allegation.

Grievant was assigned to work on the Hatch inspection in the spring

of 2001. While he now insists that he wanted to attend Current Events on

November 26, 2001, to discuss the new Flexiplace benefit (CBA, Article 54)

because he had been instrumental in negotiating that benefit, in point of fact,

the CBA was not ratified until June 19, 2001, and Grievant did not sign it

until July 18, 2001. Thus, in the spring of 2001, when the Hatch work

assignment was made, management could not possibly have known that

Grievant would want to attend Current Events in November of that year. As

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the Director surmised, maybe Grievant just had a bad week or weekend. TR

@ 101.

Award

For all the foregoing reasons, the grievance is SUSTAINED IN PART

AND DENIED IN PART. Grievant’s suspension is reduced to 8 calendar

days. He is to receive 2 days’ back pay and any lost benefits, as if his

suspension had run from February 27 through March 6, 2002.

Dated January 7, 2003

_____________________________
E. Frank Cornelius, Arbitrator

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