Professional Documents
Culture Documents
and
VA MEDICAL CENTER,
BATTLE CREEK, MI,
Agency.
_______________________________/
five days for (a) use of obscene language, (b) threats to his supervisor and (c)
charges (a) and (c) and denied to charge (b). Back pay and fringe benefits are
awarded prorata.
Officer Gary Brandenburg was acting police chief at the VA Medical Center,
when he was apprised that a copy of an article from the July 12, 1986 issue of the
Detroit Free Press had been forwarded anonymously to the administration building at
management philosophy at Mazda's new Flat Rock assembly plant and bore the typed
inscription:
The envelope was addressed to "Office of the Director Voila!!!!" and indicated that it
Brandenburg determined that the inscription had been typed on a police department
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typewriter.
Acting chief Brandenburg was concerned about the incident and began an
informal inquiry. On July 22, 1986, Brandenburg asked police supervisor Trummy
Williams, for a discussion of the "Mazda letter". Brandenburg and Hopkins were not
the best of buddies. An altercation ensued between them, out of which the
III. Discussion
B. Recording of Hearing
Before the hearing began on January 16, 1987, the union requested the right to
tape record the proceedings, to which the VA objected. Although Article 141 Sec. 23
of the CBA provides that "[t]he procedures used to conduct an arbitration hearing
shall be determined by the arbitrator," the arbitrator first will look to the CBA to see
if it addresses the procedural issue. Article 14, Sec. 2.C provides in essence that either
party may request a transcript. The arbitrator notes that tape recording commonly is
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administrative hearings today and concludes that a tape recording is the equivalent of
a stenographic recording. Thus, under the CBA, either party has a right to record an
arbitration hearing.
In this case, the arbitrator allowed the union to record the proceedings,
provided only that the union make the recording available to the VA. Accuracy is
essential to due process and the availability of a tape recording promotes accuracy in
briefing-and decision making. Above all, the CBA addresses the issue.
guidance as to how to decide a grievance. Article 10, Sec. W of the CBA provides in
pertinent part:
[A]ll employees shall be treated fairly and equitably *** with proper regard
and protection of their *** constitutional rights.
Employees have the right to present their views to Congress, the Executive
Branch, or other authorities and to otherwise exercise their First Amendment
rights without fear of penalty or reprisal.
Employees shall be protected against reprisal of any nature for the disclosure
of information not prohibited by law, or Executive Order, which the employee
reasonably believes evidences a violation of law, rule or regulation, or
evidences mismanagement, a waste of funds, an abuse of authority, or a
danger to public or employee health or safety.
It is quite clear from the foregoing provisions of the CBA that the act of
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sending a copy of a newspaper article to the office of the director is protected activity.
Thus, at the outset, it appears that there was no basis for acting chief Brandenburg to
interrogate officer Hopkins about the Mazda letter. There was absolutely no proof
that officer Hopkins sent the Mazda letter, but if he did, he was well within his rights
D. Management Provocation
his own welfare rather than that of the VA. Neither VA property nor personnel nor
policy was threatened by the Mazda letter. It was completely innocuous. There was
no evidence that it was ever seen by higher management; indeed, it seems to have
been interdicted at the secretarial level. It was at best a plea for more personal
management and at worst a puerile display of pique. Even if it had been seen by the
director herself, it is unbelievable that it would have evoked any reaction stronger
was concerned that the letter somehow would reflect badly upon him and hurt his
blessing by the director's office, undertook on his own something between a fishing
officer Hopkins.
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Acting chief Brandenburg denied accusing Hopkins of sending the letter or
even thinking Hopkins did it, but I believed the testimony of officer Paul Norris who
testified that Brandenburg intimated to him that Hopkins was the culprit. I am
Mazda letter and that the accusation set off the heated exchange between them on
July 22, 1986. Probative of Brandenburg's deep-seated feelings against Hopkins was
Brandenburg and supervisor Trummy Williams that Hopkins used some very strong
language. It would serve no purpose to repeat the language; it suffices to say that it
was similar to that used by the character Frank Booth played by the actor Dennis
Hopper in the 1986 movie, "Blue Velvet". Although the Veterans Administration
Table of Examples of Offenses and Penalties, MP-5, Part I, Chapter 752, Appendix
C. lists "use of *** obscene language to or about other personnel" under offense No.
16, the Table surely refers to unprovoked use of obscene language. Cf. CBA, Article
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Osceola Refining Co, as reported in Michigan Lawyers Weekly, November 24,
1986). It would be an anomaly if it did not occur daily in police work. For these
reasons, its use in a provoked response is not so out of order as to merit disciplinary
action.
E. Offenses Charged
In its closing brief, the VA cites three offenses from the above mentioned able
which it claims Hopkins committed, Nos. 15, 16 and 17. No. 15 covers "Fighting,
described in paragraph (b) of the letter of notification about the proposed suspension
from Robert J. Rollins, associate Medical Center director, to officer Hopkins, dated
July 25, 1986, do not even colorably relate to "bodily injury", nor does the VA's
closing brief allege anything having to do with such injury. Thus, no part of the
No. 17 covers:
No. 17 is a particular section which covers obscene language toward a supervisor and
so controls over the general obscenity provision of No. 16. As already discussed,
officer Hopkins' response was provoked and not inexcusable under the
circumstances, at least insofar as the offense charged is the use of obscene language.
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Just because some obscenity may be overlooked under the facts of this matter,
does not mean, however, that all of officer Hopkins' conduct can be excused. The
provocation which acting chief Brandenburg directed toward officer Hopkins did not
justify the prolonged and heated shouting match which ensued. Although it may have
been open to officer Hopkins to express his displeasure to acting chief Brandenburg
unwarranted interrogation, officer Hopkins ought to have walked out and gone about
his duties.
argument, which culminated with acting chief Brandenburg demanding that Hopkins
leave the office. The VA charges that Hopkins refused to leave, but this charge
cannot be sustained on the basis of the proof presented. When asked to leave, officer
Hopkins requested to speak privately with supervisor Williams who shared the office
with Brandenburg. Brandenburg declined and asked Williams to show Hopkins the
door. Hopkins left promptly when Williams beckoned. Based upon supervisor
Williams' testimony, the sequence of events was so rapid that Hopkins cannot be said
to have refused to leave when ordered to do so. Thus, the offense charged in
paragraph (c) of the VA's letter dated July 25, 1986 cannot be sustained.
The only charge which the record supports is (b), insofar as it pertains to
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"insolent, abusive *** language toward *** other supervisor having responsibility for
the work of the employee ***." Instead of walking away from an unfortunate
situation, officer Hopkins chose to remain and make a prolonged and vicious verbal
IV. Award
The parties stipulated that the arbitrator is authorized to sustain the grievance
in toto, to deny it in toto, or to decide upon an intermediate result. In closing brief, the
VA makes the point that any one of the offenses charged would sustain a 5-day
suspension. Although this may be correct, the VA did not make this point in the
notification letter required by Article 12, Sec. 7.A of the CBA. The VA's letter of July
25, 1986 addressed all three alleged offenses together. If the VA intended to rely on
each of the charges individually, rather than upon all three collectively, it had a duty
to so inform officer Hopkins. Since the grievance is sustained with respect to two of
the three charges and denied with respect to the other, grievant is entitled to prorated
reinstatement of lost pay and fringe benefits; i.e., reinstatement of two-thirds (2/3) of
V. Defense
Grievant relied on CBA, Article 12, Sec. 6 during the grievance procedure and
the union cites Article 12, Sec. 5 in its post hearing brief. These sections pertain to
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management's duty to inform an employee of his "Miranda rights" before questioning
is used, whereas the word "investigation" is used by itself everywhere else in Article
12.
union representative needed to be present; the question was never put to acting chief
Brandenburg. It is clear that officer Hopkins was aware of his right to union
time did Hopkins actually request that a union representative be present. Thus,
VI. Costs
Article 14, Sec. 2.C of the CBA provides that "[t]he arbitrator's fees and
_________________________
E. Frank Cornelius
DATED: February 20, 1987
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