FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL NO. 1658, Union, and US ARMY TANK COMMAND, DETROIT ARSENAL, Employer. ____________________________________________/ FMCS No. 11-01701

OPINION OF THE ARBITRATOR September 6, 2011 After a Hearing Held July 14, 2011 In Building 230, 6501 E 11 Mile Road, Warren, Michigan

For the Union: Paul J. Veselenak AFGE Local 1658 Building 230, Room 136W 6501 E 11 Mile Road Warren, MI 48397-5000

For the Employer: Tiffany J.L. Hall TACOM LCMC AMSTA-LA, Bldg 230, MS #413 6501 E 11 Mile Road Warren, MI 48397-5000

I. The Parties Grievant is an exceptionally talented technical specialist employed by the US Army Tank Command (TACOM, Employer, or Agency) at the Detroit Arsenal in Warren, Michigan. He is a member of Local 1658 of the American Federation of Government Employees (Union), which is affiliated with the AFL-CIO. Labor relations between the parties are governed by a Negotiated Labor-Management Agreement approved March 10, 2010 (NLMA), and introduced at the arbitration hearing as Exhibit 16. Before the arbitrator is an unusually complicated case involving only a 5-day suspension. II. The Stipulated Facts, Issues, and Exhibits An arbitration hearing was held on July 14, 2011, in Building 230 on the grounds of the Detroit Arsenal. At the beginning of the hearing, the parties entered into the following stipulations of facts and issues in a 2-page document which the arbitrator dated and initialed: II.A. Facts 1. 2. 3. 4. Grievant has been a Government employee since 02/10/1975. Grievant has over 35 years of combined military and civilian service. Grievant is currently a Logistics Management Specialist GS 13. In March 2009, due to an incident involving Ms. Polanco, LTC Michael Micucci requested that the Grievant attend an anger management course.

5. 6.

Grievant agreed and attended the M.A.P. anger management course. On June 10, 2010, in response to another incident, James Streberger (Product Director, LAV1 Fleet Supervisor) proposed to suspend Grievant for 10 days for: a. b. Unprofessional conduct while TDY2 in London, Canada;3 Misuse of Government credit card.

7.

On July 16, 2010 the union met with Dr. Robert Lusardi to dispute the proposed 10 day suspension.

8. 9.

In August 2010 Dr. Robert Lusardi mitigated the suspension to 5 days. In September 2010 the Union disputed the 5 day suspension and filed a step 3 grievance.

10.

On January 5, 2011 Colonel Brian Buckles issued a decision in response to the Step 3 grievance filed by Grievant.

11. 12.

Colonel Buckles upheld the 5 day suspension. In February 2011 Grievant requested arbitration pursuant to Article 43 of the Negotiated Labor Management Agreement (NLMA).4

13. 14.
1 2

No articles of the NLMA are in dispute. Grievant requests that the arbitrator determine that the 5 day suspension

Light Armored Vehicles (arbitrator). Temporary Duty (arbitrator). 3 As will be discussed in some detail later, the Agency in its brief @ 1 suggests that the charge was for fighting/ creating a disturbance as delineated in Army Regulation 690-700; Chapter 751, Table of Penalties, AR 690-700. The arbitrator disagrees. 4 The Agency in its brief @ 2 again suggests that the charge was for fighting/creating a disturbance.

be purged from his personnel file. 15. Grievant also requests full repayment for the 5 days in which he was suspended. II.B. Issues

Whether Grievants 5 day suspension should be overturned and removed from his personnel file. Whether Grievant should be repaid for the 5 days in which he was suspended. II.C. Exhibits At the hearing, the parties furnished to the arbitrator a thick loose-leaf

notebook containing 32 numbered exhibits, classified as Employer or Union.5

5

There is not perfect agreement as to the classification of exhibits as Employer or Union. In an exchange of emails on August 30, 2011, the representatives wrote: The union and Management agreed to a division of labor regarding work that had to be done for the Arbitration Hearing. Part of management's work was taking the agreed upon documentation and assembling it into a packet. While the agreed upon documentation was assembled into a packet I just want to clarify, for the record, that at least some of the documents which are labeled as "Union Exhibits" are documents provided by management and not by the union. They are also documents which have specific statements in them that the union does not necessarily agree with, as cited in our Closing Statement. Examples of this are Documents/Exhibits # 29 and # 30 which are labeled as "Union Exhibits" but which include written statements by such persons as Mr. Payne, Ms. Polanco and others which were provided by management to the union in June 2010 to support management's proposed 10 day suspension of [Grievant]. I hope this clarification helps. Paul Veselenak AFGE Local 1658 To further clarify, the documents you are referencing were provided to Management and by the Union and were the SAME. I did not want to include the same documents twice so I just labeled them one way or the other. Tiffany J.L. Hall Attorney/ Advisor General Law Division

Employer Exhibits 1. 2. SF 50 Action denoting 5 day suspension. Supervisor Personnel Management Manual (SPMM), Chapter 5 Employee Conduct. 3. Supervisor Personnel Management Manual (SPMM), Chapter 18 Discipline and Disciplinary Action. 4. Supervisor Personnel Management Manual (SPMM), Appendix A Behavioral Offenses for which progressive discipline is appropriate. 5. March 2009 Emails/MFRs documenting Grievants behavior leading to the request to attend Anger Management in lieu of suspension. Documents regarding Grievants sporadic attendance at Anger Management. 6. May 6, 2010 Memo for TACOM LCMC Management Employee Relations (MER) regarding a proposed suspension for Grievant due to his behavior. 7. 8. June 24, 2010 ten day suspension proposal by James Streberger. August 9, 2011 Step 1 decision issued by Dr. Robert Lusardi in response to the June 24, 2011 ten day suspension proposal and Douglas Factors. 9. January 5, 2011 Step 3 grievance decision issued by Colonel Brian Buckles.

10.

May 2010 April 2010 memos reflecting counseling and incidents involving Grievant.

11.

July 29, 2010 email from Robert Lusardi entitled Douglas Factor Consideration Worksheet which includes a 07/19/10 meeting summary from Paul Veselenak.

12.

July 7, 2011 email from Michael Micucci describing the May 2009 incident in which he gave Grievant a choice of attending Anger Management or a 3-day suspension.

13.

July 11, 2011 email from Mary Ann Lubeckyj entitled Discussion of Arbitration Items.

14.

July 11, 2011 email from Robert Lusardi stating that he was involved in the Anger Management decision agreeing with LTC Micuccis recollection.

15.

Grievants annual evaluation ratings from 1998 to 2010. Union Exhibits

16.

Negotiated Labor-Management Agreement (NLMA) approved March 10, 2010.

17.

Email dated July 19, 2010 from Paul Veselenak entitled Summary of July 16, 2010 meeting.

18.

Memorandum for Record (MFR) from [Grievant] dated May 14, 2010

entitled Trip Report for LAV-25A2 New Build (NB), Logistics Verification Effort, 12 Apr 30 June 2010, General Dynamics Land Systems Canada (GDLS-C), London, Ontario, Canada. 19. MFR from [Grievant] entitled, A2 Logistics Review, London, Ontario, Canada, 26-30 April 2010. 20. MFR dated May 19, 2010 from Robert Persely Jr. discussing Grievants lack of interpersonal skills. 21. May 3, 2010 email from Andrew Marlette discussing Grievants failure to complete assigned work tasks. 22. May 3, 2010 email from Randy Geoghagan discussing Grievants lack of people skills. 23. May 3, 2010 email from Patrick Jackett entitled London Canada discussing Grievant arguing in meetings. 24. April 29, 2010 from Michael Payne re: Don stating the Grievant has a serious negative attitude. 25. Memo from Grievant to Karen Pate and Paul Veselenak admitting that he did not meet his workload assignment of 25 tasks per day. 26. Memo from Robert Persely asking Grievant to participate in Val/Ver LAV25A2 effort. 27. Memo from Suzanne Miller dated May 8, 2009 re Practical Jokes.

28. 29.

TACOM LCMC Anti-harassment policy dated March 15, 2010. Witness statements entitled First Offense Statements regarding the incident involving Josephine Polanco that resulted in the Grievant being given a choice to attend Anger Management or be suspended.

30.

Witness statements entitled Second Offense Statements regarding the incident involving GDLS which result[ed] in Grievants suspension.

31. 32.

Grievants annual performance evaluations from selected years. Supervisor Personnel Management Manual (SPMM), Chapter 6 Medical Determinations related to Personnel Actions. III. The Dispute Over the Standard of Review In the Agencys brief @ 11-12, it proposes that the standard to be used by

the arbitrator in reviewing the Agencys actions is the following: The U.S. Supreme Court has held that arbitrators are governed by the same standards as the Merit Systems Protection Board (the Board) in reviewing actions taken by agencies. Cornelius v. Nutt, 472 U.S. 648, 660-61 (1985). See also Horner v. Garza, 832 F. 2d 150 (Fed. Cir. 1987). Chapter 5 USC 7703 (c) Judicial review of decisions of the Merit Systems Protection Board (MSPB) provides the following (Attachment #6): (c) In any case filed in the United States Court of Appeals for the Federal Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence; The arbitrator discussed the standard of review at great length in AFGE Local No. 1770 and Dept of the Army, XVIII Airborne Corps and Fort Bragg6 and reached a different conclusion: From the arbitrators perspective, any confusion stems from a failure to distinguish between serious disciplinary action (adverse action) taken pursuant to 5 USC 7512, as in Cornelius v Nutt, 472 US 648 (1985), and that taken pursuant to 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 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.
6

103 FLRR-2 33, 102 LRP 34100; 103 FLRR-2 81, 103 LRP 812 (Arb 2002); exceptions den, 58 FLRA 156, 103 FLRR-1 14, 102 LRP 31624.

(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. All cases and regulations cited by the parties, including Cornelius v Nutt, arose under 5 USC 7512, whereas the instant case arose under 5 USC 7503, as the Agency notes in AB2 @ 7. Cases arising under the former may be appealed to the Merit Systems Protection Board or pursued through arbitration under 5 USC 7701, whereas cases arising under the latter may be pursued only through arbitration and thence to the Federal Labor Relations Authority under 5 USC 7122. See generally Elkouri & Elkouri, supra, @ 76-83. 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),7 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).
7

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

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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 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 FLRAs precedents is that an arbitrator reviewing an agencys disciplinary action under 5 USC 7503 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, supra, 472 US @ 660-661. Given the arbitrators wide discretion in handling short suspension cases such as this, the arbitrator affords Grievant a de novo hearing in which the Agency bears the burden of proving its case by a preponderance of the evidence.8
8

Although Article 43, D of the NLMA provides that [t]he arbitrator will be governed by the Merit System Protection Board (MSPB) procedures as applicable, from the discussion in AFGE Local No. 1770 and Dept of

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IV. The Dispute Over the Charges Against Grievant The Union voices a lengthy objection to the Agencys charge of fighting/creating a disturbance, which the Union claims the Agency first leveled at the arbitration hearing: First, there has been some confusion over what exactly [Grievant] is even being formally charged with. When Mr. Streberger issued his written Proposal to Suspend [Grievant] for ten (10) days on June 24, 2010 (see [Exhibit] # 7) he charged that [Grievant] had engaged in unprofessional behavior which he cited was counter to TACOM-R 600-5 SPMM, Chapter 5, ([Exhibit # 2 Employee Conduct]) which states, per Mr. Streberger, that employees are expected to be courteous and tactful when dealing with fellow employees and the public. The only other regulation which Mr. Streberger cited in his Proposal Letter was that [Grievant] had allegedly violated DoD Financial Regulation 7000-14-R, Volume 9, Chapter 3 regarding the misuse of government charge cards. Specifically, Mr. Streberger did not cite [Grievant] as violating any other specific regulation, including Fighting/Creating a Disturbance which is set forth in Chapter 18 of TACOM-R 600-5 SPMM, not in Chapter 5. When Dr. Lusardi issued his (undated) written decision to suspend [Grievant] for five (5) days ([Exhibit] # 8) he stated he was reducing the penalty because [Grievant] recognized his error with the charge card, took action to correct it and because Dr. Lusardi was confident such an incident would not re-occur. Dr. Lusardi sustained the other charge against [Grievant], that of unprofessional conduct. Dr. Lusardi specifically stated in his decision that It is absolutely essential that you behave in a courteous and tactful manner. Dr. Lusardi, at the same time, did not cite any other specific regulation that [Grievant] had allegedly violated including, specifically Fighting/Creating a Disturbance in TACOM-R 600-5 SPMM, Chapter 18. Therefore, when Dr. Lusardi sustained Mr. Stresbergers charge against [Grievant] regarding unprofessional conduct the only regulation cited connected to that charge was Chapter 5 of TACOM-R 600-5 SPMM which had been originally cited by Mr. Streberger which dealt with discourteous
the Army, it seems clear that this case could never go before the MSPB, as the case could go only to the FLRA. Therefore, the arbitrator interprets the NLMA provision to mean that MSPB procedures are not applicable here.

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behavior but which made no specific reference to Fighting/Creating a Disturbance. When Colonel Buckles issued his written decision dated January 5, 2011 ([Exhibit] # 9) he found that there was no justification to overturn or modify Dr. Lusardis decision. Colonel Buckles failed to confirm or state what specific regulation [Grievant] was found to have violated and did not reference a specific charge of Fighting/Creating a Disturbance as listed in Chapter 18 of TACOM-R 600-5 SPMM. Therefore, during the entire chain of the disciplinary process involving [Grievant] the only specific regulation cited by any of the proposing or deciding authorities (Mr. Stresberger, Dr. Lusardi and Colonel Buckles) that [Grievant] was found to have violated was the one involving Chapter 5 of the TACOMR 600-5 SPMM discourteous behavior. It was only at the Arbitration Hearing itself in July 2011 (over a year after Mr. Stresberger issued his original Proposal to Suspend) that Management formally made the explicit charge that [Grievant] had violated the Chapter 18 regulation regarding Fighting/Creating a Disturbance. The significance of this confusion over what exactly [Grievant] is being charged with is twofold. First, such confusion makes it harder to defend [Grievant] against any charges if we arent completely certain exactly what he is being charged with. Second the suggested penalties set forth in Chapter 18 of TACOM-R 600-5 SPMM for Fighting/Creating a Disturbance are considerably more severe than those set forth for Discourteous Behavior. The suggested penalty for a First Offense under Discourtesy (Offense # 7 in Chapter 18) is Written reprimand to 1 day suspension for impolite acts or remarks while the suggested penalty for the Second Offense is Written reprimand to 5 day suspension. However, the suggested penalties for the LEAST SEVERE charge for Fighting/Creating a Disturbance (Offense # 2, Subpart (a), Chapter 18) is far more severe. The penalty for the First Offense is Written reprimand to 5 day suspension while the suggested penalty for the Second Offense is 5 day to 10 day suspension. Therefore, it is clear that the issue of WHAT [Grievant] is being formally charged with is an extremely important one and that Management has either changed the charges against [Grievant] at the very end of the disciplinary process (i.e. at the Arbitration Hearing) or have failed to clearly cite and identify the specific charge of Fighting/Creating a Disturbance prior to the Arbitration Hearing. Based on what Management presented at the
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Arbitration Hearing it is our understanding that the formal charge against [Grievant] is Fighting/Creating a Disturbance but we have to object at the failure by Management to clearly identify what the precise charge was much earlier in the disciplinary process. Union brief @ 3-5. The Unions objections are well taken. Since the Agency is part of the federal government, Grievant is entitled to due process under the 5th Amendment. Elkouri & Elkouri, How Arbitration Works (6th ed 2003) @ 1252. 5 USC 7503 plainly provides that Grievant was entitled to an advance written notice stating the specific reasons for the proposed action. Notice and an opportunity to be heard are the key elements of due process. How Arbitration Works @ 1255. In the instant case, the Agency is attempting to change the charge from unprofessional conduct (i.e., discourtesy) in Canada to fighting/creating a disturbance there, long after the fact. See the proposed suspension letter, Exhibit 7 (unprofessional conduct while on TDY to GDLS-C in London, Ontario, Canada); and the suspension letter, Exhibit 8 (unprofessional conduct while TDY in Canada). This it may not do, consistent with Grievants right to notice of the specific charge against him.9
Paperworkers v Misco, Inc, 484 US 29 (1987) was a discharge case but its footnote 8 @ 40 nicely expresses the principle that an employer may not change the reason for discipline after the fact: Labor arbitrators have stated that the correctness of a discharge "must stand or fall upon the reason given at the time of discharge," see, e. g., West Va. Pulp & Paper Co., 10 Lab. Arb. 117, 118 (1947), and arbitrators often, but not always, confine their considerations to the facts known to the employer at the
9

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The arbitrator deems the second charge against Grievant, misuse of his government travel credit card in Canada, to be so minor as to merit little discussion. The charge never should have been filed in the first place. Grievant simply handed a clerk the wrong credit card for a personal expense and, when the credit transaction could not be reversed, Grievant promptly reported the incident and corrected the matter by repaying the government. V. The Issue of a Prior Discipline The parties dispute whether the Polanco incident constituted a first offense for purposes of justifying more severe discipline for a second offense. See Exhibit 3 @ 18-4 (a prior offense of any type forms a basis for proposing the next higher sanction). The Agency goes so far as to question Grievants credibility, claiming that he denied being offered a choice between suffering a 3-day suspension or attending an anger management class. To the arbitrator, there is a very real issue as to whether management can issue such an ultimatum without appropriate documentation. Management has no authority to impose a suspension without first going through the established disciplinary procedures set forth in statutes, regulations, rules, and the NLMA itself. Section C of Article 40 of the NLMA limits the
time of the discharge. O. Fairweather, Practice and Procedure in Labor Arbitration 303-306 (2d ed. 1983); F. Elkouri & E. Elkouri, How Arbitration Works 634-635 (3d ed. 1973). Here, the Agency is attempting to change the charge while maintaining the reason for discipline, misconduct at General Dynamics Canada.

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types of action that can be taken against an employee: A disciplinary action is defined as a written reprimand or a suspension for fourteen (14) calendar days or less. An adverse action is defined as a suspension from duty for more than fourteen (14) days, a reduction in grade, a reduction in pay, a furlough of thirty (30) days or less, or removal from federal service. The NLMA merely reflects the distinct levels of discipline found in 5 USC 7503(a) and 7512. Nowhere in statutes, regulations, rules, or contractual provisions is management authorized to impose some type of alternative discipline, at least not expressly. Paragraph b @ 18-2 of Exhibit 3, entitled Informal disciplinary actions, may provide leeway for managers to impose some type of alternative discipline: Oral admonitions and written warnings taken by the supervisor on his or her own initiative in disciplinary situations of a minor nature involving unacceptable behavior. The employee should be advised of the specific infraction or breach of conduct, exactly when it occurred (date of the incident) and be permitted to explain his/her conduct or act of commission or omission. The infraction will be documented on a memorandum for record (MFR) or other document. An Agency manager who wishes to offer an employee an option of being proposed for suspension or of voluntarily submitting to counseling might make the offer in writing and ask the employee to sign an agreement to that effect. The general rule, of course, is that under a collective bargaining arrangement, a union employee is not at liberty to enter into his own agreement with his employer. However, suffering discipline is so peculiarly personal to the

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employee that an agreement for alternative discipline should be unobjectionable, and the manager can always ask the union to sign off, as usually is done with last chance agreements. See Elkouri & Elkouri, How Arbitration Works (6th ed 2003) @ 969-973 (Last-Chance Agreements); United Food Workers Local 825 and Welch Foods, Inc, 07-2 ARB 4042, 109 LRP 33926 (Arb 2007). If the alternative discipline is to count as an offense for subsequent disciplinary purposes, then that fact should be embodied in the agreement. Its just that with respect to the Polanco incident, nothing was formalized. The Union articulated its position on the effect of the Polanco incident as follows: The alleged First Offense or Polanco Incident which occurred in March 2009 clearly does NOT meet the definition of a disciplinary action under either the NLMA (2009) or NLMA (2010) or TACOM-R 600-5 SPMM. This incident did NOT include a formal reprimand and no suspension based on any specific charge was ever proposed in writing, in accordance with the NLMA requirements and procedures, for [Grievant] to challenge and provide a response to. [Grievant] was never presented with copies of any written statements which were submitted against him back in 2009 regarding the Polanco Incident. Unaware that these written statements even existed [Grievant] obviously did not have the opportunity to present a response to specific claims made in these statements until he was presented with these statements over a year later in June 2010 when he was Proposed to be Suspended and only after at least one of these persons making these statements (Ms. Polanco) had already retired from the government. No written memorandum for the record regarding the Polanco Incident was ever shown to [Grievant] or inserted in his personnel file. If [Grievant]s management truly felt that his behavior during the Polanco Incident warranted some type of disciplinary action they had every
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opportunity at that time to follow that course of action, in accordance with the specific procedures agreed upon and incorporated in the NLMA (2009). These procedures included making formal charges on specific alleged violations and allowing [Grievant] or his union representative to view the materials supporting those charges and having the opportunity to respond to them. However, [Grievant]s management never filed any disciplinary charges for any specific violation, perhaps for the reason that they didnt feel his behavior justified disciplinary action. A potentially dangerous precedent is being set if management is permitted to claim that offenses have occurred in situations where no disciplinary action was ever proposed, where statements against an employee are collected and retained in some kind of file which the employee has no access to and which are only revealed much later to the employee. This process circumvents the transparent, negotiated and agreed upon procedures set forth in the NLMA which call for a Proposal to Suspend based on specific charges, and an opportunity for the employee or his union representative to view the materials supporting those charges and to respond to those charges within a stated time period. Instead of following the agreed upon process set forth in the NLMA for disciplinary actions [Grievant]s management apparently relied on a verbal understanding (not a formal written agreement of any kind) with him that he would attend and complete Anger Management classes. [Grievant] fulfilled this condition, even driving all the way back from his government duty station in London, Ontario on one occasion to attend one of these classes, according to his testimony at the Arbitration Hearing. One of Managements own witnesses at the Arbitration Hearing, Mr. Persely, confirmed in his oral testimony that [Grievant] successfully completed his Anger Management classes. Therefore, based on the above facts and information [Grievant] received nothing more than an oral admonishment for the Polanco Incident. Appendix A, Chapter 18 of TACOM-R 600-5 SPMM explicitly states that Oral admonishments are not considered disciplinary actions, for the purpose of determining a first, second, or third offense. Therefore, based on the above facts and information the Polanco Incident should not be considered as a First Offense for purposes of determining possible

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penalties under the Douglas Factors10 to be imposed on [Grievant] for any alleged misbehavior during the London Incident in April, 2010. The Unions position is supported by good authority. In Hill & Sinicropi, Evidence in Arbitration (2nd ed 1987), the authors write: Where an employee is not given notice of adverse incidents an arbitrator may accord little, if any, weight to these incidents, since the preferred procedure provides for immediate discipline or notice to the employee of the offense with which he is charged. Thus, in Consolidated Vultee Aircraft Corp.,22 Arbitrator John Dwyer excluded evidence of prior alleged infractions of company rules where management did not notify the employee at the time that each infraction occurred. The arbitrator made it clear that while the employer could maintain any records it so desired, it could not use evidence of rule infractions to justify a subsequent discharge where no notice was given to the disciplined employee at the time the alleged violation occurred. Similarly, Arbitrator William Holley, Jr., stated the rule favored by most arbitrators as follows: As many Arbitrators have held, employees may be disciplined, up to discharge, for their entire record. However, there are limitations in the consideration of past offenses. [A] distinction should be made between rule infractions that have been proved and mere past charges. Thus, it has been held that while an employer may have the right to post notations alleging rule infractions on employee records, the failure of the employer to notify employees of alleged infractions at the time of the occurrence precludes him from using the notations to support disciplinary action at a later date, since employees should not be required to disprove stale charges. Nor would an arbitrator consider past rule infractions for which the employee was in no way reprimanded, or past warnings which had not been put in such form as to make them subject to a grievance.23

Douglas v Veterans Administration, 5 MSPB 313, 5 MSPR 280 (1981) (arbitrator). The arbitrator analyzed Douglas factors at length in AFGE Local No. 1770 and Dept of the Army, supra n 6. In the instant case, he has little to add to Dr. Lusardis analysis, Deciding Officials Douglas Factor Consideration Worksheet, 9 Aug 2010, Exhibit 8.

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____________
22 23

10 LA 907 (1948). Burton Mfg. Co., 82 LA 1228, 1236 (1984), citing Elkouri & Elkouri, How Arbitration Works, 4th ed., 639 (BNA Books, 1973).

Evidence in Arbitration @ 58-59. Because of lack of documentation and other serious procedural deficiencies, the Polanco incident should not be counted as a first offense. VI. The Difficult Issue of Whether the Penalty Should Be Reduced Having reduced the charge from fighting/creating a disturbance to discourtesy and eliminated the Polanco incident as a first offense, the arbitrator is left with the task of answering the stipulated questions presented, which essentially means determining the appropriateness of the penalty. The arbitrator has had cases involving the discipline of high-performing employees, this being the third one in 2011 alone. In JEA Supervisors Assn and Jacksonville Electric Authority, 128 LA 1046, 11-1 ARB 5181, 111 LRP 10516 (Arb 2011), an electric maintenance coordinator, previously touted as the best and brightest, suddenly was charged with incompetence after a local TV station did an expose of linemens on-thejob conduct. The arbitrator dismissed the charges as scapegoating. In AFGE Local 2017 and Army Signal Center & Fort Gordon, 111 LRP 54432 (Arb 2011), a civilian obstetrician/gynecologist, previously lauded as the most

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productive health care provider, was charged with three petty offenses following a change in managers. Again, the arbitrator declined to sustain the charges. This case, however, is different. Grievant was specially selected to participate in a major military project with one of the countrys leading defense contractors, General Dynamics, in a foreign country: Request [Grievant] be add to the Val/Ver team for the event schedule for 13 April - 30 June. After talking with Mr. Persely this would be a great opportunity for [Grievant] to get a good look at the configuration of the platform and assist with linking tasks. Currently we have to complete an average of 50 linking task a day, on average we have been doing anywhere from 20 - 30 linking task a day. With [Grievants] expertise I feel we can get a lot accomplished with him there. Exhibit 26; emphasis supplied. Clearly the Agency had high expectations of Grievant. Instead of living up to those expectations, within a matter of days of joining his team in Canada, Grievant had become a disruptive force and had to be sent home. He evoked these kinds of comments from his colleagues:

[Grievants] attitude overall seemed to be very combative and like we had done everything wrong and not to his specifications. I was called into a government only meeting in which the subject of linking and [Grievants] attitude was the main topic of discussion. [A]t our daily closeout meeting [Grievant] stated that he reviewed 5 figures for the day and that he was going to reject all of them due to bad artwork. This created a defensive posture from GDLS and a hostile work environment. It is my observation that [Grievant] was out on a witch hunt and has a personal vendetta with GDLS and the VALVER as a whole. Exhibit 21. As much as this pains me I need to request that [Grievant] be relieved from the Val/Ver event. He has been confrontational when ask[ed]
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where he is in a process the direction he is going. When someone disagrees with him he gets upset and makes sleigh[ting] remarks. When decisions are made that go against what he has proposed he gets a serious negative attitude. I have spent a year building a very professional and talented Val/Ver team. Both Government and Contractors work very hard together to deliver the best product we can. When [Grievant] is in the area we all feel on pins and needles [as] to what will come next. I feel I have giv[en] this my best effort, if he continues to be part of this team I feel there will become a lot of animosity between team members and moral[e] of all will deteriorate and the end product will not be the product I want to produce for PMLAV. Exhibit 24. Although the Agency has labeled Grievants behavior as merely discourteous, to the arbitrator, it seems inexcusable, intolerable, and unforgivable. As a result, Grievant will not be forgiven. Exhibit 3 @ 18-13, Appendix A to the Table of Penalties for Various Offenses, provides in pertinent part: The use of a particular penalty is not mandatory simply because it is listed in the table. Selection of an appropriate penalty must involve a reasonable balancing of the relevant factors in the individual case. For example, even for offenses where removal is not listed as a first offense, removal on a first infraction may be assessed for an aggravated offense or multiple offenses. The Remarks on Offense 7. Discourtesy confirm a disciplinarians authority to exceed a suggested penalty in a proper case: Penalty may be exceeded if discourtesy or similar conduct is directed to a supervisor. Agency brief, Attachment # 3. Some of Grievants discourtesy in Canada was indeed directed toward supervisory personnel. Thus, there is ample justification for exceeding the minimum penalty for a first offense of Discourtesy.
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The arbitrator is concerned that if he reduces the penalty below a 5-day suspension, all that the Agency hoped to accomplish by suspending Grievant in the first place would be undermined. He shares Dr. Lusardis concern expressed in the latters response to the Douglas factor about the potential for the employees rehabilitation: This is my greatest concern. [Grievant] has a good deal of technical knowledge and capability. However, after completing the anger management program, he still seems to be unable to function in a team environment. I question whether any actions can change this behavior unless [Grievant] first is willing to admit that he is part of the problem. To date he has blamed circumstances and others for his behavior. To make it worse, the arguments put forth to me by the Union representative only tend to act [as] enablers that will permit such behavior to continue. Exhibit 8, Deciding Officials Douglas Factor Consideration Worksheet, 5.j; emphasis supplied. In Police Officers Association of Michigan and County of Leelanau, Michigan and Its Sheriff, 07-2 ARB 3926 @ 3225-3226, 108 LRP 62358 (Arb 2007), the arbitrator sought to specify precisely the counseling a deputy sheriff should undergo. Unfortunately, the courts botched the case, the deputy never underwent counseling and resigned, and the county lost a potentially valuable employee. See POAM v Leelenau County SheriffAn Opportunity Missed, http://www.scribd.com/doc/29653845/POAM-v-Leelanau-County-Sheriff-AnOpportunity-Missed. That case may be distinguishable in that it involved an employee who carried a gun in the course his employment and had arrest
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powers. Here the arbitrator will not go so far, but will only suggest very strongly that Grievant seek counseling for his interpersonal relationship problems. By this the arbitrator does not mean a quickie course in anger management sporadically attended, but a concerted effort to address serious behavioral problems that jeopardize Grievants employment. Dr. Lusardi was brutally blunt: I will no longer tolerate such actions on your part and any further such incidents may result in more severe disciplinary action up to and including removal from Federal Service. Exhibit 8, undated suspension letter @ 2. Although the arbitrator has no authority to order the Agency to pay for counseling, if Grievant asked the Agency to do so, it probably is in the Agencys interest to accede. One can speculate that the government already has spent more in terms of man-hours and lost productivity in attempting to deal with Grievant than a years worth of weekly visits to a PhD psychologist or MD psychiatrist would cost. If the Agency declines such a request, Grievant can turn to the Employee Assistance Services described in Article 17 of the NLMA. And if that is insufficient to change Grievants attitude and behavior, he is free to pay for treatment out of his own pocket. He should consider any time and money spent toward rehabilitation as an investment in his future. Grievant probably has the

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technical skills to become a highly paid consultant should he leave government service, but he will never succeed in that role without interpersonal skills. VII. A Word of Caution About Exaggeration However exasperated management may become with Grievant, objectivity must be maintained. Memos like Exhibit 6 seem over the top with concerns as to how far Grievants anger may escalate. If management has serious concerns, it has ample authorityand probably a dutyto act. See Exhibit 32. VIII. Award As explained above, the grievance is SUSTAINED IN PART and DENIED IN PART. The charge is limited to discourtesy, and the Palonco incident is discounted as a first offense. The issues presented are answered in the negative, and Grievants 5-day suspension is upheld.

Dated September 6, 2011

________________________________ E. Frank Cornelius, PhD, JD, Arbitrator

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