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Title: US Department of Commerce and AFGE Local 2186
Date: August 4, 1997
Arbitrator: Thomas Watkins
Citation: 1997 NAC 111

 

 

 
In the matter of arbitration between:                                    14-DAY SUSPENSION:

                                                                                       DISCOURTEOUS CONDUCT,

U. S. DEPARTMENT OF COMMERCE                                FALSE STATEMENTS,

Mountain Administrative Support Center                     FAILURE TO PERFORM DUTIES

 

- and -                                                           FRED ROBISON, Grievant

 

AMERICAN FEDERATION OF GOVERNMENT                   FMCS No. 97-04098

EMPLOYEES,  Local 2186

 

 

 

                                                                        THOMAS L. WATKINS, Arbitrator

 

 

APPEARANCES:

 

            FOR THE EMPLOYER:

 

                        Melanie Fields Jones, Attorney, Employment & Labor Law Division

                        Carol Ciufolo, Chief, Facilities & Logistics, MASC; Witness

                        Helen Crown, Former Deputy Director, MASC; Witness

                        Tom Gaffney, Labor Relations Officer, MASC; Witness

                        Paula Hewitt, Calibration Coordinator, NIST; Witness

 

            FOR THE UNION:

 

                        Gerald Swanke, National Representative

                        Nolan Biesanz,  President, Local 2186

                        Fred L. Robison, Grievant; Witness

                        Gary James Schow, Administrative Officer, NIST; Witness

 

 

 

HEARING HELD: July 23, 1997 at the Department of Commerce Building, 325 Broadway, Boulder, Colorado.

 

 

THIS PROCEEDING in arbitration was authorized under Article 20 of the Collective Bargaining Agreement between the parties dated May 1995.  The Arbitrator was selected by the parties through the procedures of the Federal Mediation and Conciliation Service.

 

 

A TRANSCRIPT of the proceedings was taken.  No briefs were filed.

INTRODUCTION

The case presented herein for decision involves the suspension of the Grievant, Fred L. Robison, in 1996 for (1) inappropriate and discourteous conduct toward a client; (2) failure to properly perform his duties in regard to freight shipment; and (3) making vicious, malicious or knowingly false statements against a fellow employee.

On August 26, 1996 a grievance was filed protesting the action was not for just cause and that in any event the penalty was unwarranted.  The parties stipulate the grievance was properly processed through the negotiated procedure, denied by the Employer throughout, and is now properly in arbitration for a decision on its merits.  The parties further stipulate the issues to be:

1.     Whether the Grievant was suspended for just cause as will promote the efficiency of the service, and if not what is the proper remedy?  And,

 

2.     With reference to Article 20, Section 5 of the parties’ collective bargaining agreement, what is the correct charge to each party for the Arbitrator’s fee?

 

RELEVANT PORTIONS OF THE COLLECTIVE BARGAINING AGREEMENT

 

ARTICLE 2.  GENERAL PRINCIPLES AND POLICIES

 

Section 1.  a.  Nothing in this Agreement shall affect the authority of the Employer:

 

(2)  to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take disciplinary action against such employee.


ARTICLE 6.  DISCIPLINARY ACTIONS

 

Section 2.  Disciplinary actions may include oral and written admonishments (for which there would be no record in the employee’s official personnel folder), written reprimands, suspensions, reduction in grade, or removals.  Disciplinary action will be taken only for such cause as will promote the efficiency of the service. . . .

 

ARTICLE 20.  ARBITRATION

 

Section 5.  The arbitrator’s fee, other arbitrator’s expenses, and cost of the hearing transcript, if any, shall be borne by the losing party.  In the event of a split award, cost will be equally shared. . . .

 

 

RELEVANT PORTIONS OF THE D.A.O. SERIES ON DISCIPLINE

(August 4, 1980)

 

SECTION 3.  POLICY

 

b.     It is the policy of the Department that disciplinary action be taken whenever it is warranted by the employee’s conduct or performance; and that discipline be administered in a constructive, progressive, and consistent and timely manner.

 

TABLE OF OFFENSES AND PENALTIES

 

17.  Conduct which violates common decency or morality including use of improper or obscene language.  First offense: Written reprimand to 10 days suspension.

 

18.  Making vicious, malicious or knowingly false statements concerning another officer or employee of the Government.  First offense: Written reprimand to 10 days suspension.

 

23. Act of negligence or careless workmanship in performance of duty resulting in waste of public funds or inefficiency.  First offense: Oral admonishment to 3 days suspension.

 

24. Misconduct generally –criminal, infamous, dishonest, or notoriously disgraceful conduct.  First offense: Written reprimand to removal.


BACKGROUND, FACTS AND ARGUMENTS

            This case essentially involves three separate incidents closely spaced in time during late February and early March 1996, two of which are related.  However, testimony is conflicting with respect to all three incidents.  The matters are presented chronologically.

            The first concerned the transportation of fluorine gas cylinders on February 27.  Michael “Luke” Lukacena, a MASC driver, picked up three cylinders at the University of Colorado and delivered them to the MASC facility.  He was apparently told by the scientist at C.U. that one or more of the cylinders might be leaking although both men knew that they should have been empty.  A visual inspection apparently did not reveal any leak.  However, when the truck arrived at MASC and the truck tailgate was opened, there was a noticeable smell of fluorine.  Immediate and proper action was then taken by MASC officials to evacuate the building and contain the gas.

            According to the Employer, the Grievant implied through comments made that day that Lukacena had deliberately and maliciously exposed the Building 22 staff to the gas.  Robison admittedly made statements to the effect, “Luke is going to get burned for causing the chemical spill;” and “Luke is going to burn for this one;” and “What would you do if someone bought some poison gas into the warehouse that he knew was leaking;” and “Luke knowingly brought over a leaky gas cylinder and some employees got sick.”  [Er. Ex. 4]

            The Employer contends that as a result of two proximate investigations [Er. Ex. 5, 6],  Robison knew the statements were false: Lukacena did not know the cylinders were leaking, they were not bought into the warehouse, and no one got sick.  One investigator concluded, “No state, Federal, EPA or OSHA regulations were violated by this occurrence.  No employees sustained any injury due to this incident.”  Robison made the statements because he and Lukacena share a deep animosity.  The remarks were vicious and malicious because of the implication that Lukacena would knowingly expose himself and his fellow employees to a dangerous situation.

            Robison testified that he believed Lukacena must have known at least one of the cylinders was leaking but transported them anyway; he did not placard his truck; and he had no shipping manifest.  Robison contends all three behaviors violated the law.  [Un. Ex. 2]  Further, Lukacena apparently also did not check the cylinder valves, a routine procedure.  Thus, Robison’s statements were in his mind true and justified.  He had asked Lukacena to come to the Union office in order to help him with his defense against what Robison believed would be certain discipline by management. 

            The second charge stems from two matters, the first occurring on Friday, March 1.  The Grievant answered a call from Paula Hewitt in the National Institute of Standards and Technology (NIST) to pick up some instruments ready for shipment.  She told him one of those had to go out that day so that the customer would have it by Monday as promised.  Robison came to the office too late to assure a Friday shipment, and indeed the instrument was received by the customer on Tuesday, causing lost production estimated at $1 million.

            On Monday, March 4 Robison came to Hewitt’s office to pick up two canisters (valued at $500,000 each) and one attenuator for shipment.  Hewitt told Robison not to load the canisters without their special boxes which he did not have with him as he should have.  She testified he said, “I’ll load ‘em when I get to the truck,” and took them away without their boxes.  He then left them vulnerable to theft at the end of the hallway.  Shortly thereafter he returned with the attenuator box to load that device, and Hewitt asked that he wait until she had someone from the lab come to help since the device was quite heavy.  She testified that Robison ignored her, went into her office and got the device.  He tried to drop it into the box and when it would not go, he hit it to make it go in.  Hewitt then attempted to put the shipping label on the box but Robison ripped it from her hand and slammed the lid on the box, nearly catching her hand.  He stated he would put it on top when he got to shipping.

            On Tuesday, March 5, the shipping supervisor called Hewitt to indicate he had a big box with no label on it.  Knowing it was the attenuator box, Hewitt retyped the label with the necessary changes and hand-delivered it to shipping.  There she encountered the Grievant, and she asked him about the document.  He blamed the loss of the document (it was apparently torn beyond repair) on shipping personnel.  Hewitt testified that she then tried to discuss with Robison his extremely poor service.  Rather than being responsive, he kept repeating, “Whatever you want ma’am.”  Hewitt reported the incident to the shipping supervisor and later that day to Bob Stevens, Robison’s supervisor, who apologized for the Grievant’s behavior.  Stevens also suggested that Hewitt write to Carol Ciufolo, head of Facilities and Logistics, the Grievant’s second level supervisor.  Hewitt did so on the same day in a two-page memorandum detailing the incidents.  [Er. Ex. 1]

            The Employer contends the Grievant’s behavior constituted failure to properly perform his duties: Robison knew or certainly should have known the correct procedures for picking up sensitive instruments for shipping.  Even if he did not, he repeatedly ignored Hewitt’s directions.  He left expensive and highly calibrated instruments unprotected from theft or damage.  His handling of the attenuator was so careless and unprofessional that Hewitt felt compelled to call the client and ask that the client test the device upon receipt to make sure it functioned properly.  In the course of these incidents Robison repeatedly ignored Hewitt’s requests to handle the equipment in a more careful manner and made inappropriate remarks to her.  According to Hewitt, the Grievant’s tone was “cute” or ”sarcastic.”

            The Union argues that Robison was absent from a meeting in which the proper procedures for handling sensitive instruments were explained.  Indeed, there are no written policies on equipment handling or safeguarding.  No one had ever complained of his professionalism before, or his ability to carry out his duties in a proper manner.  When Hewitt came to the warehouse on March 5 and confronted him, Robison genuinely believed she had a problem with pickups generally, not with him personally. The Grievant himself wrote a memo on March 5 apologizing for any poor service MASC may have provided to Hewitt and NIST.  [Er. Ex. 2]

            The third incident occurred on Wednesday, March 6.  Robison came by Hewitt’s office to deliver his memo and suggest to her how to register a complaint if she wished to do so.  She told him she had already written to Ciufolo.  [Er. Ex. 1]  According to Hewitt, Robison just “lost it.”  He began shouting at her and backed her into a corner of her office.  He yelled that she was the problem, not him.  Hewitt became genuinely afraid for her safety.  She tried to calm him and she sought to escape by moving toward him.  He abruptly turned and left.   Hewitt had become so upset her coworkers eventually had to calm her down and suggest she go home for the day.  Hewitt saw Robison pacing the hallway, and later saw him following her in her car.  The next day she reported the incident to Robert Judish, her supervisor, asking that Robison not again be allowed on her wing.

            The Employer contends that  Robison’s behavior was intimidating, threatening, uncooperative and rude, and constituted “inappropriate and discourteous conduct toward a client.”  He completely lost his temper with Hewitt, telling her it was all her fault, and that she just didn’t understand how things worked.

Robison testified that he did not raise his voice any more than normal on March 6.  Had he done so surely many persons in the hallway and labs would have come to investigate.  Hewitt never stated that she was afraid or that she wanted out of the office, and she did not insist that he leave.  According to the Grievant, it was Hewitt who was telling him off.  He was later in the hallway in order to report the incident to Judish; and his parking next to Hewitt and being behind her in his car were pure coincidences.  He certainly never stalked her.

 

ANALYSIS

            This case would appear to turn on credibility, and to some extent it does; but it is also likely that at least with respect to the interpersonal confrontations, the differences are attributable to perceptions.  The Employer is as certain of Robison’s misbehavior as he is of his innocence.  The issues would seem best approached through a series of questions.

1.     Did the Grievant engage in inappropriate behavior with respect to the “leaky cylinder” incident?  Yes.  Robison admits the comments attributed to him.  It is simply his contention that Lukacena was guilty of a serious breach of safety protocol and would be held accountable for it.  Robison was merely reporting Lukacena’s actions to others in the bargaining unit, and the likely response of management.  In fact, the statements used as a basis for his discipline were made to his fellow coworkers, not to management, and are exaggerated in any case.

            But the Employer’s arguments and evidence are far more persuasive.  A thorough investigation established that Lukacena was not aware of any potential hazard and he did not knowingly place himself or any of his coworkers in danger.  Despite knowing of the investigatory outcome, Robison for whatever reason spoke with at least four persons about Lukacena in a manner designed to discredit him.  He knew his statements were fabricated; and they were vicious and malicious by implying that Lukacena would knowingly place his coworkers at risk.

            Robison’s behavior on February 27 is a clear violation of listed offense #18.

2.     Did the Grievant fail to properly perform his duties on March 1 and 4?  Yes.  The Grievant contends that he missed a critical meeting explaining the handling of sensitive instruments and that there are no real procedures to be violated anyway.  He would have us believe that he got along fine with Hewitt’s predecessor, and that the problem is her fussiness rather than his practices.

            That argument simply does not hold water.  After some twelve years in his position, ignorance cannot explain his behavior.  If he did not know the proper procedures, written or not, he certainly should have.  Beyond that, Hewitt is his customer, and he chose to disregard her instructions.  Without trying to speculate as to his motives, it would seem Robison decided to “test” Hewitt, a relatively new employee.  He’d been around for a long time and it seems he found it more satisfying to tell a new customer what he felt the procedures were than to listen to her.

In any event, the evidence establishes that he engaged in behavior that defies rational explanation and runs contrary to what a normal person would be expected to do: no one should knowingly expose his employer or that of a client to unnecessary risk.  His failure to properly pack instruments and his leaving them vulnerable to theft and damage constitute unacceptable behavior in direct violation of offense #23.

3.     Did the Grievant engage in inappropriate and discourteous conduct toward Hewitt on March 6?  Yes.  Here, the Grievant contends that he never raised his voice, that he was in control, that it was really Hewitt who was delivering the lecture, and that the whole incident is actually a misunderstanding.  The evidence is persuasive otherwise.

            There can be little question that Hewitt was genuinely frightened on that day.  She was so upset and shaken she was in tears and had to be sent home by her colleagues.  Apparently she did not cry out for help; and she may not have directly asked Robison to stop his behavior.  But there simply cannot be any question of the impact he had on her.  Nor is there any evidence that her background made her prejudiced against assertive persons such that her recollections would be exaggerated.

            There is some merit in the argument that he is not responsible for her fear if he is unaware of it: we owe it to friends and coworkers alike to express our disapproval of certain words or actions if we wish them to cease.  But Robison cannot reasonably contend that he could not see her fear: it was patently evident in the hearing as it must certainly have been on March 6.

            No workplace can tolerate such behavior.  That this conduct was directed toward a client only underscores its unacceptability.  Workers in any situation cannot be expected to perform with  efficiency and effectiveness if they are not free of fear and intimidation.  Indeed, they have a right to a safe and collegial workplace, and we would hold the employer responsible if it did not do all in its power to assure that one exists.  Robison’s actions violated common decency and constituted disgraceful conduct in direct violation of offenses #17 and 24.

            Taken collectively, one must conclude that just cause existed for disciplining the Grievant in order to promote the mission and efficiency of the service.

4.     Did the Employer properly conduct investigations in concluding the Grievant’s guilt?  Yes.  Both Ciufolo as well as Deputy Director Helen Crown conducted thorough and independent investigations into the incidents.  [Er. Ex. 3, 11]  They provided fair and ample opportunity for Robison to know and respond to the charges.  They spoke with virtually everyone who could shed light on the facts.  They also explored whether Hewitt might have the type of personality which would cause her to exaggerate or overreact.  Both managers reached exactly the same conclusions:  Robison was guilty of each of the charges.

5.     Did the Employer properly consider all of the elements of the D.O.C. series on discipline in arriving at the 14-day suspension?  Yes, but there are a number of elements here.  First, the Employer is obligated to consider all the factors of the situation: the possibility of genuine misunderstanding, enticements or provocations, culpabilities of others, and other mitigating or extenuating circumstances.  Only the first of these has any real relevance in the instant case.   The two managers concluded, after their investigations, that to the extent there might have been some misunderstandings, it was a direct result of the Grievant choosing to use misunderstanding as an excuse for his misbehavior rather than a genuine failure to communicate.   Indeed, Robison denied his responsibility throughout, including during the hearing, contending that he and his motives are simply misunderstood.  The facts do not support this assertion.

            Second, the Employer is obligated to consider with respect to the particular employee his length of service, the quality of work history, personal reputation, past contribution, record of cooperativeness, record of achievements, and past disciplinary record.  There is no question that Robison is a long term employee who can be, when he chooses, an effective colleague.  Witnesses noted his helpfulness on past projects and his cooperativeness in certain labor-management relationships.  His work record shows him to consistently be “fully successful” in his position.  He has received a “Cutting Edge Award,” a “Cash-in-a-Flash Award,” and a letter of appreciation in 1995.  [Un. Ex. 3, 4, 5]

            At the same time he has received a letter of admonishment, a letter of reprimand, and a two-day suspension, all for misconduct.  He did not grieve the reprimand; and he testified that he considered the suspension a “paid vacation” since his lost wages were returned to him following a settlement agreement.  On balance his history is spotted, occasionally bullying others and seeming to enjoy throwing his weight around.  He has been repeatedly warned about these behaviors but has chosen instead to believe they are the fault of others.

            Third, the record establishes that the Employer has followed the principles of progressive discipline.  On each successive incident of misbehavior, management has sought to escalate the amount of discipline, stating it seeks improved behavior, and indicating that failure to improve could result in more severe action.  Robison has chosen to ignore those warnings, and he is clearly unimpressed with his need to reform his conduct.

            Fourth, the D.O.C. disciplinary document proposes “guideline” penalties based upon all of the considerations above.  Testimony at the hearing from both Ciufolo and Crown, who recommended and sustained the suspension respectively, established that they considered the 14-day suspension to be well within the guidelines and mild under the circumstances. 

            Having studied the entire record of this matter I concur.  To the extent there are mitigating elements related to the Grievant’s long and generally successful work history, they served to prevent a more severe penalty rather than to suggest a lesser one.  It is quite clear that Robison is generally unmoved by the Employer’s very reasonable requirements for his conduct.  Even when disciplined he translated a suspension into a paid vacation because of the settlement agreement.  I find his behavior toward Hewitt, a respected client, to be reprehensible on multiple occasions, and his treatment of Lukacena little better.  In all of this he clearly violated reasonable, known D.O.C. standards. 

He cannot hide behind his slightly reduced hearing, his Union office, an assertion that he is being retaliated against because of a pending ULP charge, or a contention that he is being unfairly singled out for discipline, because there is not an iota of evidence to support any of these claims relative to this case.  Collectively the record establishes that the Employer has carried forth its burden to prove with clear and convincing evidence the guilt of the Grievant and the propriety of the discipline chosen.  Its actions were free of any arbitrary, capricious or discriminatory elements, and the “Douglas Factors” were properly considered throughout.

To the extent Robison has received discipline others have not, it is a direct result of his unique misconduct.  He should understand now, as he apparently has not in the past, that failure to reform his behavior will likely result in still greater discipline including the possibility of dismissal.  Perhaps this time the corrective message will be received, permitting Robison to realize a long and productive career and allowing the Department to enjoy the services of a very capable employee.

 

DECISION

            The grievance of Fred Robison is denied.  He is directed to serve his entire 14-day suspension without pay as soon as possible, if he has not done so already.  The Grievant is further directed to sign a statement that he has received and read a copy of this decision.  The statement shall be placed in his permanent personnel file.

            The second issue in this case is moot: the Union is responsible for all arbitration costs under the language of the Agreement.

 

                                                                                                                                                                                                            _______________________________

                                                            THOMAS L. WATKINS, Arbitrator

 

Denver, Colorado

August 4, 1997

 

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