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Title: Department of Veterans Affairs and American Federation of Government  Employees 
Date: September 21, 2001
Arbitrator: 
N. Eugene Brundige
Citation: 2001 NAC 148

OPINION AND AWARD

In the matter of Arbitration

Between 

The Department of Veterans Affairs

And

American Federation of Government  Employees (AFGE) Local 31

Regarding

Case Number 3604
[Michael Henigan]

 

APPEARANCES:
FOR THE EMPLOYER:   
Janice Moore, Advocate 
 FOR THE UNION:
Victor Gadson, Advocate

Witnesses:
Richard Embry
Forest Farley
Susan Fuehrer
Willie Bradley
Walter Reese
Diane Bates
Elizabeth Ballard
Michael Hickman
Kenton L. Maynard (audio tape)
Michael Henighan, Grievant

            An arbitration hearing was conducted on June 28, 2001 at the Department of Veterans Affairs, 10000 Brecksville Road, Brecksville, Ohio.  The issue before the Arbitrator was to decide as being: “Was the 14 day suspension imposed for just cause?  If not, what shall the remedy be?”  In addition the Union submitted a question of timeliness regarding the second step grievance level.

            Thirteen documents were submitted by the union and twenty-five by management for consideration by the Arbitrator.  In addition, verbal testimony was offered by nine witnesses at hearing and the parties agreed to jointly question one additional witness and submit his testimony by audio tape.  Briefs were prepared and submitted by the parties (Last brief received September 9, 2001).  All materials, including a 209 page transcript of the proceedings, were reviewed and considered by the arbitrator in reaching this decision.

            Both parties were given full opportunity to examine and cross-examine witnesses, pose arguments and present their respective cases.  Both sides did so professionally and competently.

            The parties mutually agreed that the union would proceed first.

Union Position:

            The union objected to two documents submitted by management (tabs 20 and 21) being admitted.  The union argued that these documents relate to an earlier grievance and is not relevant to this proceeding.  It is the opinion of the union that management introduced this matter in order to draw an unfair inference  between this AWOL matter and the current discipline.

            Management argued that the Agency feels this evidence is crucial in this case because it relates to an earlier case wherein the grievant had placed his car in the same location and it was stolen.  They argue this assists in proving negligence in that the grievant left his car with agency computer equipment inside.

            (Ruling on the objection was postponed until this decision was issued).  After considering all the evidence, it is my ruling that the two documents in question are relevant to this proceeding.  The objection to their introduction is over-ruled.

            In his opening statement Mr. Gadson, on behalf of the union,  stated that the grievant, Michael Henigan, had received had a 14-day suspension for alleged negligence for failure to safeguard government property.  It is the opinion of the union that the employee did use reasonable care securing the property.

            The union indicated that they would prove three points:

1.      The employee was expected to use his privately – owned vehicle and was expected to travel to Brecksville to pick up the equipment.

2.      The employee used reasonable care when handling the equipment.

3.       The employer never objected to the employee using his privately owned vehicle.

The Union addressed their second issue, which related to bad faith bargaining because management was untimely at step 2 and step 3.  The Union contends that the Agency violated Article 42-8 of the Collective Bargaining Agreement.

Mr. Gadson stated that the Union would prove that the agency representative rendered a decision before she heard the argument of the Grievant. On May 10, 2000, Mr. Embry, representing the Union, and Ms. Fuehrer, representing the agency, agreed to extend the time lines until the return of the grievant to work.  The grievant returned to work on May 11.  No hearing was held and the grievance answer was rendered before noon on May 11.

The Union’s first witness, Richard Embry, who is a steward with AFGE, testified regarding the events of May 10 wherein he talked to Ms. Fuehrer about postponing the grievance meeting until the grievant returned to work.  He testified that they did agree to postpone and shook hands on the matter.  He further testified that no meeting was held on May 11 but that the grievance was denied.

Mr. Embry also testified regarding an Unfair Labor Practice that was filed (ULP) regarding this grievance matter.  He testified that it was dismissed by the Federal Labor Relations Authority because the matter was covered by the Collective Bargaining Agreeme

The Union called Susan Fuehrer, Chief Information Officer, in order to inquire about her recollection regarding the May 10 events.  Ms. Fuehrer admitted that she and Mr. Embry agreed to extend the timelines but stated that she issued the decision on the 11th. After conversation with Human Resources.

The Union called supervisor Willey Bradley who admitted that he had transported government property in his personal car but denied that he had ever required his employees to transport government property in theirs.

The union called a number of computer technicians in order to show that other employees transport government property in their private vehicles.  Walter Reese testified that he had transported government property in his personal vehicle.  It also testified that it was a “common practice” for other employees to do the same.  Mr. Reese testified that he had done so three or four times and that he did it to save time.

Diane Bates testified that Willey Bradley had asked her to take Laptops to a company and that she complained about using her own car.

Elizabeth Ballard who is another computer specialist and treasurer of the local union,  testified that she had transported government property in her own car and that she knew of other people who had done the same.  She discussed an employee summit wherein the matter of using private vehicles was discussed.  Ms. Ballard explained that she works at Wade Park and the work to be done there would have been hers except she was unable to do it.  The grievant then agreed to do the work.

The grievant, Michael Henighan, testified on his own behalf.  He explained that he was scheduled to do installations in the operating rooms of Wade Park on October 9.  He arrived and found that some of the rooms were in use.  He testified that he decided to do the installations later.  He went to Brecksville to pick up the scanners.  On his way back to Wade Park he became ill and decided to stop at home and rest.  He had intended to go to Wade Park later the same night or early the next day to complete the installations. 

He testified that he had an alarm device on his car and that he left the scanners in his trunk.  He testified that he and other employees regularly transport government property in their private vehicles.

Mr. Maynard, in his supplemental testimony, stated that he had transported government property in his personal vehicle and that he had kept it overnight.  He also testified that high level managers were aware of the fact he did so.

In summary, the union argued that employees were expected to convey government equipment in their own vehicles.  Further, the Agency did not provide training to employees regarding how equipment should be secured in a vehicle.

The union also contends that the Agency failed to abide by the Collective Bargaining Agreement regarding the issuance of the second step answer without a hearing and thus the grievance should be decided in favor of the grievant.

Finally the union argues that the action by the Federal Labor Relations Authority merely dismissed their Unfair Labor Practice because the matter was covered by the Collective Bargaining Agreement and should have no negative bearing on this arbitration.

Management Position:

            Through the testimony of Supervisor Willey Bradley, Chief Operating Officer Forest Farley,  Chief Information Officer Susan Fuehrer, and IRM Chief Michael Hickman, management outlined its reasons for disciplining the grievant.

            According to testimony, the grievant was scheduled to install computers and bar code scanners in the operating rooms at Wade Park Veteran Affairs facility on October 2, 1999.  The installation did not take place on that day because the bar code scanners had not arrived.

            The scanners arrived at Brecksville on October 4, 1999.  Supervisor Willie Bradley arranged for the installations to be done on October 9, 1999.

            On October 9 between 11 a.m. and  12 noon the grievant went to Wade Park.  There he determined that some of the operating rooms were in use and determined to do the installations later.  Sometime between 12 noon and 3 or 4 p.m. Mr. Henighan arrived at Brecksville to pick up the scanners.  From Brecksville, the grievant went home and lay down to rest as the result of a headache.

            Testimony was offered that several attempts were made to resolve the matter through a negotiated agreement but no agreement was reached.  Management offered testimony that restitution was never made for the scanners even though an insurance claim was filed.

            Several documents were submitted to buttress management’s argument.  These included the Automated Information System Security Policy and Guidelines, Medical Center Policy 005-024, Employee Responsibility and Conduct, and MP-5, Part I, Chapter 752, Appendix D, Table of Penalties.

            Management argues that the issue of the second step grievance response has already been decided by the Federal Labor Relations Authority and the union should not be allowed to introduce it in this proceeding.  Management believes the suspension was for just cause and should be upheld.

RELEVANT CONTRACT PROVISIONS:

ARTICLE 13‑‑DISCIPLINE AND ADVERSE ACTION

Section 1 - General

The Department and the Union recognize that the public interest requires the maintenance of high standards of conduct. No bargaining unit employees will be subject to disciplinary action except for just and sufficient cause. Disciplinary actions will be taken only for such cause as will promote the efficiency of the service. Actions based upon substantively unacceptable performance should be taken in accordance with Title 5, Chapter 43 and will be covered in Article 26 Performance Appraisal System.

ARTICLE 16-EMPLOYEE RIGHTS

Section I - General

C. No employee will be subjected to intimidation, coercion, harassment, or unreasonable working conditions as reprisal nor will an employee be used as an example to threaten other employees.

Section 10 – Unlawful Orders

An employee has a right to refuse orders that would require the employee to violate the law.  This refusal to obey an unlawful order will not subject the employee to disciplinary or adverse action.

ARTICLE 24--OFFICIAL TRAVEL

Section 1 - Compensation and Travel

To the maximum extent practicable, time spent in travel status away from the employee's official duty station will be scheduled by the Department within the normal working hours. Where it is necessary that travel be performed during nonduty hours, the employee will be paid overtime or may opt for compensatory time when such travel constitutes hours of work under title 5 of the U.S. Code or the Fair Labor Standards Act, if applicable.

Section 2 - Change from Per Diem Allowance to Actual and Necessary Subsistence Expenses

A. Advance Authorization - An employee scheduled to travel in an area for which a per diem allowance is prescribed may request advance authorization for travel on the basis of actual and necessary subsistence expenses. Any such request will normally be approved when the supporting Justification showing that the unusual and exceptional circumstances for the request meets Departmentwide guidelines.

B. Post Approval - Reimbursement for actual and necessary subsistence expenses allowable under law and/or rules and regulations issued above, the Department will normally be authorized on a post-approval basis if the employee can justify that prudent expenses required by the ordered travel exceeds (as defined by Departmentwide guidelines the prescribed per diem rate. This provision applies only to travel involving assignments of thirty (30) calendar days or less.

Section 5 - Use of  POV Vehicles

Employees shall not be required to use privately owned vehicles (POVs) for Government business, nor shall they suffer any loss of pay, reprisal, or adverse action on account of

refusal to use a POV for Government business. In the event the use of POVS is authorized, mileage for such use shall be compensated at the prevailing rate published in the Federal Register

Section 6 - Document and Property Loss/Theft

An employee is accountable for Government documents or property in their possession and/or custody. Employees exercising reasonable care will not be held responsible for documents or property damaged lost, or stolen from their possession and/or custody.

ARTICLE 42 – GRIEVANCE PROCEDURE

Section 7 – Procedure

            Step 2.  If the grievance is not satisfactorily resolved at Step 1, it shall be presented to the Service/Division Chief, or equivalent management official of designee, in writing, within seven (7) calendar days of the Step 1 supervisor’s decision.  The grievance must state, in detail, the basis for the grievance and the corrective action desired.  The Service/Division Chief, or equivalent management official, or designee, shall meet with the employee and their representative and provide a written answer within ten (10) calendar days.

THE ISSUES:

            In that the parties did not stipulate the issues in this matter, this arbitrator determines them to be as follows:

  1. Was the fourteen (14) day suspension imposed in this matter for just and sufficient cause?  If not, what shall the remedy be?
  2. Is the union estopped from raising the issue of the failure to hold a step two (2) meeting due to the fact an Unfair Labor Practice (ULP) on the same subject  matter was dismissed?
  3. If the union is not estopped, did the Agency violate the Collective Bargaining Agreement by issuing a step two (2) response without conducting a step two (2) grievance meeting?

DISCUSSION:

            The Regional Director of the Federal Labor Relations Authority considered the Unfair Labor Practice filed by AFGE and dismissed the charge.  The Administrator stated in his letter of September 26, 2000  “As to whether Ms. Fuehrer was required to hold up her step 2 decision until another step 2 meeting could be arranged involves differing and arguable interpretations of Article 42…..  Accordingly, I am not issuing a complaint in this case and I am dismissing your charge.”

            In the opinion of this arbitrator the Regional Director correctly concluded that Federal Statutes had not been violated.  Thus he had no authority to uphold the Unfair Labor Practice.  Instead he correctly noted that the question of the step two meeting is a matter included in the Collective Bargaining Agreement.  That agreement states that matters of contract interpretation are properly decided in Arbitration.

            Consequently the union is not  estopped from raising this issue in the Arbitration at hand.

            Having concluded that it is a proper for the union to raise the issue, we now turn to the issue of whether the Agency violated the Agreement by failure to hold the step 2 meeting. 

            Much discussion was presented regarding who had the responsibility to find out if the grievant was at work on the 11th.  In the opinion of this arbitrator it doesn’t really matter.  Either party could have checked to see if the grievant was present.

            Management would have this arbitrator believe that it had to issue the grievance answer in order to conform with contractual time lines.  I am not convinced.  Section 8 of the Grievance Procedure, titled “Extensions” states clearly:  Time lines at any step of the grievance procedure may be extended by mutual consent of all parties.”

            The testimony of Mr. Embrey and Ms. Fuehrer agrees that they did agree upon an extension.  While it would have been helpful to have the extension in writing, it was adequate to protect everyone’s rights in this matter.

            Therefore, in a technical sense, I believe the Agency did violate the agreement by agreeing to an extension and then proceeding to issue an answer without a grievance meeting or notification to the union that the situation had changed.

            The question that arises is did this procedural defect so prejudice the outcome of this proceeding to require, in and of itself, a reversal of the discipline imposed.  The answer is clearly no.

            The lower steps of a grievance procedure are provided in order that the parties might attempt to informally resolve grievances by allowing a free and open exchange of information.  The enforceable justice provision of the procedure resides in the arbitration step.  That step has not been compromised as evidenced by the fact this decision is being rendered.

            There are grievance procedures which state a penalty if management fails to adhere strictly to all aspects of the procedure.  The most extreme is that the grievance is resolved in favor of the grievant if timelines or other procedural requirements are not met.  A careful review of this Collective Bargaining Agreement reveals that there is no such penalty contained within it.

            Therefore it is my ruling that while the agreement was violated by the agency for the reasons stated above, the error is not a fatal flaw and the question of whether the discipline stands, rests squarely on whether the discipline was issued for just and sufficient cause.

JUST CAUSE ANALYSIS:

            The union set out to prove to this arbitrator that employees regularly used their personal vehicles to transport government property.  They succeeded in doing so.  The evidence clearly shows that many employees have done so.  Some had had advanced permission, some have done so without knowledge of management, and clearly some have done so with the knowledge of some persons in supervision or management.

            If the grievant had received discipline for transporting government property in his personal vehicle, I would be inclined to grant the grievance at this point.  That is not the charge.  The charge is “loss of, or damage to, or unauthorized use of Government property (a.) through carelessness or negligence.”

            Other employees testified regarding their personal efforts to secure government equipment by taking it into their homes when they did take equipment overnight in their personal vehicles.

            The facts in this matter are clear.  The grievant decided to transport the bar code scanners from Brecksville to Wade Park in his personal vehicle without permission from anyone in supervision or management.

            The grievant did not take the bar code scanners directly to Wade Park.  Instead, due to illness, he took them to his home.

            He left the scanners in the trunk of his car.  He parked his car in the same location where it had previously been stolen.  He had acquired an anti theft device and installed it in his car.  The car was stolen in spite of it.

            This arbitrator does not believe the grievant intended for the items to be stolen.  He merely failed to exercise appropriate diligence in guarding the equipment.  (He could have left the equipment at Brecksville until the next day.  He could have secured it at Wade Park,  He could have taken them into his home.  Or he could have arranged to have the scanners transported by means other than his private vehicle.

            Arbitrator Carroll Daugherty, in the Enterprise Wire Case[i],  first established seven tests to determine if “Just Cause” exists.  Arbitrators have been guided by these seven tests ever since.   Let us analyze those tests as they related to the case at hand:

1.      Was the employee forewarned?  .The documents submitted by the Agency indicate the expectations of management regarding the handling of government property.  The union raised the issue that no training had been provided regarding proper handling of government materials.  The argument seems to be that the Agency has a responsibility to tell people how to secure items.  I am not convinced.  There is a common sense aspect to handling any items of value.  It is my view that the government met its obligation to let all employees know about its rules for handling government property.

2.      Was there an investigation?   Both testimony and documents establish that an investigation was conducted and the grievant was given an opportunity to tell his side of the story.

3.      Was the decision maker fair and impartial?   While innuendo was introduced, there was no evidence presented which would indicate to the contrary.

4.      Does the penalty fit the offense?  Fifteen days seems like a stiff penalty for this offense.  It is not, however, the task of an arbitrator to substitute his judgment for that of the agency unless their action is arbitrary or capricious.  Arbitrator Whitney McCoy set the standard for penalty review as far back as 1945 when he said: “In the absence of a clear showing of unfairness or abuse of discretion in regard to management’s imposition of disciplinary penalties, an arbitrator may not substitute his judgment for that of management, even though he may consider the penalty extremely severe, since such action on part of arbitrator would constitute illegal usurpation of proper functions of management.[ii]  To determine if the penalty in this case is unfair or an abuse of discretion, we need to examine the Table of Examples of Offenses and Penalties  (Tab 25 – Employer’s Evidence Book.)  It indicates that a proper penalty is in the range of admonishment to a fifteen day suspension.  Management witnesses stated that they expected the grievant to make restitution for the loss of the bar code scanners.  The failure to do so would provide justification for a significant penalty.

5.      Did the employer prove its case?  This arbitrator believes so for the reasons discussed in other parts of this report.

6.      Were other employees guilty of the same offense treated similarly?  There was no evidence presented by either party that any other employee has been charged or found guilty of a similar offense.  

7.      Is the rule fair?  Certainly the taxpayers demand accountability of all who handle materials purchased by tax dollars.

Having reviewed the evidence and the seven tests, I do believe just and sufficient cause exists in this matter and find no reason to reverse or reduce the penalty imposed.

AWARD:

            For the reasons herein stated I find that the discipline imposed was for just cause.

            The grievance is therefore denied.

It is so ordered.

Decision is rendered this 21st Day of September, 2001 at London, Ohio.

_________________________ 
N. Eugene Brundige, Arbitrator


[i] In re ENTERPRISE WIRE COMPANY (Blue Island, Ill.), 46 L.A. 559

[ii] In re STOCKHAM PIPE FITTINGS COMPANY and UNITED STEELWORKERS OF AMERICA, Mar. 28, 1945, 1 Labor Arbitration Reports, p. 160

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