28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Idaho Army and Air National Guard and American Federation of Government Employees, Local 3006
Date: January 10, 2003
Arbitrator: Duane Buckmaster
Citation: 2003 NAC 104

 
IN THE MATTER OF THE ARBITRATION BETWEEN

American Federation of Government Employees, Local 3006, “The Union”.

AND

Idaho Army and Air National Guard, “The Employer”.

ARBITRATOR’S OPINION AND AWARD

FMCS Case# 02-10906

 

HEARING SITE:  Boise, Idaho

HEARING DATE: November 21, 2002

ARBITRATOR:

               Duane M. Buckmaster
               17 Morningview Circle
           
   Lake Oswego, OR 97035-8840 

APPEARING FOR THR UNION:  Mr. Steven T. White

APPEARING FOR THE EMPLOYER: Lieutenant Colonel Jeffrey K. Smith

WITNESSES: 

For the Union:

Major Eleanor Boardman, Occupational Health Nurse, State of Idaho
Charles K. White, Training Site Environmental Specialist.
LTC Kevin W. Brown, Training Site Manager.
XXXXXXXXl, Civil Engineering Technician. (The grievant)
CPT Eugene Gussenhoven, Construction Facilities Manager

For the Employer:

 R. S. Higginbotham, MD

EXHIBITS:

JOINT EXHIBITS

J-1  Labor-Management Agreement 2000 between the Idaho Army & Air National Guard
      
Dated July 18, 2000.

 UNION EXHIBITS

U-1  Grievance form submitted by the Union in the second step of the grievance procedure with attachments.

U-2  Memorandum dated 16 November 2001 to grievant from Col. Alan C. Gayhart, Chief of Staff, Subject: Grievance Hearing. (This Memorandum with its attachments represents a complete record of the grievance to date of arbitration hearing.).

U-3  Memorandum dated 14 June 2001 prepared by 1st Lt. Scott C. Ketcham , Subject: Water Contamination Report

U-4 Grievant’s Performance Appraisal Form for appraisal period 1 Jan 01 to 31 Dec 01

BACKGROUND

The Employer is the Idaho Army and Air National Guard, headquartered in Boise. The National Guard personnel at this location consist of two categories: (1) Active Guard and Reserve  [AGR] are those who serve in full time military status, and (2) Dual Status Military Technicians ---those whose normal work is that of civilian employees, but who also hold military rank and who hold assignments in Inactive Duty for Training [IDT] status. Those in this second category are what is often called, in the vernacular, “weekend warriors”. They are also described in the Collective Bargaining Agreement (CBA) as “permanent and indefinite competitive technicians and excepted service military technicians (32 USC 709) of the Idaho National Guard-------” (CBA Article I section C.).The CBA is applicable to this second category of personnel except for defined  exclusions such as managers, supervisors and certain others.

The Union, Local 3006 of the American Federation of Government Employees (AFL/CIO) represents employees in category 2 as defined above. Thus, persons in dual status such as the grievant in this case are represented by the Union when functioning in their regular civilian status, but they are not so represented when functioning in their military roles even though the “cast of characters” may be essentially the same in both roles, i.e. a given individual may have the same superiors/subordinates in both situations.

COL Charles Chambers is Director of the Army National Guard Training Site at Boise, and serves in a full time military capacity. The grievant  is a Civil Engineering Technician in regular full time employment, and a Chief Warrant Officer 2 in his military role. 

In this case, the grievant filed a grievance on June 28, 2001 alleging that he had been subjected to a hostile work environment by COL Chambers. The grievance was processed through the  internal steps of the procedure outlined in Article 14 of the CBA and, the decision in the final step  having been rejected by the Union, was appealed to arbitration.

 

THE QUESTION AT ISSUE

Did the employer, by actions and decisions of COL Charles Chambers, subject the grievant to hostile and unreasonable working conditions during the period January 1, 2000 through June, 2001, thereby justifying the grievant’s complaint under the terms of Article 14 Section B paragraph a of the CBA? If so, what shall the remedy be?

Arbitrator’s Note: The Union cited Articles 14.B.a.,19.F. and 21 as having been violated by the Employer. However, the statement of the question as it appears above  adequately covers all of the Union’s concerns and allegations. The applicable provision of the CBA is quoted here for clarity:

ARTICLE 14

Resolving Employee Disputes

Grievance Procedures

SECTION B. Scope

A grievance means any complaint submitted in accordance with this article by a technician concerning any matter relating to the employment of the technician.

 

THE POSITION OF THE UNION

The Union’s position is thoroughly described in COL Gayhart’s decision in the final step of the grievance procedure dated 16 November 2001 (Union exhibit 2). Thus I have decided to state the various parts of the position in abbreviated form , as follows:

1.      COL Chambers’ attempt to suspend grievant for viewing pornography using a government computer.

2.      COL Chambers’ initiation of an investigation of leadership issues.

3.      Removal of grievant from an I5U Military Occupational Specialty by COL Chambers.

4.      COL Chambers ordered grievant not to show up for a drill weekend, thus depriving him of pay.

5.      COL Chambers initiated formal charges of insubordination against grievant.

6.      COL Chambers falsely accused grievant of tampering with or contaminating a water sample at the Maneuver Area Training Equipment Site.

7.      COL Chambers initiated a 15-6 investigation in June 2001, with a goal of prosecution for removal. 

8.      It was also alleged by the Union in the hearing before COL Gayhart (and in some cases pointed out by the Union in the arbitration hearing) that COL Chambers:

Routinely remarks “Get rid of the technicians”.

Does not know the difference between technicians and AGRs.

Replaces technicians with AGRs to support his dislike of technicians.

Displays lack of trust, poor anger management and threatening behavior which causes fear among people in his organization about elevating  issues above him to senior management.

Gives orders to personnel and does not like being questioned.

Has adversely affected the grievant’s career due to his influence over LTCs Brown and Stehr.

Illegally coerced LTC Brown to change the grievant’s technician evaluation. 

The Union called as a witness in the matter of the water system contamination Major Eleanor Boardman, a State Occupational Health Nurse. A summary of her testimony pertinent to this matter follows: 

At about 5:30 p.m. on June 8,2001 she was about to leave her office for the day when CPT Gustafson came in and asked her if she was aware of reports of contaminated water. She was not. He (Gustafson) then told her of events as they had occurred that day.

The following day was the beginning of a drill weekend when an unusually large number of personnel would be present for training. At about 0715 she spoke to Dr.Higginbotham and told him of her concerns about the possibility of illnesses among the many people that had used and would be using water from the base supply.

Later that day Dr. Higginbotham called her into his office, and in what appeared to her to be an angry or heated manner, asked her why she had given him inaccurate information. He stated that the water had been turned on at no time after the grievant had turned it off. He also said that he would initiate an inquiry as to whether the grievant had “spiked” the initial water test, that a second water test would be taken, and  that if the second test showed no contamination he would see to it that the grievant never had another chance to cause this kind of problem again.

Subsequent to these events, she spoke to several persons who told her that the water system had been turned back on after the grievant had turned it off after the first test, and that personnel had used the water for drinking and other purposes.

Charles Kenneth White, a civilian employee as an Environmental Specialist with the Idaho National Guard and now retired from his military status was called as a Union witness. He testified that he had been present in one encounter between COL Chambers and the grievant, in which he became uncomfortable with COL Chambers’ angry manner, and left the room because of his discomfort.  

LTC Kevin W. Brown was called as a witness by the Union. He testified about a performance appraisal he prepared covering calendar year 2001, during which time he was the grievant’s supervisor. He evaluated the performance as “superior”, the highest of the five possible adjective appraisals. He discussed the appraisal with the grievant prior to having reviewed it with his immediate supervisor, which, as disclosed under cross examination, was not in accordance with regulations. COL Gayhart in his research as third step grievance hearing officer, picked up on this and requested that LTC Brown discuss the matter with COL Chambers. In the subsequent discussion between Brown and Chambers, a decision was made to drop the rating from “superior” to “excellent”.. LTC Brown further testified as to his past experience working with grievant, and his high level of confidence in the grievant’s technical competence and work performance. 

The Union called the grievant as a witness. His testimony is summarized below in a condensed form.

He considers the actions of COL Chambers in the allegation about pornography on the computer assigned to him as inappropriate and detrimental to his reputation.

His transfer resulting from COL Gayhart’s decision in the third step of the grievance has worked to his future disadvantage. He no longer supervises anyone, reducing the significance of his job and making him ineligible for future promotion and higher pay. In addition, work previously assigned to him has been reassigned to someone else, further reflecting negatively on him.

The investigation into the probable cause of the water contamination was really aimed at implicating him, and this has harmed his reputation. It is one of a series of investigations in which he has been targeted.

He was improperly denied participation in drills for a period of months, adversely affecting his income.

People have told him that COL Chambers ordered the water turned back on after he (the grievant) reported the contamination, and before the system had been cleaned, thus subjecting personnel to possible serious illness and illustrating Chambers’ hostility toward and distrust of the grievant.

COL Chambers continues to pursue the grievant, who believes that wherever he may be assigned, the pursuit will continue to his (the grievant’s) detriment.

The final witness called by the Union was CPT Eugene Gussenhoven, Construction Facilities Manager who has been the grievant’s supervisor for a period of several months. He testified that, because of a workload imbalance in his organization, he had taken action to reassign certain work which had earlier been assigned to the grievant; feeling that the grievant’s workload was excessive. Gussenhoven further testified that the grievant’s eligibility for future promotion was, in his opinion, unaffected by the grievant’s reassignment into his organization.

 

THE POSITION OF THE EMPLOYER

Many of the Union’s allegations in this case pertain to events and management actions which took place while the grievant was serving in his military role rather than in his capacity as a civilian employee. All such evidence is irrelevant, because the collective bargaining agreement does not apply. This is clearly stated in Article 1,Section B. of the CBA. The arbitrator is, therefore, urged to disregard any and all such allegations and any evidence submitted by the Union in support of them.

It is difficult to ascertain what the Union hopes to accomplish in this arbitration. The decision by COL Gayhart  in the final step of the grievance procedure fully addresses the real issues in this matter, and reflects an obvious effort on COL Gayhart’s part to fully investigate the complaints brought forward, and to take reasonable steps to relieve whatever points of friction, distrust or resentment may exist between the grievant and COL Chambers. What can be accomplished here that has not already been accomplished within the organization?

The Employer called one witness: Ronald S. Higginbotham, MD, Flight Surgeon and medical provider for the Idaho National Guard. His testimony related to the water contamination event which occurred in June 2001. He described his having a conversation with COL Chambers shortly after he was made aware of this problem. In view of the potential exposure to illness, and especially because of the large number of personnel that would be on base for the weekend, this was a matter of immediate concern to both Chambers and Higginbotham. When the latter asked Chambers if he had any opinions about how the contamination may have been caused, Chambers answered that he thought it possible that the sample had been taken incorrectly or that the person taking the sample may have purposefully contaminated it. Chambers and Higginbotham agreed that the latter should undertake an investigation to attempt to find out what had gone wrong and what needed to be done to put the water system back in order. COL Higginbotham proceeded to make some preliminary inquiries of his own, and later assigned 1LT Scott C. Ketchum to conduct an in depth review of the water contamination incident. Having done so, LT Ketchum prepared a six page report (submitted in evidence as Union Exhibit #3). The report describes several different possible sources of contamination, but includes the sentence: ”The source of the contamination was not determined.” 

COL Higginbotham testified that, in the course of his own investigation he had occasion to talk with the grievant, that the grievant was cooperative, professionally knowledgeable regarding the water system and well informed regarding the work that needed to be done to return the system to an acceptable standard. 

In response to a question asked in direct testimony, Dr. Higginbotham testified that COL Chambers did not, at any time, request or propose that the grievant be found responsible for the contamination of the water supply.

 

ARBITRATOR’S OPINION

Before dealing with the specifics of this case, I will comment on certain objections voiced by the Employer’s advocate concerning certain testimony I accepted into the record in the course of the hearing.

First, some comments on hearsay evidence. In the judicial forum, hearsay is excluded in civil and criminal cases unless some exception can be applied. Normally it is not allowed. However, authorities vary as to the admissibility of hearsay in arbitration. Most texts hold that the strict rules of evidence as applied by the courts are not applicable in the arbitral forum. Arbitrators, more often than not, admit hearsay evidence “for what  it is worth”, as I did in this instance. At the same time, some common sense must be used in evaluating the “worth” of hearsay evidence. As an example, in the hearing two witnesses for the Union stated that they had been told by certain other persons that COL Chambers had directed that the base water supply be turned on and considered usable after he had been made aware of a test showing contamination and before the system had been cleaned. Presumably, some (at least one) of such people could have been called by the Union to testify, but no one was called. Under these circumstances the evidence carries no more weight than rumor, which is to say no weight whatsoever. Although I have given no significance to this specific instance of hearsay, that is not to say that all hearsay evidence presented is valueless.  

The Employer also objected to certain testimony which related in whole or in part to occurrences during times and in situations where the grievant was serving in his military role. In such instances the collective bargaining agreement is inapplicable. This is a valid technical point, but  in practice it can be difficult. The same individuals move  back and forth between roles simply by changing hats. For this reason I permitted certain testimony which may have been marginal, with the intent of allowing a full hearing of the grievant’s concerns.

Turning to the grievance, I must confess that I have difficulty understanding the Union’s goal or intent. I have reviewed all the evidence carefully, with particular focus on COL Gayhart’s decision as described in his Memorandum dated 16 November 2001, Subject: Grievance Hearing. This document records a very thorough and searching inquiry into the grievance. I am impressed with the objectivity with which this was done, and I find no hint or suggestion of bias toward the grievant or any tendency to question or interfere with his right to make his concerns known through the grievance procedure.

If the Union’s principal interest is to bring to the attention of higher management the  possible need for refinement of some of COL Chambers’ leadership techniques (and I stress that I have no basis for any judgment on that point), then certainly that has been accomplished in placing the matter before COL Gayhart. This is acknowledged in the comments on the final page of Gayhart’s memorandum (Exhibit U-2). Thus, the question arises: What more is it reasonable to expect of management in this situation? I have studied the evidence in search of an answer, and add the following comments:

There were conflicting recollections of a discussion which took place between Major Boardman and Dr. Higginbotham on June 9, 2001. Boardman, in her testimony, described Higginbotham as acting as if he were angry and accusatory toward the grievant. The doctor doesn’t remember it that way. There were apparently no other witnesses, and, based on the testimony of the participants, I cannot say that one person’s description of what happened is more or less accurate than another’s. 

The Union presented testimony alleging that denial of the grievant’s opportunity to attend drills over a period of time is part of the evidence in support of the grievance. COL Gayhart, in addressing this matter (see Union exhibit #2) pointed out that this is “related to [the grievant’s] military assignment” and has “no bearing on this technician grievance.” In my opinion, COL Gayhart’s decision on this point is supported by the plain language of the CBA. However, inasmuch as I did allow some testimony on this matter, I will comment on it to this extent: The record shows that COL Chambers directed the grievant to obtain a medical evaluation (memorandum dated 1 December 2000, Union exhibit #2, attachment 4). Dr. Higginbotham performed this evaluation, found certain physical conditions requiring certain work limitations, and certified the grievant for “no drill”. He also recommended some conditioning exercises and a January 2001 reevaluation. To conclude from the evidence that these events represent part of a pattern of hostility toward the grievant on the part of COL Chambers, would require that I believe in some sort of collusion or conspiracy involving Chambers and Higginbotham. Such a conclusion cannot reasonably be drawn from the evidence. 

Having considered all of the evidence and testimony, it is my opinion that, to the extent that the grievance has substance, it has been appropriately handled by the parties in the third step of the grievance procedure. If any further corrective steps were needed in order to fulfill the terms of the collective bargaining agreement, the burden to prove that is on the Union. No such proof has been placed before me. 

Arbitrator’s note: My opinion is not intended as a criticism of Mr. White, who undertook a very difficult responsibility. It is my understanding that he has not been trained in arbitral procedures, and in fact had never before so much as attended a hearing. To add to this heavy challenge, the Employer was represented by an officer schooled in the law. Given these circumstances, Mr. White was faced with a daunting task.

 

ARBITRATOR’S AWARD

The Employer shall implement those actions described on page 5 of COL Gayhart’s memorandum dated 16 November 2001 (Exhibit U-2) in full and final settlement of the grievance.

To the extent that the Union seeks further remedy beyond that which has been provided above, the grievance is denied.

 

Duane M. Buckmaster, Arbitrator
Dated this 10th day of January, 2003 at Lake Oswego, Oregon 

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028