General Services Administration, Eastern Distribution Center, Burlington, New Jersey (Agency) and American Federation of Government Employees Council of GSA Locals C-236 (Union)
| Decision Date | 30 October 2014 |
| Docket Number | 0-AR-4953 |
| Citation | 68 FLRA No. 10 |
| Court | Federal Labor Relations Authority Decisions |
| Parties | GENERAL SERVICES ADMINISTRATION EASTERN DISTRIBUTION CENTER BURLINGTON, NEW JERSEY (Agency) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES COUNCIL OF GSA LOCALS C-236 (Union) |
Before the Authority: Carol Waller Pope, Chairman, and Ernest DuBester and Patrick Pizzella, Members.
Arbitrator Richard D. Zaiger found that the Agency violated the parties’ agreement when it barred an employee (the grievant) from using an Agency scooter at work due to his Union activities. There are two main questions before us.
The first question is whether the Arbitrator exceeded his authority by failing to address an argument. As the parties did not include the disputed argument in their stipulated issues, and as arbitrators do not exceed their authority by failing to address arguments that the parties have not included in their stipulations, the answer is no.
The second question is whether the award is contrary to law because: (1) the Arbitrator determined that Article 4 Section 3 of the parties’ agreement (Article 4) mirrors § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute);[1] (2) the award is not supported by a preponderance of the evidence; and (3) the Arbitrator drew an adverse inference against the Agency for a supervisor’s failure to comply with the Union’s request to be available to testify at the hearing. The answer is no because: (1) the Agency does not identify a law barring the Arbitrator’s determination that Article 4 mirrors § 7116(a)(1) and (2); (2) a preponderance of the evidence supports the award; and (3) Authority precedent does not bar an arbitrator from drawing an adverse inference against an agency when a supervisor fails to testify at a hearing.
The Agency barred the grievant, a Union vice president, from using an Agency scooter at work. Subsequently, the grievant’s second-line supervisor (the second-line supervisor) questioned others as to the grievant’s whereabouts while the grievant was on official time. The Union filed a grievance alleging, as relevant here, that these actions violated Article 4, which is set forth below. The grievance was unresolved and submitted to arbitration. At the arbitration hearing, the parties stipulated to three issues: (1) whether the Agency violated Article 4 by barring the grievant from using the scooter; (2) whether the Agency violated Article 4 by questioning the grievant’s use of official time; and (3) if the Agency violated the parties’ agreement, then “what is the appropriate remedy?”[2]
Turning to the first stipulated issue (the second issue is not in dispute), the Arbitrator stated that Article 4 is “statutory in intent and nature” and “mirrors” § 7116(a)(1) and (2) of the Statute, [3] which we discuss below. Accordingly, and even though the Union “did not allege a statutory violation, ”[4] the Arbitrator stated that he would apply standards established by the Authority in unfair-labor-practice (ULP) proceedings and the “legal framework” for resolving allegations of discrimination[5] set forth in Letterkenny Army Depot (Letterkenny), [6] which we also discuss below.
In this regard, the Arbitrator made the following findings. The grievant “appropriate[d]” a spare Agency scooter when he was reassigned to the Agency’s receiving department.[7] Although the grievant’s job description did not require him to use a scooter to perform his duties, the grievant’s first-line supervisor (the first-line supervisor) had the grievant use the scooter to deliver packages. In addition, the Arbitrator stated that the grievant was “entitled” to use official time to perform “representational duties.”[8] With minor “deviations, ”[9] the grievant “generally complied” with the parties’ agreement when requesting official time, and the first-line supervisor “routinely approved” those requests.[10]
But the Arbitrator found that once the second-line supervisor started indirectly supervising the grievant, “[i]ssues arose regarding the [g]rievant’s use of official time and productivity.”[11] Specifically, the second-line supervisor “expressed her displeasure” to the Union’s chief steward (the chief steward) regarding the grievant’s use of official time[12] and, in the same conversation, the second-line supervisor referred to the grievant as a “piece of shit.”[13] These “issue[s] came to a head” when a section chief emailed the grievant about his request for official time, stating: “I understand the need for handling [U]nion business . . . [but] . . . I do not see [your productivity requirements] . . . being met.”[14] Eight days later, a facility manager (the facility manager) emailed the first- and second-line supervisors and asked: “Why does [the [g]rievant] have a scooter?”[15]
The Arbitrator stated that “the Union” subsequently met with an Agency representative to resolve the “dispute” over the grievant’s use of official time.[16] At the meeting, the Union raised the second-line supervisor’s “piece of shit” comment.[17] Just two days later, and “in the midst of [this] dispute, ”[18] the second-line supervisor recommended to the first-line supervisor that he take away the grievant’s scooter, [19] and the first-line supervisor complied. As such, the second-line supervisor played a “central . . . role” in barring the grievant from using a scooter.[20] Further, the second-line supervisor “public[ly took] credit” for this result, [21] stating to a third supervisor (the third supervisor): “I told you I’d get that . . . fucker off the scooter.”[22] With regard to that statement, the Arbitrator determined that the two witnesses (Witnesses A and B) who testified that they heard that statement were credible, whereas the second-line supervisor’s denial that she made the statement was “unreliable” and “less than candid.”[23] Moreover, the Arbitrator stated that, although the Union had requested that the third supervisor be available to testify, the third supervisor failed to appear at the hearing, and there was “no explanation” for his absence.[24] As such, the Arbitrator found it “appropriate” to draw an adverse inference against the Agency and find that the third supervisor’s testimony would have supported the testimony of Witnesses A and B.[25]
The Arbitrator determined that because the grievant performed representational duties on official time, the grievant engaged in protected activity under Article 4. Additionally, he found that because the first-line supervisor and other managers had allowed the grievant to use a scooter for a “significant period of time, ” using a scooter had become a condition of the grievant’s employment.[26] The Arbitrator found further, based on the timing of the Agency’s actions – that it took away the scooter “in the midst” of the dispute over the grievant’s use of official time and just two days after the meeting with the Union[27] – and the second-line supervisor’s actions and derogatory comments regarding the grievant, that there was a “direct link” between the grievant’s protected activity and the Agency’s decision to bar the grievant from using a scooter.[28] Accordingly, the Arbitrator determined that the Union established a prima facie case of discrimination under § 7116(a)(2) of the Statute.
Moreover, the Arbitrator found that the following showed that the Agency did not have a legitimate justification for barring the grievant from using a scooter: (1) the Agency benefited from the grievant using his scooter to deliver packages; (2) there was “no merit” to the second-line supervisor’s contention that the grievant “was riding the scooter . . . when he should have been [working] in the receiving department”;[29] (3) the grievant’s minor “deviations” from the parties’ agreement when requesting official time did not necessitate the Agency’s action, especially because the first-line supervisor “never raised any issues” and “routinely approved” the requests;[30] and (4) there was “no evidence. . . that the [g]rievant ever left his work area without permission” to perform representational activities.[31] Moreover, the Arbitrator found that, given the length of time that the grievant had worked in the receiving department and the lack of evidence warranting the Agency’s action, the Agency failed to demonstrate that it would have taken the same actions absent the grievant’s protected activity. Accordingly, the Arbitrator determined that a preponderance of the evidence showed that the Agency barred the grievant from using a scooter because of his protected representational activity. Thus, the Arbitrator sustained the grievance as to that issue, and he directed the Agency to cease and desist discriminatory conduct.
The Agency filed exceptions to the award.
Section 2425.6 of the Authority’s Regulations enumerates the grounds that the Authority currently recognizes for reviewing arbitration awards.[32] In addition, the Regulations provide that if exceptions argue that an award is deficient based on private-sector grounds that are not currently recognized by the Authority, then the excepting party “must provide sufficient citation to legal authority that establishes the grounds upon which the party filed its exceptions.”[33] Further, § 2425.6(e)(1) of the Regulations provides that an exception “may be subject to dismissal or denial if . . . [t]he excepting party fails to raise and support” the grounds listed in § 2425.6(a)-(c), or “otherwise fails to demonstrate a legally recognized basis for setting aside the...
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