09:0935(133)CA - Army Health Clinic, Fort Ritchie, MD and NFFE Local ll53 -- 1982 FLRAdec CA
[ v09 p935 ]
09:0935(133)CA
The decision of the Authority follows:
9 FLRA No. 133 U.S. ARMY HEALTH CLINIC FORT RITCHIE, MARYLAND Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1153 Charging Party Case No. 3-CA-803 DECISION AND ORDER THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT IT BE ORDERED TO CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND A BRIEF IN SUPPORT THEREOF. PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS MODIFIED HEREIN. THE JUDGE FOUND THAT THE RESPONDENT FAILED TO COMPLY WITH AN ARBITRATOR'S AWARD WHEN IT BASED CERTAIN DISCIPLINARY ACTION AGAINST AN EMPLOYEE IN PART UPON AN EARLIER WRITTEN REPRIMAND WHICH THE ARBITRATOR HAD ORDERED REMOVED FROM THE EMPLOYEE'S RECORD. HE FOUND THAT SUCH CONDUCT CONSTITUTED A FAILURE TO COMPLY WITH SECTION 7122(B) OF THE STATUTE /1/ IN VIOLATION OF SECTION 7116(A)(1) AND (8). /2/ THE AUTHORITY ADOPTS THE JUDGE'S DECISION IN THIS REGARD. SEE, E.G., DEPARTMENT OF THE AIR FORCE, AIR FORCE LOGISTICS COMMAND, 4 FLRA NO. 96(1980); NATIONAL TREASURY EMPLOYEES UNION, 3 FLRA 623(1980); AND HEADQUARTERS, U.S. ARMY COMMUNICATIONS COMMAND, ET AL., FORT HUACHUCA, ARIZONA, 2 FLRA 785(1980). /3/ ACCORDINGLY, THE AUTHORITY SHALL ORDER THE RESPONDENT TO CEASE AND DESIST FROM ITS VIOLATIVE CONDUCT AND TO TAKE CERTAIN AFFIRMATIVE ACTION. ORDER PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS HEREBY ORDERED THAT THE U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND, SHALL: 1. CEASE AND DESIST FROM: (A) FAILING OR REFUSING TO COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD CASS OR WITH ANY ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. (B) RELYING ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 AS THE BASIS FOR IMPOSING PROGRESSIVELY SEVERE PENALTIES FOR OTHER OFFENSES IN FORMAL DISCIPLINARY ACTIONS. (C) IN ANY LIKE OR RELATED MANNER FAILING OR REFUSING TO COMPLY WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. (D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE: (A) COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD CASS AND ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. (B) REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 FROM HER OFFICIAL PERSONNEL FILE AND FROM ALL FORMAL DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P. HARRIS SUBSEQUENT TO AUGUST 14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED SUSPENSION AND THE SEPTEMBER 17, 1979 NOTICE OF PROPOSED REMOVAL, AND REVISE SUCH ACTIONS ACCORDINGLY TO THE EXTENT REQUIRED BY LAW AND REGULATIONS. (C) ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS CONSIDERATION IN THE CASE OF JOHANNA P. HARRIS V. U.S. DEPARTMENT OF THE ARMY, OF THE ACTIONS TAKEN TO COMPLY WITH THE ARBITRATOR'S DECISION PURSUANT TO THIS ORDER. /4/ (D) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER, U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (E) PURSUANT TO SECTION 2424.30 OF THE AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. ISSUED, WASHINGTON, D.C., AUGUST 16, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT FAIL OR REFUSE TO COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD CASS OR WITH ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL NOT RELY ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 AS THE BASIS FOR IMPOSING PROGRESSIVELY SEVERE PENALTIES FOR OTHER OFFENSES IN FORMAL DISCIPLINARY ACTIONS. WE WILL NOT IN ANY LIKE OR RELATED MANNER FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD CASS AND WITH ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 FROM HER OFFICIAL PERSONNEL FILE AND FROM ALL FORMAL DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P. HARRIS SUBSEQUENT TO AUGUST 14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED SUSPENSION AND THE SEPTEMBER 17, 1979 NOTICE OF PROPOSED REMOVAL, AND REVISE SUCH ACTIONS ACCORDINGLY TO THE EXTENT REQUIRED BY LAW AND REGULATIONS. WE WILL ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS CONSIDERATION IN THE CASE OF JOHANNA P. HARRIS V. U.S. DEPARTMENT OF THE ARMY, OF THE ACTIONS TAKEN TO COMPLY WITH THE ARBITRATOR'S DECISION PURSUANT TO THIS ORDER. (AGENCY OR ACTIVITY) DATED: . . . BY: . . . (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF THE EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, 1111 18TH STREET, NW., SUITE 700, WASHINGTON, D.C., 20036, AND WHOSE TELEPHONE NUMBER IS (202) 653-8507. -------------------- ALJ$ DECISION FOLLOWS -------------------- SAM HORN, ESQUIRE JOHN C. GREENHAUGH, ESQUIRE FOR THE RESPONDENT HEATHER GOTTS, ESQUIRE FOR THE GENERAL COUNSEL BEFORE: GARVIN LEE OLIVER ADMINISTRATIVE LAW JUDGE DECISION STATEMENT OF THE CASE THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE REGIONAL DIRECTOR, REGION THREE, FEDERAL LABOR RELATIONS AUTHORITY, WASHINGTON, D.C., AGAINST THE U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND (RESPONDENT), BASED ON A CHARGE FILED BY THE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1153 (CHARGING PARTY OR UNION). THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE BY FAILING TO COMPLY WITH AN ARBITRATOR'S AWARD. RESPONDENT DENIED THE ALLEGATIONS AND ASSERTED THAT IT HAD COMPLIED WITH THE ARBITRATOR'S AWARD. A HEARING WAS HELD IN THIS MATTER IN WASHINGTON, D.C. THE PARTIES ENTERED INTO A STIPULATION OF FACT AT THE HEARING BASED ON SUPPORTING EXHIBITS. BASED ON THE STIPULATION AND SUPPORTING EXHIBITS, AND BRIEFS FILED BY THE RESPONDENT AND GENERAL COUNSEL, FLRA, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS. FINDINGS OF FACT 1. RESPONDENT HAS RECOGNIZED THE UNION AS THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT OF ITS EMPLOYEES SINCE 1970. THE CURRENT COLLECTIVE-BARGAINING AGREEMENT BETWEEN THE PARTIES BECAME EFFECTIVE DECEMBER 12, 1973. THE AGREEMENT CONTAINS A GRIEVANCE PROCEDURE WHICH PROVIDES FOR THE SUBMISSION OF UNRESOLVED GRIEVANCES TO ARBITRATION. (JOINT EX. 1). 2. FORT RITCHIE REGULATIONS 690-11, IN EFFECT AT ALL TIMES MATERIAL, PROVIDED, IN PART, AS FOLLOWS: 3. DEFINITIONS. A. INFORMAL DISCIPLINARY ACTION. ORAL ADMONITIONS AND WARNINGS ARE THE FIRST STEP IN CONSTRUCTIVE DISCIPLINE. AS A GENERAL RULE, SUCH ACTIONS ARE TAKEN BY THE SUPERVISOR ON HIS OWN INITIATIVE IN SITUATIONS OF A MINOR NATURE INVOLVING INFRACTIONS OF A RULE, REGULATION, STANDARD OF CONDUCT, SAFETY PRACTICE OR AUTHORITATIVE INSTRUCTION . . . . B. FORMAL DISCIPLINARY ACTIONS CONSIST OF WRITTEN REPRIMANDS, SUSPENSIONS, AND REMOVALS. ALTHOUGH FORMAL DISCIPLINARY ACTIONS ARE INITIATED BY SUPERVISORS, SUCH ACTIONS MAY NOT BE ACCOMPLISHED WITHOUT ACTION ON THE PART OF THE CIVILIAN PERSONNEL OFFICE . . . . APPENDIX A TO THE REGULATION SETS OUT TABLES PERTAINING TO PENALTIES FOR VARIOUS OFFENSES. THIS TABLE PROVIDED, IN PART, AS FOLLOWS: THIS TABLE OF PENALTIES FOR DELINQUENCY OR MISCONDUCT WILL BE USED AS A GENERAL GUIDE IN IMPOSING DISCIPLINARY ACTION TO ASSURE LIKE PENALTIES FOR LIKE OFFENSES THROUGHOUT THE DEPARTMENT OF THE ARMY. THE LIST OF OFFENSES AND SUGGESTED PENALTIES SET FORTH BELOW MAY NOT SUCCESSFULLY MEET THE DEMANDS OF ALL SITUATIONS AND THEREFORE IS TO BE CONSIDERED AS SUGGESTIVE ONLY. WHEN IMPOSING PROGRESSIVE PENALTIES FOR SECOND AND THIRD OFFENSES, CONSIDERATION MUST BE GIVEN TO WHETHER A REASONABLE PERIOD HAS ELAPSED SINCE THE PRIOR OFFENSE. (WHAT IS REASONABLE WILL DEPEND ON THE FACTS AND CIRCUMSTANCES OF EACH INDIVIDUAL CASE.) WHERE THE PENALTY PROPOSED EXCEEDS THE SUGGESTED LEVEL OF PENALTY FOR A PARTICULAR OFFENSE AS SET FORTH BELOW, OR IN A LOCALLY DEVELOPED REGULATION, AN EXPLANATION OF THE REASON FOR DEVIATION MUST BE PROVIDED IN THE PROPOSED NOTICE TO THE EMPLOYEE. USERS OF THIS GUIDE SHOULD BE THOROUGHLY FAMILIAR WITH ALL THE PROVISIONS OF CPR 751 (GUIDE OMITTED) 3. ON NOVEMBER 16, 1976 JOHANNA P. HARRIS, A MEDICAL TECHNICIAN FOR THE RESPONDENT, WAS SUSPENDED FROM DUTY FOR ONE DAY FOR FAILING TO OBEY AN ORDER. (JOINT EX. 15). 4. ON AUGUST 18, 1978 A PROPOSED OFFICIAL WRITTEN REPRIMAND WAS DIRECTED TO JOHANNA P. HARRIS BASED ON HER FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 TO COMPLETE A COUNSELING SESSION. THE PROPOSED REPRIMAND NOTED THAT, "IF SUSTAINED (THIS REPRIMAND) WILL BE MADE A MATTER OF RECORD IN YOUR OFFICIAL PERSONNEL FOLDER FOR A PERIOD OF ONE (1) YEAR." (JOINT EX. 2). 5. ON SEPTEMBER 13, 1978, AFTER CONSIDERING THE PROPOSED REPRIMAND AND MRS. HARRIS' REPLY, COLONEL WILLIAM B. BRUMLEY, FOUND THE PROPOSED ACTION TO BE WARRANTED. HE STATED, IN PART, "THEREFORE, THE LETTER OF REPRIMAND IS SUSTAINED AND WILL BE MADE A MATTER OF RECORD IN YOUR OFFICIAL PERSONNEL FOLDER FOR A PERIOD OF ONE (1) YEAR." (JOINT EX. 3). 6. ON OR ABOUT OCTOBER 30, 1978 THE UNION INVOKED ARBITRATION ON THE MERITS OF HARRIS' GRIEVANCE RELATING TO THE SEPTEMBER 13, 1978 LETTER OF REPRIMAND. 7. ON MAY 15, 1979 ARBITRATOR MILLARD CASS ISSUED A SIX PAGE DECISION AND AWARD WHICH CONCLUDED AS FOLLOWS: BASED UPON THE ENTIRE RECORD, I FIND THAT JOHANNA HARRIS WAS GUILTY OF A POOR ATTITUDE AND FAILURE TO OBEY DR. FARMER'S ORDER. THIS WAS IMPROPER, BUT NOT SERIOUS ENOUGH TO WARRANT FORMAL ACTION. UNDER THE CIRCUMSTANCES, AN OFFICIAL REPRIMAND WAS NOT JUSTIFIED, AND IT IS ORDERED REMOVED FROM HARRIS' PERSONNEL FILE. (JOINT EX. 8). 8. RESPONDENT DID NOT APPEAL THE DECISION OF THE ARBITRATOR. ON OR ABOUT MAY 21, 1979, RESPONDENT REMOVED FROM HARRIS' OFFICIAL PERSONNEL FILE THE LETTER OF REPRIMAND ISSUED ON SEPTEMBER 13, 1978. 9. DURING THE TIME FROM HARRIS' RECEIPT OF THE SEPTEMBER 13, 1978 LETTER OF REPRIMAND TO THE DATE OF THE ARBITRATOR'S DECISION, HARRIS WAS THE SUBJECT OF OTHER PERSONNEL ACTION. ON SEPTEMBER 19, 1978 RESPONDENT ISSUED TO MRS. HARRIS A NOTICE OF A PROPOSED 5-DAY SUSPENSION FROM DUTY WITHOUT PAY FOR FAILURE TO FOLLOW A DIRECTIVE ON AUGUST 22, 1978 TO PERFORM A STAT WHITE BLOOD COUNT PROCEDURE. THE LETTER NOTED THAT, "THE MAXIMUM PENALTY IS BEING PROPOSED BECAUSE THIS IS YOUR SECOND OFFENSE AS EVIDENCED BY A WRITTEN REPRIMAND THAT WAS ISSUED TO YOU ON 18 AUGUST 1978 FOR A SIMILAR OFFENSE." (JOINT EX. 4). 10. ON OCTOBER 16, 1978, AFTER CONSIDERING THE PROPOSED SUSPENSION AND MRS. HARRIS' REPLY, RESPONDENT FOUND THE CHARGE SUPPORTED AND THE ACTION WARRANTED. (JOINT EX. 5). THERE IS NO EVIDENCE THAT MRS. HARRIS REQUESTED A REVIEW OF THIS DECISION. ACCORDINGLY, MRS. HARRIS WAS SUSPENDED FROM DUTY WITHOUT PAY DURING THE PERIOD OCTOBER 23-27, 1978. 11. ONCE THE ARBITRATOR'S DECISION WAS RENDERED CONCERNING THE SEPTEMBER 13, 1978 LETTER OF REPRIMAND, THE UNION, BY LETTER DATED MAY 23, 1979, WROTE TO RESPONDENT CONCERNING THE 5-DAY SUSPENSION. THE UNION NOTED THAT THE PUNISHMENT OF SUSPENSION HAD BEEN IMPOSED BY RESPONDENT BECAUSE THE INCIDENT WAS STATED TO BE HARRIS' "SECOND OFFENSE AS EVIDENCED BY A WRITTEN REPRIMAND THAT WAS ISSUED TO YOU ON 18 AUGUST 1978 FOR A SIMILAR OFFENSE." THE UNION ARGUED THAT SINCE THE ARBITRATOR HAD OVERTURNED THE LETTER OF REPRIMAND, THE INCIDENT WHICH TRIGGERED THE 5-DAY SUSPENSION HAD BECOME THE FIRST OFFENSE. THE UNION REQUESTED THAT THE 5-DAY SUSPENSION BE REDUCED TO A LETTER OF REPRIMAND AND THAT HARRIS BE RESTORED FIVE DAYS PAY. (JOINT EX. 9). 12. BY LETTER DATED JULY 18, 1979 RESPONDENT INFORMED THE UNION OF ITS POSITION REGARDING MRS. HARRIS' 5-DAY SUSPENSION. RESPONDENT STATED, IN PART, AS FOLLOWS: IT IS MANAGEMENT'S POSITION THAT THE 30 MARCH 1979 (SIC) DECISION AND AWARD RENDERED BY MR. MILLARD CASS REFERRED TO IN YOUR REFERENCED LETTER DID NOT STATE THAT A FIRST OFFENSE WAS NOT COMMITTED BY MRS. HARRIS. MR. CASS' DECISION AND AWARD ONLY STATES THAT THE PUNISHMENT FOR THE FIRST OFFENSE WAS, IN HIS OPINION, TOO SEVERE. HE DID NOT STATE THAT A FIRST OFFENSE DID NOT HAPPEN. IN FACT, HE SPECIFICALLY STATES IN HIS LAST PARAGRAPH OF THE DECISION AND AWARD THAT "I FIND THAT JOHANNA HARRIS WAS GUILTY OF A POOR ATTITUDE AND FAILURE TO OBEY DR. FARMER'S ORDER." HE, THEREFORE, CLEARLY SAYS THAT AN OFFENSE WAS COMMITTED BY MRS. HARRIS. THEREFORE, MRS. HARRIS' ACT OF DISOBEDIENCE, SUBSEQUENT TO THE ACT OF DISOBEDIENCE ON 18 AUGUST 1978, WAS TRULY A SECOND OFFENSE FOR WHICH MANAGEMENT COULD IMPOSE A SUSPENSION WITHOUT PAY. (JOINT EX. 10). 13. ON SEPTEMBER 17, 1979 MRS. HARRIS WAS GIVEN ADVANCE NOTICE OF HER PROPOSED REMOVAL FROM FEDERAL SERVICE. THE REASONS ADVANCED FOR THE PROPOSED REMOVAL WERE HER REPEATED FAILURES TO OBEY THE ORDERS OF HER SUPERVISORS. THE NOTICE DEVOTED THE MOST ATTENTION TO THE CHARGE THAT HARRIS HAD FAILED TO PERFORM QUALITY CONTROL AND/OR TO RECORD THE RESULTS OF QUALITY CONTROL IN SEROLOGY, HEMATOLOGY, AND URINALYSIS DURING THE PERIOD FROM AUGUST 18, 1979 TO JUNE 6, 1979 IN VIOLATION OF AN AUGUST 14, 1979 ORDER OF HER SUPERVISOR TO PERFORM SUCH PROCEDURES. RESPONDENT ALSO RELIED ON THREE PRIOR OFFENSES OF FAILURE TO OBEY ORDERS, INCLUDING THE OFFENSE THAT BECAME THE SUBJECT OF THE ARBITRATION AWARD. RESPONDENT STATED THAT "ALTHOUGH THE WRITTEN REPRIMAND OF AUGUST 18, 1978 WAS WITHDRAWN . . . THE ARBITRATOR DID SPECIFICALLY FIND THAT YOU WERE 'GUILTY OF A POOR ATTITUDE AND FAILURE TO OBEY DR. FARMER'S ORDER'." FOR THE OTHER TWO PRIOR OFFENSES, RESPONDENT RELIED ON THE 5-DAY SUSPENSION FOR FAILURE TO OBEY AN ORDER AND THE 1-DAY SUSPENSION FOR FAILURE TO OBEY AN ORDER IN 1976. (JOINT EX. 11). 14. ON OCTOBER 29, 1979, AFTER REVIEWING MRS. HARRIS' REBUTTAL, RESPONDENT SUSTAINED THE PROPOSED REMOVAL. HARRIS WAS SEPARATED FROM FEDERAL SERVICE AND REMOVED FROM RESPONDENT'S PAYROLL ON NOVEMBER 2, 1979. (JOINT EX. 12). 15. MRS. HARRIS APPEALED HER SEPARATION TO THE MERIT SYSTEMS PROTECTION BOARD. AN INITIAL DECISION SUSTAINING THE REMOVAL WAS RENDERED BY A PRESIDING OFFICIAL OF THE PHILADELPHIA FIELD OFFICE ON MARCH 21, 1980. THE DECISION REFLECTS THAT THE PRESIDING OFFICIAL CONSIDERED AND DECIDED AN ISSUE DEALING WITH THE VALIDITY OF RESPONDENT'S RELIANCE ON PAST OFFENSES IN DETERMINING THE PENALTY TO BE IMPOSED, AND THE EFFECT OF THE ARBITRATOR'S DECISION AND THE VALIDITY OF CERTAIN OF THESE PAST OFFENSES. THE PRESIDING OFFICIAL DETERMINED, IN PART, THAT BECAUSE OF THE ARBITRATOR'S DECISION, THE AUGUST 18, 1978 LETTER OF REPRIMAND DID NOT CONSTITUTE A PAST DISCIPLINARY ELEMENT ON WHICH THE AGENCY COULD RELY. (JOINT EX. 16). THE STIPULATION REFLECTS THAT THE INITIAL DECISION HAS BEEN APPEALED TO THE MERIT SYSTEMS PROTECTION BOARD. DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS THE GENERAL COUNSEL ALLEGES THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE BY FAILING AND REFUSING TO COMPLY WITH AN ARBITRATOR'S AWARD. THE GENERAL COUNSEL ASSERTS THAT ALTHOUGH RESPONDENT PHYSICALLY REMOVED THE REPRIMAND FROM THE PERSONNEL FILE, AS ORDERED BY THE ARBITRATOR, IT FAILED TO COMPLETELY VACATE THE DISCIPLINE AND THE EFFECTS THEREOF, AS INTENDED BY THE ARBITRATOR'S AWARD, AND, INSTEAD, USED THE REPRIMAND AS A BASIS FOR ADMINISTERING PROGRESSIVELY MORE SEVERE DISCIPLINE. RESPONDENT CONTENDS THAT IT COMPLIED WITH THE ARBITRATOR'S AWARD BY REMOVING THE REPRIMAND FROM THE FILE. RESPONDENT ARGUES THAT THE ARBITRATOR ONLY FOUND THE PENALTY TO BE EXCESSIVE AND THAT IT WAS NOT PRECLUDED FROM CONSIDERING THE ARBITRATOR'S FINDING OF GUILT IN EVALUATING THE PENALTY FOR A SUBSEQUENT OFFENSE. THE DETERMINATION OF WHETHER OR NOT RESPONDENT COMPLIED WITH THE ARBITRATOR'S AWARD INVOLVES AN ANALYSIS OF THE ARBITRATOR'S AWARD IN LIGHT OF THE RELEVANT AGENCY AND CIVIL SERVICE REGULATIONS. IT IS CLEAR FROM FORT RITCHIE REGULATION 690-11 THAT THERE ARE TWO CATEGORIES OF DISCIPLINARY ACTIONS: INFORMAL AND FORMAL. INFORMAL ACTIONS INVOLVE ORAL ADMONITIONS AND WARNINGS TAKEN BY A SUPERVISOR ON HIS OWN INITIATIVE IN SITUATIONS OF A MINOR NATURE. FORMAL DISCIPLINARY ACTIONS CONSIST OF WRITTEN REPRIMANDS, SUSPENSIONS, AND REMOVALS AND MAY NOT BE ACCOMPLISHED BY A SUPERVISOR WITHOUT ACTION ON THE PART OF CIVILIAN PERSONNEL OFFICE. THE GRADUATED SYSTEM OF PENALTIES FOR VARIOUS OFFENSES, REFLECTED ON THE TABLE ATTACHED TO THE REGULATION; REFLECTS THAT THEY RANGE FROM WRITTEN REPRIMAND FOR THE FIRST OFFENSE, TO SUSPENSION FOR THE SECOND OFFENSE, AND REMOVAL FOR THE THIRD OFFENSE. ALL OF THESE PENALTIES INVOLVE OFFENSES UNDER THE FORMAL DISCIPLINARY ACTION PROCEDURE SINCE, AS NOTED, FORMAL DISCIPLINARY ACTIONS BY DEFINITION CONSIST ONLY OF WRITTEN REPRIMANDS, SUSPENSIONS, AND REMOVALS. IT FOLLOWS, THEREFORE, THAT UNLESS AN OFFENSE RESULTS IN A FORMAL DISCIPLINARY ACTION IT CANNOT BE USED AS A BASIS FOR THE GRADUATED SYSTEM OF PENALTIES. AS NOTED, THE ARBITRATOR SPECIFICALLY FOUND, AS FOLLOWS: BASED UPON THE ENTIRE RECORD, I FIND THAT JOHANNA HARRIS WAS GUILTY OF A POOR ATTITUDE AND FAILURE TO OBEY DR. FARMER'S ORDER. THIS WAS IMPROPER, BUT NOT SERIOUS ENOUGH TO WARRANT FORMAL ACTION. UNDER THE CIRCUMSTANCES, AN OFFICIAL REPRIMAND WAS NOT JUSTIFIED, AND IT IS ORDERED REMOVED FROM HARRIS' PERSONNEL FILE. (JOINT EX. 8). IN FINDING THAT MRS. HARRIS' ACTION "WAS IMPROPER, BUT NOT SERIOUS ENOUGH TO WARRANT FORMAL ACTION" AND THAT "AN OFFICIAL REPRIMAND WAS NOT JUSTIFIED," THE ARBITRATOR, IN EFFECT, FOUND THAT MRS. HARRIS' CONDUCT ONLY WARRANTED INFORMAL DISCIPLINARY ACTION UNDER ARMY REGULATIONS. SINCE THE CONDUCT WAS, IN EFFECT, DOWNGRADED BY THE ARBITRATOR TO INFORMAL DISCIPLINARY ACTION, IT COULD NOT SUBSEQUENTLY BE CONSIDERED AN OFFENSE UNDER THE FORMAL DISCIPLINARY ACTION PROCEDURE AND USED AS A BASIS FOR THE GRADUATED SYSTEM OF PENALTIES UNDER THE REGULATION. THIS IS ALSO MADE CLEAR BY THE ARBITRATOR'S ACTION IN ORDERING THE REMOVAL OF THE REPRIMAND FROM HARRIS' PERSONNEL FILE. 5 C.F.R. 293.203 AND 293.204(1978), REGULATIONS OF THE CIVIL SERVICE COMMISSION, PROVIDED AS FOLLOWS: SEC. 293.203 OWNERSHIP OF FOLDER. THE OFFICIAL PERSONNEL FOLDER OF EACH EMPLOYEE IN A POSITION SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS IS UNDER THE JURISDICTION AND CONTROL OF, AND IS PART OF THE RECORDS OF, THE COMMISSION. SEC. 293.204 MAINTENANCE AND CONTENT OF FOLDER. THE HEAD OF EACH AGENCY SHALL MAINTAIN IN THE OFFICIAL PERSONNEL FOLDER THE REPORTS OF SELECTION AND OTHER PERSONNEL ACTIONS NAMED IN SECTION 2951 OF TITLE 5, UNITED STATES CODE. THE FOLDER SHALL ALSO CONTAIN PERMANENT RECORDS AFFECTING THE EMPLOYEE'S STATUS AND SERVICE AS REQUIRED BY THE COMMISSION'S INSTRUCTIONS. THUS, THE ARBITRATOR'S ORDER REMOVING THE REPRIMAND FROM HARRIS' PERSONNEL FOLDER WAS DESIGNED TO INSURE THAT THE INCIDENT WOULD NOT BECOME A "PERMANENT RECORD AFFECTING THE EMPLOYEE'S STATUS AND SERVICE." IT IS CONCLUDED, THEREFORE, THAT RESPONDENT'S ACTION IN USING THE INCIDENT AS A BASIS FOR ADMINISTERING PROGRESSIVELY MORE SEVERE DISCIPLINE CONSTITUTED A FAILURE AND REFUSAL TO TAKE THE ACTION REQUIRED BY THE ARBITRATOR'S AWARD. SUCH FAILURE AND REFUSAL IS CONTRARY TO SECTION 7122(B) /5/ AND IS THEREFORE, AN UNFAIR LABOR PRACTICE UNDER SECTIONS 7116(A)(1), AND (8) OF THE STATUTE. A VALID ARBITRATION AWARD CONSTITUTES AN EXTENSION OF THE PARTIES' NEGOTIATED AGREEMENT WHICH MAY BE MODIFIED ONLY BY MUTUAL AGREEMENT OF THE PARTIES. THUS, RESPONDENT'S FAILURE TO COMPLY WITH THE AWARD ALSO CONSTITUTES A FAILURE TO BARGAIN IN GOOD FAITH IN VIOLATION OF SECTIONS 7116(A)(5), AND (1) OF THE STATUTE. BASED ON THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS, IT IS RECOMMENDED THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER: ORDER PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND SHALL: 1. CEASE AND DESIST FROM: (A) FAILING OR REFUSING TO COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD CASS. (B) RELYING ON JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE AUGUST 14, 1978 AS THE BASIS FOR IMPOSING PROGRESSIVELY SEVERE PENALTIES FOR OTHER OFFENSES IN FORMAL DISCIPLINARY ACTIONS. (C) IN ANY LIKE OR RELATED MANNER FAILING OR REFUSING TO COMPLY WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR- MANAGEMENT RELATIONS STATUTE. (D) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE POLICIES AND PROVISIONS OF THE STATUTE: (A) COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD CASS AND ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR- MANAGEMENT RELATIONS STATUTE. (B) REVOKE, RESCIND, AND REMOVE ALL REFERENCES TO JOHANNA P. HARRIS' FAILURE TO OBEY AN ORDER TO RETURN TO HER SUPERVISOR'S OFFICE ON AUGUST 14, 1978 FROM HER OFFICIAL PERSONNEL FILE AND FROM ALL FORMAL DISCIPLINARY ACTIONS TAKEN AGAINST JOHANNA P. HARRIS SUBSEQUENT TO AUGUST 14, 1978, INCLUDING THE SEPTEMBER 19, 1978 NOTICE OF PROPOSED SUSPENSION AND THE SEPTEMBER 17, 1979 NOTICE OF PROPOSED REMOVAL, AND REVISE SUCH ACTIONS ACCORDINGLY TO THE EXTENT REQUIRED BY LAW AND REGULATIONS. (D) ADVISE THE MERIT SYSTEMS PROTECTION BOARD, FOR ITS CONSIDERATION IN THE CASE OF JOHANNA P. HARRIS V. U.S. DEPARTMENT OF THE ARMY, OF THE ACTIONS TAKEN TO COMPLY WITH THE ARBITRATOR'S DECISION PURSUANT TO THIS ORDER. (E) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE COMMANDING OFFICER, U.S. ARMY HEALTH CLINIC, FORT RITCHIE, MARYLAND, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE COMMANDER SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (F) PURSUANT TO 5 C.F.R. SECTION 2423.30 NOTIFY THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION THREE, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. GARVIN LEE OLIVER ADMINISTRATIVE LAW JUDGE DATED: JULY 31, 1981 WASHINGTON, DC APPENDIX PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT FAIL OR REFUSE TO COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD CASS OR WITH ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL NOT IN ANY LIKE OR RELATED MANNER FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF ANY RIGHT UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. WE WILL COMPLY WITH THE MAY 15, 1979 FINAL AWARD OF ARBITRATOR MILLARD CASS AND WITH ANY OTHER ARBITRATOR'S FINAL AWARD ISSUED PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. (AGENCY OR ACTIVITY) DATED: . . . BY: . . . (SIGNATURE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION THREE, 1133 15TH STREET, NW., WASHINGTON, D.C. 20005, TELEPHONE (202) 653-8452. --------------- FOOTNOTES$ --------------- /1/ SECTION 7122(B) PROVIDES: SEC. 7122. EXCEPTIONS TO ARBITRAL AWARDS . . . . (B) IF NO EXCEPTION TO AN ARBITRATOR'S AWARD IS FILED UNDER SUBSECTION (A) OF THIS SECTION DURING THE 30-DAY PERIOD BEGINNING ON THE DATE OF SUCH AWARD, THE AWARD SHALL BE FINAL AND BINDING. AN AGENCY SHALL TAKE THE ACTIONS REQUIRED BY AN ARBITRATOR'S FINAL AWARD. THE AWARD MAY INCLUDE THE PAYMENT OF BACKPAY (AS PROVIDED IN SECTION 5596 OF THIS TITLE). /2/ SECTION 7116(A)(1) AND (8) PROVIDES: SEC. 7116. UNFAIR LABOR PRACTICES (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY-- (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER; . . . . (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER. /3/ IN SO CONCLUDING, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE JUDGE'S FURTHER FINDING THAT THE RESPONDENT ALSO THEREBY FAILED TO BARGAIN IN GOOD FAITH IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. /4/ AT THE TIME OF THE JUDGE'S DECISION, MSPB HAD ISSUED AN INITIAL DECISION (NUMBER PH 075209115, MARCH 21, 1980). THAT DECISION SUSTAINED THE EMPLOYEE'S REMOVAL, SPECIFICALLY NOT RELYING UPON THE DISCIPLINARY ACTION INVOLVED IN THE ARBITRATOR'S AWARD. SUBSEQUENTLY, IN NOVEMBER 1980, A PETITION FOR REVIEW OF PRESIDING OFFICIAL'S DECISION WAS DENIED BY MSPB, THEREBY MAKING THE INITIAL DECISION FINAL. /5/ SEC. 7122(B) PROVIDES: IF NO EXCEPTION TO AN ARBITRATOR'S AWARD IS FILED UNDER SUBSECTION (A) OF THIS SECTION DURING THE 30-DAY PERIOD BEGINNING ON THE DATE OF SUCH AWARD, THE AWARD SHALL BE FINAL AND BINDING. AN AGENCY SHALL TAKE THE ACTIONS REQUIRED BY AN ARBITRATOR'S FINAL AWARD. THE AWARD MAY INCLUDE THE PAYMENT OF BACKPAY (AS PROVIDED IN SECTION 5596 OF THIS TITLE)."