Professional Documents
Culture Documents
and
Labor relations between the Agency and the Union are governed by the Master
executed May 10, 1994 ("MLA"). A copy of the MLA was introduced at the
arbitration hearing held June 11, 1998, as Joint Exhibit 1 ("JX 1").
Carolina, during the week of May 6, 1996. A Letter of Redemand for Conduct
because of his behavior while on TAD; the letter was introduced at the hearing,
under tab 1A of Union Exhibit 1 ("UX 1"). In the letter, the conduct for which
“1. ***
“a. On 6 May 1996, you went TAD to Cherry Point, North Carolina. The
following Federal government employees accompanied you on this trip
and were involved in several incidents: Mr. Donald L. Bass and Ms.
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Michelle Polk. The following civilian contractors were also there: Ms.
Judy Rock and Ms. Donna Dunsmore.
“c. On the evening of 8 May 1996, you and some of the other team
members were in the hotel bar. Before leaving the bar you placed a
confederate flag sticker can the bar table. You also stated in the company
of Ms. Rock that you didn't care what people thought that you are going
to have fun because you would be dead in five years anyway.
“d. As a result of your conduct, Ms. Polk isolated herself from you and
Mr. Bass for the remainder of the trip. Also, instead of riding in the van
furnished for the trip, Ms. Polk accepted the invitation from Ms.
Dunsmore and Ms. Rock, the contractors, and rode with them the
remainder of the trip to minimize contact with you and Mr. Bass.”
employees, Michelle Polk and Glenda House, reported the conduct of Grievant
and Mr. Bass to Jack Miller, the Center's Deputy Director, who directed that a
whose report, dated May :28, 1 996, was introduced as Agency Exhibit 2 ("AX
2").
Prescott, Grievant and Donald Bass. The following excerpts from Ms. Wells'
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“There are no previous violations in Mr. Bass’ or Mr. [RWG]'s record;
however, during a conversation with Mr. Harold West, he indicated that
he had on a previous occasion verbally told Mr. [RWG] to back off with
the 'horseplay' and to control his activities with the stickers on the job.”
AX 2, par 2.
“Mrs. Polk said later that Ms. Dunsmore asked her 'How are you dealing
with these rednecks?' She told Mrs. Polk that someone had placed a rebel
flag sticker on her door Tuesday night and when she had previously been
in Albany that Mr. [RWG] had given her rebel stickers and stickers of
President Lincoln with his head blown off and had talked to her about the
Confederate War and the south. *** [Mrs. Polk] said Mr. Bass had called
Monday morning, 13 May, 1996, and apologized for his behavior and
told her he had done it on a dare.” Interview with Michelle Polk, AX 2,
Enclosure (1).
“[Mrs. House] said she was afraid of Mr. [RWG] and thought he was sick
because of the things Mr. Bass had told her about Mr. [RWG] saying he
didn't have long to live, maybe 5 years, and that one day the south was
going to rise again.” Interview with Glenda House, AX 2, Enclosure (2).
“On Friday morning in the lobby of the hotel as we were checking out,
Don and Wayne apologized for what they had done and said they did not
mean to offend anybody.” Written Statement of Judy L. Rock, AX 2,
Enclosure (5).
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“On the evening of 7 May 1996, myself and other TAD Team members
went out to eat pizza. We were all joking around and generally enjoying
ourselves. Most of these team members know that I am a War between
the States history buff and joked around with me because I almost always
have small sticker flags of the period with me. Upon leaving the
restaurant, I said that I felt like sticking a flag on somebody. One of the
other members of the team said that I should put it on Michelle Polk, I
declined since I do not know her very well. At this time, Don Bass asked
me for one of my stickers and proceeded to put it on Michelle's shoulder.
“On the evening of 8 May 1996, myself and some of the other team
members were in the motel bar enjoying ourselves. Don Bass left for a
short while. When he returned he told me he had put flag stickers on the
doors of Donna's and Judy's rooms. *** At some point during the
evening I put [a] flag sticker on the bar table we sat at nightly.” Written
Statement of [RWG], AX 2, Enclosure (8).
Grievant responded with a grievance dated June17, 1996 (UX 1, tab 1B). In the
First Step Grievance Reply, dated July 19, 1996, D.L. Hedrick, Operations
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“It is not within my cognizance to rescind the Letter of Reprimand. You
may pursue your grievance to the Second step of the grievance
procedure.” UX 1, tab IC, par 2.
On July 24, 1996, the grievance was elevated to the second step (UX 1,
tab ID). After meeting with Grievant and his representative on August 5, 1 996,
stage three of the grievance procedure via a letter dated August 21, 1996, from
the Union President, to which the Agency responded negatively by letter dated
September 27, 1996, from C.F. Young, the base's Chief of Staff. See AX 1. The
Union demanded arbitration, and the arbitrator was notified of his appointment
The parties were unable to schedule a hearing on any of the dates initially
offered by the arbitrator and, in a letter dated March 25, 1997, the Union
dated April 29, 1997 (UX 1, tab 1F), Colonel Taylor rescinded the Letter of
Caution.
The matter languished until April 28, 1998, when the Union President
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wrote the arbitrator as follows:
“On April 10, 1997 Mr. [RWG], the Appellant, gave notification that he
had employed the services of Mr. Alfred N. Corriere, attorney at law, as
his representative in this case. Since that time I was informed that Mr.
[RWG] nor Mr. Corriere has been unable to get the Agency to discuss the
case. Due to Mr. [RWG]'s frustration he has recently re-appointed me as
his primary representative in his case in hopes that I would be able to get
the case heard.”
In response, the arbitrator set a tentative hearing date of May 22, 1998,
and the parties finally settled on June 11, 1998. A hearing was held on that date
The parties briefed the issues, and the arbitrator received the last brief on July
Because of their length, the relevant provisions of the MLA will only be
summarized.
Article 2: Definitions
Section 8: "Subject to applicable law, rule and regulation, employees shall have
the right to direct and/or fully pursue their private lives, personal welfare and
personal beliefs without interference, coercion or discrimination by
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management so long as such activities do not conflict with job responsibilities.
The standard of nexus shall apply with respect to adverse actions within the
meaning of 5 U.S.C. section 7512."
Section 3:
a. "The following actions may be filed under the statutory appeal procedure or
the negotiated grievance procedure but not both. *** Discrimination under 5
USC 2302(b)(1)."
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written grievance in accordance with this Article, whichever occurs first."
Section 6: "The arbitrator's fees and expenses shall be shared equally by the
parties."
Section 1 Policy: "The employer and the council agree that discrimination in
employment because of race, color, religion, sex, national origin, age or
nondisqualifying handicap as these terms are defined by appropriate law and
regulation is prohibited."
for adverse actions within the meaning of 5 USC section 7512, citing Article 10,
section 8 of the MLA. This the arbitrator may not do because, as is clear from
the plain language of sections 4 and 5 of MLA, Article 12, this case does not
MLA, Article 12, section 5 tracks 5 USC section 7512, so that the meaning of
adverse action is the same in both the MLA and the United States Code.
disciplinary action within the meaning of MLA, Article 12, section 4. The Letter
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of Caution (UX 1, tab IE) was not even a disciplinary action. The standard for
both of these is "just cause." See MLA, Article 12, sections 1 and 4.
The Grievance
In the grievance (UX 1, tab 1B), Grievant sets forth reasons why the
The law is settled that an employer may discipline an employee for after-
hours conduct provided that, inter alia, the "behavior leads to refusal, reluctance
or inability of other employees to work with him ***." Elkouri & Elkouri, How
Arbitration Works (5th ed, 1997) at 896 (footnote omitted), 896-900. MLA,
Article 10, section 8 is not to the contrary ("so long as such activities do not
witness. Both men sought to downplay Grievant's role in the sticker incidents.
However, in Mr. Bass' signed statement dated 5-24-96 (AX 2, Enclosure (9)), he
himself wrote:
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“[RWG] said that he felt like putting a sticker on Michelle. He decided
not to do it so I told him to give it to me and I would do it. I put the sticker
in my hand and went up to Michelle and patted her on her back ….”
(Emphasis supplied.)
At the hearing, Mr. Bass did not attempt to disavow his statement signed
shortly after the events in question and over a year before the hearing. As a
result, I am unable to credit Grievant's contention that he was "without any true
A said that he felt like shooting B. He decided not to do it, so I told him
to give the gun to me and I would do it. I put the gun in my hand and
went up to B and shot her in her back.
No finder of fact faced with such a scenario would long puzzle over A's
Colonel Taylor observed, if Grievant had not taken his stickers to North
Carolina, none of these incidents would have happened. Grievant simply cannot
and the on-the-job performance of the affected coworker exists to support the
Agency's actions. After being stuck with the flag, Ms. Polk distanced herself
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from Grievant and his mischievous colleague, even riding with contractors
unauthorized touching may constitute a civil tort or even a criminal battery. Ms.
well known propensity for such behavior. She obviously did not want to be
stuck again, and separating herself from Grievant and friend was a practical way
. . . of other employees to work with [Grievant]" has been established. Elkouri &
Elkouri at 896.
protests:
Taylor] admitted that no sanctions would have issued if the flag involved in this
if A had been a Marine flag." My notes, however, reflect that Colonel Taylor
testified that sanctions would have been applied if the recipient of an American
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tag found the conduct offensive. The Agency's brief asserts that Colonel Taylor
said, "I don't know," when queried about an American flag. Whatever his exact
words--and here we may wish that the parties had had the hearing transcribed--,
he did not give a green light to decorating coworkers with American flags,
Colonel Taylor's point was that the conduct being proscribed was the
essence, that each incident must be subjected to a facts and circumstances test
and that the offended coworker's perspective must be taken into account.
("SCV") in his brief, at the hearing, he claimed that he was being punished for
his affiliation with that group. The SCV is the source of the ubiquitous
Confederate flag stickers. Colonel Taylor, who bore ultimate responsibility for
the discipline meted out to Grievant, testified that he did not learn of Grievant's
affiliation with the SCV until the hearing itself. Moreover, Colonel Taylor
testified that he has friends in the SCV. Grievant was not reprimanded or
cautioned because of his affiliation with that organization, but because of his
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role in the unwelcome placement of organizational stickers on the person and
offended parties did not make vigorous protests and even tried to laugh off the
turn unpleasant incidents into ugly ones, perhaps disrupting the work of the
TAD team. Once the team returned to home base, there was strong sentiment
among coworkers and contractors that Grievant's conduct was offensive. See
AX 2.
The apologies which Grievant and Mr. Bass rendered at the time of the
they did nothing wrong, explanations and apologies were unnecessary: Indeed,
Lastly, Grievant takes slight with the Agency's focus in the Letter of
Reprimand (and the Letter of Caution), on his statement that he "would be dead
in five years":
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Grievant's smoking is not the issue; rather, it is his indifference to what
other people thought about his behavior. If no one had complained, there would
be no issue, but someone did, and there is. Grievant is free to decorate the
person and property of his like-minded friends with Confederate stickers, but
this license does not extend to coworkers and contractors who object.
As noted in the excerpts from the MLA, the contract does allow for
arbitration of Title VII claims, provided only that the employee first discusses
his allegation with an EEO counselor. There is no doubt that Grievant is making
a Title VII claim, as he so states in his grievance, and he has briefed the issue
that he attempted to discuss Grievant's EEO allegation with base officials but
was told to proceed with arbitration because they were backlogged with such
complaints.
I conclude that Grievant's Title VII claim is properly before me. I also
conclude that there is insufficient evidence to support it. The only evidence on
the subject adduced at the hearing was the testimony of the Union President,
who stated that Grievant's membership in the SCV was brought up by the
Agency. The Union President testified without contradiction that Jack Miller,
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"professional rednecks." The Union President further testified that there is an
members may have been, it does not appear from the record that he played a
prominent role in this matter, beyond receiving the coworkers' initial complaints
(AX 2) seems quite balanced and makes no mention of the SCV. From the
record, A clearly appears that final authority in this matter rested with Colonel
conclude that, although some Agency officials may not hold the SCV in high
esteem, there is no evidence they let their personal opinions influence their
official decisions.
Prior to the incidents in question, Grievant was warned verbally to back off with
the horseplay and to control his dispensing of stickers on the job. He sensed that
Michelle Polk would not welcome a flag sticker, yet furnished one to Don Bass
apologies.
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Award
verbal warning had not sufficed, a written one was in order. When the original
Caution, which in turn was rescinded. There was ample just cause to support the
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