FEDERAL MEDIATION AND CONCILIATION SERVICE In the Matter of the Arbitration between FMCS No. 97-01564 AFGE LOCAL 2317, Union, and UNITED STATES MARINE CORPS, Agency. _________________________________/

OPINION OF THE ARBITRATOR

July 27, 1998

After a Hearing Held June 11, 1998 In Albany, Georgia

For the Union: Benjamin E. Martin, President AFGE Local 2317 PO Box 43116 Albany, GA 31704 For the Grievant: Alfred N. Corriere, Esq. PO Box 346 Albany, GA 31702-0346

For the Agency: Larry W. Cole, Head

Labor/Employee Relations Division Marine Corps Logistics Base 814 Radford Boulevard Albany, GA 31704-1128

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Background Grievant [RWG] ("Grievant"), is employed by the United States Marine

Corps ("Agency") in the Marine Corps Multi-Commodity Maintenance Center

at the Marine Corps Logistics Base in Albany, Georgia. Grievant is a member of

Local 2317 of the American Federation of Government Employees ("Union").

Labor relations between the Agency and the Union are governed by the Master

Labor Agreement between U.S. Marine Corps and American Federation of

Government Employees, executed June 19, 1990, as extended by agreement

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").

The events at issue occurred while Grievant and coworkers were on

Temporary Assignment Duty ("TAD") at Camp Lejeune in Cherry Point, North

Carolina, during the week of May 6, 1996. A Letter of Redemand for Conduct

Unbecoming a Federal Employee, dated June 5, 1996, was issued to Grievant

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

Grievant was disciplined was described as follows:

“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. “b. On Tuesday, 7 May 1996, while leaving a restaurant, you commented that you felt like sticking a confederate flag on somebody. It was suggested that you place a sticker on Ms. Polk. You declined because you did not know her very well. Mr. Bass asked you for a sticker and you gave him one. Mr. Bass then proceeded to place the sticker on Ms. Polk. “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.”

Upon returning from TAD at Camp Lejeune, two Maintenance Center

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

pre-action investigation be conducted. The task was assigned to Rita D. Wells,

whose report, dated May :28, 1 996, was introduced as Agency Exhibit 2 ("AX

2"). Ms. Wells interviewed or obtained statements from Michelle Polk,

Glenda House, Donna Dunsmore, Judy Rock, Sandra Richardson, Larry

Prescott, Grievant and Donald Bass. The following excerpts from Ms. Wells'

report are instructive:

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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). “I, Donna L. Dunsmore, was a witness to an incident concerning a prank among employees of the Albany GA, Marine Corps site. This prank included 2 inch by 2 inch stickers of the rebel flag symbol. This sticker was placed on my hotel door at the Holiday Inn in Havlock, NC during my business trip to Cherry Point, NC. I shared with Don Bass + Wayne that I did not appreciate the message and they apologized for + their behavior and said it would not happen again. Don Bass also shared with me that he put a sticker with the rebel flag symbol on the back of Michelle Polk. He was told that it was not appreciated + I told him he should stop with the joke stickers, that they were not amusing. Don Bass apologized to me for his behavior. I do not believe that those feelings + views of humor are shared by other members of the site at Albany, GA.” Written Statement of Donna L. Dunsmore, AX 2, Enclosure (4). “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). “After working hours, on Tuesday, 7 May while leaving a restaurant, a group of my friends from Albany were laughing and feeling good. [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 . . . . “I called her Monday, May 13th and again apologized to her if it offended her and she said it was ok. *** At no time during the remainder of the trip did they mention the stickers until Friday morning when Donna was getting into her rental car she told me that I should watch out putting those stickers on doors and I gave a small laugh and said ok.” Written Statement of Donald L. Bass, AX 2, Enclosure (9).

Following completion of Ms. Wells' report, W.H. West, Head, Automatic

Test Support Business Center, issued the Letter of Reprimand, to which

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

Officer and Grievant's supervisor, wrote:

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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,

Colonel James L. Taylor, USMC ("Colonel Taylor"), Director of the

Maintenance Center, ordered that the Letter of Reprimand be replaced by a

Letter of Caution for Conduct Unbecoming a Federal Employee, dated August

15, 1996 (UX 1, tab 1E).

Dissatisfied with the Agency's action, Grievant took his complaint to

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

in a letter from the Union President, dated December 9, 1996.

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

President requested additional dates, which the arbitrator supplied. By letter

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

in Albany, Georgia, in the office of Grievant's attorney. No transcript was made.

The parties briefed the issues, and the arbitrator received the last brief on July

16, 1998. The matter is, therefore, ripe for decision.

Relevant Provisions of the MLA Because of their length, the relevant provisions of the MLA will only be

summarized.

Article 2: Definitions 1. Council: "The entity acting as agent for the American Federation of Government Employees . . . and . . . a party to this master labor agreement." 6. The Statute: "The Federal Service Labor Management Relations Statute, Chapter 71 of USC (originally enacted as title VII of the Civil Service Reform Act)."

Article 10: Employee Rights 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."

Article 12: Disciplinary and Adverse Actions Section 1: "[D]iscipline is a managerial tool intended to correct deficiencies in employee behavior. Disciplinary and adverse action will be . . . taken against an employee only for just cause as will promote the efficiency of the service." Section 2: "[A]ctions imposed should be the minimum, in the judgment of the disciplining official, that can reasonably be expected to correct and improve employee behavior and maintain discipline and morale among other employees." Section 4: "Disciplinary Actions. Disciplinary actions are letters of reprimand and suspensions of 14 days or less. . . . (Letters of caution . . . are not disciplinary actions and are not filed in the Official Personnel Folder. Such actions . . . must be . . . supported by just cause, and are grievable by the employee through the negotiated grievance procedure)." a. Letters of Reprimand: "A letter of reprimand will remain in the employee's Official Personnel Folder for a period of one year unless removed earlier as a result of a grievance or arbitration decision." Section 5 Adverse Actions: "Adverse actions are removals, suspensions of more than 14 days, reduction in grade or pay and furloughs of 30 days or less . . . ."

Article 13: Grievance Procedures 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)." b. "Pursuant to the Statute, an employee shall be deemed to have exercised his or her option under this section when, on or after the effective date of the appealable action, the employee timely pursues a formal written EEO complaint or initiates a notice of MSPB appeal under the statutory procedures or pursues a

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written grievance in accordance with this Article, whichever occurs first." d. "Before filing a grievance which alleges discrimination, the employee must first discuss the allegation with an EEO counselor." Section 8 Procedure for Grievance Filed by Employees: Steps 1-3.

Article 14: Arbitration Section 6: "The arbitrator's fees and expenses shall be shared equally by the parties."

Article 27: Equal Employment Opportunity 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." Section 4.d: See Article 1 3, section 3.b.

Standard for Review In Grievant's brief, he urges the arbitrator to apply the standard of nexus

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

involve an "adverse action"; rather, at most a "disciplinary action" is involved.

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.

The letter of Reprimand (UX 1, tab 1A) issued to Grievant was a

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

charge against him is "unjust and unfounded." In analyzing the reasons

proffered, it is convenient to rearrange them as follows:

“The incident by another individual occurred after regular working hours. I had given this sticker to another individual, at his request, without any true knowledge as to what he was going to do with it. Per the Letter of Reprimand; dtd June 5, 96, in paragraph 1b.; states that I had declined to place a sticker on Ms. Polk. I am being reprimanded for action of another individual.”

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

conflict with job responsibilities"). Grievant has the responsibility to behave

himself when he is away-from home on Marine Corps business.

At the hearing, Grievant called Donald Bass, the "stickor," as a friendly

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

knowledge as to what [Mr. Bass] was going to do with [the sticker]."

To further illustrate why I cannot credit Grievant's attempts to deny

culpability, let me paraphrase Mr. Bass' signed statement, to produce a dramatic

yet insightful effect:

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

role in the shooting. A would be guilty as instigator, co-conspirator, aider and

abetter, or accessory. Whatever the theory, A's complicity would be certain. As

Colonel Taylor observed, if Grievant had not taken his stickers to North

Carolina, none of these incidents would have happened. Grievant simply cannot

deny personal responsibility for this matter.

The requisite causal relationship between Grievant's off-duty behavior

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

instead of with coworkers in their government-furnished van. In our society,

unauthorized touching may constitute a civil tort or even a criminal battery. Ms.

Polk's reaction to being stuck was reasonable, especially in light of Grievant's

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 attempting to avoid repetition of the incident. Thus, the requisite "reluctance

. . . of other employees to work with [Grievant]" has been established. Elkouri &

Elkouri at 896.

Having decided Grievant's culpability, let me address others of his

protests:

“The underlying reasons for this Letter of Reprimand, the agency is intimidated [by] my outwardly open pride in my southern heritage. The actions of the command is an attempt to smother my first amendment rights for freedom of speech. I also feel this Letter of Reprimand was done to discriminate against me, because of my sex, race, and ethic [sic] background and I am claiming my rights under Title VII.” UX 1, tab 1B.

In Grievant's brief, he asserts that "respondent's sole witness [Colonel

Taylor] admitted that no sanctions would have issued if the flag involved in this

incident had been an American flag as opposed to a Confederate flag but

refused to voice an opinion as to whether or not sanctions would have occurred

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,

against their will.

Colonel Taylor's point was that the conduct being proscribed was the

placing of stickers on a coworker's person or property, contrary to the

coworker's wishes. The content of the stickers is immaterial. Various designs

were bandied about---American flags, Marine insignia, NAACP stickers, even

objects such as condoms---and Colonel Taylor's position was consistent, in

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.

Although Grievant nowhere mentions the Sons of Confederate Veterans

("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

property of coworkers and contractors.

I am not unmindful that, at the time of the incidents in question, the

offended parties did not make vigorous protests and even tried to laugh off the

pranks. I conclude that their spontaneous reaction; reflected judgments not to

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

incidents and shortly thereafter further belie Grievant's claim of innocence. If

they did nothing wrong, explanations and apologies were unnecessary: Indeed,

Grievant's admitted reluctance to place a sticker on Ms. Polk himself manifests

his understanding of the inappropriateness of the gesture.

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":

“In reference 1c. of the Letter of Reprimand; dtd June 5, 96; an inaccurate statement is made. This statement was not directed to or about Ms. Polk or placing sticker on bar tables, it was in reference to my smoking habit and that I was not going to quit for I feel I don't have long enough to be concerned over contracting any form of cancer from smoking before my death.”

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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.

Grievant's Title VII Claim 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

thoroughly. At the hearing, the Union President testified without contradiction

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,

Deputy Director of the Maintenance Center, referred to SCV members as

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"professional rednecks." The Union President further testified that there is an

"anti-Confederate contingent" on the base, but he did not elaborate.

However inappropriate the Deputy Director's characterization of SCV

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

against Grievant and directing that a pre-action investigation be conducted. The

investigation itself was handled by Rita D. Wells, whose page-and-a-half report

(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

Taylor, who had no knowledge of Grievant's affiliation with the SCV. I

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.

What I see here is not discrimination but unregenerate puerile behavior.

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

to put on her anyway. Conscious of his misconduct, Grievant later engaged in

apologies.

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Award The Agency reacted rather mildly to Grievant's misconduct. Since a prior

verbal warning had not sufficed, a written one was in order. When the original

Letter of Reprimand seemed to be working, it was reduced to a Letter of

Caution, which in turn was rescinded. There was ample just cause to support the

Agency's actions. The grievance is, therefore, DENIED.

Dated July 27, 1998 ____________________________ E. Frank Cornelius, Arbitrator