FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 86K/29201

Grievant William Hopkins
AFGE LOCAL 1629,
Union,

and

VA MEDICAL CENTER,
BATTLE CREEK, MI,
Agency.
_______________________________/

OPINION OF THE ARBITRATOR

February 20, 1987

After a Hearing Held January 16, 1987

At the VA Medical Center, Battle Creek, Michigan

For the Union: For the Agency:

Girard M. Meyers John A. Day

AFGE Local 1629 Personnel Officer
5500 Armstrong Road VA Medical Center
Battle Creek, Michigan 49016 Battle Creek, Michigan 49106
 I. Decision

Grievant William Hopkins is employed as a police officer by the Veterans

Administration Medical Center in Battle Creek, Michigan, and is a member of the

American Federation of Government Employees Local 1629. He was suspended for

five days for (a) use of obscene language, (b) threats to his supervisor and (c)

insubordination, during an incident on July 22, 1986. The grievance is sustained as to

charges (a) and (c) and denied to charge (b). Back pay and fringe benefits are

awarded prorata.

II. Factual Background

Officer Gary Brandenburg was acting police chief at the VA Medical Center,

when he was apprised that a copy of an article from the July 12, 1986 issue of the

Detroit Free Press had been forwarded anonymously to the administration building at

the Medical Center, in a reusable interoffice envelope. The article concerned

management philosophy at Mazda's new Flat Rock assembly plant and bore the typed

inscription:

PERHAPS THE PEOPLE IN BUILDING ONE COULD LEARN FROM

THIS NEWSPAPER ARTICLE HOW TO TREAT PEOPLE. THE
ATTITUDE SHOWN BY BUILDING ONE SURE NEEDS A CHANGE.

The envelope was addressed to "Office of the Director Voila!!!!" and indicated that it

previously had been addressed to the VA police department. Acting chief

Brandenburg determined that the inscription had been typed on a police department

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typewriter.

Acting chief Brandenburg was concerned about the incident and began an

informal inquiry. On July 22, 1986, Brandenburg asked police supervisor Trummy

Williams to summon officer Hopkins to the office shared by Brandenburg and

Williams, for a discussion of the "Mazda letter". Brandenburg and Hopkins were not

the best of buddies. An altercation ensued between them, out of which the

disciplinary action at issue arose.

III. Discussion

A. Applicable Collective Bargaining Agreement

The applicable collective bargaining agreement is the Master Agreement

between the Veterans Administration and the American Federation of Government

Employees dated August 13, 1982 ("CBA").

B. Recording of Hearing

Before the hearing began on January 16, 1987, the union requested the right to

tape record the proceedings, to which the VA objected. Although Article 141 Sec. 23

of the CBA provides that "[t]he procedures used to conduct an arbitration hearing

shall be determined by the arbitrator," the arbitrator first will look to the CBA to see

if it addresses the procedural issue. Article 14, Sec. 2.C provides in essence that either

party may request a transcript. The arbitrator notes that tape recording commonly is

used in conjunction with or in lieu of stenographic recording in courts and

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administrative hearings today and concludes that a tape recording is the equivalent of

a stenographic recording. Thus, under the CBA, either party has a right to record an

arbitration hearing.

In this case, the arbitrator allowed the union to record the proceedings,

provided only that the union make the recording available to the VA. Accuracy is

essential to due process and the availability of a tape recording promotes accuracy in

briefing-and decision making. Above all, the CBA addresses the issue.

C. Employee Rights Under the CBA

As always, the arbitrator looks to the collective bargaining agreement for

guidance as to how to decide a grievance. Article 10, Sec. W of the CBA provides in

pertinent part:

[A]ll employees shall be treated fairly and equitably *** with proper regard
and protection of their *** constitutional rights.

Article 10, Sec. 5 states:

Employees have the right to present their views to Congress, the Executive
Branch, or other authorities and to otherwise exercise their First Amendment
rights without fear of penalty or reprisal.

Finally, Article 10, Sec. 8 provides:

Employees shall be protected against reprisal of any nature for the disclosure
of information not prohibited by law, or Executive Order, which the employee
reasonably believes evidences a violation of law, rule or regulation, or
evidences mismanagement, a waste of funds, an abuse of authority, or a
danger to public or employee health or safety.

It is quite clear from the foregoing provisions of the CBA that the act of

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sending a copy of a newspaper article to the office of the director is protected activity.

Thus, at the outset, it appears that there was no basis for acting chief Brandenburg to

interrogate officer Hopkins about the Mazda letter. There was absolutely no proof

that officer Hopkins sent the Mazda letter, but if he did, he was well within his rights

under the CBA.

D. Management Provocation

I am convinced that acting chief Brandenburg was motivated by concern for

his own welfare rather than that of the VA. Neither VA property nor personnel nor

policy was threatened by the Mazda letter. It was completely innocuous. There was

no evidence that it was ever seen by higher management; indeed, it seems to have

been interdicted at the secretarial level. It was at best a plea for more personal

management and at worst a puerile display of pique. Even if it had been seen by the

director herself, it is unbelievable that it would have evoked any reaction stronger

than a toss into the wastebasket.

Acting chief Brandenburg was hopeful of appointment as permanent chief and

was concerned that the letter somehow would reflect badly upon him and hurt his

chances for a permanent appointment. He therefore, without authorization from or

blessing by the director's office, undertook on his own something between a fishing

expedition and a witch-hunt. He questioned other police officers before zeroing in on

officer Hopkins.

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 Acting chief Brandenburg denied accusing Hopkins of sending the letter or

even thinking Hopkins did it, but I believed the testimony of officer Paul Norris who

testified that Brandenburg intimated to him that Hopkins was the culprit. I am

convinced that Brandenburg at least indirectly accused Hopkins of sending the

Mazda letter and that the accusation set off the heated exchange between them on

July 22, 1986. Probative of Brandenburg's deep-seated feelings against Hopkins was

Norris' further uncontradicted testimony that he was downgraded on performance

review by Brandenburg, because of his association with Hopkins.

Although Hopkins denied cursing Brandenburg, I accept the testimony of

Brandenburg and supervisor Trummy Williams that Hopkins used some very strong

language. It would serve no purpose to repeat the language; it suffices to say that it

was similar to that used by the character Frank Booth played by the actor Dennis

Hopper in the 1986 movie, "Blue Velvet". Although the Veterans Administration

Table of Examples of Offenses and Penalties, MP-5, Part I, Chapter 752, Appendix

C. lists "use of *** obscene language to or about other personnel" under offense No.

16, the Table surely refers to unprovoked use of obscene language. Cf. CBA, Article

10, Sec. A, paragraphs 2 and 3.

Without condoning or condemning the use of obscene language, I note that it

is commonplace today. It appears everywhere, from the "expletive deleted"

pronouncements of presidents to the salacious talk of the shop (see Rabidue v

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Osceola Refining Co, as reported in Michigan Lawyers Weekly, November 24,

1986). It would be an anomaly if it did not occur daily in police work. For these

reasons, its use in a provoked response is not so out of order as to merit disciplinary

action.

E. Offenses Charged

In its closing brief, the VA cites three offenses from the above mentioned able

which it claims Hopkins committed, Nos. 15, 16 and 17. No. 15 covers "Fighting,

threatening, attempting or inflicting bodily injury to another ***." The threats

described in paragraph (b) of the letter of notification about the proposed suspension

from Robert J. Rollins, associate Medical Center director, to officer Hopkins, dated

July 25, 1986, do not even colorably relate to "bodily injury", nor does the VA's

closing brief allege anything having to do with such injury. Thus, no part of the

charges can be sustained on the basis of offense No. 15.

No. 17 covers:

Insubordination - deliberate refusal to carry out any proper order from, or

insolent, abusive or obscene language toward, immediate or other supervisor
having responsibility for the work of the employee; willful resistance to same.

No. 17 is a particular section which covers obscene language toward a supervisor and

so controls over the general obscenity provision of No. 16. As already discussed,

officer Hopkins' response was provoked and not inexcusable under the

circumstances, at least insofar as the offense charged is the use of obscene language.

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 Just because some obscenity may be overlooked under the facts of this matter,

does not mean, however, that all of officer Hopkins' conduct can be excused. The

provocation which acting chief Brandenburg directed toward officer Hopkins did not

justify the prolonged and heated shouting match which ensued. Although it may have

been open to officer Hopkins to express his displeasure to acting chief Brandenburg

in no uncertain terms, the provocation gave Hopkins no license to escalate the

incident into a disruptive altercation. Having expressed his resentment at the

unwarranted interrogation, officer Hopkins ought to have walked out and gone about

his duties.

Instead, officer Hopkins participated in an escalation of an unnecessary

argument, which culminated with acting chief Brandenburg demanding that Hopkins

leave the office. The VA charges that Hopkins refused to leave, but this charge

cannot be sustained on the basis of the proof presented. When asked to leave, officer

Hopkins requested to speak privately with supervisor Williams who shared the office

with Brandenburg. Brandenburg declined and asked Williams to show Hopkins the

door. Hopkins left promptly when Williams beckoned. Based upon supervisor

Williams' testimony, the sequence of events was so rapid that Hopkins cannot be said

to have refused to leave when ordered to do so. Thus, the offense charged in

paragraph (c) of the VA's letter dated July 25, 1986 cannot be sustained.

The only charge which the record supports is (b), insofar as it pertains to

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"insolent, abusive *** language toward *** other supervisor having responsibility for

the work of the employee ***." Instead of walking away from an unfortunate

situation, officer Hopkins chose to remain and make a prolonged and vicious verbal

counterattack on acting chief Brandenburg. Even supervisor Williams, who appeared

to be a friend of Hopkins, said Hopkins got out of hand.

IV. Award

The parties stipulated that the arbitrator is authorized to sustain the grievance

in toto, to deny it in toto, or to decide upon an intermediate result. In closing brief, the

VA makes the point that any one of the offenses charged would sustain a 5-day

suspension. Although this may be correct, the VA did not make this point in the

notification letter required by Article 12, Sec. 7.A of the CBA. The VA's letter of July

25, 1986 addressed all three alleged offenses together. If the VA intended to rely on

each of the charges individually, rather than upon all three collectively, it had a duty

to so inform officer Hopkins. Since the grievance is sustained with respect to two of

the three charges and denied with respect to the other, grievant is entitled to prorated

reinstatement of lost pay and fringe benefits; i.e., reinstatement of two-thirds (2/3) of

what was lost as a result of the 5-day suspension.

V. Defense

Grievant relied on CBA, Article 12, Sec. 6 during the grievance procedure and

the union cites Article 12, Sec. 5 in its post hearing brief. These sections pertain to

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management's duty to inform an employee of his "Miranda rights" before questioning

him during an "investigation". The interplay between Sections 5 and 6 is not

altogether clear. In Section 6, paragraphs A and B, the phrase "formal investigation"

is used, whereas the word "investigation" is used by itself everywhere else in Article

12.

Sections 5 and 6 place the onus on the employee to request union

representation. At most, officer Hopkins asked supervisor Trummy Williams if a

union representative needed to be present; the question was never put to acting chief

Brandenburg. It is clear that officer Hopkins was aware of his right to union

representation, so there was no need for Brandenburg to inform him. Finally, at no

time did Hopkins actually request that a union representative be present. Thus,

grievant's principal defense is unavailing.

VI. Costs

Article 14, Sec. 2.C of the CBA provides that "[t]he arbitrator's fees and

expenses shall be borne equally by the parties."

_________________________
E. Frank Cornelius
DATED: February 20, 1987

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