Army Health Clinic Fort Ritchie and NFFE Local 1153 (Authority decision, August 16, 1982)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

An arbitrator had ordered the Army clinic to remove a written reprimand from an employee’s record. The clinic later relied on the same incident in further disciplinary actions. The Authority adopted the judge’s finding that this failure to comply with the final award was an unfair labor practice, while modifying the recommended order. It directed the clinic to remove references to the incident from the employee’s records and later discipline, advise the Merit Systems Protection Board of its compliance, and post a notice.

Decision snapshot

• Authority: 5 U.S.C. § 7122(b).
• Outcome: Violation sustained; judge’s recommended order modified.
• Key point: An agency may not use discipline that a final arbitration award required it to remove.

Full text (FLRA public release)

[ 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,

15. (JOINT EX. 12).

16. 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)."