DUTY TIME AND THE NCAA TOURNAMENT
As March Madness continues to escalate over the next two weeks, there will inevitably be employees disciplined for checking in on their favorite team on duty time via agency computers. So, we thought we would share with you a brand new FLRA decision where it upheld an arbitrator’s decision to overturn an employee’s seven day suspension for similar violations. Who knows when the arguments of this case might come in handy. What follows is straight out of the Authority’s decision in NNU, 68 FLRA 360 (March 2015)
The grievant is a RN (Registered Nurse) at the Agency (Dept. of Veteran Affairs). At the beginning of one of the grievant’s shifts, the grievant or another employee on the shift reported to the shift supervisor that the unit was understaffed. Some hours later, when, according to the grievant, things had calmed down, a supervisor on her rounds observed the grievant on his computer accessing what appeared to be a website that was not work-related. After an investigation, the Agency suspended the grievant for seven days for “surfing” sports websites and Facebook for periods of time on four separate shifts. The Agency based the suspension on two charges: negligence of duties and inappropriate use of a government computer.
The Agency based the negligence-of-duty charge on an alleged violation of an Agency rule, Medical Center Policy 05-14, stating that “[e]mployees shall put forth honest effort in the performance of their duties.” The Agency based the computer‑misuse charge on an alleged violation of two rules: Veterans Affairs (VA) Directive 6001 (the directive), and the VA national rules of behavior (which state, in relevant part, that employees will follow the directive). The directive states that personal use of Agency computers “should take place during the employee’s non-work time.”
The Union filed a grievance contesting the grievant’s suspension. The Agency denied the grievance, and the parties submitted the matter to arbitration.
The Arbitrator framed the issue as: “Did [the Agency] have just cause when [it] issued the [g]rievant…a seven[-]day suspension…? If not, what is the appropriate remedy?” The Arbitrator found that the Agency “failed to sustain either of its two charges” and that “it violated several just[-]cause requirements.”
The Agency claimed that the grievant neglected his duties. However, the Arbitrator summarily dismissed the negligence-of-duties charge because the Agency “did not offer any examples of duties [that the grievant] failed to perform.”
The Arbitrator also set aside the computer-misuse charge. In its “proposed suspension” letter, the Agency alleged that the grievant used the internet for 419 minutes over a four-day period.] Lacking any admission by the grievant as to how much time he had spent accessing the internet, the Arbitrator examined the computer-use log and the Agency’s information security officer’s testimony, and made his own calculations. Based on these calculations, the Arbitrator found that the Agency “overstated its case” because, the Arbitrator determined, the grievant had used the internet for far less time than alleged. As a representative example, the Arbitrator made his own calculation of the time the grievant spent on the night initially at issue. The Arbitrator took into account periods when the computer-use log showed that an accessed site was “inactive,” as would occur when “a staff person who is logged onto a computer leaves the computer to care for a patient” – and break times. Based on these considerations, the Arbitrator found that the grievant had spent twenty minutes of work time online – not 118, as claimed by the Agency – a reduction of more than eighty percent. [Don’t ask us how 419 minutes dropped to 118; we are just copying what FLRA wrote.] The Arbitrator found this a sufficient basis, without similarly recalculating the grievant’s actual computer use for the other periods at issue, to conclude that the Agency “did not prove [the] claim of excessive amount of time on the internet for each day specified in the charge.”
In addition, the Arbitrator found that the Agency did not have just cause to discipline the grievant for the computer‑misuse charge. For example, the Arbitrator found that there was no basis for inferring that the grievant knew the contents of the directive, or that he “should have known…that he violated [the directive],” because it was “evident that employees openly and regularly used the [Agency] computers on work time without fear of punishment.”
Moreover, the Arbitrator found that “it would be unfair to discipline the [g]rievant, even if he had known [the directive’s] content,” because the Arbitrator did not find the directive “clear and unambiguous.” In this connection, the Arbitrator found that the directive “does not forbid personal use of [Agency] computers during work time.” The Arbitrator based his finding on the directive’s statement in the section applied to the grievant that personal use of Agency computers “should take place during the employee’s non-work time.” The Arbitrator contrasted the directive’s use of the word “should” in that section with the directive’s use of the word “must” in a different section, which provides that “[t]his personal use must not result in loss of employee productivity or interference with official duties.” Based upon the use of “should” in the relevant section, as opposed to “must” in the other section, the Arbitrator concluded that the directive “frowns upon, but does not actually forbid” personal use of Agency computers during work time.
Other considerations cited by the Arbitrator included: (1) “the wide range of opinion (including among management) as to an acceptable amount of personal usage of [Agency] computers during work time[; (2)] management’s history of lack of providing guidance as to [the directive’s] content[;] and [(3)] management’s history of lack of enforcement of any standard.” For all these reasons, the Arbitrator concluded that “the [Agency] violated [the grievant’s] just[-]cause rights by suddenly, and without notice, imposing severe discipline on him.” Accordingly, the Arbitrator sustained the grievance and set aside the suspension.
The Agency filed exceptions to the Arbitrator’s award. The Union filed an opposition to the Agency’s exceptions. And FLRA upheld the arbitrator.