U.S. Department of the Air Force, 2750th Air Force Base Wing, Wright-Patterson Air Force Base, Ohio and International Association of Machinists and Aerospace Workers, Local 2333 (Authority decision, August 2, 1993)

Final FLRA decision. The Authority denies the union's exceptions to an arbitration award sustaining a three-day suspension. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not resolve an unfair labor practice.

Plain-English summary

A mason at Wright-Patterson Air Force Base received a three-day suspension after remarks at a shop meeting that co-workers said they found threatening. An arbitrator found just cause for the suspension and denied the grievance. The union argued that the arbitrator framed the issue incorrectly, overlooked evidence, and failed to address its retaliation claim. The Authority found the arbitrator's issue covered the basis for the suspension and that the remaining objections did not establish a deficient award. It denied the union's exceptions, leaving the suspension in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; three-day suspension remains upheld.
• Key point: Disagreement with the arbitrator's weighing of the evidence and issue framing did not show a deficient award.

Full text (FLRA public release)

[ v48 p3 ]
48:0003(1)AR

The decision of the Authority follows:

48 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

2750TH AIR FORCE BASE WING (AFLC)

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

(Agency)

and

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, LOCAL 2333

(Union)

0-AR-2409

_____

DECISION

August 2, 1993

_____

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator W. Scott Thomson filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and Part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exceptions.

The Arbitrator denied a grievance over a 3-day suspension of an employee for making threatening remarks to co-workers. For the following reasons, we conclude that the Union has failed to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The Agency charged that the grievant, a mason, made threatening remarks to his co-workers during a shop meeting and suspended the grievant for 3 days. The grievant filed a grievance over the suspension and, when the grievance was not resolved, it was submitted to arbitration. The Arbitrator stated the issue as "[w]hether the [e]mployer had just cause to issue [g]rievant a three (3) day suspension?" Award at 3.

The Arbitrator summarized the facts as follows. In November 1991, the grievant's supervisor advised the grievant that he had been reported sitting in a truck for 2 hours when he should have been working. At a subsequent shop meeting, the grievant addressed his co-workers in a loud tone and stated: "'[I]f I catch someone telling on me, I don't know what I would do.'" Id. at 4. The grievant was visibly angry during the meeting. Thereafter, five of the 18 persons who attended the meeting complained to the employee's supervisor that they felt physically threatened by the grievant. At the arbitration hearing, four witnesses described the grievant's remarks as offensive and stated that the remarks "far exceeded [the] normal shop talk." Id. at 5.

The Arbitrator noted that the grievant admitted making the above-quoted statement. Based on the testimony and evidence offered at the hearing, the Arbitrator concluded that, despite the grievant's assertion that he did not intend to threaten anyone, the persons present "had every justification to conclude" that "a physical attack to them was a true possibility." Id. The Arbitrator also concluded, therefore, that there was just cause for the suspension and denied the grievance.

III. Exceptions

The Union argues that the award is deficient because the Arbitrator "failed to take into consideration the main issues . . . ." Exceptions at 1. In this regard, the Union asserts its belief that the disputed suspension was issued by the Agency in retaliation for Union and other protected activity allegedly engaged in by the grievant. The Union also argues that the Arbitrator did not base his decision on the evidence presented.

IV. Analysis and Conclusions

Under section 7122(a) of the statute an arbitration award will be found deficient: (1) if it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases. We conclude that the Union has failed to establish that the Arbitrator's award is deficient under any of the grounds set forth in section 7122(a) of the Statute.

The Union asserts that the Arbitrator improperly stated the issue. Specifically, the Union contends that the Arbitrator did not consider the evidence presented in the case but "only considered the issue as to whether Management did in fact, have the right to suspend." Exceptions at 1. The Union asserts that the Arbitrator should have stated the issue as: "'[d]id [the grievant] [t]hreaten his [c]o-workers?'" Id. at 5.

We reject the Union's contention. In the absence of a stipulation by the parties, an arbitrator may formulate the issues to be decided. For example, American Federation of Government Employees, Local 916 and U.S.Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 45 FLRA 822, 826 (1992). We accord substantial deference to an arbitrator's formulation of issues. For example, U.S. Department of the Army Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 1149, 1152 (1991). Here, there is no indication in the record that the parties stipulated the issue to be resolved and the Arbitrator's formulation of the issue clearly encompassed the circumstances and justification for the grievant's suspension. We conclude, therefore, that the Union has failed to demonstrate that the Arbitrator improperly formulated the issue.(*)

The Union also asserts that the Arbitrator failed to properly consider the evidence presented in the case. The Union quotes, in this connection, the testimony of various witnesses and asserts that "several places show discrepancies[.]" Id. at 2. However, this assertion also fails to demonstrate that the award is deficient. In this regard, the contention constitutes mere disagreement with the Arbitrator's evaluation of the evidence and is an attempt to relitigate the case before the Authority. For example, U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, and American Federation of Government Employees, Local 1617, 45 FLRA 797, 800 (1992).

V. Decision

The Union's exceptions are denied.

FOOTNOTES:

*/ Insofar as the Union's assertion
that the suspension was imposed in reprisal for certain protected activities on the part of the grievant is construed as an exception to the award, we note that the argument was raised at the arbitration hearing. The fact that the Arbitrator did not specifically address the argument in the award does not show that he failed to consider it and does not demonstrate that the award is deficient. See National Federation of Federal Employees, Local 259 and U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee, 45 FLRA 773, 777 (1992).