32:0961(136)AR - - Army, HQ, Army Material Command and NFFE Local 1332 - - 1988 FLRAdec AR - - v32 p961
[ v32 p961 ]
The decision of the Authority follows:
32 FLRA No. 136
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE ARMY
HEADQUARTERS, U.S. ARMY
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1332
Case No. 0-AR-1533
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Millard Cass. The Arbitrator found that the Activity's 3-day suspension of the grievant was justified, and he denied the grievance.
The Union filed exceptions 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 Department of the Army (the Agency) filed an opposition on behalf of the Activity.
We conclude that the Union has failed to establish that the award is deficient because (1) the Arbitrator erred; (2) the award is based on a gross misstatement of facts; or (3) the Arbitrator disregarded decisions of other arbitrators in similar cases. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
As a result of a confrontation between the grievant and his supervisor over the grievant's tardiness, the grievant was suspended for 3 days for "threatening or attempting to inflict bodily harm without bodily contact." Specifically, he was charged with shaking his fist in his supervisor's face and stating that "I'd better get out of here before I hit you" during the confrontation. Arbitrator's Award at 2. The grievant filed a grievance over the suspension. The grievance was submitted to arbitration on the issue of whether there was just cause for the suspension.
Before the Arbitrator, the Activity contended that the 3-day suspension was justified under the table of penalties of Army Regulation (AR) 690-700 for the offense of "creating a disturbance" by "threatening or attempting to inflict bodily harm without bodily contact." That regulation provides a penalty for the first offense ranging from a written reprimand to a 14-day suspension. The Activity also contended that the suspension was justified under U.S. Army Materiel Command regulation AMCM 690-1 for the offense of "creating a disturbance among fellow employees, resulting in an adverse effect on morale, production, or maintenance of proper discipline" which provides a penalty for the first offense ranging from a 1-day to a 3-day suspension.
The Union argued that AR 690-700 was not in effect at the time of the alleged offense and that therefore, the grievant could not be charged under AR 690-700 with "threatening or attempting to inflict bodily harm without bodily contact." The Union also argued that AMCM 690-1 does not list any offense for a non-physical threat. Consequently, the Union argued that the Activity committed harmful error in suspending the grievant for 3 days on the basis of the specified offense.
The Arbitrator determined that the 3-day suspension of the grievant was justified. The Arbitrator noted that the grievant admitted that he had said "I'd better get out of here before I hit you." The Arbitrator concluded that this was not only improper and insubordinate, but also a threat or attempt to inflict bodily harm without bodily contact. He also concluded that the imposed penalty was "within the guidelines established in applicable Department of the Army regulations for offenses such as this (AMCM 690-1, Appendix A #2 or (AR) 690-700, appended Table of Penalties #2b)." Arbitrator's Award at 26. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator erred by refusing to rule that the Activity "was procedurally wrong" by charging the grievant with an offense under AR 690-700. Union's Exceptions at 1. The Union maintains that AR 690-700 was not in effect when the grievant was suspended and that the suspension therefore should have been dismissed. The Union also contends that the award is based on gross misstatements of fact and that the Arbitrator disregarded decisions of other arbitrators in similar cases.
The Agency argues that the Union's exceptions are an attempt to relitigate