48:0589(58)AR - - Air Force, Lowry AFB, Denver, CO and NFFE, Local 1497 - - 1993 FLRAdec AR - - v48 p589



[ v48 p589 ]
48:0589(58)AR
The decision of the Authority follows:


48 FLRA No. 58

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

LOWRY AIR FORCE BASE

DENVER, COLORADO

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1497

(Union)

0-AR-2435

_____

DECISION

September 30, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator James A. Evenson 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 grievant was suspended for 5 days for fighting on duty and inflicting bodily harm on another employee. The Arbitrator found that the penalty was too severe and reduced the suspension to 1 day. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a contract law instructor and an attorney, was suspended for 5 days for fighting on duty and inflicting bodily harm on another employee. According to the proposal to suspend the grievant, another employee, employed as a training instructor, came to the grievant's office to inquire about the grievant's request to use the computer scanner for the grievant's course materials. During the discussion, the grievant told the training instructor that he wanted the materials scanned onto his own computer disc so that the grievant could get the materials published. The training instructor became upset at this request and told the grievant that the materials belonged to the Agency and not the grievant. The two employees argued about the materials and the training instructor became more upset during the argument. As the training instructor turned and walked away, he called the grievant an "asshole . . . ." Award at 10. The grievant responded with "You can go to hell . . . ." Id. The training instructor returned to the grievant's office and invited him to go outside and fight. The grievant accepted and the two employees walked out of the building. As they came out of the building, they began to fight and a series of punches were thrown by both employees. The fight was broken up by personnel from the building.

In suspending both employees for 5 days, the Agency took the position that both employees were equally culpable. In arriving at the decision to suspend the grievant, the grievant's supervisor had determined that the cause of the argument that led to the altercation was not relevant to her decision and that the grievant was not coerced into accompanying the other employee outside. In her view, the grievant could have done a number of things to avoid the fight, but, instead, the grievant chose to go outside with the other employee. The grievant filed a grievance over his suspension. The grievance was not settled and was submitted to arbitration on the issue of whether there was just cause for the suspension of the grievant for 5 days.

Before the Arbitrator, the Union took the position that the incidents before the fight were important. According to the Arbitrator, the Union asserted they should be considered and that the grievant should receive no more than a reprimand. The Arbitrator rejected the Agency's position that the factors that led up to the fight were not relevant. He agreed with the Union that the incidents before the fight were important and would be considered. The Arbitrator found that the training instructor had a pattern of arguing with and intimidating people, and "[f]or some reason, it appears he has some sort of personal vendetta against the 'lawyers.' Not only with the Grievant but with his predecessors too." Id. at 12. The Arbitrator found that the grievant had no prior history of aggressiveness or intimidation. The Arbitrator noted the testimony of a witness to the events who testified that the grievant's behavior was calm and not offensive while the training instructor loudly threatened the grievant, shook his fist at the grievant, and slammed his hand on the grievant's desk. The Arbitrator found that the training instructor's behavior was "absolutely not the behavior of a professional person but rather the behavior of a rube." Id. In the judgment of the Arbitrator, the training instructor's "behavior and conduct [wa]s the major reason for the fight." Id. at 14.

However, the Arbitrator did not absolve the grievant of all responsibility for the fight. He found that the grievant did go outside with the other employee and ruled that he should not have done so. He also found that after the fight was over, the grievant "decided he needed to get in one more blow and as a result a second fight almost ensued." Id. The Arbitrator ruled that the grievant should not have attempted to resume the fight. Accordingly, the Arbitrator found that the appropriate penalty was a 1-day suspension and ordered that the grievant's suspension be reduced.

III. First Exception

A. Union's Contentions

The Union contends that the Arbitrator "erred when he upheld a punishment for the [grievant] when [the grievant], a nonviolent person, 'walked outside,' when the only evidence on the record showed that the reasons that [the grievant] 'walked outside' were to stop the assailant[']s intimidation . . . by calling his bluff, and because [the grievant] was coerced outside to get out of a dangerous room and a dangerous building . . . ." Exceptions at 7. The Union argues that the award is deficient in this respect because the Arbitrator failed to make any finding as to what the grievant's intent was in walking outside. The Union claims that the grievant's intentions "were always honorable" and that leaving the room was the grievant's only reasonable means of escape. Id. at 2. The Union also notes that the claims examiner on the grievant's worker compensation claim concluded that the grievant "acted without wilful misconduct, and with no intention to injure another." Id. at 1. The Union maintains that the Arbitrator "acted arbitrarily when he did not follow this decision." Id.

B. Analysis and Conclusions

We conclude that the Union's exception fails to establish that the award is deficient. We have repeatedly held that it is for the arbitrator to determine whether a disputed disciplinary action is warranted and, if so, whether the penalty assessed was reasonable. For example, General Services Administration, Region 2 and American Federation of Government Employees, Local 2431, 46 FLRA 1039, 1044-45 (1992) (GSA, Region 2); U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1172 (1992) (National Memorial Cemetery of the Pacific). In our view, the Union is merely disagreeing with the Arbitrator's determination that the grievant should not have gone outside with the other employee and, therefore, could not be absolved of all responsibility for the fight. Such disagreement cannot provide a basis for finding an award deficient under the Statute. See GSA, Region 2, 46 FLRA at 1044-45.

The Union's allegation with respect to the grievant's worker compensation claim also provides no basis for finding the award deficient. Although the Union alleges that the claims examiner on the compensation claim concluded that the grievant "acted without wilful misconduct," the Union provides no evidence of that finding in support of its exception. Exceptions at 1. The letter granting the grievant's claim, which was submitted by the Union, contains no such findings. Moreover, even if the examiner had so concluded, the Union fails to establish, and it is not otherwise apparent, on what basis a decision on worker compensation barred the Arbitrator from determining, as a disciplinary matter, that the grievant could not be absolved of all responsibility for the fight. See generally U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 35 FLRA 978, 981-983 (1990) (discussing issue preclusion in the review of arbitration awards under the Statute).

Accordingly, we will deny the exception.

IV. Second Exception

A. Union's Contentions

The Union contends that the Arbitrator erred when he upheld punishment of the grievant based on the Arbitrator's finding that the grievant started a "second fight . . . ." Exceptions at 7. The Union claims that the Arbitrator was confused in ruling that after the fight was over, the grievant decided he needed to get in one more blow and a second fight almost ensued. The Union asserts that the "overwhelming evidence--and all of the credible evidence--, and certainly a preponderance of the evidence, demonstrates that the fight was never stopped." Id. at 3. The Union argues that the Arbitrator should have determined whether the fight had been stopped from the perspective of the grievant. In addition, the Union contends that the Arbitrator erred in stating that the grievant believed that he should have received a reprimand. The Union claims that the grievant and the Union disputed any punishment. The Union explains that the grievant "grieved in the alternative that, even if the original decision maker were justified in punishing the [grievant], the original decision maker did not follow proper procedures to determine the appropriate amount of the punishment, and that the [grievant] would have only been given the minimum amount of punishment, oral reprimand, under the circumstances of this case." Exceptions at 8.

B. Analysis and Conclusions

We view the Union's assertions that the Arbitrator erred as a contention that the award is based on nonfacts, and we conclude that the Union fails to establish that the award is deficient.

To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. For example, GSA, Region 2, 46 FLRA at 1046-47. However, this basis for finding an arbitration award deficient does not permit the appealing party to dispute the arbitrator's findings of fact. As the Supreme Court has advised, "[t]he parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them who had more opportunity to observe" the grievant and the witnesses and who was familiar with the case. United Paperworkers v. Misco, Inc., 484 U.S. 29, 45 (1987) (Misco). In addition, in Misco, the Supreme Court reaffirmed its holding in United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960) (Steelworkers) that courts are not authorized to reconsider the merits of an award even when a party claims that the award rests on errors of fact. 484 U.S. at 36-38. The Court explained that in order to resolve disputes, an arbitrator must find facts, and a court may not reject those findings simply because it disagrees with them. Id.

The U.S. Court of Appeals for the First Circuit recognized these principles in adopting nonfact as a basis on which to find an arbitration award deficient. Electronics Corporation v. IUE Local 272, 492 F.2d 1255 (1st Cir. 1974) (Electronics Corp.). Chief Judge Coffin specifically rejected any attempt "to subvert the arbitral process" and emphasized how restrictive nonfact is as a basis for finding an arbitration award deficient. 492 F.2d at 1257. The court indicated that in order for an award to be found deficient on this ground, the appealing party should demonstrate that the arbitrator not only erred in the view of the facts, but that the sole articulated basis for the award was clearly in error and that the evidence discloses a gross mistake of fact but for which, in accordance with the expressed rationale of the arbitrator, a different result would have been reached. Id.; accord GSA, Region 2, 46 FLRA at 1047. Stating its approval of both the principles of the Steelworkers and the approach of Electronics Corp. in reviewing arbitration awards, the U.S. Court of Appeals for the Sixth Circuit has limited nonfact as a basis for finding an arbitration award deficient to "clear misstatements of undisputed historical fact." National Post Office Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985). That court refuses to find an arbitration award deficient on the basis of a disagreement with the arbitrator's factual findings and determinations on disputed or ambiguous evidence. Id.

In reviewing awards alleged to be deficient because they are based on a nonfact, we apply the limitations recognized by the Federal courts in reviewing arbitration awards in the private sector, and we apply the principles of the Supreme Court in generally refusing to disturb the factual findings and determinations of arbitrators in the Federal sector. Exceptions constituting nothing more than disagreement with the arbitrator's factual findings and determinations on disputed or ambiguous evidence will not be found deficient as based on a nonfact and will be summarily denied.

In this case, it is clear that the circumstances under which the fight ended were disputed. Consequently, the Union's claim, that the Arbitrator erred by finding that as a result of the grievant's conduct a second fight almost ensued, constitutes disagreement with the Arbitrator's factual determination and provides no basis for finding that the award is deficient because it is based on a nonfact. Moreover, the Arbitrator's statement that the grievant believed that a reprimand was an appropriate penalty clearly is not "the sole articulated basis for the award . . . ." GSA, Region 2, 46 FLRA at 1047; Electronics Corp., 492 F.2d at 1257. Consequently, the statement can provide no basis for finding that the award is deficient because it is based on a nonfact. Accordingly, we will deny the exception.

V. Third Exception

A. Union's Contentions

The Union contends that the award is deficient because the Arbitrator upheld discipline against the grievant "when the [grievant] was deprived of the appropriate procedural protections" in violation of the grievant's due process rights under the Fifth Amendment of the U.S. Constitution. Exceptions at 8. The Union lists the following as deprivations of constitutional due process:

1. the evidence was not sufficient to allow the deciding official to discipline the grievant;

2. the specific reasons for the discipline required by 5 U.S.C. § 7503 did not specify that the grievant was being disciplined for starting a second fight;

3. the deciding official destroyed notes of her administrative investigation;

4. the deciding official admitted the existence of notes related to the penalty determination; later denied their existence; and then produced the notes at the arbitration hearing;

5. the collective bargaining agreement precluded the grievant from participating in his own defense in critical areas of the arbitration, including selection of the arbitrator and prehearing discovery, which preclusion caused the grievant to be unfairly surprised by new reasons being argued at arbitration to support the discipline;

6. the collective bargaining agreement forced the grievant to be represented by the Union president, "causing a huge disparity between the legal abilities of the agency's representation and the legal abilities of [the grievant's] representation;" Id. at 8;

7. the Arbitrator was chosen by the Agency and the hearing set without notice to the Union; and

8. the collective bargaining agreement allows the Agency to inherently control who will be selected as the arbitrator to such an extent that the Agency has an undue influence over the decision of the arbitrator selected and the Agency exerted that influence in this case when the A