48:1393(146)AR - - AFGE, Local 1840 & Air Force, 12th MSSQ / MSCE, Randolph AFB, TX - - 1994 FLRAdec AR - - v48 p1393



[ v48 p1391 ]
48:1391(146)AR
The decision of the Authority follows:


48 FLRA No. 146

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1840

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

12TH MSSQ/MSCE

RANDOLPH AIR FORCE BASE, TEXAS

(Agency)

0-AR-2511

_____

DECISION

January 12, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator W. B. Nelson 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 exception.

The Arbitrator denied a Union grievance claiming that the Agency should take corrective action against a supervisor who gave a personal gift to an employee at the employee's retirement party because the gift was insulting and demeaning to the employee, his family, and his friends. For the following reasons, we deny the Union's exception.

II. Background and Arbitrator's Award

On July 1, 1992, an Agency supervisor presented a personal retirement gift to an employee at the employee's retirement party. The party was attended by Agency employees and the employee's wife, daughter, and grandchildren. The supervisor and the employee had worked together for 20 years and were personal friends. Because of his long work relationship and friendship with the employee, the supervisor and his wife decided to make a humorous gift depicting the employee on the employee's farm. The gift included an audio tape.

The Union filed a grievance claiming that the supervisor's gift was inappropriate because the scene it depicted, together with a portion of the audio tape, defamed the employee's character and amounted to sexual harassment. The Union took the position that the Agency should take corrective action against the supervisor on the grounds of misconduct under the parties' collective bargaining agreement and the Agency's regulations. As a remedy, the Union requested that the supervisor be required to apologize to everyone offended by the presentation of the gift at the retirement party. The grievance was submitted to arbitration. The parties agreed that the dispute stemmed from the appropriateness or inappropriateness of the gift.

The Arbitrator stated that the issue before him was whether "the gift [was] meant to be and/or was [] in fact insulting and demeaning to [the employee,] his family and friends? If so, what is the proper remedy?" Award at 2-3. The Arbitrator summarized the essence of his inquiry as follows:

[W]as the gift prepared by [the supervisor] and presented to [the grievant] at the retirement ceremony on July 1, 1992, a deliberate insult . . . demeaning him and insulting his family and friends? Or was it simply a bad joke, meant to be funny but in fact displaying incredibly bad taste? Or was it precisely what [the supervisor] contended it was: a good natured joke . . . ?

Id. at 10.

The Arbitrator found that the testimony of the supervisor who gave the employee the gift "lays waste to the Union argument" that the gift was intended to defame the employee's character. Id. at 11. Based on the testimony of the supervisor and the witnesses, the Arbitrator found that it was "absurd" that the supervisor "intended to insult and demean a friend of 20 years." Id. at 12.

Additionally, the Arbitrator found that the employee's wife had not been offended by the gift because, after its presentation to her husband, she invited the supervisor and his family to a retirement party at the employee's home 3 days later. Furthermore, the Arbitrator noted that the testimony revealed that Agency management discussed the gift with the employee and that the employee commented that "he wasn't offended, and his family wasn't offended." Id. at 13. Based on the testimony and the evidence before him, the Arbitrator held "that the gift was not intended to and did not in fact insult or demean [the employee]." Id. The Arbitrator concluded that:

[t]he gift prepared by [the supervisor] and presented to [the retiree] at the retirement ceremony on July 1, 1992[,] was not a deliberate insult . . . ; was not simply a bad joke displaying incredibly bad taste; it was in fact exactly what [the supervisor] described it as being: a friendly and good natured joke . . . .

Id. at 14. Accordingly, the Arbitrator denied the grievance.

III. Exception

The Union contends that the Arbitrator's decision is "[i]nc