51:1302(107)AR - - AFGE, Local 1770 and Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC - - 1996 FLRAdec AR - - v51 p1302
[ v51 p1302 ]
The decision of the Authority follows:
51 FLRA No. 107
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS
AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
May 31, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator C. Allen Foster 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 Regulations. The Agency filed an opposition to the Union's exceptions.
The grievance challenged the Agency's 10-day suspension of the grievant for the offenses of insubordination, creating a disturbance and threatening bodily harm. Although he found that it was appropriate for the Agency to discipline the grievant for those offenses, the Arbitrator reduced the discipline to a 5-day suspension.
We conclude that the Union's exceptions fail to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant was administered an "on-the-spot correction" by a noncommissioned officer (NCO). Award at 2, 10. In response, the grievant loudly challenged the NCO as to his authority to administer that correction. When the grievant and the NCO met with the grievant's supervisor over the dispute, the grievant demanded that the NCO be removed from the room or "something might happen to him." Id. at 12.
The Agency suspended the grievant for 10 days as a result of his conduct in response to the correction. A grievance was filed over the suspension and when it was not resolved, it was submitted to arbitration on the following stipulated issues:
[W]hether Management can show by a preponderance of the evidence that [the grievant] was insubordinate, created a disturbance, and threatened bodily harm without physical contact on or about 4 January 1994, and whether the ten-day suspension imposed upon [the grievant] was consistent with the Agency table of penalties for the charged misconduct.
Id. at 2.
The Arbitrator determined that the NCO had authority to administer the correction. He also concluded that the grievant admitted in testimony that he had engaged in behavior that had been disruptive to the workplace and had implicitly threatened the NCO. As a result, he concluded that it was appropriate to discipline the grievant. However, he found mitigating circumstances for the employee's misconduct and reduced the 10-day suspension to 5 days.
A. Union's Exceptions
The Union argues that, at step 3 of the grievance procedure, the Agency's deciding official stated that it would be "inappropriate" to suspend the grievant for "insubordination and causing disruption . . . ." Exceptions at 2.(*) Based on this alleged statement, the Union contends that the Arbitrator erred in determining that the grievant could be disciplined for the offense of creating a disturbance. The Union also argues that the Arbitrator failed to find that there had been a loss of production, which it claims is a requirement for the offense of creating a disturbance under the Agency's table of penalties. The Union further argues that the Arbitrator failed to consider the evidentiary factors set forth in Metz v. Department of Treasury, 780 F.2d 1001 (Fed. Cir. 1986) (Metz) for deciding whether a statement constitutes a threat. The Union asserts that, in making such a determination, the Authority considers factors similar to those set forth in Metz. In support, the Union cites Internal Revenue Service, Headquarters and Internal Revenue Service, Detroit District, Detroit, Michigan and National Treasury Employees Union and National Treasury Employees Union, Chapter 24, 40 FLRA 469 (1991) (NTEU) and Overseas Education Association and Joseph Cardone, 15 FLRA 488 (1984) (Cardone).
B. Agency's Opposition
The Agency disputes the Union's argument that it decided at step 3 of the grievance procedure that discipline for the offense of creating a disturbance was unwarranted. The Agency also asserts that the Arbitrator: (1) rejected the Union's argument that the offense of creating a disturbance requires a finding of a loss of production; and (2) considered the evidentiary factors set forth in Metz in deciding whether the statement constituted a threat.
IV. Analysis and Conclusions
A. The Arbitrator Did Not Exceed His Authority
We construe the Union's argument that the Arbitrator erred in considering whether the grievant could be disciplined for creating a disturbance as an assertion that the Arbitrator exceeded his authority by resolving an issue that was not submitted to arbitration. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995); U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212, 217 (1995).
In this case, the Arbitrator stated that the parties had agreed that the dispute before him involved, among other things, the issues of whether the grievant had created a disturbance and whether the 10-day suspension of the grievant was consistent with the Agency's table of penalties for the charged misconduct. The Arbitrator's finding that the grievant admitted that he had engaged in behavior that had been disruptive to the workplace and his order that the Agency reduce the discipline were directly responsive to the stipulated issues. Consequently, the Union has not demonstrated that the Arbitrator exceeded his authority. Accordingly, we deny this exception.
B. The Award Is Not Contrary to Agency Regulation
We construe the Union's argument that the Arbitrator failed to find that there was a loss of production, which the Union claims is a requirement for the offense of creating a disturbance under the Agency's table of penalties, as an assertion that the award is contrary to an Agency regulation relating to the penalties for employee misconduct. In reviewing arbitration awards for consistency with rule or regulation, the Authority must review the questions of law raised by the Arbitrator's award and the Union's exception "de novo." National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).
We note, at the outset, that because an arbitrator need not set forth specific findings and rationale on each issue, the fact that the Arbitrator did not mention specifically a loss of production in finding that the grievant committed the offense of creating a disturbance does not mean that that factor was not considered. See generally, International Federation of Professional and Technical Engineers, Local 11 and U.S. Department of the Navy, Naval Electronic Systems Engineering Center, Vallejo, California, 46 FLRA 893, 898 (1992) (Naval Electronic Systems Engineering Center).
Moreover, under section 2425.2 of our Regulations, an exception must be a "self-contained document" that includes copies of "pertinent documents." The Union has failed to provide a copy of the Agency's regulations relating to penalties for employee misconduct or the pertinent portions on which it relies. Consequently, the Union has not demonstrated that the award is inconsistent with an Agency regulation relating to the penalties for employee misconduct. E.g., American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, Washington, D.C., 51 FLRA 27, 34 (1995); U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1142 (1992). Accordingly, we deny this exception.
C. The Award Is Not Contrary to Law
In Metz, the court prescribed evidentiary factors for the Merit Systems Protection Board (MSPB) to consider in deciding whether an employee's statements constitute a threat to supervisors or co-workers. The Authority has repeatedly held that arbitrators are bound by the same substantive standards as the MSPB only when resolving grievances concerning actions covered by 5 U.S.C. §§ 4303 and 7512. See Naval Electronic Systems Engineering Center, 46 FLRA at 902; U.S. Department of the Army, III Corps and Fort Hood, Fort Hood, Texas and American Federation of Government Employees, Local 1920, 46 FLRA 609, 613 (1992). Specifically, suspensions of 14 days or less are not covered under 5 U.S.C. §§ 4303 or 7512. See U.S. Department of Justice, Immigration and Naturalization Service, Jacksonville, Florida and American Federation of Government Employees, National Border Patrol Council, Local 3725, 36 FLRA 928, 932 (1990) (Immigration and Naturalization Service). Therefore, because the grievant in this case was given a 10-day suspension, the Arbitrator was not bound to follow the same substantive standards as the MSPB. Consequently, the Union has not demonstrated that the award is inconsistent with Metz. Cf. Immigration and Naturalization Service, 36 FLRA at 932 (Authority rejected the agency's assertions that an award was deficient because the arbitrator's findings regarding the issue of disparate treatment conflicted with precedent of the Federal Circuit and the MSPB).
We also reject the Union's reliance on NTEU and Cardone. Neither case concerned employee misconduct. Rather, NTEU concerned the coercive effect of Agency statements on the exercise by employees of their rights under the Statute. Similarly, Cardone concerned