34:0587(99)AR - - AFGE Local 916 and Oklahoma Air Logistics Center, Tinker AFB, OK - - 1990 FLRAdec AR - - v34 p587
[ v34 p587 ]
The decision of the Authority follows:
34 FLRA No. 99
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 916, AFL-CIO
OKLAHOMA AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
January 25, 1990
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 John A. Zerboni filed by the American Federation of Government Employees, Local 916, AFL-CIO (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 Department of the Air Force (the Agency) filed an opposition to the Union's exceptions.
The Union excepts to the Arbitrator's finding that the 5-day suspension of the grievant by the Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma (the Activity) was for just cause. The Union contends that the Arbitrator's ruling is contrary to the parties' collective bargaining agreement and Air Force regulations. The Union also contends that the Arbitrator's award is based on nonfacts.
For the reasons discussed below, we conclude that the Union has failed to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant is employed by the Activity in its Manufacture and Repair Glass Sub-Unit of the Wood and Plastic Unit (the Shop) as a Plastic Worker. The Arbitrator found that on June 25, 1987, the grievant, in conjunction with his normal duties, brought dry ice into the Shop. The grievant and another employee mixed the dry ice with water "in various containers, sealing them and permitting the pressure to build up and thereby causing minor explosions." Award at 2. The intent of these minor explosions was to "'scare' or startle" fellow employees. Id. There were three explosions, including one which resulted in an ear injury to another employee. Id.
The supervisor of the Shop was on leave when these events took place. Upon his return, several employees informed him of what had taken place in his absence. The supervisor requested voluntary explanations about the "horseplay" and information on what had occurred. Id. at 4.
The grievant refused to assist in the supervisor's investigation of the matter. The other employee admitted his involvement in the incident and apologized for his actions. Id. at 4-5.
As a result of the incident, the grievant received a 5-day suspension and the other employee received a 3-day suspension. The Union grieved both employees' suspensions. The 3-day suspension was reduced by another arbitrator to a reprimand. The grievant's suspension was submitted to arbitration on the following issue: "Was the action of the [Activity] to suspend the Grievant for five (5) days for just cause? If not, what should the remedy be?" Id. at 2-3.
The Arbitrator found that the Activity's 5-day suspension of the grievant was for just cause. The Arbitrator determined that the "horseplay" involved was "typical of actions involving 'potential' danger to others" and that as a result of the horseplay "injury to a fellow co-worker was not potential but present and substantial." Id. at 3. The Arbitrator concluded that it was "obvious" that the grievant was "involved in the horseplay on the job which resulted in injury to a co-worker." Id. at 2, 5-6. Finding that the grievant also "withh[e]ld material facts from an official investigation[,]" the Arbitrator denied the grievance. Id. at 6.
III. Positions of the Parties
The Union contends that the Arbitrator's award is contrary to the parties' collective bargaining agreement and Air Force regulations. The Union also contends that the award is "based on nonfacts." Exceptions at 2. The Union asserts that several factual determinations made by the Arbitrator are not supported by the evidence or the testimony presented at the hearing.
The Agency asserts that the Union's contention that the Arbitrator's award violates the parties' agreement constitutes nothing more than disagreement with the Arbitrator's interpretation of the agreement. The Agency further asserts that the Union does not demonstrate how the award is contrary to regulation. The Agency contends that the Union's disagreement with the Arbitrator's factual determinations provides no basis for finding the award deficient.
We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.
The Union has failed to establish that the award is contrary to any law, rule, or regulation or that the award is deficient on any other ground similar to those applied by Federal courts in private sector labor-management relations. When a party contends that an arbitrator's award is deficient under the Statute because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is concededly erroneous and is a gross mistake of fact, but for which a different result would have been reached. See U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168, 1177 (1988). The Union's assertion that the Arbitrator's factual determinations are not supported by the evidence does not meet the requirements of this test. T