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41:0256(26)AR
The decision of the Authority follows:
41 FLRA No. 26
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 Donald P. Goodman. A grievance was filed after the Agency suspended the grievant for 1 day for using racially derogatory language. The Arbitrator denied the grievance.
The Union filed an exception to the award 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 filed an opposition to the Union's exception.
For the reasons which follow, we conclude that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievant received a 1-day suspension for allegedly describing another employee in a racially derogatory manner to a co-worker. Subsequently, a grievance was filed with respect to the suspension.
When the grievance was not resolved, it was submitted to arbitration. The issue before the Arbitrator was as follows:
Was the discipline imposed procedurally defective?
Is the Grievant guilty of discrimination by using a racial slur? If so, was the degree of discipline imposed appropriate?
Award at 1.
The Arbitrator concluded that the Agency properly conducted an inquiry under Air Force Regulation 30-2, and that the discipline based on the outcome of such inquiry was not procedurally defective.(1) Citing Attachment 3 to Air Force Regulation 40-750, which prohibits certain acts of discrimination by employees and "defines discrimination to include using racial slurs[,]" the Arbitrator determined that the grievant was "guilty of voicing a racial slur."(2) Id. at 5. Finding that the range of penalties provided by Air Force Regulation 40-750 "for using racial slurs" included suspensions of up to 5 days, the Arbitrator concluded that the grievant's discipline was appropriate. Id. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union contends that the Arbitrator "failed to base his decision on the issue." Exception at 1. The Union argues that the Arbitrator "failed to find the grievant guilty of discrimination[,]" noting that the Arbitrator had found that the co-worker who initially heard and complained of the grievant's racial remark "had not been discriminated against in fact." Id. The Union contends "that racial slurs did not raise [sic] to the level of discrimination in this . . . case." Id.
The Agency asserts that the Arbitrator did not fail to base his decision on the stated issue. The Agency contends that the Arbitrator found the grievant "guilty of voicing a racial slur, which by definition is discrimination" within the meaning of Air Force Regulation 40-750. Opposition at 3.
IV. Analysis and Conclusions
We conclude that the Union has failed to establish that the Arbitrator's award is deficient. An arbitrator exceeds his or her authority when the arbitrator resolves an issue not submitted, or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Air Force, Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local 916, 35 FLRA 700, 703 (1990). In our view, the award is directly responsive and properly confined to the stipulated issue. By contending that the Arbitrator failed to base his decision on the issue presented, the Union is merely disagreeing with the Arbitrator's interpretation of the issue before him, and its exception provides no basis for finding the award deficient. See U.S. Department of Agriculture, Food Safety and Inspection Service, Western Region and National Joint Council of Food Inspection Locals, Southwest Council, Local 925, American Federation of Government Employees, 36 FLRA 393, 400 (1990).
V. Decision
The Union's exception is denied.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The record before us does not contain a copy of Air Force Regulation 30-2.
2. Attachment 3 to Air Force Regulation 40-750 provides a guide to disciplinary actions for various offenses, including acts of "[d]iscrimination based on race, color, religion, sex, national origin, age, or handicapping condition." Attachment 3 states, in pertinent part, that "[d]iscrimination . . . includes making racial or ethnic slurs[.]"