Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—Diplomatic clearance specialist’s suspension for workplace misconduct upheld, (Jul 9, 2025)

By WK Editorial Staff

He allegedly told a coworker to “shut the f*** up and listen.”

A diplomatic clearance specialist’s suspension for workplace misconduct was upheld by an arbitrator who found that the Air Force sustained its burden of proving his alleged misconduct and had issued a prior letter of counseling for a similar outburst. The union sought reduction of his 14-day suspension without pay to a letter of counseling, but the Air Force argued that he had instigated a workplace altercation involving profanity, aggressive posture, and physical confrontation. Denying the grievance, the arbitrator concluded that the Air Force conducted a thorough investigation, appropriately considered the Douglas factors, and applied a reasonable and non-discriminatory penalty under its progressive discipline policy (Department of the Air Force and National Association of Independent Labor, Local 19 (Fitzsimmons, Arb. Apr. 12, 2024)).

14-day suspension. The specialist, who was employed by the Department of the Air Force at Scott Air Force Base, filed a grievance contesting a 14-day suspension without pay for conduct unbecoming a federal employee.

Alleged altercation. The underlying incident was a workplace altercation on December 4, 2021, during which the specialist allegedly confronted a coworker following a verbal disagreement. The incident unfolded shortly after the specialist arrived for his day shift and allegedly inserted himself into a conversation between other employees regarding an overseas mission. Witnesses testified that the specialist became agitated when another employee contradicted him, and that he told the coworker to “shut the f*** up and listen.”

Coworker’s return volley. The coworker responded in kind, telling the specialist to “f*** off,” and threw a plastic “HELP DESK” sign onto the specialist’s desk. The sign did not hit him.

Physical confrontation. Testimony from several witnesses established that the specialist then rose from his seat, kicked the coworker’s backpack, and closed the distance between them with clenched fists. One employee testified that the specialist backed the coworker into a corner between a chair and desk while yelling and “balled up” his fists. Another employee stated that the coworker, unable to move backward, raised an arm to create space, causing the specialist to stumble and fall.

After falling, the specialist allegedly quickly got up and again rushed toward the coworker. Two employees intervened to separate them. The specialist allegedly returned to his desk, pounded it with his fists, and then left the premises without speaking. One witness reported following him to his car, allegedly to ensure that the situation was fully defused.

Prior counseling. The Air Force presented evidence that the specialist had received a prior letter of counseling for inappropriate language and hostile behavior toward a different coworker nine months earlier. That letter had specifically instructed the specialist to complete anger management and EAP counseling and warned that further incidents could lead to formal discipline or even removal.

The Air Force argued that the December 4 incident demonstrated a continuing pattern of aggression and that its disciplinary response was proportional to both the conduct and the prior warning.

Supporting testimony. In support of the suspension, the agency introduced witness testimony and a security forces investigation concluding that the specialist was the primary instigator. Witnesses consistently testified that he initiated the physical escalation and posed a threat to workplace safety.

Suspension in lieu of discharge. The deciding official reviewed the evidence, including the specialist’s response to a proposed removal, and opted for a 14-day suspension in lieu of termination.

Union’s disparate treatment argument. The union argued that both employees had been equally involved and that the lesser penalty issued to the coworker—only a letter of counseling—reflected disparate treatment.

Unpersuaded. However, the arbitrator found that the coworker had not physically escalated the situation and that the specialist’s conduct was more aggressive. Additionally, the arbitrator found that the prior counseling memo placed the specialist on clear notice that further misconduct would result in more serious consequences.

Just cause. Ultimately, the arbitrator concluded that the Air Force met its burden of proving just cause by a preponderance of the evidence. The discipline was deemed appropriate based on the specialist’s prior record, the severity of his conduct, and the need to maintain a safe and respectful workplace.

Attorneys: John M. Berosky for the Department of the Air Force. Claudia Lynch for National Association of Independent Labor, Local 19.

Companies: Department of the Air Force; National Association of Independent Labor, Local 19

Cases: Labor Arbitration PublicEmployees RemediesDamages Procedure AgencyNews