Veterans Administration Hospital, Perry Point, Maryland (Activity) and Local 331, American Federation of Government Employees (Union) (Authority decision, May 21, 1980)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116; this decision does not state that it involves one.

Plain-English summary

A VA nursing assistant challenged termination during a probationary appointment. The arbitrator found adequate grounds for the discharge and denied the grievance. The union’s exception did not establish a recognized defect, so the Authority sustained the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Arbitration award sustained; union exception rejected.
• Key point: The Authority did not disturb the arbitrator’s discharge finding.

Full text (FLRA public release)

[ v03 p236 ]

03:0236(34)AR

The decision of the Authority follows:

3 FLRA No. 34

VETERANS ADMINISTRATION HOSPITAL,
PERRY POINT, MARYLAND
Activity

and

LOCAL 331, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
Union

Case No. 0-AR-55

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR HERBERT N. BERNHARDT FILED BY THE UNION UNDER SECTION 7122(A)
OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR, THE GRIEVANT, A VIETNAM VETERAN UNDER
TREATMENT AS A PATIENT AT THE ACTIVITY, WAS ALSO EMPLOYED BY THE
ACTIVITY AS A NURSING ASSISTANT UNDER A VETERANS READJUSTMENT
APPOINTMENT. THE GRIEVANT WAS TERMINATED FROM HIS EMPLOYMENT PRIOR TO
THE COMPLETION OF HIS ONE YEAR PROBATIONARY PERIOD BECAUSE OF AN
INCIDENT IN WHICH HE USED OBSCENE LANGUAGE WITH A SUPERVISOR AND
DESTROYED HOSPITAL PROPERTY.

THE GRIEVANT GRIEVED HIS TERMINATION AND THE MATTER WAS ULTIMATELY
SUBMITTED TO ARBITRATION. THE ARBITRATOR DENIED THE GRIEVANCE, FINDING
THAT THE ACTIVITY HAD "ADEQUATE GROUNDS TO TERMINATE THE GRIEVANT AS A
PROBATIONARY EMPLOYEE."

THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A' OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
AND PART 2425 OF THE AUTHORITY'S INTERIM RULES OF PROCEDURE, 44 F.R.
444766. THE AGENCY DID NOT FILE AN OPPOSITION. THE QUESTION BEFORE THE
AUTHORITY IS WHETHER, ON THE BASIS OF THE UNION'S EXCEPTION, THE
ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS CONTRARY TO ANY LAW, RULE,
OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL
COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.

IN ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THE AWARD IS
DEFICIENT BECAUSE THE ARBITRATOR "OMITS ANY AND ALL EVIDENCE PRESENTED
ON CIRCUMSTANCE." IN SUPPORT OF ITS EXCEPTION, THE UNION ASSERTS THE
GRIEVANT WAS TERMINATED ON THE SAME DAY OF THE ISSUANCE OF THE "REMOVAL"
AND THAT THE DECISION TO TERMINATE WAS MADE BY ONE PERSON ON THE BASIS
OF A CHARGE BY THE VETERANS ADMINISTRATION POLICE. FURTHER, THE UNION
ARGUES THAT THE GRIEVANT'S VETERANS READJUSTMENT APPOINTMENT ENTITLED
HIM TO MORE CONSIDERATION AND COUNSELING THAN AN ORDINARY PROBATIONER.
FINALLY, THE UNION ASSERTS THE GRIEVANT SUFFERED FROM "PSYCHOMOTOR
SEIZURE."

IT IS CLEAR FROM THE UNION'S EXCEPTION THE UNION IS ATTEMPTING TO
RELITIGATE THE MERITS OF THE CASE BEFORE THE AUTHORITY AND ITS EXCEPTION
ACTUALLY CONSTITUTES DISAGREEMENT WITH THE ARBITRATOR'S REASONING AND
CONCLUSIONS.

THE AUTHORITY WILL NOT REVIEW AN ARBITRATOR'S AWARD WHERE, AS IN THIS
CASE, IT APPEARS THAT THE EXCEPTION CONSTITUTES DISAGREEMENT WITH THE
REASONING EMPLOYED BY THE ARBITRATOR ON THE MERITS OF THE ISSUE BEFORE
HIM. FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND FEDERAL
AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR, SOUTHWEST
REGION, CASE NO. O-AR-20, 2 FLRA NO. 85(FEB. 21, 1980). THEREFORE, THE
UNION'S EXCEPTION TO THE ARBITRATOR'S AWARD PROVIDES NO BASIS FOR
FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. SEC. 7122(A) AND SECTION
2425.3 OF THE AUTHORITY INTERIM RULES AND REGULATIONS.

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.2 OF THE AUTH
INTERIM RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S AWARD.

ISSUED, WASHINGTON, D.C., MAY 21, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ 5 U.S.C. SEC. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION

TO ANY ARBITRATOR'S AWARD PURSUANT TO THE 7 ARBITRATION (OTHER THAN
AN AWARD RELATING TO A MATTER DESCRIBED IN SECTION

7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT THE
AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND
MAKE SUCH RECOMMENDATIONS

CONCERNING THE AWARD AS IT CONSIDERS NECESSARY, CONSISTENT WITH
APPLICABLE LAWS, RULES, OR

REGULATIONS.