Veterans Administration Hospital, Perry Point, Maryland and American Federation of Government Employees, Local 331 (Authority decision, August 10, 1979)

Final FLRA decision. This final order denies review of an arbitration award under the Authority's transition rules, 5 C.F.R. §§ 2400.5 and 2411.32 (1978). The decision does not address judicial review.

Plain-English summary

A Perry Point VA hospital nursing assistant received a five-day suspension after a supervisor reported finding him asleep on duty. An arbitrator found the charge supported and denied his grievance. AFGE Local 331 sought review, arguing that the arbitrator misread witness testimony and made factual errors. The Authority ruled that witness credibility and factual findings were for the arbitrator to decide and did not support review under the transition rules. It denied the petition, leaving the suspension award in place.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); 5 C.F.R. § 2411.32 (1978).
• Outcome: Petition for review denied; arbitration award left in place.
• Key point: Disagreement with the arbitrator's credibility and fact findings did not warrant review.

Full text (FLRA public release)

[ v01 p829 ]

01:0829(95)AR

The decision of the Authority follows:

1 FLRA No. 95

AUGUST 10, 1979

MS. MARY LYNN WALKER
CONTRACT AND APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005

RE: VETERANS ADMINISTRATION HOSPITAL, PERRY
POINT, MARYLAND AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331
(ABLES, ARBITRATOR), FLRC No. 78A-176

DEAR MS. WALKER:

THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
THE ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.

ACCORDING TO THE AWARD, THE GRIEVANCE AROSE WHEN THE NIGHT NURSE
COORDINATOR ALLEGEDLY CAUGHT THE GRIEVANT, A NIGHT NURSING ASSISTANT,
SLEEPING ON DUTY AND PUT HIM ON REPORT. THIS RESULTED IN HIS SUSPENSION
FROM WORK FOR FIVE DAYS. THE GRIEVANT FILED A GRIEVANCE, WHICH WAS
ULTIMATELY SUBMITTED TO ARBITRATION, DISPUTING THE CHARGE THAT HE WAS
SLEEPING.

THE ARBITRATOR STATED THAT "THE OBJECTIVE EVIDENCE IS SUFFICIENT TO
CONCLUDE . . . (THE GRIEVANT) WAS ASLEEP FOR THE PURPOSES OF HIS
ASSIGNED DUTY." HE CONCLUDED THAT "(O)N THE EVIDENCE, THERE SEEMS TO BE
NO QUESTION THAT . . . (THE GRIEVANT) WAS ASLEEP AS CHARGED" AND "HE WAS
NOT (AS) ALERT AS HE WAS REQUIRED TO BE TO MAKE REQUIRED ROUNDS OF HIS
PATIENTS AND TO BE READY TO TAKE REQUIRED ACTION IF NECESSARY." THE
ARBITRATOR THEREFORE DENIED THE GRIEVANCE, FINDING THAT THE SUSPENSION
WAS FOR JUST CAUSE.

THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD ON
THE BASIS OF THE EXCEPTION DISCUSSED BELOW.

IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
REGULATIONS OF THE AUTHORITY (44 FED.REG. 7) AND SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215), THE
RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R. PART
2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE EXCEPT
THAT THE WORK "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE
WORD "COUNCIL" APPEARS IN SUCH RULES. ACCORDINGLY, PURSUANT TO SECTION
2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY WILL GRANT A PETITION
FOR REVIEW OF AN ARBITRATION AWARD WHERE IT APPEARS, BASED ON THE FACTS
AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTIONS TO THE
AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW,
APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS SIMILAR TO THOSE
UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS.

IN ITS EXCEPTION THE UNION STATES THAT REVIEW IS REQUESTED "BECAUSE
OF MISINTERPRETATION OF WITNESS TESTIMONY AND ERRORS IN THE OPINION."
THE UNION THEN REFERS TO SEVERAL PARAGRAPHS IN THE AWARD, APPARENTLY IN
DISAGREEMENT WITH THE WEIGHT THE ARBITRATOR GAVE CERTAIN TESTIMONY AND
WITH VARIOUS FINDINGS OF FACT MADE BY THE ARBITRATOR.

IT IS WELL ESTABLISHED UNDER THE ORDER THAT IT IS FOR THE ARBITRATOR
TO DETERMINE THE CREDIBILITY OF WITNESSES AND THE WEIGHT TO BE GIVEN
THEIR TESTIMONY, AND SUCH DETERMINATIONS ARE NOT SUBJECT TO CHALLENGE
UPON APPEAL. LABOR LOCAL 12, AFGE (AFL-CIO) AND U.S. DEPARTMENT OF
LABOR (MALLET-PREVOST, ARBITRATOR), 3 FLRC 569 (FLRC 75A-36 (SEPT. 9,
1975), REPORT ON. 82). IT IS SIMILARLY WELL ESTABLISHED THAT AN
ARBITRATOR'S FINDINGS AS TO THE FACTS ARE NOT TO BE QUESTIONED ON
APPEAL. COMMUNITY SERVICES ADMINISTRATION AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2677 (EDGETT, ARBITRATOR), 4 FLRC 101 (FLRC
NO. 75A-102 (JAN. 30, 1976), REPORT ON. 96). THEREFORE, THE UNION'S
EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION FOR REVIEW
UNDER SECTION 2411.32 OF THE RULES.

ACCORDINGLY, THE UNION'S PETITION FOR REVIEW IS DENIED BECAUSE IT
FAILS TO MEET THE REQUIREMENTS OF SECTION 2411.32 OF THE RULES FOR
ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR REVIEW OF AN ARBITRATOR'S
AWARD. /1/

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

CC: M. RUDD

VA

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.