Veterans Administration Medical Center, Dayton, Ohio and American Federation of Government Employees, Local 2209 (Authority decision, November 30, 1987)

Final FLRA decision. The Authority denies the agency's exceptions to an arbitration award setting aside a suspension. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not decide an unfair labor practice.

Plain-English summary

A Dayton VA Medical Center nursing assistant received a 14-day suspension for alleged improper conduct involving patients. An arbitrator found the evidence insufficient to support the discipline, ordered backpay, and directed removal of the suspension from the employee's record. The VA argued that the arbitrator used the wrong burden of proof, overlooked its evidence, and relied on nonfacts. The Authority found no legal or other reviewable defect in the award and denied the agency's exceptions.

Decision snapshot

• Authority: Review of an arbitration award under 5 U.S.C. § 7122(a).
• Outcome: Agency's exceptions denied; suspension set aside with backpay and record correction.
• Key point: The agency did not show a reviewable defect in the arbitrator's assessment of proof and facts.

Full text (FLRA public release)

[ v30 p311 ]

30:0311(38)AR

The decision of the Authority follows:

30 FLRA NO. 38
30 FLRA 311

30 NOV 1987

VETERANS ADMINISTRATION MEDICAL
CENTER, DAYTON, OHIO

Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2209

Union

Case No. O-AR-1435

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator George L. Smith, Jr. filed by the Veterans Administration (Agency) under section 7122 (a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. For the reasons stated below, the Agency's exceptions are denied.

II. Background and Arbitrator's Award

The grievant is a nursing assistant who received a 14-day suspension for improper behavior involving alleged sexual improprieties with patients. The matter was submitted to arbitration to determine whether the discipline was warranted.

After considering the record in the case, the Arbitrator concluded that the evidence provided in support of management's case was not sufficient to support the discipline. In particular, he noted that the charge against the grievant was very serious and that "(t)he burden of proof on management is substantial." Award at 6-7. He sustained the grievance with backpay for the grievant and ordered that all record of the discipline be removed from the grievant's personnel file.

III. Discussion

In its exceptions, the Agency contends that (1) an improper burden of proof was imposed on management, (2) management's evidence fulfilled the proper burden of proof, and (3) the award was based on nonfacts.

We conclude that the Agency has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to any law, rule, or regulation or that the award is deficient on other grounds similar to those applied by Federal courts in private sector labor relations cases. See, for example, Bureau of Indian Affairs and National Federation of Federal Employees, Local 243, 25 FLRA 902 (1987) (unless a specific standard of proof is required, an arbitrator may establish whatever standard the arbitrator considers appropriate); and Federal Correctional Institution, Petersburg, Virginia and American Federation of Government Employees, Local 2052, Petersburg, Virginia, 13 FLRA 108 (1983) (exceptions which merely attempt to relitigate the merits of the case before the Authority and constitute nothing more than disagreement with the arbitrator's findings of fact, reasoning, conclusions, interpretation and application of the parties' agreement, provide no basis for finding the award deficient).

Accordingly, the Agency's exceptions are denied.

Issued, Washington, D.C., November 30, 1987

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY