American Federation of Government Employees, Local 2610 and Veterans Administration Medical and Regional Office Center, Togus (Authority decision, January 28, 1988)

Final FLRA decision. The Authority denies union exceptions to an arbitration award upholding an employee's seven-day 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 Veterans Administration employee at the Togus center was suspended for seven days after alleged threats against his supervisor and the supervisor's family. The arbitrator found that the employee made the threats and that the suspension was justified. AFGE Local 2610 challenged the factual findings, the proof standard, and the conduct of the hearing. The Authority found no reviewable defect, including no denial of a fair hearing, and denied the exceptions. The suspension remained in place.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; seven-day suspension upheld.
• Key point: Disagreement with the arbitrator's evidence assessment and hearing management did not establish a deficient award.

Full text (FLRA public release)

[ v30 p1153 ]

30:1153(126)AR

The decision of the Authority follows:

30 FLRA NO. 126
30 FLRA 1153

28 JAN 1988

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 2610

Union

and

VETERANS ADMINISTRATION
MEDICAL AND REGIONAL
OFFICE CENTER,
TOGUS, MAINE

Activity

Case No. O-AR-1458

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John Van N. Dorr III. The Arbitrator found that the 7-day suspension of the grievant for threats of bodily injury against his immediate supervisor and the supervisor's family was for just and sufficient cause and promoted the efficiency of the service. The Union filed exceptions under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. We conclude that the Union has not established that the Arbitrator denied the grievant a fair hearing; that the award is based on nonfacts; or that the Arbitrator applied the wrong standard of proof. Accordingly, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant was suspended for 7 days for threats of bodily harm against his immediate supervisor and the supervisor's family. A grievance was filed over the suspension disputing that the grievant made the threats. The grievance was submitted to arbitration on the issue of whether there was just and sufficient cause for the suspension and, if not, what should be the remedy.

The Arbitrator framed the central question to be whether the grievant made the threats against his supervisor with which he was charged. On the basis of the evidence presented, the Arbitrator found that the grievant made the threats. Having found that the threats were made, the Arbitrator found that the 7-day suspension was for just and sufficient cause and promoted the efficiency of the service. Accordingly, the Arbitrator denied the grievance.

III. Discussion

The Union contends that the award is deficient because (1) the Arbitrator made numerous errors in stating the facts; (2) the Arbitrator applied the wrong standard of proof; and (3) the Arbitrator denied the grievant a fair hearing. In particular, the Union argues that the Arbitrator failed to conduct a fair hearing by not properly considering the evidence of the Union; by admitting and considering certain evidence and testimony presented by management; by accepting post-hearing evidence over the objection of the Union; and by permitting the supervisor to whom the threats were allegedly made to remain in the hearing room throughout the hearing over the objection of the Union.

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122 (a) of the Statute. Specifically, the Union has failed to establish 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 the Federal courts in private sector labor relations cases.

The Union is disagreeing with the Arbitrator's findings of fact and his evaluation of the evidence and testimony and with the manner in which he conducted the hearing., The record reflects, contrary to the contention of the Union, that the Union consented to the consideration of the post-hearing submission. See, for example Norfolk Naval Shipyard and Tidewater Virginia Federal Employees Metal Trades Council, 30 FLRA No. 62 (1987) (unless a specific standard or burden of proof is required, an arbitrator may establish and apply whatever standard or burden the arbitrator considers appropriate); Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, Oklahoma City, Oklahoma, 30 FLRA 20 (1987) (exceptions which merely disagree with the Arbitrator's findings of fact and evaluation of the evidence and testimony provide no basis for finding an award deficient; merely because the arbitrator conducted the hearing in a manner that a party finds objectionable provides no basis for finding an award deficient). IV. Decision

The union's exceptions are denied.

Issued, Washington, D.C., January 28, 1988.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY