AFGE Local 1919 and Veterans Administration National Cemetery, Farmingdale (Authority decision, August 16, 1983)

Final FLRA decision. This is an Authority order involving an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to such an order unless the order involves an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves an unfair labor practice.

Plain-English summary

A cemetery employee was suspended for misconduct involving the remains of decedents. An arbitrator found the charges sufficiently specific, found the conduct proved, and upheld the fourteen day suspension. AFGE Local 1919 argued that the arbitrator used an insufficient proof standard and discounted its evidence. The Authority rejected those arguments and denied the exceptions, leaving the suspension award in place.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; suspension award stands.
• Key point: The union did not show a legal defect in the arbitrator’s proof standard or assessment of evidence.

Full text (FLRA public release)

[ v12 p605 ]

12:0605(111)AR

The decision of the Authority follows:

12 FLRA No. 111

LOCAL 1919, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES
Union

and

VETERANS ADMINISTRATION
NATIONAL CEMETERY,
FARMINGDALE, LONG ISLAND,
NEW YORK
Activity

Case No. O-AR-224

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Herbert L. Haber filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition.

The parties submitted to arbitration the issue of whether the suspension of the grievant for 14 days was for good and sufficient cause. As the basis for the suspension, the Activity had charged that the grievant on at least three occasions during a specified seven-month period opened the caskets of decedents to expose their remains as a prank and that a named maintenance worker on another occasion had observed the grievant open the casket of a decedent, grasp his necktie, and shake the body. The Arbitrator first resolved the grievant's claim that the charges against him were impermissibly vague. The Arbitrator rejected the claim finding that the record made it clear that the grievant was fully aware of the substance of the charges against him and further finding that the charge that the grievant had been observed on one occasion by another worker was sufficiently specific to enable the grievant to investigate the alleged incident and to prepare a defense. As to whether the suspension was warranted, the Arbitrator expressly determined that the "overwhelming weight of the evidence" demonstrated that the grievant was guilty of the charges against him and that the 14-day suspension was reasonable. Accordingly, as his award, the Arbitrator sustained the suspension.

In its first exception the Union essentially contends that the award is contrary to law because the Arbitrator was required to apply a higher standard of proof than preponderance of the evidence. The Authority concludes that this exception provides no basis for finding the award deficient. As noted, the Arbitrator found that the grievant's suspension was supported by the "overwhelming weight of the evidence." Consequently, the Union does not establish that the award sustaining the suspension on this basis is contrary to law as not applying a high enough standard of proof.

In its second exception the Union essentially contends that the award is contrary to law and governing regulation because the Arbitrator sustained the grievant's suspension despite charges which were impermissibly vague as to specific dates and places. The Authority concludes that this exception provides no basis for finding the award deficient. As noted, this contention was specifically presented to and expressly rejected by the Arbitrator. The Union in repeating this contention in an exception to the award has failed to establish that the Arbitrator was compelled in the circumstances of this case to decide as a matter of law that the charges against the grievant were impermissibly vague and that consequently the Arbitrator's express determination to the contrary was deficient. See Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, 8 FLRA No. 53 (1982), at 2. Accordingly, it has not been shown that the award finding that the grievant was fully aware of the charges against him and further finding overwhelmingly that the suspension was warranted is in any manner contrary to law or governing regulation.

In its third exception the Union principally contends that the Arbitrator disregarded the evidence and testimony on behalf of the grievant and credited the evidence and testimony on behalf of management. The Authority concludes that the Union's contentions merely constitute disagreement with the Arbitrator's evaluation of the evidence and testimony, and therefore this exception provides no basis for finding the award deficient. E.g., Veterans Administration and American Federation of Government Employees, Local 997, 8 FLRA No. 49 (1982).

Accordingly, the Union's exceptions are denied. Issued, Washington, D.C., August 16, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY