American Federation of Government Employees, Local 2094 and Veterans Administration Medical Center, New York City (Authority decision, June 13, 1983)

Final FLRA decision. The Authority denied exceptions to an arbitration award under 5 U.S.C. § 7122. Judicial review of an arbitration order is generally excluded by 5 U.S.C. § 7123(a)(1) unless it involves an unfair labor practice under § 7118. This decision does not address an unfair labor practice.

Plain-English summary

A VA medical center suspended an employee for ten days after an arbitrator found he had slept on duty. The union challenged how the arbitrator weighed the employee’s and supervisor’s testimony. The Authority found no legal defect in the award and treated the challenge as disagreement with credibility findings. It denied the union’s exception.

Decision snapshot

• Authority: Arbitration exception review under 5 U.S.C. § 7122(a).
• Outcome: Union exception denied; ten day suspension award remained in place.
• Key point: Credibility disputes did not show an arbitration award contrary to law.

Full text (FLRA public release)

[ v12 p179 ]

12:0179(44)AR

The decision of the Authority follows:

12 FLRA No. 44

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2094
(Union)

and

VETERANS ADMINISTRATION MEDICAL
CENTER, NEW YORK CITY, NEW YORK
(Activity)

Case No. O-AR-422

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Joseph M. Pastore, Jr. filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The dispute in this matter concerns the Activity's suspension of the grievant for ten days for sleeping on duty. The Arbitrator found, based upon evaluation of the testimony of the grievant and the grievant's supervisor, that it was reasonable to conclude that the grievant was asleep on duty. The Arbitrator further found that imposition of the ten-day suspension was warranted, and concluded that the Activity did not violate the clause of the parties' collective bargaining agreement relating to discipline by suspending the grievant. As his award, the Arbitrator denied the grievance.

In its exception the Union argues that the award is illegal. In this regard, the Union contends only that since the supervisor was the Activity's sole witness to the grievant's conduct, and the dispute involves the supervisor's word against the grievant's, the Arbitrator did not have the requisite degree of proof, i.e., that a preponderance of the credible evidence, to conclude that the grievant had been asleep on duty.

Upon careful consideration of the entire record before the Authority, including the parties' contentions, the Authority concludes that the Union has failed to establish that the Arbitrator's award is contrary to law. The Union's contentions merely constitute disagreement with the Arbitrator's determinations concerning the credibility of the witnesses and the weight to be given to their testimony. Such assertions do not constitute a basis for finding the award deficient. E.g., Federal Aviation Science and Technological Association and Federal Aviation Administration, Albuquerque Airway Facilities Sector, Southwest Region, 2 FLRA 679 (1980); Rock Island Arsenal, Rock Island, Illinois and National Association of Government Employees, Local R7-72, 7 FLRA No. 124 (1982).

Accordingly, the Union's exception is denied. Issued, Washington, D.C. June 13, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY