American Federation of Government Employees, AFL-CIO, Local 2094 (Union) and Veterans Administration Hospital (Activity)  

 2 FLRA No. 88
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2094
 Union
 
 and
 
 VETERANS ADMINISTRATION HOSPITAL
 Activity
 
                                            Case No. 0-AR-24
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON A PETITION FOR REVIEW OF THE
 AWARD OF ARBITRATOR BENJAMIN H. WOLF FILED BY THE UNION UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. SEC. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANT, A MEDICAL TECHNICIAN
 EMPLOYED AT THE VETERANS ADMINISTRATION HOSPITAL IN NEW YORK CITY,
 CHALLENGED AN ADMONISHMENT ISSUED FOR HIS ALLEGED FAILURE TO ADEQUATELY
 SEARCH FOR A PATIENT'S BLOOD BANK RECORD CARD.  THE MATTER WAS
 ULTIMATELY SUBMITTED TO ARBITRATION.
 
    BASED ON THE EVIDENCE PRESENTED AT THE HEARING, THE ARBITRATOR FOUND
 THAT THE ONLY "CREDIBLE EXPLANATION" FOR THE GRIEVANT'S FAILURE TO FIND
 THE PATIENT'S CARD WAS THE GRIEVANT'S "INADEQUATE SEARCH" AT THE BLOOD
 BANK AND NOT THE DEFENSE ADVANCED BY THE UNION ON BEHALF OF THE
 GRIEVANT.  CONSEQUENTLY, THE ARBITRATOR DENIED THE GRIEVANCE, FINDING IN
 HIS AWARD THAT "JUST CAUSE" EXISTED FOR THE ACTION TAKEN AGAINST THE
 GRIEVANT.
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 PURSUANT TO THE RULES OF PROCEDURE SET FORTH IN 5 C.F.R.PART 2411(1978),
 WHICH, TO THE EXTENT CONSISTENT WITH THE PROVISIONS OF SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122
 (A)) AND AS AMENDED BY SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED.REG.
 44741), REMAIN OPERATIVE WITH RESPECT TO THIS CASE.  THE UNION SEEKS
 AUTHORITY ACCEPTANCE OF ITS PETITION ON THE BASIS OF THE EXCEPTION
 DISCUSSED BELOW.  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    PURSUANT TO SECTION 2411.32 OF THE AMENDED RULES AND SECTION 7122(A)
 OF THE STATUTE, THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN
 ARBITRATOR'S AWARD WHERE IT APPEARS, BASED UPON THE FACTS AND
 CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE AWARD IS DEFICIENT
 BECAUSE IT IS CONTRARY TO LAW OR REGULATION, OR ON OTHER GROUNDS SIMILAR
 TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE AWARD IS
 "CONTRARY TO LAW, RULE OR REGULATION." IN SUPPORT OF ITS EXCEPTION, THE
 UNION ASSERTS THAT THE ARBITRATOR'S HANDLING OF THE CASE WAS "ARBITRARY
 AND CAPRICIOUS," REFERRING TO THE PROVISIONS OF SECTION 7701(C)(1)(B) OF
 TITLE 5, UNITED STATES CODE, AND STATING THAT THE AGENCY, IN ITS CASE
 BEFORE THE ARBITRATOR, DID NOT SUSTAIN THE BURDEN OF PROOF REQUIRED BY
 THAT SECTION.  /1/ THE UNION ALSO ASSERTS THAT THE ARBITRATOR WAS
 ARBITRARY AND CAPRICIOUS IN HIS HANDLING OF EVIDENCE PROFFERED BY THE
 UNION AT THE HEARING, PARTICULARLY EVIDENCE REGARDING ALLEGED
 HARRASSMENT OF THE GRIEVANT BY A SUPERIOR.
 
    THE AUTHORITY WILL GRANT A PETITION FOR REVIEW OF AN ARBITRATOR'S
 AWARD WHERE IT APPEARS, BASED ON THE FACTS AND CIRCUMSTANCES DESCRIBED
 IN THE PETITION, THAT THE AWARD VIOLATES LAW OR REGULATION.  HOWEVER, IN
 THIS CASE THE UNION HAS NOT PRESENTED SUFFICIENT FACTS AND CIRCUMSTANCES
 TO SUPPORTS ITS EXCEPTION.
 
    THE UNION HAS NOT DEMONSTRATED IN ITS PETITION IN WHAT MANNER THE
 ARBITRATOR'S AWARD IS CONTRARY TO THE PROVISIONS OF 5 U.S.C.
 7701(C)(1)(B) AND, ON ITS FACE, THAT SECTION PERTAINING TO APPELLATE
 REVIEW BY THE MERIT SYSTEMS PROTECTION BOARD WOULD APPEAR INAPPLICABLE
 TO THE ARBITRATOR'S AWARD IN THIS CASE.  /2/ AS TO THE UNION'S
 ASSERTIONS REGARDING THE ARBITRATOR'S HANDLING OF EVIDENCE PROFFERED BY
 THE UNION AT THE HEARING, IT APPEARS FROM THE ARBITRATOR'S "DISCUSSION"
 OF THE CASE THAT HE CONSIDERED THE UNION'S CONTENTION REGARDING THE
 ALLEGED HARASSMENT OF THE GRIEVANT.  IN THIS REGARD, THE ARBITRATOR
 STATED THAT "(N)O MATTER WHAT FAULT ONE MIGHT FIND WITH (THE SUPERIOR'S)
 ATTITUDE TOWARDS (THE GRIEVANT), WE ARE FACED WITH THE FACT THAT (THE
 GRIEVANT) DID NOT FIND . . . (THE) CARD, THE ONLY CREDIBLE EXPLANATION
 BEING THAT HE MADE AN INADEQUATE SEARCH, A REQUIRED PROCEDURE AT THE
 BLOOD BANK." THE UNION'S EXCEPTION IS IN EFFECT A DISAGREEMENT WITH THE
 REASONING EMPLOYED BY THE ARBITRATOR IN REACHING HIS AWARD ON THE MERITS
 THAT THE GRIEVANT'S ADMONISHMENT WAS FOR "JUST CAUSE." THE AUTHORITY
 WILL NOT GRANT A PETITION FOR REVIEW WHERE IT APPEARS FROM THE FACTS AND
 CIRCUMSTANCES PRESENTED THAT THE PETITIONER IS DISAGREEING WITH THE
 REASONING EMPLOYED BY THE ARBITRATOR ON THE MERITS OF THE ISSUE BEFORE
 HIM.  FEDERAL AVIATION SCIENCE AND TECHNOLOGICAL ASSOCIATION AND FEDERAL
 AVIATION ADMINISTRATION, ALBUQUERQUE AIRWAY FACILITIES SECTOR, SOUTHWEST
 REGION, CASE NO. O-AR-20,-- FLRA NO.-- (-- ,1980), REPORT NO.-- .
 THEREFORE, THE UNION'S EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS
 PETITION UNDER 2411.32 OF THE AMENDED RULES.
 
    ACCORDINGLY, THE UNIONS PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD
 IS DENIED BECAUSE IT FAILS TO MEET THE REQUIREMENTS OF SECTION 2411.32
 OF THE AMENDED RULES FOR ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR
 REVIEW OF AN ARBITRATOR'S AWARD.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 22, 1980.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7701 OF TITLE 5, UNITED STATES CODE, DEALS WITH APPELLATE
 PROCEDURES OF THE MERIT SYSTEMS PROTECTION BOARD;  SECTION 7701(C)(1)(B)
 PROVIDES WITH RESPECT TO CERTAIN CASES APPEALED TO THE BOARD THAT THE
 DECISION OF THE AGENCY SHALL BE SUSTAINED ONLY IF THE AGENCY'S DECISION
 IS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE.
 
    /2/ THE AUTHORITY NOTES THAT UNDER 5 U.S.C. 7121(E)(2), IN CERTAIN
 MATTERS AN ARBITRATOR IS GOVERNED BY THE STANDARDS SET FORTH IN 5 U.S.C.
 7701(C)(1).  HOWEVER, SECTION 7121(E)(2) DOES NOT PERTAIN TO AN
 ADMONISHMENT GIVEN TO AN EMPLOYEE.