Veterans Administration (Agency) and American Federation of Government Employees, Local 997 (Union)



[ v08 p238 ]
08:0238(49)AR
The decision of the Authority follows:


 8 FLRA No. 49
 
 VETERANS ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 997
 Union
 
                                            Case No. O-AR-223
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR GEORGE V. EYRAUD, JR. FILED BY THE UNION UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5
 U.S.C. SEC. 7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR PART 2425).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE GRIEVANT RECEIVED A THREE-DAY SUSPENSION FOR THE IMPROPER
 HANDLING OF PRESCRIPTIONS AND A TEN-DAY SUSPENSION FOR FAILURE TO
 PROCESS PRESCRIPTIONS CORRECTLY.  A GRIEVANCE WAS FILED OVER THE
 SUSPENSIONS AND THE MATTER WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    AFTER REVIEWING THE TESTIMONY OF VARIOUS WITNESSES, INCLUDING THE
 GRIEVANT, AND OTHER EVIDENCE PRESENTED, THE ARBITRATOR DETERMINED THAT
 BOTH SUSPENSIONS WERE FOR JUST CAUSE.  THE ARBITRATOR STATED THAT THE
 ACTIVITY HAD MET ITS BURDEN OF PROOF ON BOTH CHARGES AND THAT THE
 GRIEVANT HAD FAILED TO RESPOND TO EITHER CHARGE IN A CREDIBLE MANNER.
 IN ADDITION, THE ARBITRATOR, CREDITING THE TESTIMONY OF THE ACTIVITY'S
 CHIEF OF PHARMACY SERVICE, FOUND THAT THE GRIEVANT HAD PREVIOUSLY BEEN
 COUNSELED AS TO WORK DEFICIENCIES AND THAT CONSEQUENTLY THE DISCIPLINE
 OF THE GRIEVANT WAS "CORRECTIVE" AS REQUIRED BY THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.  ACCORDINGLY, THE ARBITRATOR DENIED THE GRIEVANCE
 AND SUSTAINED THE SUSPENSIONS.
 
    IN ITS EXCEPTION TO THE AWARD, THE UNION PRINCIPALLY CONTENDS THAT
 THE AWARD WAS NOT BASED ON THE EVIDENCE AND TESTIMONY PRESENTED AT THE
 ARBITRATION HEARING, BUT INSTEAD WAS BASED ON A "FILE" OF THE
 ARBITRATION HEARING WHICH WAS FORWARDED TO THE ARBITRATOR, WITH A COPY
 TO THE UNION, BY THE ACTIVITY, APPARENTLY AT THE ARBITRATOR'S REQUEST.
 IN ADDITION, THE UNION CLAIMS THAT THIS CONSTITUTED AN IMPROPER EX PARTE
 CONTACT BY THE ARBITRATOR.  IN SUPPORT OF ITS ASSERTION THAT THE AWARD
 WAS NOT BASED ON THE HEARING TESTIMONY AND EVIDENCE, THE UNION MAINTAINS
 THE GRIEVANT WAS NOT COUNSELED AND THAT CONSEQUENTLY THE ARBITRATOR'S
 FINDING TO THE CONTRARY COULD NOT HAVE BEEN BASED ON HEARING TESTIMONY
 AND MUST THEREFORE HAVE BEEN BASED ON THE IMPROPER SUBMISSIONS OF THE
 ACTIVITY.
 
    THE UNION'S EXCEPTION AND ASSERTIONS PROVIDE NO BASIS FOR FINDING THE
 AWARD DEFICIENT.  THE UNION'S INEXPLICIT ASSERTIONS REGARDING THE "FILE"
 SUBMISSION TO THE ARBITRATOR BY THE ACTIVITY FAIL TO DEMONSTRATE THAT
 THE PARTY WAS DENIED A FAIR HEARING OR THAT THE ARBITRATOR WAS GUILTY OF
 MI