30:0311(38)AR - VA Medical Center, Dayton, OH and AFGE Local 2209 -- 1987 FLRAdec AR



[ v30 p311 ]
30:0311(38)AR
The decision of the Authority follows:



 30 FLRA NO. 38
 30 FLRA 311

30 NOV 1987

VETERANS ADMINISTRATION MEDICAL
CENTER, DAYTON, OHIO

                  Activity

        and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2209

                  Union

Case No. O-AR-1435

DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator George L. Smith, Jr. filed by the Veterans
Administration (Agency) under section 7122 (a) of the Federal
Service Labor - Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. For the
reasons stated below, the Agency's exceptions are denied.

     II. Background and Arbitrator's Award

     The grievant is a nursing assistant who received a 14-day
suspension for improper behavior involving alleged sexual
improprieties with patients. The matter was submitted to
arbitration to determine whether the discipline was warranted.

     After considering the record in the case, the Arbitrator
concluded that the evidence provided in support of management's
case was not sufficient to support the discipline. In particular,
he noted that the charge against the grievant was very serious
and that "(t)he burden of proof on management is substantial."
Award at 6-7. He sustained the grievance with backpay for the
grievant and ordered that all record of the discipline be removed
from the grievant's personnel file.

     III. Discussion

     In its exceptions, the Agency contends that (1) an improper
burden of proof was imposed on management, (2) management's
evidence fulfilled the proper burden of proof, and (3) the award
was based on nonfacts.

     We conclude that the Agency has failed to establish that the
Arbitrator's award is deficient on any of the grounds set forth
in section 7122(a) of the Statute; that is, 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 Federal
courts in private sector labor relations cases. See, for example,
Bureau of Indian Affairs and National Federation of Federal
Employees, Local 243, 25 FLRA  902 (1987) (unless a specific
standard of proof is required, an arbitrator may establish
whatever standard the arbitrator considers appropriate); and
Federal Correctional Institution, Petersburg, Virginia and
American Federation of Government Employees, Local 2052,
Petersburg, Virginia, 13 FLRA  108 (1983) (exceptions which
merely attempt to relitigate the merits of the case before the
Authority and constitute nothing more than disagreement with the
arbitrator's findings of fact, reasoning, conclusions,
interpretation and application of the parties' agreement, provide
no basis for finding the