40:1236(108)AR - - VA Medical Center, Lexington, KY and NAGE Local R5-184 - - 1991 FLRAdec AR - - v40 p1236



[ v40 p1236 ]
40:1236(108)AR
The decision of the Authority follows:


40 FLRA No. 108

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

LEXINGTON, KENTUCKY

(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R5-184

(Union)

0-AR-2071

DECISION

May 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on an exception to an award of Arbitrator Stanley H. Sergent filed by the 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. The Union filed an opposition to the Agency's exception.

The grievance concerned the 3-day suspension of the grievant for verbal patient abuse. The Arbitrator found that the Agency had not demonstrated that the grievant was guilty of patient abuse and sustained the grievance.

For the following reasons, we deny the Agency's exception.

II. Background and Arbitrator's Award

On February 26, 1990, the grievant, a Licensed Practical Nurse (LPN) with over 23 years' experience, was asked by an LPN with 6 months' experience for her assistance in moving and changing a patient who had soiled himself and his bed. After providing the requested assistance, the grievant helped to place the patient on a commode chair beside the patient's bed.

According to the other LPN, the grievant: (1) informed the patient that he would have to sit on the chair for 3 hours; and (2) used profanity in the patient's presence. The LPN also testified that, after the grievant left the patient's room, the patient "began weeping and saying that he was sorry for the mess he had made." Award at 4. The patient also stated that it would be impossible for him to sit on the commode for 3 hours and that he did not want the grievant back in his room.

According to the grievant: (1) her use of profanity occurred outside of the patient's room and his hearing; (2) the request made of the patient was that he should sit up for 3 hours, not that he should sit on the commode for 3 hours; and (3) the request was in keeping with the orders of the patient's doctors.

The LPN who had requested the grievant's assistance filed an incident report. After an investigation, the Agency suspended the grievant for 3 days. The Union grieved the suspension and when the matter was not resolved, the Union invoked arbitration.

The parties stipulated the issue as "whether the discipline which was administered to the grievant was in accordance with the 'just cause' provision set out in Article 11, Section 3 of the collective bargaining agreement." Award at 11. The Arbitrator noted that, under Article 11, Section 3, just cause was defined "not only in terms of proof of guilt but also by requiring that the discipline imposed be commensurate with the seriousness of the offense . . . ." Id. at 11-12.

The Arbitrator found that the Agency "made a reasonable and proper determination that . . . a three day suspension would be sufficient to correct the deficiency in the grievant's performance" and that the Agency's penalty met the test of just cause. Id. at 12-13. The Arbitrator determined, however, that "[t]he central issue of this dispute concerns whether or not the grievant is in fact guilty of the misconduct of which she is accused." Id. at 13. Noting the grievant's competence, experience, outstanding performance record, and the fact that the grievant had no previous discipline during her employment at the Lexington Veterans Affairs (VA) Medical Center, the Arbitrator determined that "a high standard of proof is required to establish the grievant's guilt." Id.

The Arbitrator stated that "the crux of this dispute involves an issue of credibility." Id. The Arbitrator noted that the grievant, the LPN who requested the grievant's assistance, and the patient were the only eyewitnesses to the incident. The Arbitrator found that, because the patient was not present as a witness and the testimony of the two LPNs was diametrically opposed, the issue was whether the grievant or the other nurse was more credible. The Arbitrator found that "the credibility issue must be resolved in favor of the grievant." Id. at 14.

In this regard, the Arbitrator stated that "one major factor to be considered in assessing the gr[ie]vant's culpability is that the patient, who after all was the injured party in this case, did not file a formal complaint against the grievant and did not appear as a witness to testify against her in arbitration." Id. The Arbitrator found that no explanation was given as to why the patient did not testify or "why the hospital did not take a statement from the patient to be offered as evidence in the event of his unavailability or unwillingness to testify." Id. The Arbitrator found that "th[e]se factors clearly warrant an inference that the patient's testimony would not have supported the hospital's case." Id.

The Arbitrator also found that the nurse who had requested the grievant's assistance was "a relatively new and inexperienced LPN who had made a serious medication error the night preceding the incident" and who was concerned that she might lose her job. Id. at 15. The Arbitrator found that "she may have overreacted to the circumstances surrounding an extremely difficult patient and exaggerated or distorted her report . . . ." Id. The Arbitrator also found that the testimony of the LPN was totally uncorroborated.

The Arbitrator further found that the actions of the grievant were inconsistent with a finding of patient abuse. The Arbitrator found that: (1) the patient was not the grievant's patient; (2) the grievant had returned to provide her assistance on more than one occasion; (3) all witnesses called on the grievant's behalf, including the patient's doctors, attested to the grievant's excellent qualifications and manner and tended to corroborate her version of the incident.

Based on his findings, the Arbitrator resolved the credibility issue in favor of the grievant. The Arbitrator, therefore, concluded that the Agency did not meet its burden of proving that the grievant was guilty of patient abuse and sustained the grievance.

III. Positions of the Parties

A. The Agency

The Agency contends that the award is deficient because the Arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence. The Agency states that although the Arbitrator accepted joint exhibits from the parties and heard the testimony of witnesses called by the parties, he refused to accept into evidence the Agency's Patient Abuse Investigative File, which contained, among other things, a statement from the patient. The Agency states that the Arbitrator's refusal to accept the investigative file was accompanied by "a statement to the effect that he would make his own findings." Exception at 2.

The Agency argues that "[h]ad the Arbitrator accepted the patient's statement, he would have recognized that the patient's distress was directly related to the grievant's abrupt behavior." Id. at 5. According to the Agency, "the patient's statement was made available to the Arbitrator, who had no justification for refusing its admission . . . ." Id. at 8. The Agency also asserts that the patient had already been released by the time of the hearing and that "the VA generally discourages involving its patients in adversarial proceedings . . . ." Id.

The Agency asserts that the Arbitrator acknowledged that the patient's statement "would tend to have prevented an adverse inference that he drew in this case." Id. at 9. The Agency argues, therefore, that the Arbitrator's refusal to accept the patient's statement was "destructive of the VA's right to present its case." Id. at 10.

B. The Union

The Union contends that the Agency's exception was untimely filed because it was filed more than 30 days after the Agency received the Arbitrator's award. The Union argues that the Agency received the award on February 6, 1991, and the exception should have been filed by March 8, 1991. Because the Agency filed its exception on March 11, 1991, the Union asserts that "the time for filing an exception as contained in 5 C.F.R. Section 2425.1(b) had expired." Opposition at 2. In support of its position, the Union relies on the affidavit of a Union official who states that he was informed on February 6, 1991, by the Agency's representative that the representative "had already received the Arbitrator's decision." Attachment to Union's Opposition.

The Union also contends that the Arbitrator did not deny the Agency a fair hearing. The Union states that "[t]he sole basis of [the Agency's] argument is that the Arbitrator denied the [A]gency its request to submit its own investigative finding, opting instead to make his own finding . . . ." Opposition at 3. The Union argues that: (1) arbitrators have wide latitude in the way that they conduct their hearings; and (2) a contention that an arbitrator denied one of the parties a fair hearing is not supported by the fact that that party finds the manner in which the hearing was conducted to be objectionable.

As to the Agency's argument that the Arbitrator improperly denied the Agency's request to submit its investigative report, which included a statement by the patient, the Union states that "[w]hat the [Agency] fails to advise is that the patient's statement was not proffered individually with any explanation for its necessity." Id. at 3. The Union points out that after the Agency had offered an explanation regarding why another witness was unavailable, the Arbitrator accepted the statement of that witness into the record. The Union states that "the [A]gency did not make any such offer regarding the patient's statement." Id. at 4.

Moreover, the Union argues that the Agency did not state that the patient was unavailable or that the patient's statement was being offered because the patient was not available. The Union asserts that "[i]nstead [the Agency] relies on a VA policy not to involve patients [in third-party proceedings]." Id. at 6.

IV. Analysis and Conclusions

We conclude that: (1) the Agency's exception was timely filed; and (2) the Agency has failed to establish that the award is deficient because the Arbitrator denied the Agency a fair hearing. Accordingly, we will deny the Agency's exception.

A. The Agency's Exception Was Timely Filed

The Union contends that the award is untimely filed based on its assertion that the Agency received the Arbitrator's award on February 6, 1991. However, under section 2425.1(b) of the Authority's Rules and Regulations, the date of service of an arbitrator's award, not the date of receipt, is relevant in determining the timeliness of exceptions filed by a party to an arbitration award. U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 37 FLRA 877 (1990), reconsideration denied, 38 FLRA 1527 (1991).

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). Absent evidence to the contrary, the date of an arbitration award is presumed to be the date of service. See Oklahoma City Air Logistics Center, Tinker Air Force Base and American Federation of Government Employees, Local No. 916, 32 FLRA 165, 167 (1988), reconsideration dismissed, 32 FLRA 663 (1988). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. § 2429.22.

In this case, the Arbitrator's award was dated, and thus presumed to be served on the parties on, February 4, 1991. The 30-day time period for filing exceptions, therefore, expired on March 5, 1991. Because the award was served by mail, 5 days were added to the filing period and the time period for filing exceptions was advanced to March 10, 1991. However, because March 10, 1991, was a Sunday, the time limit for filing exceptions was again advanced to the end of the next workday. 5 C.F.R. § 2429.21(a). The Agency's exception, therefore, had to be filed by Monday, March 11, 1991 to be timely. The Agency's exception was filed with the Authority on March 11, 1991. Therefore, the Agency's exception was timely filed.

B. The Arbitrator Did Not Deny the Agency a Fair Hearing

Arbitrators have considerable latitude in the conduct of an arbitration hearing. In order to demonstrate that an arbitrator failed to conduct a fair hearing, it must be shown that the arbitrator refused to hear pertinent or material evidence or otherwise improperly prejudiced a party in some way. Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 351 (1990) (Antilles Consolidated School System).

In this case, the Agency has not established that the Arbitrator's conduct of the hearing resulted in an unfair hearing. The Agency acknowledges that the Arbitrator accepted the parties' joint exhibits and heard testimony from individuals called by the parties. There is no showing that the Agency attempted to call the patient to testify or that the Arbitrator refused to allow the patient to testify.

We find, therefore, that the Agency has not demonstrated that the award is deficient because the Arb