46:1197(111)AR - - Army, Medical DEPT. Activity, Fort Lee, Virginia and AFGE Local 1178 - - 1993 FLRAdec AR - - v46 p1197
[ v46 p1197 ]
The decision of the Authority follows:
46 FLRA No. 111
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
MEDICAL DEPARTMENT ACTIVITY
FORT LEE, VIRGINIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
January 15, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Steven M. White filed by the Union 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 Agency filed an opposition to the Union's exceptions.
The grievant filed a grievance contesting her 5-day suspension for discourteous behavior. The Arbitrator denied the grievance.
For the following reasons, we conclude that the Union has not established that the award is deficient. Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievant is a pediatric nurse. On December 16, 1991, a mother brought her sick infant to the clinic where the grievant was working. After consulting with a doctor, the mother "was instructed to go to the lab and to X-ray for tests and pictures." Award at 2. When the mother returned to the clinic, the grievant "questioned the order in which [the mother] made these stops." Id.
While the mother was in the waiting room, another nurse "softly asked" the grievant what was wrong with the child. Id. The grievant "responded in a loud, accusatory voice that the child had pneumonia and that it was awful for a child of this age to be so sick." Id. The mother heard this conversation and felt that the grievant had accused her of being an unfit mother.
After another consultation, the doctor asked the grievant to copy some documents for the mother to take to the hospital where the child would be admitted. The grievant's response to the doctor's request "was one of ambivalence." Id.
The mother filed a formal complaint against the grievant. After investigating the charge, the grievant's supervisor wrote a memorandum on December 30, 1991, recommending that the grievant be given a 5-day suspension for her behavior. The grievant had received a prior letter of reprimand for discourteous behavior in March 1991. The Chief of Ambulatory Nursing reviewed and approved the supervisor's recommendation but did not personally investigate the incident.
The grievant filed a grievance contesting the suspension. The grievance was not resolved and was submitted to arbitration. The Arbitrator stated the issue as follows:
Was Management correct in giving the [g]rievant . . . a [5-]day suspension for discourteous behavior?
Id. at 1.
Before the Arbitrator, the Union contended, among other things, that the charges were "distorted" and that the grievant's conduct did not warrant a 5-day suspension. Id. at 6. In particular, the Union argued that no one had confirmed the exact statement made by the grievant in the waiting room that had upset the child's mother.
The Arbitrator noted the testimony of the other nurse in the clinic that the mother was upset and crying and that the implication in the grievant's "tone of voice" was that "the parents had not done a good job because the child was so young and so sick." Id. at 8. The Arbitrator also noted the testimony of the mother that the grievant's actions had made her upset and "made her feel as though she was a 'bad' mother." Id. at 10.
The Arbitrator further noted that, in her memorandum of December 30, 1991, the supervisor quoted the mother as saying that the grievant had said "'I can't believe it-16 days old and pneumonia!'," whereas "the written quote from the Record of Patient Encounter was 'A 16 day old baby with pneumonia, that's awful!'." Id. Rejecting the Union's contention that the difference in the quotes was substantive, the Arbitrator stated that, based on the testimony of the witnesses and the fact that the mother was emotionally upset when she heard the comment, he was "not concerned that the actual verbiage of the two quotes [was] different." Id. at 11.
Accordingly, the Arbitrator found that "the incident was accurately depicted and that [the grievant] in fact made a statement that later proved to be offensive and hurtful to the mother of the sick child." Id. Noting the grievant's prior reprimand for discourteous behavior, the Arbitrator found that the Agency had followed a progressive disciplinary procedure in suspending the grievant for 5 days. The Arbitrator found that the grievant's actions constituted "the second offense of being discourteous" and, according to the Agency's regulations, management "had the prerogative of giving [the grievant] a written reprimand [up] to giving her a five[-]day suspension." Id. at 11-12. Consequently, as his award, the Arbitrator upheld the 5-day suspension "for misconduct, specifically discourteous behavior," and denied the grievance. Id. at 12.
III. First and Second Exceptions
A. Union's Contentions
The Union contends that: (1) the award contains various discrepancies in the statement of the background and facts; and (2) the Arbitrator "interjected assumptions and opinions that were not supported by testimony." Exceptions at 1. The Union asserts that "the Arbitrator's lack of attention to detail is obvious throughout his opinion and award." Id.
B. Agency's Opposition
The Agency contends that the Union has not established that the award is deficient. The Agency argues that the Union's exceptions constitute mere disagreement with the Arbitrator's findings of fact and with his specific reasoning and conclusions.
C. Analysis and Conclusions
We interpret the Union's exceptions as contentions that the Arbitrator's award is based on nonfacts. Where a party contends that an arbitrator's award is deficient under the Statute because it is based on nonfacts, the party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See, for example, American Federation of Government Employees, AFL-CIO, Local 2754 and General Services Administration, Region Six, Kansas City, Missouri, 45 FLRA 670, 672 (1992).
The factual inconsistencies, assumptions, and opinions of the Arbitrator alleged by the Union in its exceptions do not constitute clearly erroneous facts on which the Arbitrator's award is based but for which a different result would have been reached by the Arbitrator. We find, therefore, that the Union is merely disagreeing with the Arbitrator's findings of fact. Such disagreement provides no basis for finding the award deficient. Accordingly, we conclude that the Union has not established that the award is deficient and we will deny the Union's first and second exceptions.
IV. Third Exception
A. Union's Contentions
The Union contends that the Arbitrator ignored the requirements of Agency regulations and the parties' agreement in making his award. Specifically, the Union argues that the Arbitrator ignored pertinent parts of an Agency regulation which permits the reversal of a formal disciplinary action if consideration is not given to an employee's explanation of his or her actions. Because the Chief of Ambulatory Nursing did not investigate the actual occurrence of the incident, the Union argues that "'full and careful consideration' could not have been given to the [g]rievant's reply . . . ." Exceptions, Enclosure 2 at 4.
The Union also argues that the Arbitrator did not consider pertinent portions of the parties' agreement that encourage the parties "to adjust disciplinary actions informally and promptly." Id. at 2. According to the Union, the handling of the grievance by the Agency was neither informal nor prompt because "it took management 15 days before giving the [g]rievant a letter of proposed suspension." Id.
B. Agency's Opposition
The Agency contends that the Union's exception does not provide a basis for overturning the Arbitrator's award. The Agency argues that the Union has not established that the award is inconsistent with any law, rule, or regulation and that the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement.
C. Analysis and Conclusions
The Union's contentions provide no basis for finding the award deficient. With respect to the Agency regulation that the Union claims was ignored by the Arbitrator, the Union has not cited any portion of the Arbitrator's award with which the regulation allegedly conflicts and no conflict is apparent to us. In our view, therefore, the Union's contention constitutes nothing more than disagreement with the Arbitrator's findings of fact and his conclusions. As such, the contention provides no basis for finding the award deficient. See, for example, U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1142 (1992).
Further, we construe the Union's allegation that the award violates the parties' agreement because it ignores pertinent provisions of that agreement as a contention that the award does not draw its essence from the parties' agreement. To demonstrate that an award is deficient on this basis, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement as to manifest an in