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

 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
 MISCONDUCT BY WHICH RIGHTS OF ANY PARTY WERE PREJUDICED, AND SUCH
 ASSERTIONS CONSEQUENTLY PROVIDE NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  SEE DEPARTMENT OF THE ARMY, HEADQUARTERS, 101ST AIRBORNE
 DIVISION (AIR ASSAULT) AND FORT CAMPBELL, FORT CAMPBELL, KENTUCKY AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2022, 7 FLRA NO. 6
 (1981).  MOREOVER, THE UNION HAS FAILED TO SUBSTANTIATE IN ANY MANNER
 THAT THE AWARD WAS NOT BASED ON THE TESTIMONY AND EVIDENCE PRESENTED AT
 THE HEARING.  CONTRARY TO THE UNION'S ASSERTION THAT THE ARBITRATOR'S
 FINDING THAT THE GRIEVANT HAD BEEN COUNSELED WAS NOT BASED ON HEARING
 TESTIMONY, THE ARBITRATOR IN HIS AWARD EXPRESSLY NOTED THAT THE
 ACTIVITY'S CHIEF OF PHARMACY SERVICE SPECIFICALLY TESTIFIED THAT HE HAD
 COUNSELED THE GRIEVANT.  THUS, IT IS APPARENT FROM A FULL EXAMINATION OF
 THE UNION'S EXCEPTION AND ASSERTIONS THAT THE UNION IS ESSENTIALLY
 DISAGREEING WITH THE ARBITRATOR'S EVALUATION OF THE TESTIMONY AND
 EVIDENCE PRESENTED AT THE HEARING AND IS ATTEMPTING TO RELITIGATE THE
 MERITS OF THE GRIEVANCE BEFORE THE AUTHORITY, WHICH PROVIDES NO BASIS
 FOR FINDING THE AWARD DEFICIENT.  SEE, E.G., AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 1923, AFL-CIO AND SOCIAL SECURITY
 ADMINISTRATION, 7 FLRA NO. 15 (1981).  THEREFORE, THE UNION'S EXCEPTION
 IS DENIED.
 
    ISSUED, WASHINGTON, D.C., MARCH 24, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY