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30:0295(35)AR - AFGE Local 171 and Federal Correctional Institution, El Reno, OK -- 1987 FLRAdec AR

[ v30 p295 ]
The decision of the Authority follows:

 30 FLRA NO. 35
 30 FLRA 295

 30 NOV 1987






Case No. 0-AR-1381


     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator John A. Zerboni, 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. For the reasons discussed below, we deny
the exceptions.

     II. Background and Arbitrator's Award

     The grievant, a Federal correctional officer, was suspended
for 14 days for alleged theft of Government property, inattention
to duty and failure to cooperate in an official investigation.
The charges arose from an incident in which the grievant and two
other officers were observed by the warden apparently eating food
left on inmates' trays after a morning meal.

     The Arbitrator framed the issue as whether the grievant's
suspension was for just and sufficient cause. He determined that
eating the leftover food was not theft of Government property.
The Arbitrator further determined that the evidence was
sufficient to sustain the remaining charges. The Arbitrator
concluded that the suspension was proper and denied the

     III. Discussion

     Is its exceptions, the union argues that the Arbitrator
failed to rule on the evidence in the case and strayed from the
charges against the grievant. The union maintains that the
testimony presented establishes that the grievant was not
inattentive to his duties and did not fail to cooperate in the
investigation of the incident. The Union also argues that the
Arbitrator's award is contrary to law because he assertedly: (1)
did not confine himself to the charges against the grievant; (2)
substituted his feelings for the evidence in reaching his
conclusions; and (3) failed to apply the preponderance of the
evidence test when he attributed more credibility to the
testimony of the warden than to the testimony of the grievant and
the other two officers.

     We conclude that the Union 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. Specifically, the Union has
failed to establish that the award is contrary to any law, rule
or regulation, or that the award is deficient on any other ground
similar to those applied by the Federal courts in private sector
labor relations cases. See, for example, Veterans Administration
Medical Center, Kansas City, Missouri and American Federation of
Government Employees, Local 2663, 29 FLRA  No. 64 (1987)
(exceptions constituting disagreement with an arbitrator's
evaluation of the evidence and testimony, especially the
credibility of witnesses and the weight to be given to their
testimony, provide no basis for finding an award deficient);
Naval Air Rework Facility and National Association of Government
Employees 257, 29 FLRA  No. 80 (1987) (allegation that an
arbitrator improperly based award on an issue that was not
presented provides no basis for finding an award deficient where
the award is directly responsive to the issue submitted for
resolution); U.S. Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, Southern
Region, North Little Rock, Arkansas and National Weather Service
Employees Organization, MEBA, AFL - CIO, 28 FLRA  768 (1987)
(exceptions constituting disagreement with an arbitrator's
findings of fact and reasoning and conclusions, and an attempt to
relitigate the merits of a grievance before the Authority, do not
provide any basis for finding an award deficient); 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 and
apply whatever standard the arbitrator considers appropriate).

     The Union's exceptions are denied.

     Issued, Washington, D.C., November 30,  1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member