[ v34 p457 ]
The decision of the Authority follows:
34 FLRA NO. 78 U.S. DEPARTMENT OF VETERANS AFFAIRS VETERANS ADMINISTRATION MEDICAL CENTER CHILLICOTHE, OHIO and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1631 0-AR-1723 DECISION January 22, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on an exception to the award of Arbitrator Marian Kincaid Warns. The Arbitrator denied the grievance over a 14-day suspension. The American Federation of Government Employees, Local 1613 (the Union) filed an exception to the award 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 U.S. Department of Veteran Affairs, Veterans Administration Medical Center, Chillicothe, Ohio (the Agency) filed an opposition to the Union's exception. For the reasons discussed below, we find that the Union's exception provides no basis for finding the award deficient. Accordingly, we will deny the Union's exception. II. Background and Arbitrator's Award On April 29, 1988, the grievant and another employee were returning a patient to his ward when the other employee was seen hitting the patient several times. During an investigation into the alleged abuse of that patient, the grievant gave two separate sworn statements in which he claimed that no abuse had taken place. The grievant's statements conflicted with statements given by other witnesses. The Agency determined that the grievant "had not given (it) needed information, and had actually concealed pertinent facts" and suspended the grievant for 14 days. Arbitrator's Award at 4. The Arbitrator stated the issue to be whether the suspension of the grievant was "in accordance with just cause, applicable laws and regulations, and the collective bargaining agreement(.)" Id. at 2. The Agency argued that patient abuse "is an extremely serious offense" and that the grievant "deliberately undertook to keep appropriate information from the Agency" in order "to protect . . . his friend(.)" Id. at 5. The Union argued that the person who originally reported the incident "was not a credible witness(.)" Id. The Union also "challenged the credibility of the recanted testimony" of another witness and maintained that the grievant should not have been "required to give testimony against himself(.)" Id. at 6, 7. The Arbitrator found that when the grievant was first asked to give a statement on the incident "he was not in jeopardy and had no reason to withhold information since he would not have incriminated himself." Id. at 8. The Arbitrator noted that the grievant was aware of the Veterans Administration Policy Memorandum which provides that the concealment of facts in connection with an investigation may be grounds for discipline. Based on the preponderance of the evidence, the Arbitrator found that "it was unavoidable" for the grievant "not to have seen the blows" to the patient and that, therefore, the grievant "was guilty of the concealment of material facts(.)" Id. at 8, 9. The Arbitrator concluded that the 14-day suspension was within the range of disciplinary penalties for that offense and was for just cause and in accordance with applicable laws, regulations and the parties' collective bargaining agreement. Therefore, the Arbitrator denied the grievance. III. Positions of the Parties A. The Union The Union contends that the Arbitrator "failed to recognize the contractual requirement" of "fair and impartial treatment of all employees in all aspects of personnel management" and notes that the employee who admitted to "giving false testimony" in the investigation received only a written counseling from the Agency. Exception at 1 (emphasis in original). The Union asserts that this is conclusive "evidence of a contractual violation" and that, therefore, the Arbitrator's decision must be reversed. Id. at 2. B. The Agency The Agency argues that the grievant "made no case of unfair treatment during the arbitration" and that the exception "is no more than an attempt to reverse (the Arbitrator's) finding of facts and to raise (a) defense not raised before." Opposition at 3. IV. Discussion The Statute sets forth the grounds on which an arbitration award will be found deficient. Under section 7122(a), an award will be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases. The Union does not contend that the award is contrary to any law, rule, or regulation. The Union also does not contend that the award fails to draw its essence from the collective bargaining agreement. Rather, the Union argues that the award is deficient because it is contrary to provisions of the parties' collective bargaining agreement. The Union's argument constitutes disagreement with the Arbitrator's interpretation of the parties' agreement and does not state a ground similar to any ground applied by Federal courts in private sector labor relations cases. Accordingly, this contention does not state a ground on which the Authority will find an award deficient under section 7122(a) of the Statute. Consequently, the Union's exception provides no basis for finding the award deficient. Based on the rationale and conclusions of the U.S. Court of Appeals for the District of Columbia Circuit in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988), the Authority has held that the Agency has no obligation to bargain over the conditions of employment of professional medical employees of the Department of Medicine and Surgery subject to 38 U.S.C. 4108(a). U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA No. 29, slip op. at 3, 4 (1990). There is no claim by the parties that the grievant was a professional medical employee of the Department of Medicine and Surgery subject to 38 U.S.C. 4108(a). Therefore, we assume for the purposes of this decision that the court's decision in Colorado Nurses Association does not affect the award in this case. V. Decision The Union's exception is denied.