U.S. Federal Labor Relations Authority

Search form


[ v34 p457 ]
The decision of the Authority follows:

  34 FLRA NO. 78

                       CHILLICOTHE, OHIO


                          LOCAL 1631



     			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

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

     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.