U.S. Federal Labor Relations Authority

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34:0584(98)AR - - VA Medical Center, Leavenworth, KS and AFGE Local 85 - - 1990 FLRAdec AR - - v34 p584

[ v34 p584 ]
The decision of the Authority follows:

34 FLRA No. 98










January 25, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Henry M. Grether filed by the American Federation of Government Employees, Local 85 (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 VA Medical Center, Leavenworth, Kansas (the Agency) did not file an opposition to the exceptions.

The Agency reprimanded four employees for failing to submit statements in connection with the investigation of an incident. The Union grieved the discipline imposed on the four employees. The Arbitrator found that the Agency had just cause for disciplining the employees and he denied the grievance.

For the reasons stated below, the Union's exceptions are denied.

II. Background and Arbitrator's Award

At the end of work on September 18, 1987, two employees, one of them a Union Steward, exchanged insults.

After the employee and the Steward left the Agency's premises, a fight ensued. The next day, the employee involved in the fight sought and received permission from her supervisor to report the incident to the Chief of Personnel. The employee said that "she wanted something done and that she did not want to work under those kind of conditions." Award at 3.

Three of the grievants were witnesses to the exchange of insults. They were asked by their supervisors to provide written statements concerning the incident. The fourth grievant, the Steward, was also asked for a written statement. The four grievants failed to provide the requested statements and were given reprimands for their failure to provide the statements. The Union filed a grievance contending that the reprimands were not for just and sufficient cause.

The matter was submitted to arbitration. The substantive issue before the Arbitrator was whether the Agency had "just and sufficient cause to discipline the grievants by the reprimands" issued to the four employees.(*)Award at 1.

The Arbitrator determined that the grievants' "misconduct was work related and they had a duty to comply with the supervisor's instructions. Employees do not have a right to remain silent in an administrative investigation." Award at 8. Therefore, the Arbitrator concluded that the employees' refusal to give statements "was just cause for their discipline." Award at 9. He also concluded that the discipline "was appropriate and the least discipline recommended by [the Agency's regulations]." Id.

The Arbitrator denied the grievance.

III. Position of the Union

The Union contends that the Arbitrator's award is contrary to law, regulation and the parties' negotiated agreement. The Union asserts that the Arbitrator exceeded his authority and that his award misinterprets the agreement and does not draw its essence from the agreement.

IV. Discussion

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; that is, that the award is contrary to law, rule, or regulation or that it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Rather, the Union's exceptions are an attempt to relitigate the merits of the case before the Authority and constitute nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement. See, for example, Oklahoma Air Logistics Center, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, Oklahoma City, Oklahoma, 30 FLRA 20 (1987) (exceptions which attempt to relitigate the merits of a case before the Authority and which constitute nothing more than disagreement with an arbitrator's interpretation of an agreement provide no basis for finding an award deficient).

V. Decision

The Union's exceptions are denied.

(If blank, the decision does not have footnotes.)

*/ Before filing the grievance, the Union filed an unfair labor practice charge alleging that the Agency had violated section 7114 of the Statute "by ordering an employee to give a written statement without Union representation." Award at 1. The Union later withdrew this charge. The Agency contended that the filing of the charge rendered the grievance non-arbitrable under section 7116(d) of the Statute because the charge and the grievance raised the same issues. The Arbitrator rejected this contention because he found that the issues in the charge and the grievance were different. Award at 7. The Agency did not except to the Arbitrator's finding of arbitrability.