34:0893(149)AR - - Veterans Affairs, Medical Center, Memphis, TN and NAGE Local R5-66 - - 1990 FLRAdec AR - - v34 p893

[ v34 p893 ]
The decision of the Authority follows:

34 FLRA No. 149













February 16, 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 Lawrence Mann, Jr. filed by the Union pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency filed an opposition to the exceptions.

The Arbitrator denied a grievance over the Agency's decision to suspend the grievant for 14 days. The Union contends that the award is contrary to law. For the following reasons, we deny the exceptions.

II. Background and Arbitrator's Award

The grievant is a respiratory therapist. Following an incident involving a problem with a patient's ventilator, the Medical Center Director appointed a Board of Investigation to investigate the incident and report its findings to him. The Board concluded that the incident occurred when the grievant changed the patient's ventilator circuit but failed to "gut" a one-way valve in the circuit, thereby preventing the patient from exhaling. Award at 2.

The Medical Center Director testified before the Arbitrator that, based upon his review of all the evidence including responses from the grievant, he had determined that the grievant "was careless and negligent in failing to gut the one-way valve and additionally was careless and negligent in failing to properly trouble-shoot the problem." Id. The Director also testified that he had reviewed the grievant's record of employment, including his 21 years of service, and decided to suspend the grievant for 14 days. The suspension was grieved and submitted to arbitration.

The issues before the Arbitrator were: "Did the Agency violate the collective bargaining agreement in suspending the Grievant in November 1988? If so, what shall the remedy be?" Id.

The Arbitrator denied the grievance. He noted that, under the parties' collective bargaining agreement, management has the right to discipline employees for cause if it does so in a just and fair manner. He found that "the preponderance of the evidence offered in this particular matter must go against the Grievant." Id. at 6. He determined that the Agency had fulfilled its obligations in having a Board of Investigation and that the evidence brought out in the Board's investigation demonstrated that the grievant had the responsibility for the one-way valve in the ventilator circuit. Id. The Arbitrator also noted that he "took into effect the testimony of all witnesses at the hearing." Id.

With regard to the Union's contention that the suspension of the grievant for 14 days was too severe, the Arbitrator stated that the Union had cited one case from several years earlier in which the penalty differed from that given to this grievant, but he concluded that "one case in the far past does not constitute a precedent." Id. The Arbitrator set forth several criteria for determining whether disciplinary action is for just or reasonable cause, including whether the employer had applied its penalties evenhandedly and whether the degree of discipline was reasonably related to both the seriousness of the offense and the past record of the employee. He determined that the Agency had acted "within the criteria" and that the grievance was without merit. Id.

III. Positions of the Parties

A. Union's Exceptions

In its first exception, the Union contends that the award is contrary to law because the Arbitrator failed to use the proper legal standard to determine the issue of disparate treatment as to the severity of the discipline. The Union claims that the Arbitrator incorrectly analyzed the issue as one involving a "past practice." Union's Brief at 3. The Union asserts that the Arbitrator failed to consider whether the Agency demonstrated a valid reason for issuing widely disparate penalties under similar circumstances, and his failure to make that inquiry is contrary to law.

In its second exception, the Union asserts that the award is contrary to law because the Arbitrator failed to consider the evidence of record and analyze the issues presented. The Union contends the Arbitrator did "not even consider or weigh the evidence adduced at the hearing and make a decision based on the record as a whole." Id. at 2. Further, the Union asserts that the Arbitrator failed to make findings to support his conclusion that the discipline in this case was for just cause.

As its third exception, the Union contends that the Arbitrator failed to make any findings of fact in support of his conclusion that the 14-day suspension was appropriate. The Union asserts that the Arbitrator "hardly discusses the penalty imposed at all." Id. at 4.

B. Agency's Opposition

The Agency contends that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's findings of fact, his evaluation of the evidence and testimony, and the specificity with which he discussed particular matters. The Ag