41:1153(91)AR - - VA Medical Center, Kerrville, TX and AFGE Local 2281 - - 1991 FLRAdec AR - - v41 p1153
[ v41 p1153 ]
The decision of the Authority follows:
41 FLRA No. 91
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph S. Kiss, filed by the Agency 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 Union filed an opposition to the Agency's exceptions.
The grievance concerned a letter of reprimand received by the grievant for alleged patient abuse. The Arbitrator found that the Agency had not demonstrated that the grievant committed patient abuse and, accordingly, sustained the grievance.
For the following reasons, we deny the exceptions.
II. Background and Arbitrator's Award
The grievant, a nursing assistant in a nursing care unit which treats patients afflicted with Alzheimer's disease, received a letter of reprimand for two alleged instances of patient abuse. The grievant filed a grievance contesting the receipt of the letter of reprimand and the grievance was submitted to arbitration. The Arbitrator framed the issue before him as follows:
Did the [Agency] have just and sufficient cause to take a disciplinary action against [the grievant] for her actions on or about May 2, 1990 and May 10, 1990? If not, what shall be the remedy?
Award at 2.
The Arbitrator first noted that prior to the alleged incidents, the grievant's record was unblemished and she was held in high regard by her supervisors for her attitude and work. The Arbitrator also noted, however, that several of the grievant's co-workers alleged that the grievant verbally and physically abused patients on May 2 and May 10.
According to the Arbitrator, one Licensed Vocational Nurse (LVN), who was outside a patient's room when an alleged incident of verbal and physical abuse took place, testified that "she heard a slap-like sound and after some conjecture she 'figured [the grievant] could very well have slapped' the patient." Id. at 3. The same LVN also testified that she witnessed the grievant curse at a second patient. A second LVN testified that "she had heard [g]rievant verbally abuse [the second patient] . . . ." Id. at 4. Further, a Nursing Assistant "depo[s]ed that she couldn't swear" that the grievant verbally abused patients, but that the grievant may have done so "under [her] breath." Id. The Nursing Assistant further deposed that the grievant "was at times 'a little rougher than was necessary' with patients, although she never saw [g]rievant hit a patient." Id.
The Arbitrator also noted that the grievant's part-time supervisor "never saw [the grievant] belittle, berate nor abuse a patient" and instead, found the grievant's work to be "thorough and satisfactory[.]" Id. at 4. Further, the Charge Nurse "deposed" that the grievant was "one of the best qualified employees working in the unit[.]" Id. at 4-5. According to the Charge Nurse, the grievant "is resented by her co-workers" who seem "not to want to work with . . . [or] to take orders from [the grievant]." Id. at 5.
Based on the record before him, the Arbitrator held that the "case against [g]rievant is not conclusive despite the verbiage propounded against her by three witnesses, [none] of whom was a supervisor." Id. at 7. The Arbitrator found that as none of the supervisors were informed of the incidents when they actually took place, it could be assumed that there was a "deliberate bypassing of the chain of command for a purpose known best to the perpetrator." Id. The Arbitrator noted the "absolute contradiction between the allegations made against [the grievant] by the three aforementioned co-workers and the unwavering denials by the [g]rievant." Id. The Arbitrator stated that "[i]n each case it is, individually, the word of the alleger against that of [g]rievant[,]" and that none of the witnesses "has eyewitness corroboration regarding verbal abuse [by] [g]rievant." Id.
The Arbitrator concluded that the grievant's "steadfast denials of verbal abuse . . . abhorrence of the use of vulgarity and profanity . . . plus an unblemished work record, prior . . . leads to the conclusion that the charges levied against [the grievant] are devoid of proof and, therefore, must be dismissed." Id. at 7-8. Consequently, the Arbitrator ordered the Agency to expunge from the grievant's records "any reference to disciplinary action against her for patient abuse allegedly committed on or about May 2, 1990 and May 10, 1990." Id. at 8.
III. Positions of the Parties
A. The Agency's Exceptions
The Agency claims that the award is contrary to law, rule and regulation because it condones patient abuse in violation of 38 C.F.R. § 17.34a(a)(1) and 38 C.F.R. § 0.735-20(e)(5).(*) In addition, the Agency claims that the award is unlawful because it is contrary to public policy as expressed in statutory law, case law and rules and regulations of the Agency.
The Agency argues that "[i]t is well established that the Courts will refuse to enforce an arbitration award" that violates public policy. Exceptions at 4. The Agency asserts that "public policy against patient abuse is clear and unequivocal" and that case law indicates that verbal abuse of patients will not be tolerated in any Agency facilities. Id. at 4. According to the Agency, "[t]he Arbitrator . . . abandoned even the pretense of neutrality when he, without making credibility determinations at all, merely asserted that the [g]rievant did not commit patient abuse." Id. at 6. The Agency contends that the Arbitrator lacked any evidence to support his conclusion and engaged "in outrageous convoluted and contradictory rationalizations which cannot withstand the test of elementary logic." Id. The