Veterans Administration Hospital, Perry Point, Maryland and American Federation of Government Employees, AFL-CIO, Local 331

 1 FLRA No. 95
 
                                            AUGUST 10, 1979
 
 MS. MARY LYNN WALKER
 CONTRACT AND APPEALS DIVISION
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 1325 MASSACHUSETTS AVENUE, N.W.
 WASHINGTON, D.C.  20005
 
                     RE:  VETERANS ADMINISTRATION HOSPITAL, PERRY 
                          POINT, MARYLAND AND AMERICAN FEDERATION OF                   
                          GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 331 
                          (ABLES, ARBITRATOR), FLRC No. 78A-176
 
 DEAR MS. WALKER:
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED YOUR PETITION FOR REVIEW OF
 THE ARBITRATOR'S AWARD FILED IN THE ABOVE-ENTITLED CASE.
 
    ACCORDING TO THE AWARD, THE GRIEVANCE AROSE WHEN THE NIGHT NURSE
 COORDINATOR ALLEGEDLY CAUGHT THE GRIEVANT, A NIGHT NURSING ASSISTANT,
 SLEEPING ON DUTY AND PUT HIM ON REPORT.  THIS RESULTED IN HIS SUSPENSION
 FROM WORK FOR FIVE DAYS.  THE GRIEVANT FILED A GRIEVANCE, WHICH WAS
 ULTIMATELY SUBMITTED TO ARBITRATION, DISPUTING THE CHARGE THAT HE WAS
 SLEEPING.
 
    THE ARBITRATOR STATED THAT "THE OBJECTIVE EVIDENCE IS SUFFICIENT TO
 CONCLUDE . . . (THE GRIEVANT) WAS ASLEEP FOR THE PURPOSES OF HIS
 ASSIGNED DUTY." HE CONCLUDED THAT "(O)N THE EVIDENCE, THERE SEEMS TO BE
 NO QUESTION THAT . . . (THE GRIEVANT) WAS ASLEEP AS CHARGED" AND "HE WAS
 NOT (AS) ALERT AS HE WAS REQUIRED TO BE TO MAKE REQUIRED ROUNDS OF HIS
 PATIENTS AND TO BE READY TO TAKE REQUIRED ACTION IF NECESSARY." THE
 ARBITRATOR THEREFORE DENIED THE GRIEVANCE, FINDING THAT THE SUSPENSION
 WAS FOR JUST CAUSE.
 
    THE UNION FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD ON
 THE BASIS OF THE EXCEPTION DISCUSSED BELOW.
 
    IN ACCORDANCE WITH SECTION 2400.5 OF THE TRANSITION RULES AND
 REGULATIONS OF THE AUTHORITY (44 FED.REG. 7) AND SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215), THE
 RULES OF PROCEDURE OF THE FEDERAL LABOR RELATIONS COUNCIL, 5 C.F.R. PART
 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE PRESENT CASE EXCEPT
 THAT THE WORK "AUTHORITY" IS SUBSTITUTED, AS APPROPRIATE, WHEREVER THE
 WORD "COUNCIL" APPEARS IN SUCH RULES.  ACCORDINGLY, PURSUANT TO SECTION
 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY WILL GRANT A PETITION
 FOR REVIEW OF AN ARBITRATION AWARD WHERE IT APPEARS, BASED ON THE FACTS
 AND CIRCUMSTANCES DESCRIBED IN THE PETITION, THAT THE EXCEPTIONS TO THE
 AWARD PRESENT GROUNDS THAT THE AWARD VIOLATES APPLICABLE LAW,
 APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS SIMILAR TO THOSE
 UPON WHICH CHALLENGES TO ARBITRATION AWARDS ARE SUSTAINED BY COURTS IN
 PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS.
 
    IN ITS EXCEPTION THE UNION STATES THAT REVIEW IS REQUESTED "BECAUSE
 OF MISINTERPRETATION OF WITNESS TESTIMONY AND ERRORS IN THE OPINION."
 THE UNION THEN REFERS TO SEVERAL PARAGRAPHS IN THE AWARD, APPARENTLY IN
 DISAGREEMENT WITH THE WEIGHT THE ARBITRATOR GAVE CERTAIN TESTIMONY AND
 WITH VARIOUS FINDINGS OF FACT MADE BY THE ARBITRATOR.
 
    IT IS WELL ESTABLISHED UNDER THE ORDER THAT IT IS FOR THE ARBITRATOR
 TO DETERMINE THE CREDIBILITY OF WITNESSES AND THE WEIGHT TO BE GIVEN
 THEIR TESTIMONY, AND SUCH DETERMINATIONS ARE NOT SUBJECT TO CHALLENGE
 UPON APPEAL.  LABOR LOCAL 12, AFGE (AFL-CIO) AND U.S.  DEPARTMENT OF
 LABOR (MALLET-PREVOST, ARBITRATOR), 3 FLRC 569 (FLRC 75A-36 (SEPT. 9,
 1975), REPORT ON. 82).  IT IS SIMILARLY WELL ESTABLISHED THAT AN
 ARBITRATOR'S FINDINGS AS TO THE FACTS ARE NOT TO BE QUESTIONED ON
 APPEAL.  COMMUNITY SERVICES ADMINISTRATION AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, LOCAL 2677 (EDGETT, ARBITRATOR), 4 FLRC 101 (FLRC
 NO. 75A-102 (JAN. 30, 1976), REPORT ON. 96).  THEREFORE, THE UNION'S
 EXCEPTION PROVIDES NO BASIS FOR ACCEPTANCE OF ITS PETITION FOR REVIEW
 UNDER SECTION 2411.32 OF THE RULES.
 
    ACCORDINGLY, THE UNION'S PETITION FOR REVIEW IS DENIED BECAUSE IT
 FAILS TO MEET THE REQUIREMENTS OF SECTION 2411.32 OF THE RULES FOR
 ACCEPTANCE BY THE AUTHORITY OF A PETITION FOR REVIEW OF AN ARBITRATOR'S
 AWARD.  /1/
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
    CC:  M. RUDD
 
    VA
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
 BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
 APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
 WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
 STATUTE RATHER THAN THE ORDER.