Veterans Administration Medical Center (Activity) and American Federation of Government Employees, Local 1985 (Union) 



[ v03 p560 ]
03:0560(91)AR
The decision of the Authority follows:


 3 FLRA No. 91
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER
 Activity
 
 and
 
 AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 LOCAL 1985
 Union
 
                                            Case No. 0-AR-46
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR FERRIN Y. MATHEWS FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE ACTIVITY'S PERSONNEL SERVICE SENT ONLY THE NAME OF ONE HIGHLY
 QUALIFIED CANDIDATE TO THE SELECTING OFFICIAL FOR CONSIDERATION WITH
 RESPECT TO A PROMOTIONAL OPPORTUNITY.  THE UNION FILED A GRIEVANCE
 CONTENDING THAT SUCH ACTION BY THE ACTIVITY VIOLATED ARTICLE 24, SECTION
 I(4) OF THE NEGOTIATED AGREEMENT, WHICH PROVIDES THAT "(N)O MORE THAN
 THE 3 BEST QUALIFIED CANDIDATES WILL BE CERTIFIED.  . . . "
 
    THEREIN, THE UNION INTERPRETED THE CONTRACT SECTION TO MEAN:
 
    (T)HE THREE HIGHEST RANKING CANDIDATES WILL BE CERTIFIED AND REFERRED
 TO THE SELECTING
 
    OFFICIAL FOR CONSIDERATION, REGARDLESS OF WHETHER OR NOT THEY ARE
 HIGHLY QUALIFIED.
 
    ADDITIONALLY, THE UNION ASSERTED THAT MANAGEMENT HAD AGREED TO SEND
 THE NAMES OF THE THREE "HIGHEST RANKING CANDIDATES" TO THE SELECTING
 OFFICIAL AND THAT SUCH PROCEDURE HAD BECOME AN ESTABLISHED PRACTICE.
 THE PARTIES WERE UNABLE TO RESOLVE THE DISPUTE AND IT WAS ULTIMATELY
 SUBMITTED TO ARBITRATION.
 
    THE ISSUE AS STIPULATED BY THE PARTIES WAS:
 
    WITH RESPECT TO MERIT PROMOTION OPPORTUNITY 79-5, DID THE MEDICAL
 CENTER VIOLATE THE
 
    CONTRACT OR PAST PRACTICE, IF SUCH EXISTED, BY REFERRING FOR
 PROMOTION CONSIDERATION ONLY THE
 
    SINGLE CANDIDATE DETERMINED TO BE "HIGHLY QUALIFIED"?  IF SO, WHAT IS
 THE REMEDY?
 
    IN CONSIDERING THIS ISSUE THE ARBITRATOR CONCLUDED THAT "THE AGENCY
 ACTED PROPERLY IN SUBMITTING . . . THE ONE NAME OF THE HIGHLY QUALIFIED
 CANDIDATE . . . ." HE FOUND NOTHING IN THE PROVISIONS OF THE COLLECTIVE
 BARGAINING AGREEMENT WHICH REQUIRED THE SUBMISSION OF AT LEAST THREE
 "BEST QUALIFIED CANDIDATES" TO THE SELECTING OFFICIAL.  THUS HE HELD:
 
    THE WORDS "NO MORE THAN THE THREE BEST QUALIFIED CANDIDATES .  . ."
 DO NOT MEAN "AT LEAST
 
    THREE BEST QUALIFIED CANDIDATES.  . . . "
 
    REJECTING THE UNION'S INTERPRETATION OF THE CONTRACT, THE ARBITRATOR
 CONCLUDED THAT MANAGEMENT HAD NOT VIOLATED THE CONTRACT.
 
    THE UNION ALSO CONTENDED BEFORE THE ARBITRATOR THAT MANAGEMENT'S
 ACTION WAS CONTRARY TO ESTABLISHED PRACTICE.  IN SUPPORT OF THIS
 CONTENTION THE UNION INTRODUCED EVIDENCE OF FIVE INSTANCES WHERE HIGHLY
 QUALIFIED AND QUALIFIED CANDIDATES, TOGETHER