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, HAD BEEN SUBMITTED TO THE
 SELECTING OFFICIAL, OR WHERE ONLY QUALIFIED CANDIDATES HAD BEEN
 SUBMITTED.  ALTHOUGH THE ARBITRATOR RECOGNIZED THAT THE EXISTENCE OF
 PAST PRACTICE COULD ALTER THE TERMS OF THE NEGOTIATED AGREEMENT, HE
 FOUND THE EVIDENCE, AS RELIED UPON BY THE UNION, DID NOT ESTABLISH A
 "CLEAR AND CONSISTENT PRACTICE" OVER A SUFFICIENTLY LONG PERIOD OF TIME
 TO ESTABLISH AN AGREEMENT BY THE PARTIES THROUGH THEIR COURSE OF CONDUCT
 AND ACTIONS.  CONSEQUENTLY, FINDING NEITHER CONTRACT VIOLATION NOR PAST
 PRACTICE WHICH WOULD ALTER THE CONTRACT, THE ARBITRATOR DENIED THE
 GRIEVANCE.
 
    THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
 AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
 44766.  THE AGENCY DID NOT FILE AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS EXCEPTION THE UNION CONTENDS THE ARBITRATOR'S AWARD IS
 ARBITRARY AND CAPRICIOUS IN THAT IT DOES NOT TAKE INTO ACCOUNT FACTS IN
 EVIDENCE.  TO SUPPORT I