Veterans Administration Hospital, Newington, Connecticut (Activity) and National Association of Government Employees, Local R1-109 (Union)

 



[ v05 p64 ]
05:0064(12)AR
The decision of the Authority follows:


 5 FLRA No. 12
 
 VETERANS ADMINISTRATION HOSPITAL,
 NEWINGTON, CONNECTICUT
 Activity
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R1-109
 Union
 
                                            Case No. 0-AR-62
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR ROBERT WHITMAN 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 CASE WAS
 SUBMITTED TO ARBITRATION ON THE GRIEVANT'S CLAIMS THAT SHE HAD BEEN
 DENIED THE OPPORTUNITY FOR ADVANCED TRAINING AND THAT SHE HAD BEEN
 DENIED THE OPPORTUNITY TO COMPETE FOR A PROMOTION.  WITH RESPECT TO THE
 FIRST CLAIM, THE ARBITRATOR FOUND THAT MANAGEMENT'S ACTIONS IN DENYING
 THE GRIEVANT TRAINING WERE "NOT APPROPRIATE." AS TO THE SECOND CLAIM,
 THE ARBITRATOR FOUND THAT THE ALLEGED "PROMOTION" WAS ACTUALLY A
 RECLASSIFICATION ACTION AND NO COMPETITION WAS REQUIRED.  HOWEVER, THE
 ARBITRATOR DETERMINED THAT THE "DENIAL" TO THE GRIEVANT CAME AT THE TIME
 THAT SHE WAS DENIED ADVANCED TRAINING AND COULD NOT THEREFORE
 SUCCESSFULLY COMPETE FOR PROMOTIONS TO GRADE 6 POSITIONS.  ACCORDINGLY,
 IN HIS AWARD, THE ARBITRATOR RULED THAT THE GRIEVANT WAS ENTITLED TO THE
 FOLLOWING:
 
    1.  TRAINING THAT WILL ALLOW HER TO BECOME PROFICIENT IN GRADE 6
 LEVEL PROCEDURES;  AND
 
    2.  WHEN (THE GRIEVANT) IS SUITABLY TRAINED, A PROMOTION TO GRADE 6
 UPON THE RECOMMENDATION
 
    OF THE (ACTING HEAD OF THE DEPARTMENT).  IN THE EVENT THAT (THE
 ACTING HEAD OF THE DEPARTMENT)
 
    DOES NOT RECOMMEND (THE GRIEVANT) FOR PROMOTION ON OR BEFORE NOVEMBER
 15, 1981, SHE SHALL
 
    NONETHELESS BECOME PROMOTED TO GRADE 6 AS OF THAT DATE.
 
    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 RULES AND REGULATIONS, 5 CFR PART 2425.
  /2/ 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 IS DEFICIENT ON OTHER
 GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS CASES.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT THE AWARD VIOLATES
 REGULATION, SPECIFICALLY PROVISIONS OF CHAPTER 335 OF THE FEDERAL
 PERSONNEL MANUAL AS IN EFFECT DURING THE PERIOD IN QUESTION IN THIS
 CASE.  IN SUPPORT OF THIS EXCEPTION, THE UNION ESSENTIALLY ARGUES THAT
 MANAGEMENT'S SECTION FOR ITS TRAINING PROGRAM WAS NOT MADE COMPETITIVELY
 AS ALLEGEDLY REQUIRED BY FPM CHAPTER 335, SUBCHAPTER 4.  FURTHER, THE
 UNION MAINTAINS THAT BECAUSE THE ARBITRATOR'S FINDINGS WERE IN FAVOR OF
 THE GRIEVANT IN THIS RESPECT, FPM CHAPTER 335, SUBCHAPTER 6-4 MANDATES
 THAT THE AWARD SHOULD HAVE BEEN A PROMOTION FOR THE GRIEVANT RETROACTIVE
 TO THE DATE OF THE ALLEGED VIOLATION OF THE FEDERAL PERSONNEL MANUAL.
 
    THE UNION'S FIRST EXCEPTION THAT THE AWARD VIOLATES REGULATION STATES
 A GROUND UPON WHICH THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER
 SECTION 7122(A)(1) OF THE STATUE.  HOWEVER, IN THIS CASE THE UNION DOES
 NOT DEMONSTRATE IN ITS EXCEPTION THAT THE AWARD IS CONTRARY TO ANY OF
 THE CITED REGULATIONS.  AS WAS NOTED, THE ARBITRATOR AGREED WITH THE
 GRIEVANT AND FOUND THAT SHE HAD BEEN IMPROPERLY DENIED TRAINING.
 MOREOVER, ALTHOUGH HE REJECTED THE PROMOTION CLAIM AS INVOLVING A
 RECLASSIFICATION, HE DETERMINED THAT THE IMPROPER DENIAL OF TRAINING TO
 THE GRIEVANT HAD RESULTED IN HER GENERAL INABILITY TO SUCCESSFULLY
 COMPETE FOR PROMOTION.  IT WAS ON THIS BASIS THAT THE ARBITRATOR RULED
 THAT THE GRIEVANT WAS ENTITLED TO TRAINING AND THEREAFTER A PROMOTION NO
 LATER THAN NOVEMBER 15, 1981.  IN CONTENDING THAT THIS AWARD IS
 DEFICIENT, THE UNION ACKNOWLEDGES THAT THE ARBITRATOR'S FINDINGS WERE IN
 FAVOR OF THE GRIEVANT AND STATES THAT THE UNION IS "APPRECIATIVE" OF THE
 FINDINGS AND THE ATTEMPTED REMEDY OF THE ARBITRATOR.  NEVERTHELESS, IT
 IS THE UNION'S POSITION THAT THE AWARD "HA(S) NOT BEEN CARRIED TO THE
 FULLEST EXTENT" AS ASSERTEDLY MANDATED BY THE FEDERAL PERSONNEL MANUAL.
 HOWEVER, IN TERMS OF THIS CASE, THE UNION HAS NOT DEMONSTRATED THAT THE
 CITED REGULATIONS MANDATED THE REMEDY DESIRED BY THE UNION AND HAS NOT
 DEMONSTRATED THAT THE AWARD OF THE ARBITRATOR IS IN ANY MANNER CONTRARY
 TO THOSE REGULATIONS.  IN SUCH CIRCUMSTANCES, THE UNION'S EXCEPTION
 ESSENTIALLY CONSTITUTES AN ATTEMPT TO HAVE ITS OWN REMEDY SUBSTITUTED
 FOR AND PREVAIL OVER THE REMEDY ACTUALLY FORMULATED BY THE ARBITRATOR
 AND PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT.  THEREFORE, THE
 UNION'S FIRST EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.  SEE DEPARTMENT OF DEFENSE, 375 AIR BASE GROUP,
 SCOTT AIR FORCE BASE, ILLINOIS AND NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R7-23, 5 FLRA NO. 10(1981).
 
    IN ITS SECOND EXCEPTION THE UNION STATES THAT THE ARBITRATOR'S AWARD
 IS INCOMPLETE, AMBIGUOUS, OR CONTRADICTORY SO AS TO MAKE IMPLEMENTATION
 OF THE AWARD IMPOSSIBLE.  IN SUPPORT OF THIS EXCEPTION, THE UNION'S
 ARGUMENT IS THAT THE AWARD IS INCOMPLETE BECAUSE IT "HA(S) NOT BEEN
 CARRIED TO THE FULLEST EXTENT."
 
    PURSUANT TO SECTION 7122(A)(2) OF THE STATUTE, THE AUTHORITY MAY FIND
 AN AWARD DEFICIENT ON GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS
 IN PRIVATE SECTOR LABOR-MANAGEMENT RELATIONS CASES.  FEDERAL COURTS IN
 PRIVATE SECTOR CASES WILL FIND AN ARBITRATION AWARD DEFICIENT WHEN IT IS
 INCOMPLETE, AMBIGUOUS, OR CONTRADICTORY SO AS TO MAKE IMPLEMENTATION OF
 THE AWARD IMPOSSIBLE.  UNITED STEELWORKERS OF AMERICA V. ENTERPRISE
 WHEEL & CAR CORP., 363 U.S. 593(1960);  BELL AEROSPACE CO. DIVISION OF
 TEXTRON, INC. V. LOCAL 516, UAW, 500 F.2D 921 (2D CIR. 1974).
 THEREFORE, THE UNION'S SECOND EXCEPTION THAT THE AWARD IS INCOMPLETE,
 AMBIGUOUS, OR CONTRADICTORY SO AS TO MAKE IMPLEMENTATION OF THE AWARD
 IMPOSSIBLE STATES A GROUND ON WHICH THE AUTHORITY MAY FIND AN
 ARBITRATION AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE STATUTE.
 HOWEVER, IN THIS CASE, THE UNION HAS PROVIDED NO BASIS FOR FINDING THE
 AWARD DEFICIENT.  THE UNION DOES NOT CONTEND AND IT IS NOT OTHERWISE
 APPARENT THAT THE AWARD IS AMBIGUOUS OR THAT THE AWARD IS CONTRADICTORY
 OR THAT IMPLEMENTATION OF THE AWARD IS IMPOSSIBLE AS A RESULT OF THE
 AWARD BEING "UNCLEAR IN ITS MEANING AND EFFECT" OR BEING "TO UNCERTAIN
 IN (ITS) EFFECT TO BE (SUSTAINED)." SEE UNITED MINE WORKERS OF AMERICA,
 DISTRICT NO. 2 V. BARNES & TUCKER CO., 561 F.2D 1093 (3D CIR. 1977).
 INSTEAD, THE UNION ONLY CONTENDS THAT THE AWARD IS INCOMPLETE IN THE
 EXTENT OF ITS REMEDY.  THUS, THE UNION'S SECOND EXCEPTION IN ESSENCE
 REPRESENTS DISAGREEMENT WITH THE REMEDY AWARDED BY THE ARBITRATOR.  IT
 IS WELL ESTABLISHED THAT ARBITRATORS ARE ALLOWED GREAT LATITUDE IN
 FASHIONING REMEDIES, ENTERPRISE WHEEL & CAR CORP., SUPRA AT 597;  LODGE
 NO. 12, DISTRICT NO. 37, INTERNATIONAL ASSOCIATION OF MACHINISTS V.
 CAMERON IRON WORKS, INC., 292 F.2D 112, 119 (5TH CIR. 1961) CERT. DENIED
 368 U.S. 926(1961), AND THE UNION HAS FAILED TO DEMONSTRATE THAT THE
 REMEDY FASHIONED BY THE ARBITRATOR IS DEFICIENT UNDER THE STATUTE.
 THEREFORE, THE UNION'S SECOND EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT UNDER 5 U.S.C.  7122(A) AND SECTION 2425.3 OF THE
 AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1981.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 A