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

 

 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.  HOW