19:0535(67)AR - VA Medical Center, Newington, CT and NAGE Local R1-109 -- 1985 FLRAdec AR
[ v19 p535 ]
The decision of the Authority follows:
19 FLRA No. 67 VETERANS ADMINISTRATION MEDICAL CENTER, NEWINGTON CONNECTICUT Activity and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-109 Union Case No. O-AR-806 DECISION This matter is before the Authority on exceptions to the award of Arbitrator John J. Graham filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. The parties' stipulated and submitted to arbitration the following issues: 1. Has the V.A. Medical Center complied with Article XXVI, Section I of the Master Agreement in its attempts to provide fair and equitable scheduling with equitable distribution of desirable days off in light of any already existing agreements and the needs of the service, and has Section V of Article XXVI of the Supplemental Agreement been complied with for Medical Technicians within their category and work area? 2. Has the grievant been treated fairly under present contract provisions? The Arbitrator in his award answered the submitted issues in the negative. With respect to a remedy, the Arbitrator concluded that with so many medical technicians, the position held by the grievant, and medical technologists, a professional position excluded from the bargaining unit covered by the parties' agreements, qualified in the same work, the Activity "is in an advantageous position to minimize the inconvenience to all and to eliminate the oppression of any employees." Accordingly, as a remedy, the Arbitrator awarded as follows: Therefore, after Employer abides by the terms of Section 10, Article XXVI, Supplemental Agreement, the grievant shall be just one of a pool of all the technologists and technicians in the Laboratory Service doing the same work to share in the staffing for all undesirable shifts and days, and to compensate for the past over-assignment of the grievant to such undesirable shifts and days, the grievant shall not be called upon for her first turn in the staffing of such shifts for a period of nine months following the delivery of this Award. In one of its exceptions, the Agency essentially contends that the Arbitrator exceeded his authority by issuing an affirmative order as to nonbargaining-unit medical technologists when the stipulated issue related solely to the grievant and medical technicians. The Authority agrees. The Authority has specifically found arbitration awards deficient as in excess of the arbitrator's authority when the arbitrator issued an affirmative order affecting positions and employees beyond the scope of the stipulated grievance. E.g., U.S. Department of Justice, Federal Prison System, Federal Correctional Facility, Fort Worth, Texas and American Federation of Government Employees, Local 1298, AFL-CIO, 17 FLRA No. 39 (1985); Environmental Protection Agency, Region 9 and Engineers and Scientists of California, MEBA, AFL-CIO, 17 FLRA No. 56 (1985). In terms of this case, the Authority finds that by pooling all the medical technicians with nonbargaining-unit medical technologists as his affirmative relief, the Arbitrator exceeded his authority. Thus, the award is deficient and must be modified. /1/ Accordingly, the award is modified to provide as follows: /2/ From the evidence submitted by the parties, all questions of the Statement of Issues are answered in the negative. Therefore, the Activity shall abide by the terms of Section 10, Article XXVI of the parties' Supplemental Agreement. Issued, Washington, D.C., July 31, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this decision, it is unnecessary to address the other exceptions to the award. /2/ In its opposition the Union concedes that the Arbitrator exceeded his authority by affecting nonbargaining-unit positions beyond the scope of the stipulated grievance. However, the Union maintains that the award should be modified by merely striking the reference to medical technologists. Because the award is expressly and inextricably grounded on pooling of technologists and technicians, the Authority finds on the record before it that the modification asserted by the Union is not an appropriate resolution of the Agency's exception. However, the Authority has indicated in such circumstances that the parties are not precluded from agreeing on a remedy or from agreeing to resubmit the issue of a remedy to the Arbitrator or to another arbitrator. Overseas Education Association and Office of Dependents Schools, Department of Defense, 4 FLRA 98, 105-06 (1980).