27:0143(26)AR - AFGE Local 2654 and VA Medical Center, Fresno, CA -- 1987 FLRAdec AR



[ v27 p143 ]
27:0143(26)AR
The decision of the Authority follows:


 27 FLRA No. 26
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2654
 Union
 
 and
 
 VETERANS ADMINISTRATION MEDICAL 
 CENTER, FRESNO, CALIFORNIA
 Activity
 
                                            Case No. 0-AR-1268
 
                                 DECISION
    I.  Statement of the Case
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Joe H. Henderson filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
 
    II.  Background and Arbitrator's Award
 
    According to the record before the Authority, the grievant was
 appointed on a half-time basis (20 hours per week) to the position of
 physician at the Activity.  After his appointment, the grievant
 requested an increase in his hours of work which was denied on the
 stated basis that no funds were available.  Subsequently, another
 physician was appointed by the Activity to a temporary part-time
 position of 10 hours per week.  As a consequence, the grievant filed a
 grievance protesting his treatment by the Activity, "namely by its
 (alleged) denial of hours to (him), on the professed basis of 'lack of
 funds,' and its expenditure of the same, allegedly nonexistent, funds on
 (the temporary part-time physician)." Award at 13.  As a remedy, he
 requested an award of backpay.  The grievance was not resolved and was
 submitted to arbitration on issues of whether the grievance was
 grievable and arbitrable.
 
    The Arbitrator determined that the grievance was not grievable and
 arbitrable on two grounds.  He determined that the matter was precluded
 from grievance and arbitration by section 7121(c)(4) and the
 corresponding provision of the parties' agreement as a grievance
 concerning appointment.  He also determined that the matter was not
 grievable and arbitrable because it related to an exercise of
 management's right to determine the personnel by which agency operations
 will be conducted.  The Arbitrator concluded that the grievant had no
 claim to additional hours of work and that the Activity "(wa)s at
 liberty to place anyone on the payroll." Award at 21.
 
    III.  Exception
 
    The Union contends that by finding the grievance was not grievable
 and arbitrable, the award is contrary to the Statute.  The Union argues
 that the Arbitrator interpreted section 7121(c)(4) too broadly in
 concluding that the grievance concerned an appointment.  The Union
 maintains that the grievance did not challenge the appointment of the
 temporary physician and only indirectly concerns that appointment.  The
 Union argues that the appointment is only relevant because the funding
 source reveals that the stated basis for the Activity's denial of the
 grievant's request for additional hours was pretextual.
 
    The Union also argues that the grievance is not precluded by section
 7106 of the Statute.  The Union maintains that once it is alleged that
 inadequate funding was not the reason for refusing to grant the
 grievant's request for additional hours, the grievant, as an adversely
 affected employee, has the right to establish through the grievance
 procedure that the Activity acted improperly and contrary to law, rules,
 or regulations governing the terms and conditions of his employment.
 
    IV.  Analysis and Conclusions
 
    We conclude that the award is deficient as contrary to the Statute.
 We find that the grievance is not precluded by either section 7121(c)(4)
 or section 7106(a)(2)(B) of the Statute.
 
    Specifically, we agree with the Union that the grievance only
 indirectly concerns the appointment of the temporary physician.  The
 grievance challenges management's denial of the grievant's request for
 additional hours by claiming that the appointment of the other physician
 indicates that the stated basis for the denial was pretextual and by
 claiming that the Activity acted improperly in denying the request.  The
 grievance does not directly challenge the appointment of the other
 physician and the requested remedy in no manner concerns that
 appointment.  Accordingly, we conclude that the grievance does not
 concern an appointment within the meaning of section 7121(c)(4) and that
 the Arbitrator's determination to the contrary is deficient.
 
    We also agree with the Union that the grievance is not precluded by
 management's right under section 7106(a)(2)(B) to determine the
 personnel by which agency operations will be conducted.  This
 determination by the Arbitrator was in conjunction with his view that
 the grievance directly challenged the appointment of the other physician
 and correspondingly constituted a direct challenge to management's right
 under section 7106(a)(2)(B).  As stated above, we find instead that the
 grievance challenges management's denial of the grievant's request for
 additional hours.  It does not directly challenge the appointment of the
 other physician and only concerns that appointment for the purpose of
 claiming that the stated basis for the denial was pretextual.
 Accordingly, we find that management's right to determine personnel
 under section 7106(a)(2)(B) does not preclude the grievant from grieving
 and arbitrating his claim that the Activity acted contrary to law,
 rules, and regulations governing the terms and conditions of his
 physician employment when it denied his request for additional hours.
 
    Furthermore, the Arbitrator's determinations that the grievant had no
 claim to additional hours of work and that the Activity was at liberty
 to place anyone on the payroll are not determinations relating to
 whether the grievance is grievable and arbitrable, but rather to whether
 the grievance has merit.  See Marine Corps Logistics Support Base,
 Pacific, Barstow, California and American Federation of Government
 Employees, AFL-CIO, Local 1482, 3 FLRA 397 (1980) (although an
 arbitrator may find on the merits of a grievance that there has been no
 violation of the collective bargaining agreement because management's
 actions which gave rise to the grievance were encompassed by section
 7106, nothing in section 7106 in and of itself prevents an arbitrator
 from deciding whether there has been a violation of a particular
 provision of the agreement).  Consequently, we conclude that the
 determination of the Arbitrator that the grievance was not grievable and
 arbitrable on the basis of section 7106 is deficient.  In so doing, we
 express no opinion on the merits of the grievance.
 
    V.  Decision
 
    The Arbitrator's findings that the grievance is not grievable or
 arbitrable are set aside and removed as a bar to further resolution of
 the grievance.
 
    Issued, Washington, D.C., May 29, 1987.