27:0143(26)AR - AFGE Local 2654 and VA Medical Center, Fresno, CA -- 1987 FLRAdec AR
[ v27 p143 ]
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.