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 fu