27:0225(35)AR - Leavenworth VA Medical Center and Local No. 85, AFGE -- 1987 FLRAdec AR



[ v27 p225 ]
27:0225(35)AR
The decision of the Authority follows:


 27 FLRA No. 35
 
 LEAVENWORTH VETERANS ADMINISTRATION 
 MEDICAL CENTER
 Activity
 
 and
 
 LOCAL NO. 85, AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, AFL-CIO
 Union
 
                                            Case No. 0-AR-1244
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Anne Holman Woolf filed by the Veterans Administration (the
 Agency) under section 7122(a) of part 2425 of the Authority's Rules and
 Regulations.  The Union filed an opposition.  /1/
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The Union filed a grievance alleging that the Activity was not
 utilizing student employees (both students hired for summer employment
 and students employed as part of the stay-in-school program) in the
 laundry in accordance with law or regulation.  As a remedy, the Union
 requested that the Activity "work students in accordance with law and
 regulation."
 
    The Arbitrator first determined that the grievance was grievable and
 arbitrable.  In particular, she ruled contrary to the arguments of the
 Activity that the grievance concerned a "claimed violation,
 misinterpretation, or misapplication of any law, rule, or regulation
 affecting conditions of employment" under section 7103(a)(9)(C)(ii) of
 the Statute.  In determining that the utilization of the students (who
 concededly are not part of the bargaining unit) concerned conditions of
 employment of unit employees, the Arbitrator noted testimony that the
 students perform the same duties as, and fill in for, unit employees on
 a regular and recurring basis.  She also noted that the Union had filed
 the grievance to address the "grave" concerns of unit employees over the
 utilization of students.  She identified these concerns as including the
 following:  (1) the possible negative effect on performance evaluations
 of unit employees when their assignments change because students take
 over their original assignments;  (2) the lessening of efforts to staff
 to full capacity because students constituted 6.25% of the laundry
 workforce;  (3) the occupational health and safety consequences to unit
 employees arising from the actions of unsupervisd students operating
 machines on which they have not been sufficiently trained;  and (4) the
 effect on the safety and performance of unit employees resulting from
 shifting their full attention from assigned duties to "also looking out
 for the students." In finding that the grievance was grievable and
 arbitrable, the Arbitrator also rejected the Activity's arguments that
 the grievance directly challenged management rights under the Statute.
 She noted that the Union was not proposing any specific method for the
 exercise of management's right to assign work to the students other than
 that required by law and regulations.
 
    On the merits, the Arbitrator found that in certain respects the
 Actvity was not utilizing the students in accordance with Federal
 Personnel Manual chapter 308 (pertaining to the stay-in-school program)
 and agency regulations.  Accordingly, in her award, she directed that
 the Activity change the manner of utilizing students so that the
 utilization is fully in accordance with Government-wide regulations and
 agency regulations.  Because of the expressed concerns of the Union and
 because the Arbitrator interpreted Article 5, Section 2(a) of the
 parties' master collective bargaining agreement to permit a local
 supplementary agreement on this matter, the Arbitrator in her award also
 directed the Activity to comply with Article 5 if the Union requests
 local supplementary bargaining on negotiable concerns as to the
 utilization of students.
 
                           III.  FIRST EXCEPTION
 
                              A.  Contentions
 
    The Agency contends that by finding the grievance to be grievable and
 arbitrable, the award is contrary to the Statute because the grievance
 involves the conditions of employment of students who are not unit
 employees.  The Agency argues that the grievance does not concern the
 conditions of employment of unit employees, but instead seeks to
 directly enforce the manner in which personnel policies, practices, and
 conditions of employment apply to the nonbargaining unit employees.
 
                       B.  Analysis and Conclusions
 
    We conclude that the Agency fails to establish that by finding the
 grievance to be grievable and arbitrable, the award is contrary to the
 Statute.  Contrary to the arguments of the Agency, we cannot find that
 the Arbitrator's determination that the grievance concerns a matter
 covered by the statutory definition of grievance in section
 7103(a)(9)(C)(ii) is contrary to the Statute.
 
    Section 7103(a)(9)(C)(ii) specifically defines grievance to include
 any complaint by a union concerning any claimed violation,
 misinterpretation, or misapplication of any law, rule, or regulation
 affecting conditions of employment.  The grievance in this case alleged
 that the Activity was not utilizing the students as required by
 applicable laws and regulations.  We find that the Union's grievance was
 directed to the effect on working conditions of unit employees and is
 encompassed by section 7103(a)(9)(C)(ii).  In American Federation of
 Government Employees, AFL-CIO, National Council of SSA Field Operations
 Locals and Social Security Administration, 25 FLRA 50 (1987), Proposal 1
 concerned the manner in which work assignments would be made to
 volunteers and to students appointed under the stay-in-school program.
 Although we concluded that the proposal conflicted with section
 7106(a)(2)(B), we rejected the Agency's contention that the proposal did
 not concern unit employees because it related to the work assignments of
 these nonunit employees.  We found that the proposal related to the
 working conditions of unit employees, noting that the volunteers and
 students work side-by-side with unit employees and are jointly engaged
 in the furtherance of a common agency objective.  Slip op. at 2.  In
 this case, the Arbitrator, similar to our finding in National Council of
 SSA Field Operations Locals, found that the students performed the same
 duties as, and fill in for, unit employees on a regular and recurring
 basis.  In addition, she identified other complaints over the alleged
 improper utilization of students which relate to and affect the working
 conditions of unit employees.  For these reasons, no basis is provided
 for finding the award deficient as alleged by the Agency.
 
                         IV.  REMAINING EXCEPTIONS
 
    A.  Contentions
 
    In its other exceptions, the Agency contends that the award is
 deficient because it directs the Activity to negotiate with the Union if
 the Union requests local supplementary bargaining.  The Agency argues
 for the same reasons that it argues that the grievance was not grievable
 and arbitrable that the award requires the Activity to negotiate over
 the conditions of employment of the students and that therefore the
 award is contrary to the Statute.  The Agency also argues that by
 directing negotiation of a local supplementary agreement, the award is
 contrary to the parties' master agreement.
 
                       B.  Analysis and Conclusions
 
    We conclude that the Agency fails to establish that the award is
 deficient as alleged.  For the same reasons we denied the Agency's first
 exception and noting, in addition, that bargaining was directed only to
 the extent the proposals are negotiable, we find that the award is not
 contrary to the Statute by directing bargaining on the Union's
 negotiable concerns regarding the effect on working conditions of unit
 employees caused by the Activity's improper utilization of students.  We
 also find that the Agency's contention that the award is contrary to the
 master agreement constitutes nothing more than disagreement with the
 Arbitrator's interpretation and application of that agreement.  It is
 well established that such disagreement provides no basis for finding
 the award deficient.  For example, Department of the Air Force, Warner
 Robins Air Logistics Center, Robins Air Force Base, Ga. and American
 Federation of Government Employees, Local 987, 25 FLRA No. 80 (1987).
 
                                 DECISION
 
    Accordingly, the Agency's exceptions are denied.  /2/
 
    Issued, Washington, D.C., May 29, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In its opposition, the Union contends that the Agency's
 exceptions are untimely.  Under the Authority Rules and Regulations
 pertaining to the time period for filing exceptions to an arbitration
 award, the exceptions were timely filed and we reject the Union's
 contention.  See, for example, Defense Mapping Agency,
 Hydrographic/Topographic Center and AFGE Local 3407, 23 FLRA No. 64
 (1986).
 
    (2) At the conclusion of its exceptions, the Agency requests that the
 Authority set aside the Arbitrator's award of travel and per diem
 expenses.  Because the Arbitrator neither mentioned nor awarded travel
 and