32:0601(87)AR - - Buffalo VA Medical Center and New York State Nurses Association - - 1988 FLRAdec AR - - v32 p601
[ v32 p601 ]
The decision of the Authority follows:
32 FLRA No. 87
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
BUFFALO VETERANS ADMINISTRATION
NEW YORK STATE NURSES ASSOCIATION
Case No. 0-AR-1493
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator John E. Drotning. The Arbitrator determined that the Agency violated the parties' collective bargaining agreement by failing to follow disciplinary procedures outlined in the agreement and an agency regulation concerning the transfer of an employee. As a remedy, the Arbitrator ordered that the employee be transferred back to her former duty station.
The Agency filed exceptions under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the exceptions.
For the reasons discussed below, we find that the award violates management's right to assign employees under section 7106(a)(2)(A). Therefore, the award is set aside.
II. Background and Arbitrator's Award
In February 1987, staff nurse Gisela Driscoll was reprimanded for conduct which occurred on February 18, 1987. On that date, Driscoll was working in the emergency room. A loud exchange took place between Driscoll and a nurse assistant when Driscoll called for help in dealing with a patient. On April 13, 1987, Driscoll was transferred out of the emergency room to the Acute Medical Care Unit.
The Union argued before the Arbitrator that the transfer violated the parties' agreement. The Union noted that the agreement specifies that disciplinary action is to be taken in accordance with "Chapter 8 of the Reference Manual." Under this Chapter, only one penalty can be imposed for incidents involving a single offense. The Union claimed that the agreement was violated because two penalties were imposed--a reprimand and a transfer.
The Agency argued that the transfer did not constitute a contractual violation. Rather, the decision to transfer Driscoll, and the nurse assistant as well, was a management decision to reassign in the best interests of patient care.
The issue before the Arbitrator was whether the Agency failed to follow disciplinary procedures set forth in the parties' agreement and violated an agency regulation.
The parties' agreement provides that "[d]isciplinary action will be taken in accordance with the procedures and right of appeal provided for in Chapter 8 of the Reference Manual." Award at 9. The Manual, DM&S Supplement MP-5, Part II, states that there shall be one penalty for one offense within the appropriate range indicated in the accompanying table of offenses and penalties. Id.
Based on the testimony of the Agency's Chief of Nursing Services, the Arbitrator found that the transfer was a second penalty. The Arbitrator concluded that the penalty was inconsistent with the agency regulation and ordered that Driscoll be transferred back to the emergency room.
III. Agency's Exceptions
The Agency argues that the Arbitrator's award ordering management to reassign Driscoll is contrary to management's right to assign employees under section 7106(a)(2)(A) of the Statute. In support of its position, the Agency cites the Authority's decisions in Naval Undersea Warfare Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA 957 (1986) and Department of Health and Human Services, Social Security Administration, Philadelphia (West) District, Upper Darby, Pennsylvania and American Federation of Government Employees, AFL-CIO, Local 2327, 9 FLRA 374 (1982).
Second, the Agency argues that the award is contrary to an agency regulation. The Agency asserts that although the Arbitrator correctly determined that the DM&S Supplement to VA Manual MP-5, Part II, Chapter 8, Para. 8A.11 requires only one penalty for one offense, the Arbitrator's conclusion that the transfer was disciplinary is contrary to VA Manual MP-5, Part II, Chapter 8, Section A. According to the Agency, the latter section clearly specifies that the only possible disciplinary penalties are admonishment, reprimand, suspension, demotion (reduction in rank and pay) and discharge. According to the Agency, the transfer involved only a change of duty assignment, not a reduction in rank or pay, and, therefore, the transfer did not constitute a disciplinary action.
IV. Union's Opposition
The Union initially argues that the Authority lacks jurisdiction to hear the Agency's exceptions because the Agency failed to follow procedural requirements in the parties' agreement relative to the filing of exceptions. The Union notes that under the agreement, once an arbitrator has issued an award, the decision goes into effect within 15 days after receipt unless either party notifies the other that it is filing exceptions with the Authority. According to the Union, no such notification was received until 30 days after the award was issued. The late notice, the Union argues, is violative of the agreement and, therefore, the Authority should find that it lacks jurisdiction to hear the exceptions.
Alternatively, the Union argues that the award does not interfere with the Agency's right to assign employees under section 7106(a)(2)(A). The Union claims that Driscoll's duties were not changed as a result of the transfer. Rather, she continued to perform the same duties at a different location. The Union cites the Authority's decisions in Social Security Administration and American Federation of Government Employees, Local 1336, 29 FLRA 225 (1987) and Veterans Administration Medical Center, Pittsburgh, Pennsylvania and American Federation of Government Employees, Local 2028, AFL-CIO, 25 FLRA 520 (1987), to support its view that because the transfer involved only a change in work location, and not a change in duties, the transfer was not violative of section 7106(a)(2)(A).
The Union also argues that the portion of the award finding the transfer to be a second penalty for the same offense is not contrary to an agency regulation. The Union points out that the Arbitrator based his conclusion that the transfer was disciplinary on the testimony of the Agency's witness. The Union asserts that the Agency is merely expressing disagreement with the Arbitrator's reasoning which led to his conclusion. Additionally, according to the Union, the Agency has failed to demonstrate that its regulations preclude the Arbitrator from reaching the decision that the transfer was disciplinary.
A. The Authority has Jurisdiction to Resolve the Exceptions
The Union asserts that the Authority lacks jurisdiction to hear the Agency's exceptions because of the Agency's failure to follow certain procedural requirements in the parties' agreement.
Section 7122 of the Statute, which outlines the procedures by which a party may file exceptions to an arbitrator's award with the Authority, provides that exceptions must be filed "during the 30-day period beginning on the date the award is served on the party[.]" The Agency in this case timely and properly filed its exceptions under that section and the Authority's Rules and Regulations. Therefore, the exceptions are appropriately before us in this proceeding. If the Union wishes to challenge procedural irregularities pertaining to compliance with the negotiated agreement, it may do so through some other means, such as the negotiated grievance procedure. However, such a challenge is not properly before the Authority in this proceeding.
B. The Award Violates Management's Right to Assign Employees Under Section 7l06(a)(2)(A)
We conclude that the award is deficient. An arbitrator's award may not interpret or enforce a collective bargaining agreement so as to improperly deny an agency the authority to exercise its rights under section 7106(a). See, for example, Naval Air Rework Facility, Jacksonville, Florida and National Association of Government Inspectors and Quality Assurance Personnel, 27 FLRA 318 (1987) (Naval Air Rework Facility). In this case, we find that the award is deficient because it directly interferes with management's right to assign employees under section 7106(a)(2)(A).
The Arbitrator noted that management's decision to reassign Driscoll was made in the interest of patient care needs because "the Emergency Room requires people to keep their cool[.]" Award at 7. Previously, we have found that the right to assign employees under section 7106(a)(2)(A) includes the right to assign employees to positions; the right to determine the particular qualifications and skills needed to perform the work of those positions, including such job-related individual characteristics as judgment and reliability; and the right to determine whether employees meet those qualifications. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 612-14 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). See also Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3395 (6th Cir. Apr. 4, 1987).
Here, the Agency determined that one of the necessary, job-related, individual characteristics that nurses working in the emergency room must possess is the ability to remain calm and not to engage in loud, disruptive behavior. Thus, the Agency's decision to transfer Driscoll out of the emergency room was a proper exercise of management's right to determine the qualifications and skills of the nursing position in the emergency room. The transfer was also a proper exercise of management's determination that Driscoll did not possess a necessary job-related individual characteristic.
We must reject the Union's contention that because there was no change in Driscoll's duties, the award does not violate the right to assign employees. As noted, the right to assign employees concerns the qualifications and skills needed to perform work. Since the award interferes with management's rights in this regard, the award is deficient.
Accordingly, we find that the Arbitrator's award directing that Driscoll be reassigned to the emergency room is inconsistent with management's right to assign employe