32:0997(142)AR - - VA Medical Center, Houston , TX and AFGE Local 1633 - - 1988 FLRAdec AR - - v32 p997
[ v32 p997 ]
The decision of the Authority follows:
32 FLRA No. 142
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION MEDICAL
CENTER, HOUSTON, TEXAS
AMERICAN FEDERATION OF
Case No. 0-AR-1506
DECISION AND ORDER
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator John R. Bailey. The Arbitrator found that the grievance was timely filed and that the Agency violated Article 34, Section 7 of the parties' collective bargaining agreement by selecting an employee from the Veterans Administration Medical Center Amarillo (VAMC Amarillo) to fill a vacancy at Veterans Administration Medical Center Houston (VAMC Houston) when there were at least three qualified candidates at VAMC Houston. Award at 20. Accordingly, the Arbitrator ordered that "one of the two remaining grievants must be selected to fill the WG-10 vacancy." Id.
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 Agency asserts that the Arbitrator's award is contrary to law because it is inconsistent with the Agency's right to make selections from any appropriate source under section 7106(a)(2)(C) of the Statute. The Union filed an opposition to the Agency's exceptions.
For the reasons discussed below, we conclude that the Arbitrator's award is contrary to the Agency's right to make selections from any appropriate source under section 7106(a)(2)(C) of the Statute. Therefore, the award is deficient and must be set aside.
II. Background and Arbitrator's Award
This case arose as the result of a grievance filed by the American Federation of Government Employees, Local 1633 (the Union). The grievance contends that VAMC Houston "abused the reduction-in-force (RIF) procedure through a reorganization to eliminate employees in the Plant Operations Engineering Service." Award at 8.
The Arbitrator determined that the issues before him were: (1) "whether the grievance is not arbitrable, on account of an alleged failure to present it within 30 calendar days of the date the grievants or the union 'became aware . . . of the act or occurrence'"; and (2) "whether the Agency breached the collective bargaining agreement (or other governing policy, rule, regulation, or applicable law) in the procedure it followed in implementing its reduction in force action--specifically in going outside the contractually designated first 'area of consideration' (namely, the VAMC Houston area) to fill a vacant position of Air Conditioning Equipment Operator for which the grievants, who are VAMC Houston employees, had applied but were rejected." Award at 1, 2.
The Arbitrator found that the grievance was timely filed. He noted that Article 34, Section 7 of the parties' collective bargaining agreement states that a grievance must be presented within 30 days after the date of awareness of "the act or occurrence." Award at 3. He also noted that Federal Personnel Manual Letter 351-20 dated March 4, 1986, specifies that an employee should not file a grievance before the specific RIF action complained of is effective. The Arbitrator found that while the affected employees were notified on April 13, 1987, that a RIF was to be conducted, the effective dates of the RIF and the grievants' reassignments were May 15 and 18, 1987. He concluded that since the grievance was filed on June 1, 1987, the grievance was filed timely and arbitrable. Award at 6. The Agency does not contest the Arbitrator's determination that the grievance was timely. Exceptions at 3. Therefore, this issue will not be addressed further.
Regarding the merits, the Arbitrator determined that the Agency's decision to reorganize was precipitated by technological advances and budget-cutting considerations which required staffing reductions. The Arbitrator further found that a reorganization in the Plant Operations Engineering Service reduced the requirement for three employees per shift to two employees and that the Agency determined that a RIF was necessary. Consequently, the Arbitrator concluded that the reorganization and RIF were justified. The Arbitrator also noted that the Union did not contest the reorganization or the RIF. Award at 10. As a result of the reorganization, the Agency notified the grievants that the WG-5415-8 Air Conditioning Equipment Operator positions occupied by the grievants would be abolished.
The Arbitrator found that the grievants were informed of the RIF on April 10, 1987, and were offered other positions at lower grades. Three of the grievants accepted the offered positions and the fourth grievant chose to retire. At the time of the RIF, there was a vacant WG-10 Air Conditioning Equipment Operator position to be filled at VAMC Houston. The vacancy announcement for this position was posted on March 17, 1987, with the area of promotion consideration being VAMC Houston.
The grievants applied for the position and were rated "as best qualified--promotion eligible" by the Chief of Recruitment and Placement and referred to the Chief of Engineering Service for consideration for promotion certifying that they "are eligible for promotion to the [WG-10] position." Award at 13. At the time, one of the grievants was promoted to another position; the Arbitrator found that the grievant who was promoted is no longer an interested party. Award at 13.
The Arbitrator found that although the grievants received favorable recommendations, neither was selected Instead, the VAMC Houston went outside of its own "area of consideration" and selected an individual from VAMC Amarillo to fill the vacancy. The Arbitrator noted that although the Chief of Engineering Service disputed that the grievants were qualified for the position, the facts indicated that the grievants were qualified.
The Arbitrator found that the applicable provision of the parties' collective bargaining agreement was Article 34, Section 7 which reads, in part, as follows:
Section 7- Area of Promotion Consideration
The areas of consideration will be:
FIRST- Facility-wide [i.e., VAMC Houston] . . . except:
. . . . . . .
B. Where . . . a vacancy announcement will not produce at least 3 qualified promotion candidates within the first area of consideration, the Agency may . . . expand the area of consideration. (emphasis added by Arbitrator)
. . . . . . .
In such cases [B above] . . ., first and full consideration shall be given to any best qualified candidates within the [VAMC Houston] . . . . (emphasis in original)
Award at 4-5.
The Arbitrator found that there were "3 qualified promotion candidates" within VAMC Houston and, therefore, the Agency violated Article 34, Section 7 of the parties' collective bargaining agreement by going outside of the VAMC Houston area of consideration to make a selection for the vacancy. Award at 20. He found that the parties' collective bargaining agreement was violated because there were "at least 3 qualified promotion candidates within the first area of consideration." Id. Consequently, he ordered that the Agency select one of the two remaining grievants to fill the WG-10 vacancy. Award at 20.
III. Positions of the Parties
The Agency asserts that the Arbitrator's award is unlawful because it interprets the collective bargaining agreement provision regarding areas of consideration for promotion so as to conflict with the Agency's right to select in accordance with section 7106(a)(2)(C) of the Statute. The Agency argues that the collective bargaining agreement establishes procedures for filling positions in the bargaining unit. The Agency further asserts that Article 34, Section 7B "does not purport to affect in any way VA's right to select from any appropriate source as guaranteed by 5 U.S.C. § 7106(a)(2)(C)."
According to the Agency, the Arbitrator's award is violative of section 7106(a)(2)(C) because he required that the Agency promote from one source--VMAC Houston. The Agency argues that the Authority has found that such non-procedural limitations on an agency's right to select from any source violate section 7106(a)(2)(C). Therefore, the Agency argues that the award conflicts with its right to select from any appropriate source in violation of section 7106(a)(2)(C).
The Union contends that the Authority "has the power to order grievants or employees promoted without defeating the VAMC Houston's right to select employees in accordance with" section 7106(a)(2)(C) of the Statute. Opposition at 1. The Union argues that the Arbitrator's award is not deficient because there is no evidence that the award is contrary to law, rule, or regulation.
IV. Analysis and Conclusion
The Arbitrator's award directing the Agency to select one of the two remaining grievants to fill the Air Conditioning Equipment Operator WG-10 position is contrary to section 7106(a)(2)(C) of the Statute.
With respect to filling positions, management has the right under section 7106(a)(2)(C) of the Statute to make the actual substantive determination in the selection and appointment process. Veterans Administration Medical and Regional Office Center of Wilmington, Delaware and Laborers' International Union of North America, AFL-CIO, Federal Local No. 1154, 32 FLRA 701 (1988). Moreover, section 7106(a)(2)(C) provides that management has the right when filling positions to make a selection from a group of properly ranked and certified candidates or from any other appropriate source. See Local R-1-185, National Association of Government Employees and the Adjutant General of the State of Connecticut, 25 FLRA 509 (1987) (Adjutant General) and cases cited in that decision.
The Arbitrator found that because there were at least three qualified promotion candidates for the WG-10 vacancy within the VAMC Houston area, the Agency was precluded by the parties' collective bargaining agreement from going outside of that area to consider and/or select other qualified candidates. Accordingly, he ordered that the Agency select from between the two remaining grievants, who were qualified promotion candidates for the WG-10 vacancy, from within the VAMC Houston area.
An arbitrator's award may not interpret or enforce a provision of a collective bargaining agreement so as to deny the authority of any agency to exercise its statutory rights under section 7106(a). Defense Contract Administration, Services Management Area, Syracuse and National Association of Government Employees, Local No. R2-65, 20 FLRA 783, 784 (1985). Section 7106(a)(2)(C) provides that management has the right in filling positions to make a selection from a group of properly ranked and certified candidates for promotion or from any other appropriate source. The Arbitrator's award limits the Agency in filling a position to a specific list of candidates. Therefore, the award precludes the agency from selecting from any other appropriate source and is contrary to section 7106(a)(2)(C) of the Statute. See, for example, Adjutant General, 25 FLRA 509, 512.
We note the Agency's contention that the provisions of Article 34, Section 7 of the parties' collective bargaining agreement "sets out areas of consideration for promotion and placement and establishes procedures which the VA is obligated to follow." Exceptions at 4. The Agency argues that the collective bargaining agreement does n