34:0335(64)AR - VA MEDICAL CENTER,BIRMINGHAM, ALABAMA and AFGE, LOCAL 2207 -- 1990 FLRAdec AR



[ v34 p335 ]
34:0335(64)AR
The decision of the Authority follows:


 34 FLRA NO. 64



              U.S. DEPARTMENT OF VETERANS AFFAIRS
                        MEDICAL CENTER
                      BIRMINGHAM, ALABAMA

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                          LOCAL 2207

                           0-AR-1628

			    DECISION

     			January 18, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Robert G. Williams. The Arbitrator found that
a grievance claiming that management violated the parties'
collective bargaining agreements by: 1) assigning extra hours of
work to part-time employees before scheduling overtime for
full-time employees; and 2) failing to provide job descriptions
to employees and/or their exclusive representative, was properly
before him. The Arbitrator then sustained the portion of the
grievance concerning job descriptions and denied the portion of
the grievance concerning work assignment. The award also directed
management not to assign extra hours to part-time employees
without their consent.

     Exceptions to the award were filed under section 7122(a) of
the Federal Service Labor - Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations
by both the Veterans Administration Medical Center, Birmingham,
Alabama (the Agency) and the American Federation of Government
Employees, Local 2207 (the Union). The Agency also filed an
opposition to the Union's exceptions. 

     For the reasons discussed below, we find, in agreement with
the Agency, that the portion of the award directing that
management not assign extra hours of work to part-time employees
without their consent violates section 7106(a)(2)(B) of the
Statute. The award will be modified to set aside that portion of
the award. The portion of the award that directs management to
provide position descriptions to requesting employees or their
representatives was not excepted to and, therefore, will not be
reviewed. Finally, we will deny the Union's exceptions as the
Union has failed to demonstrate that the Arbitrator's award is
contrary to law, rule, regulation, or is deficient on grounds
similar to those applied by Federal courts in private sector
labor relations cases.

II. Background and Arbitrator's Award

     The Agency employs both full-time and part-time employees in
its Dietetics Service. Commencing in April 1987, the Union
contacted the Agency concerning the assignment of extra hours of
work to part-time employees. The Union argued that full-time
employees should be assigned overtime before any extra hours of
work are assigned to part-time employees. The Union also claimed
that every employee should be furnished a job description.

     Following additional communication between the Union and the
Agency on these matters, the Union submitted a letter to the
Agency on June 12, 1987, which was characterized by the parties
as a third-step grievance. The Agency denied the grievance and
the Union thereafter invoked arbitration.

     The Arbitrator framed the issues before him as follows:

     1) Was a grievance properly filed in this case and, if so,
when was it filed?

     2) Did the Agency fail to answer any grievance and, if so,
what shall be the remedy?

     3) Did Management violate the Agreement, when it worked
part-time employees outside of their scheduled hours before
overtime was scheduled for full time employees and, if so, what
shall be the remedy? 

     4) Did Management fail to provide job descriptions to
employees and/or the Union and, if so, what shall be the
remedy?

     Award at 2.

     The Arbitrator first addressed the issues of whether the
grievance was properly filed, and whether the Agency failed to
respond to the grievance in a timely manner. The Arbitrator
rejected the Union's argument that a grievance had been filed on
May 13, 1987, and that the Agency's failure to respond to this
grievance and to the June 12 third-step grievance in a timely
manner justified a default award under the terms of the parties'
master agreement. The Arbitrator concluded, instead, that the
grievance was filed on June 12, 1987, and was properly before him
for a decision on the merits. Award at 17. In reaching that
conclusion, the Arbitrator found that while the Agency had failed
to answer the June 12 grievance in a timely manner, the Union was
not entitled to a default award under the terms of Article 13,
Section 9 of the parties' master agreement.

     Next, the Arbitrator addressed the issue of whether the
Agency violated the agreement by assigning extra hours of work to
part-time employees before scheduling overtime for full-time
employees. The Arbitrator found that no violation occurred. In
reaching this result, the Arbitrator found that in the absence of
language in the parties' master and local agreements to the
contrary, management has the right to schedule extra hours of
work for part-time employees before scheduling overtime for
full-time employees. Award at 19. The Arbitrator further found,
however, that once workweek or tour of duty schedules are posted,
they cannot be changed unless management obtains the consent of
all parties as specified in the local agreement. Award at 20. To
further support his finding that management may assign extra
hours to part-time employees first, the Arbitrator found that
management had shown the existence of a past practice of
scheduling extra hours of work to part-time employees before
scheduling overtime for full-time employees. Award at 21-22. The
Arbitrator also found that the parties had not manifested an
intention to require that full-time employees be assigned
overtime before part-time employees could be assigned any extra
hours of work. Award at 22. Accordingly, the Arbitrator denied
that portion of the grievance claiming a violation of the
agreement. Award at 22.

     Finally, the Arbitrator addressed the issue of the Agency's
failure to furnish copies of job descriptions. The 
Arbitrator sustained the grievance to the extent that some
employees had not received their job descriptions, as requested.
Award at 22. The Arbitrator found that both the master and local
agreements require the furnishing of position descriptions to
employees upon their request. Award at 22-23. As the Union was
acting as the certified representative of the employees, the
Arbitrator concluded that the Union was entitled to the same
information. Id. at 23.

     As his award, the Arbitrator directed that "(m)anagement
shall not assign extra hours to part-time employees without their
consent and shall provide position descriptions to requesting
employees of their representatives." Id.

III. Positions of the Parties

     A. Agency's Exception

     The Agency excepts only to the portion of the Arbitrator's
award directing that management not assign extra hours of work to
part-time employees without their consent. The Agency argues that
the Arbitrator exceeded his authority by issuing an order which
(1) conflicts with his determination on the merits of the
grievance that no violation of the parties' agreement occurred,
and (2) establishes a remedy for a matter that was not in
dispute. Alternatively, the Agency claims that the award is
contrary to management's rights under section 7106(a)(2) of the
Statute to assign work, to determine the personnel by which
Agency operations shall be conducted, and to assign and/or direct
employees.

     More specifically as to its first contention, the Agency
states that the Arbitrator found no violation of the parties'
agreements concerning the scheduling of extra hours to part-time
employees. The Agency claims that the order that management may
not assign extra hours to part-time employees without their
consent conflicts with the denial of the grievance. The Agency
further claims that the matter of whether extra hours could be
assigned to part-time employees without their consent was not at
issue before the Arbitrator. Therefore, and based principally on
the Authority's decision in Veterans Administration and American
Federatio