34:0475(80)AR - VA MEDICAL CENTER, GAINESVILLE, FLORIDA and AFGE, LOCAL 2779 -- 1990 FLRAdec AR
[ v34 p475 ]
The decision of the Authority follows:
34 FLRA NO. 80 U.S. DEPARTMENT OF VETERANS AFFAIRS VETERANS ADMINISTRATION MEDICAL CENTER GAINESVILLE, FLORIDA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2779 0-AR-1720 DECISION January 22, 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 Stanley H. Sergent filed by the American Federation of Government Employees, Local 2779 (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. The U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Gainesville, Florida (the Agency) filed an opposition to the Union's exceptions. The Arbitrator's award denied the grievance in which a carpenter objected to performing duties which he considered to be painters' duties. For the reasons discussed below, we find that the Union's exceptions do not establish that the award is deficient under any of the grounds set forth in section 7122(a) of the Statute. Accordingly, we will deny the Union's exceptions. II. Background and Arbitrator's Award In June 1988, the grievant, a WG-9 Carpenter, objected to performing duties which he believed were within the Painter, rather than the Carpenter, classification. On three occasions the grievant was assigned to apply an aluminum roof coating around ducts and air conditioning equipment on the roof of the Medical Center. The aluminum roof coating was applied with brushes and rollers, which the grievant believed characterized the work as "painting." Award at 2-6. The Arbitrator found that the grievant's job description included performing roof repairs. Award at 4, 6. The grievant acknowledged that roof repair was included in his position description, but denied that painting was included and argued that brushes and rollers were not listed among the tools of his trade. Award at 6. The Arbitrator first considered the arbitrability of the grievance. The agency had argued that the requested remedy of the reassignment of the work interfered with management's right to assign work under the Statute. Award at 12. The Arbitrator acknowledged management's right to assign work, but found nothing which precluded the filing of the grievance. The Arbitrator noted that the parties' agreement contained a broad definition of a grievance, and he, therefore, found the grievance to be arbitrable. Award at 13. The Arbitrator then considered the merits of the grievance, and determined that management could assign the roof coating duties to the grievant. Award at 13. The Arbitrator found that management has considerable discretion in assigning tasks and that detailed job descriptions do not preclude the assignment of other duties. Award at 14. The Arbitrator concluded that the grievant's Carpenter position description was broad enough to encompass the roof coating assignment. Award at 15. The Arbitrator viewed the work at issue to constitute "roof repairs" even though "painting" might describe the technique used. Award at 16. The Arbitrator concluded that management was not obligated to comply with the portions of the parties' agreement pertaining to job reclassification or negotiation of changes at the local level regarding the grievant's assignment to apply the aluminum roof coating. The Arbitrator also found that the grievant had not been exposed to unreasonable working conditions. Therefore, the Arbitrator found that no violation of the collective bargaining agreement had occurred and he denied the grievance. Award at 16-17. III. Positions of the Parties A. The Union The Union contends that the Arbitrator: (1) exceeded his authority by answering questions which were not before him, and (2) based his award on "Non Fact." Exceptions at 1. The Union argues that the Arbitrator considered the question of whether "Painting is a second classification to Carpentry." Id. The Union also contends that the Arbitrator related the carpenter and painter positions to maintenance work, rather than to journeyman trade positions, when the Arbitrator cited a private sector arbitration award. Id. The Union attached statements from two witnesses. The Union contends that the Arbitrator misunderstood the testimony of these witnesses and arrived at erroneous conclusions regarding the material used as the roof coating. Exceptions at 2. The Union argues that the Arbitrator's confusion "created an erroneous Central Fact and but for this Non Fact the award would or should have gone the other way." Id. B. The Agency The Agency argues that the "Union's assertions muddle the arbitrator's reasoning and are not a fair or accurate representation of the (A)rbitrator's statements in the award." Opposition at 5. The Agency states that the Arbitrator did not find that painting is a second classification to carpentry. Rather, the Agency argues, the Arbitrator found that painting is a skill used by both painters and carpenters. Id. The Agency contends that the Arbitrator's reference to a private sector case stands for the proposition that, except in highly specialized work, "there is much overlapping in jobs and their classifications." Opposition at 6. The Agency argues that the Union's exceptions constitute nothing more than disagreement with the Arbitrator's finding of fact, reasoning, and conclusions. Id. IV. Discussion Section 7122(a) of the Statute provides that an arbitration award may be found deficient: (1) because it is contrary to any law, rule, or regulation; or (2) on other grounds similar to those applied by Federal courts in private sector labor relations cases. The Union does not contend that the award is contrary to any law, rule, or regulation. The Union contends that the award is deficient because the "Arbitrator exceeded his authority (answered questions not before him)" and because the "award (is) based on Non Fact." Exceptions at 1. We reject the Union's contention that the Arbitrator exceeded his authority by answering questions not before him. We conclude that the Union has misread the Arbitrator's award. The Arbitrator has not, in the two instances raised by the Union, addressed extraneous questions. Rather, the Arbitrator discussed the reasons for his finding that the grievant's assignment to apply protective roof coating was within the roof repair function found in the grievant's position description. The Arbitrator directly responded to the issue before him and the Union's exception that the Arbitrator addressed questions not before him is without merit. See Naval Air Rework Facility and National Association of Government Inspectors, Local No. 257, 29 FLRA 1103, 1104 (1987) (exception contending that the arbitrator decided an issue not before him was denied where the award was directly responsive to the issue submitted). We also reject the Union's contention that the award is based on a nonfact. In order to show that an arbitrator's award is deficient under the Statute because it is based on a nonfact, the party must demonstrate that the central fact underlying the award is concededly erroneous and is a gross mistake of fact, but for which a different result would have been reached. See U.S. Patent and Trademark Office and Patent Office Professional Association, 32 FLRA 1168, 1177 (1988). The Union's contention that the award is based on a nonfact constitutes nothing more than disagreement with the Arbitrator's interpretation of the parties' agreement, his findings of fact, and his evaluation of the evidence and testimony. See, for example, Commander, Griffiss Air Force Base and Local 2612, American Federation of Government Employees, AFL - CIO, 31 FLRA 1187 (1988) (exceptions which merely attempt to relitigate the merits of a grievance and constitute nothing more than disagreement with an arbitrator's interpretation of an agreement, credibility findings, and evaluation of the evidence provide no basis for finding an award deficient). Based on the rationale and conclusions of the U.S. Court of Appeals for the District of Columbia Circuit in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988), the Authority has held that the Agency has no obligation to bargain over the conditions of employment of professional medical employees of the Department of Medicine and Surgery subject to 38 U.S.C. 4108(a). U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA No. 29, slip op. at 3, 4 (1990). The grievant in this case is not a professional medical employee subject to section 4108(a). Therefore, the court's decision in Colorado Nurses Association does not affect the award in this case. V. Decision The Union's exceptions are denied.