39:1162(100)AR - - VA, VA Medical Center, Leavenworth, KS and AFGE Local 85 - - 1991 FLRAdec AR - - v39 p1162



[ v39 p1162 ]
39:1162(100)AR
The decision of the Authority follows:


39 FLRA No. 100

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

VETERANS ADMINISTRATION MEDICAL CENTER

LEAVENWORTH, KANSAS

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 85

(Union)

0-AR-1811

(38 FLRA 232 (1990))

ORDER DENYING MOTION FOR RECONSIDERATION

March 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion for reconsideration of the Authority's decision in 38 FLRA 232 (1990) made on behalf of the Activity by the Department of Veterans Affairs (the Agency). The Union did not file an opposition to the Agency's motion. Because the Agency fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we will deny the motion.

II. The Decision in 38 FLRA 232

The Activity filed exceptions to the First Supplemental Decision and Award (Supplemental Award) of Arbitrator William O. Eisler. The supplemental award concerned the implementation of the Arbitrator's initial award directing the Activity to pay retroactive environmental differential pay (EDP) for exposure to airborne asbestos fibers to bargaining unit employees who were determined to be entitled to EDP under terms of his award. The Arbitrator ruled, among other things, that his supplemental award covered employees of the Veterans Canteen Service, Leavenworth, Kansas (Canteen) and the Veterans Administration National Cemetery, Leavenworth, Kansas and Veterans Administration National Cemetery, Fort Leavenworth, Kansas (Cemetery), as well as employees of the Medical Center. The Arbitrator held that employees of the three organizations were in the bargaining unit represented by the Union and rejected the Activity's claim that the employees of the Canteen and the Cemetery were not covered by the grievance. He ruled that the parties' agreement required that grievability and arbitrability objections must be made at the third step of the grievance procedure and noted that the Activity raised its objection to coverage of Canteen and Cemetery employees for the first time at the arbitration hearing.

In its exceptions to the supplemental award, the Activity contended to the Authority that the supplemental award was deficient because the Arbitrator erroneously ruled that the grievance and initial award included employees of the Canteen and the Cemetery as well as the Medical Center. The Activity disputed the Arbitrator's finding that the Director of the Medical Center had waived the grievance and arbitration procedures for the Canteen and the Cemetery. The Activity also contended that the Arbitrator erroneously based his decision on Article 13, Section 4 of the Master Labor Agreement (MLA), which requires the Activity to assert nongrievability and nonarbitrability at the third step of the grievance procedure. The Activity asserted that there is no third step in the grievance procedures of the Canteen or the Cemetery. The Activity argued that the grievance was filed against the Medical Center as a local level grievance on behalf of Medical Center employees only.

The Activity maintained that at no time during the initial arbitration proceeding was mention made that the grievance was intended to cover Canteen and Cemetery employees. The Activity contended that the Union mistakenly ignored the separate grievance procedures for the Canteen and Cemetery and filed a grievance for EDP at the third step of the Medical Center's grievance procedure. The Activity asserted that the grievance requested relief only for employees of the Medical Center and argued that the Arbitrator erroneously determined that a local grievance against the Medical Center was also a grievance against the Agency as the common employer of employees of the Center, the Canteen, and the Cemetery.

The Authority denied the Activity's exceptions to the supplemental award and specifically rejected the contention that the award was deficient on the ground that it erroneously granted relief to employees of the Cemetery and Canteen Service. The Authority considered the Activity's exceptions in that regard as contentions that the award failed to draw its essence from the parties' collective bargaining agreement and that the Arbitrator exceeded his authority. The Authority concluded that the Activity failed to establish that the award was deficient on either ground and denied the Activity's exceptions.

The Authority ruled that the Arbitrator fully addressed the Activity's contentions regarding coverage of Canteen and Cemetery employees in his supplemental award. The Authority found that the Arbitrator considered the Activity's failure to contest the coverage of employees of the Canteen and Cemetery until the October 1987 hearings on compliance began and the fact that the initial award granted relief to all employees in the bargaining unit. The Authority found no deficiency in the Arbitrator's conclusion that the bargaining unit includes employees of the Medical Center, the Canteen, and the Cemetery, and that, consequently, the initial award was applicable to all eligible employees of the bargaining unit, including employees of the Canteen and Cemetery.

The Authority also found that the Activity did not show that the award failed to draw its essence from the parties' agreement. The Authority noted that the Arbitrator specifically rejected the Activity's contention that the agreement required a separate grievance filed with the Canteen and the Cemetery in order to cover employees of those organizations. The Authority concluded that the Activity's exception constituted nothing more than disagreement with the Arbitrator's ruling on a matter of procedural arbitrability under the agreement and provided no basis for finding the award deficient.

III. The Agency's Motion for Reconsideration

The Agency claims that the Authority erred when it upheld the Arbitrator's award granting relief to employees of the Canteen and the Cemetery. The Agency states that the bargaining unit involved is a nation-wide unit covered by a master agreement but the various activities covered by the bargaining unit are "established under separate statutory authority, all have separate lines of supervision such that the supervision and budget authority of one activity has no authority over the other activities or their employees." Agency Brief at 2. The Agency maintains that local grievances must be filed with the appropriate supervisor of the local activity and that "an arbitrator's award applies only at the local VA facility unless the grievance was converted, pursuant to contractual procedures, to a national-level grievance." Id. The Agency contends that, in this case, the grievance was filed with the Medical Center only and there was no grievance filed with the Canteen or the Cemetery.

The Agency asserts that when it denied the exceptions to the award in 38 FLRA 232, "the Authority failed to consider VA's fundamental contention that the [A]rbitrator lacked jurisdiction over the Canteen and Cemetery employees, and thus, was legally disabled from affecting their conditions of employment in the award." Id. at 4. The Agency maintains that the Arbitrator had jurisdiction only under the terms of the collective bargaining agreement and that the Arbitrator ignored the requirement that all grievances by Canteen and Cemetery employees be filed with the supervisors of those activities. In support of its position the Agency cites Veterans Administration Central Office, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 27 FLRA 835, 839-40 (1987) (VACO), affirmed sub nom. American Federation of Government Employees v. FLRA, 850 F.2d 782 (D.C. Cir. 1988), in which the Authority refused to enforce an arbitration award because the arbitrator lacked jurisdiction under 38 U.S.C. º 4119.

The Agency argues that a grievance filed with the Medical Center cannot cover employees of the Canteen or the Cemetery because each organization is a separate activity within the Agency with its own line of authority and with different working conditions. The Agency states that none of the three activities has the power to adjust grievances of employees of the others and that each activity has its own grievance procedure which must be followed. The Agency asserts that the requirement for separate grievance procedures "is no mere procedural step, as the [A]rbitrator and the Authority ruled; rather, it is a jurisdictional prerequisite directly tied to the authority of these separate activities." Agency Brief at 7. The Agency contends that "the Medical Center lacked jurisdiction to act on any such grievances or to refer them to arbitration." Id.

The Agency also maintains that the Arbitrator erred by ruling that there was a waiver of the jurisdictional requirements for filing a grievance under the negotiated grievance procedure. The Agency asserts that its defense in the matter is jurisdictional and cites Ilee K. McKay v. VA, 23 MSPR 244, to support its contention that "jurisdictional defenses may be raised at any time because they go to the tribunal's legal authority to act." Id. at 9. The Agency contends that "[c]ontractual interpretations, such as this one, which are irrational, implausible and which manifest a disregard for the contract cannot be sustained." Id.

The Agency claims that the Arbitrator illegally expanded the scope of the grievance to include employees who were not involved and that his award deprives the Canteen and the Cemetery of the opportunity to resolve the grievances of their own employees and deprives the parties of the right to resolve grievances informally. The Agency asserts that, although the Canteen and the Cemetery employees are in the same bargaining unit as Medical Center employees, the Arbitrator could not expand the remedy beyond those employees included in the grievance. Finally, the Agency contends that the award is illegal because it conflicts with Government appropriations law by requiring one activity, the Medical Center, to use its funds to pay the employees of other activities.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 38 FLRA 232 and we will deny the Agency's motion.

The arguments presented by the Agency in support of its motion for reconsideration constitute nothing more than disagreement with the Authority's decision in 38 FLRA 232 and an attempt to relitigate the matter. As such, these arguments do not constitute extraordinary circumstances within the meaning of section 2429.17. See, for example, U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Local 171, 38 FLRA 541 (1990) and the case cited therein.

The Agency's arguments are based on the premise that the Arbitrator did not have jurisdiction to extend the coverage of the grievance to employees of the Canteen and the Cemetery and that the Arbitrator and the Authority erred in considering that question to be a matter of contract interpretation. Those arguments are substantially the same arguments which we addressed and rejected in 38 FLRA 232. The Agency's exceptions to the Arbitrator's award focused on the claim that the Arbitrator erred by finding that the Activity's failure to raise the issue of jurisdiction over employees of the Canteen and the Cemetery at the third step of the grievance procedure brought those employees under the coverage of the grievance. The Agency also made arguments concerning the separateness of the three activities and the fact that each activity has a separate pay system. We considered the Activity's arguments at that time and concluded that the arguments merely constituted disagreement with the Arbitrator's interpretation and application of the procedural requirements of the agreement. See 38 FLRA at 242-43.

The cases relied on by the Agency, particularly VACO and Ilee K. McKay, are inapposite to the circumstances in the present case. Those decisions concerned the lack of jurisdiction by an arbitrator or the Merit Systems Protection Board over matters that are covered exclusively by title 38 of the United States Code. There is no such statutory exclusion in the present case.

There is no merit in the Agency's argument that the award "conflicts with fundamental appropriation law." Agency Brief at 14. The Agency made essentially the same argument in its exceptions to the Arbitrator's supplemental award when it asserted that the Medical Center, the Canteen and the Cemetery have separate budgets and separate personnel offices in Washington, D.C. Further, the Agency fails to specify any particular law which the award violates in that regard. The Agency misapprehends the Arbitrator's supplemental award. The award holds that the initial award applies to all bargaining unit employees, including Canteen and Cemetery employees. There is nothing in the award which requires that Canteen and Cemetery employees must be paid out of the funds of the Medical Center and nothing in the award prevents the payment of Canteen and Cemetery employees from t