48:0804(84)AR - - VA, Medical Center, Hot Springs, SD and AFGE, Local 1539 - - 1993 FLRAdec AR - - v48 p804



[ v48 p804 ]
48:0804(84)AR
The decision of the Authority follows:


48 FLRA No. 84

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

HOT SPRINGS, SOUTH DAKOTA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1539

(Union)

0-AR-2422

_____

DECISION

October 29, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Charlotte Neigh filed by the Agency 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 Agency's exceptions.

For the following reasons, we find that the Agency fails to establish that the award is deficient. Accordingly, we will deny the Agency's exceptions.

II. Preliminary Matter

The Union contends that the Agency's exceptions are untimely under 5 C.F.R. § 2425.1(b). The Union states that the Agency was served with the Arbitrator's award on March 1, 1993, and that the Agency filed exceptions to the award on April 5, 1993. The Union argues that because the exceptions were filed more than 30 days from the date the award was served, the exceptions are untimely and should be dismissed.

The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). Absent evidence to the contrary, the date of the arbitration award is presumed to be the date the award was served. U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 326 (1991). If the award is served by mail, 5 days are added to the 30-day period. 5 C.F.R. § 2429.22. The 5 days are added only after the 30-day period is calculated, with due allowances for weekends and holidays as required by section 2429.21 of the Authority's Rules and Regulations. U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204, 1205 (1990).

In this case, the Arbitrator's award was dated March 1, 1993. Presuming that the award was deposited in the U.S. mail on that date, an exception to the award had to be postmarked by the U.S. Postal Service or received in person at the Authority no later than April 5, 1993, in order to be considered timely filed. The Union has not asserted that the award was not served by mail. Therefore, we conclude that the Agency's exceptions, which were postmarked April 5, 1993, are timely. See U.S. Department of the Army, White Sands Missile Range, White Sands Missile Range, New Mexico and National Federation of Federal Employees, Local 2049, 38 FLRA 1532, 1538 (1991).

III. Background and Arbitrator's Award

The Agency issued a memorandum dated June 3, 1992, announcing that there would be a Licensed Practical Nurse (LPN) vacancy in the Substance Abuse Treatment Program (SATP) unit as of June 14.(1) The memorandum was posted on the bulletin boards at all of the nursing stations and instructed that applicants should apply by June 10. The memorandum further stated the requirements for the position and that "off-station" candidates (that is, nonemployees) would be considered for the position as well as employees of the facility. Three employees or "on-station" candidates and one nonemployee applied and were interviewed. All three on-station candidates were qualified for the position. One of the on-station candidates had recently filled in at the SATP unit and had taken college-level courses in preparation for the SATP unit. The nonemployee had not worked in a treatment program unit as an LPN but had experience in a treatment program unit in approximately 1979 or 1980. The nonemployee was selected for the LPN position.

Subsequently, on July 2, the Union filed a grievance alleging that the Agency violated Sections 6B, 6C, and 7B of Article 34 of the parties' Master Agreement when it selected the nonemployee for the LPN position. Article 34 of the Master Agreement and Article 22 of the local agreement provide procedures for filling vacant positions in the bargaining unit.(2)

The Agency replied to the Union on July 27, stating that management did not violate the parties' agreement in selecting a nonemployee for the LPN position because the LPN position is a noncompetitive position. In a memorandum to the Agency dated July 31, the Union argued that the vacancy announcement was "improper in form, not posted in the proper place[,]" and that a copy was not provided to the Union. Award at 6. The Union further argued that: (1) because there were three qualified employee candidates, there was no justification for hiring a nonemployee; (2) management's failure to select an employee was causing low morale; and (3) the Union's request for management's "reason for selecting the outside candidate had not been honored." Id.

In a memorandum to the Union dated August 11, the Agency stated that: (1) "although LPNs are part of the bargaining unit, the Master Agreement is superseded by Title 38 [of the U.S. Code] policy and procedure"; (2) the "primary consideration for making selections and appointments is [the candidate's] qualifications and personal characteristics as they relate to successful performance"; (3) "internal and outside candidates were considered by the same criteria"; and (4) "there is no requirement that a vacancy be filled from internal candidates [as] such a restriction would be contrary to" section 7106(a)(2)(C) of the Statute. Id. In an undated memorandum to the Union, the Agency supplemented its August 11 response by stating that the subject of the vacancy announcement was "non-grievable and non-arbitrable" because the regulations prescribed by the Secretary of Veterans Affairs set forth the exclusive appeal procedures for the appointment, pay, and promotion of "hybrid" employees such as the LPNs in this case. Id. (3)

The parties were unable to resolve the dispute and the matter was submitted to arbitration. The Arbitrator framed the following issues:

1. Whether this matter is grievable and within the jurisdiction of an arbitrator.

2. Whether the Agency violated Article 34 of the Master Agreement and/or Article 22 of the local agreement when it selected an outside person for the LPN vacancy in the Substance Abuse Treatment Program unit.

Id. at 1.

The Union argued before the Arbitrator that under Newington I and National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 44 FLRA 356 (1992) (Newington II), petition for review filed, No. 92-1213 (D.C. Cir. May 12, 1992), the instant grievance is grievable and arbitrable. On the merits, the Union asserted that the Agency violated the parties' Master and local agreements. As a remedy, the Union requested a reaffirmation of the contractual rights of "hybrid" employees and the "placement of one of the on-station candidates on a priority list for the next LPN opening in the SATP so that she is offered the next vacant position." Id. at 7. The Agency argued before the Arbitrator that the grievance "should be dismissed for lack of jurisdiction" because, contrary to Newington I and Newington II, the parties' agreements and grievance procedures "do not pertain to LPN grievances regarding promotions." Id. at 8. The Agency also argued that the instant grievance concerned either an appointment or a change of duty station and that, therefore, the promotion procedures of Article 34 did not apply.

The Arbitrator found that in Newington I and Newington II the Authority held that if promotions of "hybrid" employees are covered by a negotiated grievance procedure, section 7403(f)(3) of title 38 "requires that matters involving such promotions be resolved under [the] provisions of title 5 of the U.S. Code." Id. at 10.(4) The Arbitrator further found that these "precedents apply directly to the case at hand" and that the "Agency's argument that the FLRA erred in these decisions cannot have any effect in this forum." Id. The Arbitrator concluded that arbitral jurisdiction in this case extended to determining whether the incident over which the grievance was filed was covered by the grievance procedures and, if so, to the merits of the grievance.

In determining whether the matter at issue was covered by the grievance procedures, the Arbitrator found that, based on Article 34 of the Master Agreement, "the filling of any vacant position within the bargaining unit becomes reviewable under the grievance provisions" of Article 13 of the Master Agreement. Id. The Arbitrator further found that "[i]t is undisputed that this matter involves the filling of a vacant position in the bargaining unit" and concluded that the matter at issue "is a 'placement' covered by Article 34 of the Master Agreement." Id. at 11. The Arbitrator concluded that the filling of the vacancy at issue in this case "is within the scope of the grievance procedure and therefore within the jurisdiction of the [A]rbitrator to rule on its merits." Id.

On the merits, the Arbitrator found that the relationship of the on-station LPNs to the disputed vacancy gave rise to the grievance and determined that the grievance "is not an appointment as it relates to the non-selected internal applicants[.]" Id. The Arbitrator found that the instant grievance over the filling of an LPN position in the SATP unit concerned a promotion, not a change of duty station. In this regard, the Arbitrator found that under Article 34 of the Master Agreement, a promotion encompasses more than merely a direct increase in grade pursuant to Professional Standards Boards review. The Arbitrator further determined that an LPN position in the SATP unit involves a promotion for a GS-5 LPN because: (1) all of the LPNs in the SATP unit have achieved a GS-6 after working in that unit for a sufficient time; (2) "it is acknowledged by the [Agency] as one of the limited means of [LPNs to] achiev[e] GS-6"; (3) Agency Circular 00-85-9 recognizes "such an assignment change as a shortcut to GS-6"; and (4) on all previous occasions, only on-station candidates were considered for those positions. Id. at 12. Moreover, the Arbitrator noted that in filling this position, the Agency posted the vacancy announcement, stated the area of consideration and qualifications of the position, accepted applications, interviewed all applicants, and compared the qualifications of all applicants to determine which was best qualified. The Arbitrator found that the Agency's use of the above-noted process to fill the vacancy "belies [its] argument that it was unconstrained in its right to fill this position as it saw fit and can be interpreted as a tacit admission that the [Agency] had a duty to conform to the procedures in Article 34." Id.

Having found that the Agency was required to follow agreement provisions on promotion procedures, the Arbitrator found that the Agency failed to comply with several of those procedures. In particular, the Arbitrator found that the Agency's consideration of off-station candidates violated the requirement in Article 34, Section 7 of the Master Agreement that the first area of promotion consideration be facility-wide unless evidence suggests that a vacancy announcement will not produce at least three qualified promotion candidates from within the facility.(5) The Arbitrator found that the instant announcement produced three qualified candidates from within and that the record did "not show that there was any reason not to expect it to." Id. at 13. Moreover, the Arbitrator found it "troublesome that the selectee's stale experience should be considered to make her more qualified than the in-house candidates who were cross-trained and experienced at working in SATP, especially the one who had finished a significant number of college-level courses" so that she could qualify for a position in the SATP unit. Id. at 14.

The Arbitrator concluded that the Agency "wrongfully open[ed] the opportunity to off-station candidates" in violation of Article 34, Section 7. The Arbitrator further concluded that the Agency violated Article 34, Section 6 by posting the vacancy announcement for 7 days rather than 10 days and by failing to provide the Union with a copy of the vacancy announcement. Finally, the Arbitrator found that the Agency violated Article 34, Section 15 when it "unnecessarily damaged morale" and failed to provide the Union with a written reason for selecting an off-station candidate. Id.

As a remedy, the Arbitrator ordered the Agency to post a notice indicating that "hybrid" employees of the Agency who are members of the bargaining unit have a right to grieve matters that are covered by the grievance procedures of the parties' collective bargaining agreements. The Arbitrator also ordered that the on-station candidate who took the college-level courses and who was referred to by the Union "shall be put on a priority list for the next opening in the SATP unit and when such a vacancy occurs, [the employee] shall be offered the position." Id. at 15. The Arbitrator noted the Agency's "admission that [the employee] is qualified to fill such a position" in the SATP unit and found that this portion of the remedy was consistent with Article 34, Sections 5L and 12. Id.

IV. Positions of the Parties

A. Agency

The Agency contends that the Arbitrator lacked jurisdiction over this case because section 7403(f)(3) of title 38, U.S. Code (section 7403(f)(3)) does not make the promotion procedures for LPNs subject to collective bargaining under title 5. The Agency notes that in section 7403(f)(3), Congress "specifically refers" to only adverse actions and disciplinary actions in stating what matters may be grieved under collective bargaining agreements. Exceptions at 8. According to the Agency, the reference in section 7403(f)(3) to adverse actions and disciplinary actions "must modify section 7403(f)(3)'s reference to 'grievance procedures' and limit the application of that term to grievances concerning adverse and disciplinary actions." Id. The Agency maintains that, therefore, section 7403(f)(3) does not make the promotion, advancement, and appointment policies for LPNs subject to collective bargaining.

The Agency further contends that the legislative history of section 7403(f)(3) shows that Congress did not intend to subject promotion procedures for LPNs to collective bargaining. The Agency states that upon the creation of "hybrid" employees by Public Law 98-160 in 1983, the Merit Systems Protection Board (MSPB) "held, over [the Agency's] objections, that conversions of licensed practical nurses to the title 38 personnel system for appointment, promotion and advancement . . . would deprive employees of their rights to appeal matters to the MSPB." Id. at 10. The Agency asserts that prior to the amendment of Public Law 98-160, it stated before Congress that "there is some confusion regarding the rights available to hybrid employees in areas relating to labor[-]management relations" and that according to the Agency, "these employees retain the rights provided by title 5, except for matters as to which the [Agency] has exercised title 38 authorities to appoint, pay, or promote such employees." Id. (citing S. Rep. No. 215, 100th Cong., 1st Sess. 144) (emphasis omitted). The Agency stated that it further noted before Congress that "there has been some confusion regarding [hybrid] employees['] right to appeal adverse actions to the [MSPB]" and that the Agency "expressed the view that these appeals should be accepted by the MSPB." Id. (citing S. Rep. No. 215, 100th Cong., 1st Sess. 144 (1987)) (emphasis omitted). According to the Agency, "Congress acted to 'resolve this confusion' as referred to by [the Agency] and assure licensed practical nurses and similar hybrid employees access to title 5 procedures for the resolution of disciplinary matters." Id. at 11.

The Agency argues that the Authority failed to consider the "full legislative history" of the title 38 provisions relating to "hybrid" employees and urges the Authority to reconsider its decisions in Newington I and Newington II in light of this information. Id. at 13. The Agency maintains that "[n]othing in the legislative history shows or indicates that Congress rejected [the Agency's] view" that the "'confusion' regarding hybrid employees existed as to the availability to these employees of remedies for disciplinary matters and adverse actions, not promotion procedures." Id. at 12. According to the Agency, Congress enacted section 7403(f)(3) "to resolve the 'confusion' that [the Agency] identified without disapproving the [Agency's] construction of the law." Id. The Agency asserts that as section 7403(f)(3) "makes no allusion to the appointment, promotion, and advancement policies that [the Agency] specifically advised Congress were not subject to collective bargaining" and as Congress has not rejected the Agency's view of the purpose for amending the relevant provisions of title 38, the Agency is entitled to deference in its construction of section 7403(f)(3). Id.

In summary, the Agency maintains that as section 7403(f)(3) does not apply, arbitration of the instant grievance is barred by sections 7403(f)(1) and 7425(b) of title 38, U.S. Code.

Additionally, the Agency contends that even assuming that the Authority does not reconsider its decisions in Newington I and Newington II, the remedy in the award in this case is contrary to management's right to select under section 7106(a)(2)(C) of the Statute. In this regard, the Agency argues that "[n]either the [a]ward nor [the] record show[s] that the Agency's alleged misconduct deprived any particular unit employee of a promotion." Id. at 14-15. In the absence of a specific finding that but for the Agency's alleged contractual violation a particular employee would have received a promotion, the Agency contends that under Association of Civilian Technicians and Pennsylvania National Guard, 30 FLRA 779, 781 (1987) (Pennsylvania National Guard), the Arbitrator had no basis on which to grant a promotion to one of the on-station applicants.

B. Union

The Union argues that the award is consistent with the Authority's decisions in Newington I and Newington II and that the Agency's exceptions merely constitute an attempt to relitigate those decisions.

With respect to the remedy, the Union contends that the remedy granted by the Arbitrator is consistent with Authority precedent. In particular, the Union notes that the remedy granted in this case is identical to the "legal remedy" fashioned by the Authority in Pennsylvania National Guard, cited by the Agency. Opposition at 2.

V. Analysis and Conclusions

A. The Grievance Is Arbitrable

For the following reasons, we find that title 38, U.S. Code does not bar arbitration of the grievance in this case.(6)

The grievance involves the failure of the Agency to select an LPN appointed pursuant to section 7401(3) of title 38 for a vacant position. The Agency argues that the parties' agreements were superseded by amendments to title 38 and that sections 7403(f)(1) and 7425(b) of title 38 bar arbitration of the grievance. These arguments were raised by the agency and rejected by the Authority in Newington I and Newington II. Specifically, the Authority found in Newington I that if promotions of "hybrid" employees are covered by a negotiated grievance procedure, then 38 U.S.C. § 4106(g)(3) (now 38 U.S.C.A. § 7403(f)(3)) takes precedence over the provisions of title 38 relating to the promotion of "hybrid" employees and requires that matters involving promotions of "hybrid" employees instead be resolved under the provisions of title 5 of the U.S. Code. See Newington I, 37 FLRA at 115-17.(7) We reaffirmed that interpretation of 38 U.S.C.A. § 7403(f)(3) in Newington II. See Newington II, 44 FLRA at 362.

The Agency acknowledges that under the Authority's interpretation of 38 U.S.C.A. § 7403(f)(3) set forth in Newington I and Newington II, the instant grievance is arbitrable if it is covered by the parties' grievance procedure. However, the Agency argues that the Authority failed to consider all of the relevant legislative history of the title 38 provisions relating to "hybrid" employees and should reconsider Newington I and Newington II. In Newington II, the Authority examined the pertinent legislative history of title 38, including the Senate Report relied on by the Agency. The Authority found that the legislative history "clearly indicates that Congress did not intend to deny 'hybrid' employees the collective bargaining rights and protections enjoyed by employees appointed pursuant to title 5" and that "hybrid" employees were to "have the 'full panoply of rights available to title 5 employees for the resolution of grievance and disciplinary matters . . . .'" Newington II, 44 FLRA at 363 (quoting S. Rep. No. 215, 100th Cong., 1st Sess. 145 (1987)). The Authority concluded that "in order to have the 'full panoply of rights available to title 5 employees for the resolution of grievance' matters, 'hybrid' employees must be permitted to resolve matters pertaining to the scope of the grievance procedure under the provisions of title 5." Id. The Agency has presented no basis warranting reconsideration of that conclusion.

The Arbitrator found that the grievance involved a matter that is covered by the parties' grievance procedure. Therefore, consistent with Newington I and Newington II, the Arbitrator properly found that the instant grievance was arbitrable.

B. Remedy

As a remedy, the Arbitrator ordered the Agency to post a notice indicating that "hybrid" employees of the Agency who are members of the bargaining unit have a right to grieve matters that are covered by the grievance procedures of the parties' collective bargaining agreements. The Arbitrator also ordered that the on-station candidate who took the college-level courses and who was referred to by the Union "shall be put on a priority list for the next opening in the SATP unit and when such a vacancy occurs, [the employee] shall be offered the position." Award at 15. The Arbitrator found that this portion of the remedy was consistent with Article 34, Sections 5L and 12.

The Agency argues that the portion of the Arbitrator's remedy requiring the Agency to promote a specific employee is contrary to management's right to select under section 7106(a)(2)(C) of the Statute.

Section 7106(a)(2)(C) of the Statute provides that management has the right in filling positions to select from a group of properly ranked and certified candidates for promotion or from any other appropriate source. An arbitrator may, consistent with an agency's right to make selections under section 7106(a)(2)(C) of the Statute, properly order an agency to select or promote an employee in circumstances where the award results from the enforcement of a contractual arrangement pursuant to Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 313-17 (1990) (Customs Service). See U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 37 FLRA 816, 822 (1990) (SSA, Missouri), motion for reconsideration denied, 38 FLRA 1480 (1991). An arbitrator may also properly order an agency to select or promote an employee when the arbitrator determines that the employee was affected by an improper agency action that directly resulted in the failure of the employee to be selected or promoted, that is, that the employee would have been selected or promoted but for the agency's improper action. See U.S. Department of the Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410, 1421-22 (1990). See also U.S. Department of Health and Human Services, Social Security Administration, San Juan, Puerto Rico and American Federation of Government Employees, Local 2608, 46 FLRA 1134, 1143 (1993).

When an agency excepts to an award on the basis that an arbitrator's enforcement of a contractual provision interferes with the exercise of a management right, if appropriate, we apply the test set forth in Customs Service. Under Customs Service, we examine the provision enforced by the arbitrator to determine: (1) if it constitutes an arrangement for employees adversely affected by the exercise of management's rights; and (2) if, as interpreted by the arbitrator, it abrogates the exercise of a management right.

We find that the Arbitrator was enforcing arrangements negotiated in Sections 5L and 12 of Article 34 for employees adversely affected by the exercise of management's right to select under section 7106(a)(2)(C) of the Statute. Section 5L allows an employee who has not received proper promotion consideration to be promoted without going through the competitive procedures, and Section 12 provides that any candidate with known entitlement to priority consideration shall be referred to the selecting official for consideration prior to the referral of the Best Qualified list. The application of these provisions is limited to employees who, like the employee in this case, are found to have been adversely affected by management's right to select and, therefore, these provisions are clearly arrangements. See SSA, Missouri, 37 FLRA at 822.

Having found that Sections 5L and 12 of Article 34 constitute arrangements, we must next determine whether the Arbitrator's interpretation or enforcement of those provisions abrogates management's right to select. The Arbitrator found that the Agency violated provisions of the parties' agreement by, among other things, wrongfully allowing outside candidates to apply for an LPN position in the SATP unit. The Arbitrator found that as a result of this violation, the employee in this case did not receive proper consideration for a promotional position. The Arbitrator examined Sections 5L and 12 of Article 34 and noted the Agency's "admission that [the employee] is qualified to fill such a position" in the SATP unit. Award at 15. The Arbitrator concluded that ordering that the employee be put on a priority list for the next vacancy in the SATP unit and offered the position when such a vacancy occurs is "a reasonable remedy in light of [] the [Agency's] admission" and "falls within the contemplation of" Article 34, Sections 5L and 12 of the Master Agreement. Id.

An arbitrator does not abrogate management's right to select where the arbitrator interprets a contractual provision to require management to select an employee exercising priority consideration when management determines that the employee meets the minimum standards that management has set for adequate performance of the job. See SSA, Missouri, 37 FLRA at 822 (although the arbitrator's "interpretation limits management from selecting from any appropriate source in those instances where a qualified employee exercises priority consideration, [the arbitrator's] interpretation preserves management's right to determine the 'minimum standard . . . for adequate performance of the job . . .'").

Consistent with SSA, Missouri, we find that the Arbitrator's enforcement of Article 34, Sections 5L and 12 does not abrogate management's right to select. As found by the Arbitrator, the Agency already determined that the employee in this case was qualified for the position and, thus, has already exercised its right to select in that regard. The Arbitrator found that this employee was entitled to receive priority consideration for the next LPN opening in the SATP unit and, relying on management's prior determination that the employee was qualified for the position, found that the parties' agreement contemplated a remedy ordering management to offer the employee the next such opening. As the Arbitrator relied on management's determination that the employee was qualified for the position in fashioning this portion of the remedy, we find that the Arbitrator's interpretation of the relevant agreement provisions preserves management's right to determine that a candidate meets the minimum standards of, or is otherwise qualified for, a specific position. Accordingly, we find that the portion of the remedy requiring the Agency to offer the employee on the priority list the next LPN opening in the SATP unit does not abrogate management's right to select.

Having found that the Arbitrator properly enforced a negotiated arrangement pursuant to Customs Service, we need not address the Agency's argument that the Arbitrator did not properly apply the "but for" test required by cases decided prior to Customs Service, such as Pennsylvania National Guard.

VI. Decision

The Agency's exceptions are denied.

APPENDIX

PERTINENT MASTER AGREEMENT LANGUAGE

ARTICLE 13     GRIEVANCE PROCEDURE

. . .

Section 2 - A grievance means any complaint:

A. By an employee(s) or the Union concerning any matter relating to employment; or

B. By an employee, the Union or management concerning the interpretation or application of this Agreement and any supplements or any claimed violation, misinterpretation or misapplication of law, rule or regulation affecting conditions of employment . . .

ARTICLE 14     ARBITRATION

. . .

Section 2 - Conventional Arbitration Procedure

. . .

E. The parties will attempt to submit a joint submission of the issue or issues to the arbitrator. If the parties fail to agree on a joint submission, each shall make a separate submission and the arbitrator shall determine the issue or issues to be heard.

ARTICLE 34     PROMOTION AND PLACEMENT

Section 1 - Purpose

The purpose of these placement procedures is to locate the best qualified candidates for vacant positions in the bargaining unit.

Section 2 - Scope

This Article shall apply to all positions to be filled within the bargaining unit. This Article shall not apply to non-bargaining unit positions.

Section 5 - Exclusions

The following are exceptions to the competitive procedures including posting under this Article:

. . .

L. Promotion resulting from priority consideration granted because of failure in the past to receive proper promotion consideration;

. . .

Section 6 - Vacancy Announcement/Locating Candidates

A. All positions to be filled in the bargaining unit by actions covered by this Article shall be posted . . .

B. All announcements shall be posted consistent with the area of consideration for 10 calendar days. The announcement shall include a statement of the area of consideration . . .

C. A copy of each vacancy announcement shall be provided to the Union.

. . .

Section 7 - Area of Promotion Consideration

The areas of consideration will be:

FIRST - Facility-wide (including satellites within the commuting area) except:

. . .

B. Where evidence suggests that a vacancy announcement will not produce at least 3 qualified promotion candidates within the first area of consideration, the Agency may immediately expand the area of consideration.

. . .

In such cases, first and full consideration shall be given to any best qualified candidates within the facility . . . in accordance with Section 13B.

SECOND - Any other promotion candidate--or candidate required to compete--from outside the facility . . .

Section 12 - Priority Referral

Any candidate with known entitlement to priority consideration shall be referred to the selecting official for consideration prior to the Best Qualified list being referred.

Section 15 - Selection

A. Management recognizes that it is important for maintaining high morale to try to select from within the facility when the candidates are equally qualified to those candidates available from outside sources. Thus, management will agree to look closely at the relative qualifications of candidates from outside and within and shall exercise good faith in the selection.

Upon request, the Union will be provided with the reason for selecting an outside candidate in writing.

PERTINENT LANGUAGE IN THE LOCAL AGREEMENT

ARTICLE 3     MUTUAL RIGHTS AND OBLIGATIONS

. . .

Section 4. In the administration of all matters covered by this Agreement, the Center and the Union are governed by existing or future laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published VA policies and regulations in existence at the time the agreement was approved; and by subsequently published VA policies and regulations required by law or by the regulations of appropriate authorities, or authorized by the terms of a controlling agreement at a higher VA level.

ARTICLE 22     PROMOTIONS

Section 1. It is agreed that the Employer will utilize to the maximum extent possible the skills and talents of its employees. Therefore, consideration will be first given, in filling vacant positions, to employees within the Center, and other VA employees who have voluntarily applied for consideration. If three highly qualified candidates are available the area of consideration will not be extended.

. . .

Section 3. Promotion announcements will be advertised on bulletin boards for a period of seven (7) calendar days prior to closing date to give employees an opportunity to bid for the job.

Announcements will provide a summary statement of duties, a statement of required qualifications and, if appropriate, a statement of any special knowledge, skills and abilities determined essential for effective job performance and for identifying the best qualified candidates. The Union President shall be provided with a copy of promotion announcements pertaining to the position in the unit.

. . .

Section 8. Any employee not selected for promotion may request the selecting official to give reasons for his/her nonselection.

. . .

38 U.S.C.A. CHAPTER 74 - VETERANS HEALTH ADMINISTRATION

SUBCHAPTER I--APPOINTMENTS

Section 7401. Appointments in Veterans Health Administration

There may be appointed by the Secretary such personnel as the Secretary may find necessary for the medical care of veterans...as follows:

. . . .

(3) . . . licensed practical or vocational nurses

. . .

Section 7403. Period of appointments; promotions

. . . .

(c) Promotions . . . shall be made only after examination given in accordance with regulations prescribed by the Secretary . . .

. . . .

(f)(1) . . . [T]he Secretary may--(A) use the authority in subsection (a) to establish the qualifications for and . . . to appoint individuals to positions listed in section 7401(3) of this title, and (B) use the authority provided in subsection (c) for the promotion and advancement of Department employees serving in such positions.

. . . .

(3) Notwithstanding any other provision of this title or other law, all matters relating to adverse actions, disciplinary actions, and grievance procedures involving individuals appointed to such positions . . . shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.

SUBCHAPTER II- COLLECTIVE BARGAINING AND PERSONNEL

ADMINISTRATION

Section 7425. Employees: laws not applicable

. . . .

(b) Notwithstanding any other provision of law, no provision of title 5 or any other law pertaining to the civil service system which is inconsistent with any provision of section 7306 of this title or this chapter shall be considered to supersede, override, or otherwise modify such provision of that section or this chapter except to the extent that such provision of title 5 or of such other law specifically provides, by specific reference to a provision of this chapter, or such provision to be superseded, overridden, or otherwise modified.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Unless otherwise noted, all dates refer to 1992.

2. The text of the relevant agreement provisions appears in the Appendix to this decision.

3. Employees appointed pursuant to section 7401(3) of title 38 are considered "hybrid" employees because they retain certain rights provided by title 5 of the U.S. Code. See U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 37 FLRA 111, 112 (1990) (Newington I).

4. The relevant sections of title 38, U.S. Code appear in the Appendix to this decision.

5. The Arbitrator noted that Article 22 of the local agreement similarly required that in filling vacant positions, consideration first be given to employees within the facility and "[i]f three highly qualified candidates are available[,] the area of consideration will not be extended." Id. at 13.

6. Sections 4104(3), 4106(c), 4106(g)(1), 4106(g)(3), and part of section 4119 of title 38, U.S. Code, referred to in Newington I, were repealed and, as relevant here, reenacted without substantive change and renumbered as 38 U.S.C.A. §§ 7401(3), 7403(c), 7403(f)(1), 7403(f)(3), and 7425(b), respectively, by Pub. L. No. 102