American Federation of Government Employees, Local 1203 and U.S. Department of Veterans Affairs, Medical Center, Long Beach, California

[ v55 p528 ]

55 FLRA No. 92

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1203
(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER, LONG BEACH, CALIFORNIA
(Agency)

0-AR-3098

_____

DECISION

June 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator L. Lawrence Schultz filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance that the Agency made improper staff adjustments involving the nurses at its facility in Long Beach, California.

      For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II.     Background and Arbitrator's Award

      The Agency implemented staff adjustments that resulted in a number of nurses being laid off. The Union filed a grievance, which claimed that the Agency had not implemented the staff adjustments in accordance with the final Memorandum of Understanding (MOU) [n1]  agreed upon by the parties. According to the Union, the MOU required the Agency to make the staff adjustments from a pool of nurses in the "general nursing group," that should have included all registered nurses except those nurses in designated specialty groups agreed upon by the parties. [n2] 

      In the grievance, the Union claimed, inter alia, that the Agency "unilaterally" designated nurses in the Spinal Cord Injury section as a speciality group in violation of the final MOU. Union's Exhibit 2 at 1. As a result, the Union alleged that Spinal Cord Injury nurses were not ranked as part of the general nursing group that was subject to staff adjustments, while other nurses were "adjusted" who should have been retained. The grievance also claimed that the staff adjustments violated Agency directives and partnership agreements that required the Agency to negotiate with the Union in a partnership setting regarding the numbers and types of bargaining unit nurses who would be staff adjusted.

      When the grievance was not resolved, it was submitted to arbitration. The parties did not stipulate to the issue, and the Arbitrator framed the issue as follows: "Was the reduction of the nursing staff in keeping with the needs of the Medical Center and in accordance with applicable procedures? If not, what shall be the remedy?" Award at 2.

      The Arbitrator found that "[a] review of the record available . . . reveals [that] negotiation took place on the question and issue of [s]taffing [a]djustment." Id. at 3. In this regard, the Arbitrator referred to an "essential exhibit," id. that stated in pertinent part that, ". . . we (Union and Management) have negotiated an agreement on Staffing Adjustment which was accomplished with the aid of the Federal Mediation and Conciliation Service (FMCS)." Union's Exhibit 14. The Arbitrator also found that the minutes of a Reduction-In-Force/Staffing Adjustment Meeting, "[i]n part . . . pointed out [that] there was a review of the staffing adjustment plans[,]" and "repeatedly mentioned a budget reduction of 15 million dollars for fiscal year 1997." Award at 3. The Arbitrator noted that this document was "not challenged as an accurate recitation of [the] joint session." Id.

      The Arbitrator concluded that the staff adjustments were "reasonable and dictated by the requirements and needs of the VA Medical Center and the health care demands it had to satisfy." Award at 3. The Arbitrator found that "[t]he record of the [m]atter advances sound economic reasons that compelled the Medical Center to [ v55 p529 ] take its action." Id. In this regard, the Arbitrator noted testimony that the Agency was "over staffed by `about' thirty per cent starting in 1992[,]" and that the "patient load had decreased." Id. The Arbitrator further concluded that, "[m]anagement has the right unilaterally to determine the size of the staff necessary for operation of the Medical Center." Id. The Arbitrator noted that "[n]o contractual provision was cited that would offer grounds for holding the Medical Center in violation." Id. The Arbitrator found that the Agency had "executed [the staff adjustments] with reasonable dispatch following its close review of related changes in activity at the Medical Center." Id. at 4. The Arbitrator also characterized the Agency's actions as having "the elements of reasonable and good faith to sound operational principles[.]" Id.

      Finally, the Arbitrator stated that the award was "grounded on the thorough review of testimony of the principals, documents submitted by the principals and a review of relevant case law and arbitral doctrine," and denied the grievance on all counts. Id.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union claims that the Arbitrator's decision conflicts with directives of the Veterans Health Administration ("VHA"), that require the Union's "predecisional input" in partnership on the "numbers and types" of employees to be staff adjusted. Exceptions at 1-2. The Union asserts that it was not afforded such input prior to the Agency's unilateral implementation of the staffing adjustments in late July, 1997. The Union alleges that it had merely "tentative" discussions with the Agency regarding these issues in late 1996. Id. at 1.

      The Union reasserts various claims made in its grievance that the Agency did not implement the staffing adjustments in accordance with the final version of the MOU that was agreed upon by the parties. The Union primarily focuses on the ramifications of the Agency's designation of the "Spinal Cord Injury" nurses as a speciality group.

      The Union takes issue with the Arbitrator's reliance on the Agency's minutes for the "Reduction-In-Force ("RIF")/Staffing Adjustment Meeting[,]" held on October 8, 1996, as evidence that there was a review of staff adjustment plans. Id. at 2. The Union emphasizes that this meeting was not a "[p]artnership [m]eeting run by consensus" in accordance with the parties' partnership agreement. Id. Alternatively, the Union argues that the RIF Report on Staffing Adjustments that was approved by the Secretary of Veterans Affairs on December 5, 1996, as required by the MOU, should take precedence over the Agency's minutes for the RIF/Staffing Adjustment Meeting held in October, 1996.

      The Union also disputes the accuracy of the exhibit that was cited by the Arbitrator as a basis for his factual finding that negotiations took place on the question and issue of staffing adjustments. The Union points out that the exhibit at issue, a letter dated August 23, 1997, from the Agency to the Union, states that, "[section] 7106[b](1) does not apply to Title 38 employees . . . ." Id. at 3. The Union asserts that, contrary to the Agency's statement, the Union established its right to negotiate 7106(b)(1) issues, citing Title 38 section 7422, the Union's partnership agreement and the Agency directive in VHA Handbook 5111.

      The Union questions the basis and the accuracy of the following statements made by the Arbitrator: (1) the nurses affected were not patient care providers; (2) if an error occurred it was not intended and was corrected; and (3) no harm befell the Union members. The Union maintains that the Agency's "error" in using an earlier draft version of the MOU that listed Spinal Cord Injury as a specialty group to exempt these nurses from staff adjustments was not rectified. Id.

      The Union also questions the Arbitrator's authority to "set out the issues," and contends that the issues were framed and addressed in its grievance that was submitted to the Arbitrator. Id. at 5.

      Finally, the Union claims that the Arbitrator had a hearing impairment, failed to make arrangements for a court reporter or transcript of the arbitration proceedings, failed to advise the parties of hearing procedures in advance, and, in general, "failed to fully hear the case[.]" Id.

B.     Agency's Opposition

      The Agency asserts that the Union has failed to demonstrate that the award is deficient on any basis. According to the Agency, the Union simply disagrees with the Arbitrator's reasoning and conclusions. The Agency maintains that the Arbitrator "clearly considered the parties' agreement . . . and found that the [Agency] acted within its prerogatives." Opposition at 3. The Agency also contends that the "Arbitrator was well within his authority in disposing of the Union's claims concerning the construction and application of the VA staffing adjustment regulations to this case." Id. at 3-4.

      The Agency maintains that the Union's claims about the fairness of the arbitration hearing are unsub- [ v55 p530 ] stantiated and were not brought to the attention of the Arbitrator as required. Id. at 4. The Agency contends that, as noted in the Arbitrator's decision, the case was properly before the Arbitrator, the parties had ample opportunity to present their positions, and the parties took no exception to the Arbitrator conducting the hearing.

      Finally, the Agency noted that since the parties did not stipulate the issue, the Arbitrator "was free to formulate the issue, and he did so reasonably." Id. at 5.

IV.     Analysis and Conclusions

A.     The Arbitrator Did Not Exceed His Authority

      The Union questions the Arbitrator's "authority to set out the issues," and maintains that the issues were framed and addressed in its grievance that was submitted to the Arbitrator. Exceptions at 5. Throughout its exceptions, the Union reasserts most if not all of the claims that were made in its grievance regarding: (1) the Agency's improper implementation of the staffing adjustments in accordance with the MOU, including the Agency's classification of the Spinal Cord Nurses as a specialty group not subject to the adjustments; and (2) the Agency's refusal to negotiate over the types and numbers of nurses to be staff adjusted as required by agency directives. We construe these contentions as claims that the Arbitrator exceeded his authority by not addressing the specific issues set forth in the Union's grievance.

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. See, e.g., American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997).

      In this case, the parties did not stipulate the issue to be resolved by the Arbitrator. Instead, the Arbitrator framed the issue as follows: "Was the reduction of the nursing staff in keeping with the needs of the Medical Center and in accordance with applicable procedures? If not, what shall be the remedy?" Award at 2. The Arbitrator did not specify the procedures that were applicable to the reduction in nursing staff, and therefore did not limit the issue to whether the staff adjustments were implemented in accordance with the MOU or the Agency's directives. In evaluating the issue as he defined it, the Arbitrator determined that the staffing adjustments were "reasonable and dictated by the requirements and needs of the VA Medical Center and the health care demands it had to satisfy[,]" and were based on "sound economic reasons[.]" Id. at 3. The Arbitrator also concluded that the staffing adjustments were "executed with reasonable dispatch following [the Agency's] close review of related changes in activity," and that the Agency observed "reasonable and good faith to sound operational principles," in making its decisions. Id. at 4. Furthermore, the Arbitrator found that negotiations took place on the issue of staffing adjustments.

      In making these findings, the award was directly responsive to the issue as formulated by the Arbitrator. Based on the foregoing, we find that the Union has failed to demonstrate that the Arbitrator exceeded his authority.

B.     The Award Is Not Contrary to VHA Directive 5111 and VHA Handbook 5111

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any rule or regulation. For purposes of 7122(a)(1), the Authority has defined rule or regulation to include both Government-wide and governing agency rules and regulations. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 191-92 (1990). In reviewing arbitration awards for consistency with rule or regulation, the Authority "must review the questions of law raised by the Arbitrator's award and the Union's exception de novo." National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In so doing, the Authority will determine whether the award is inconsistent with the plain wording of, or is otherwise impermissible under, the rule or regulation. U.S. Department of the Treasury, Internal Revenue Service, Ogden Service Center, Ogden, Utah and National Treasury Employees Union, Chapter 67, 42 FLRA 1034, 1056-57 (1991).

      In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the arbitrator's underlying factual findings. National Federation of Federal Employees, Local 1437 [ v55 p531 ] and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. An arbitrator's failure to apply a particular legal analysis "does not render [an] award deficient because, . . . in applying the standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with law, based on the underlying factual findings." American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, U.S. Immigration and Naturalization Service, United States Border Patrol, 54 FLRA 905, 910 n.6 (1998) (emphasis in original).

      The Union contends that the award conflicts with VHA Directive 5111 and VHA Handbook 5111. [n3]  These regulations provide that staff adjustments will not be developed or implemented by the Agency without predecisional involvement of Labor-Management Partnerships. The Union argues that the award is contrary to these regulations because the Union was not afforded predecisional involvement in a partnership setting on the "numbers and types" of bargaining unit members who were staff adjusted in "late July 1997." [n4]  Exceptions at 1. We reject the Union's claims.

      As noted earlier, the Arbitrator found that negotiations on the staffing adjustments occurred. This finding was based on his review of an "essential exhibit" dated August 23, 1997, that stated that the parties had negotiated an agreement on staffing adjustment. Award at 3. The agreement was an obvious reference to the MOU that had been signed by both Agency and Union representatives on July 1, 1997, then approved by the Medical Center Director on July 10, 1997. The fact that the MOU was executed in early to mid-July, prior to the implementation of the adjustments in late July 1997, refutes the Union's contention that it was not afforded predecisional involvement on the staffing adjustments.

      Furthermore, the Arbitrator's finding that the Union reviewed staffing adjustment plans in a RIF/Staffing Adjustment Meeting, which he characterized as a "joint session" held on October 8, 1996, also discredits the Union's claim in this regard since this meeting also predated the staffing adjustment. Award at 3. Additionally, the Union submitted other exhibits with its exceptions, which also were before the Arbitrator, that reveal an ongoing course of dealing between the parties on staffing adjustment issues that culminated with the execution of the MOU in early July. Specifically, the record shows that the parties met in February 1997, about various staffing adjustment issues and communicated via electronic mail regarding adjustment issues in late March and early May 1997. Thus, we find that the Arbitrator's factual findings, as stated above, are sufficient and consistent with the requirement in the regulations for predecisional involvement.

      Moreover, the staffing adjustments at issue clearly pertain to matters in section 7106(b)(1) of the Statute. Specifically, the record reveals that the staffing adjustments were designed to reduce the number of and to reallocate nurses among various organizational groupings, or specialities, at the Long Beach VA Medical Center. In National Association of Government Employees Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030-31 (1997) (VAMC Lexington), the Authority interpreted the "numbers, types and grades" phrase in section 7106(b)(1) as applying to the establishment of staffing patterns, or allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. The Authority further held that, within the context of section 7106(b)(1), the term "types" referred to "distinguishable classes, kinds, groups or categories of employees or positions that are relevant to the establishment of staffing patterns." Id. at 1031 (footnote omitted). Here, the MOU pertained exclusively to the staffing adjustments of registered nurses. In line with the definition of types articulated in VAMC Lexington, registered nurses definitely constitute a type or distinguishable group/category of employee or position that relates to the allocation of staff within the meaning of section 7106(b)(1). [n5]  Therefore, we find that the negotiations over staffing adjustments fulfilled the [ v55 p531 ] requirements in the VHA Directive and VHA Handbook for Union participation in addressing the numbers and types of employees to be staff adjusted.

      Finally, we reject the claim that the award is contrary to the regulations' requirement that predecisional involvement occur in a partnership setting. The Union's arguments are predicated on its view that in order to have fulfilled the regulations' requirement, predecisional involvement must have occurred at a Partnership Council meeting or at meetings with a prescribed composition to allow for consensus among the parties. However, the regulations do not require that predecisional involvement occur in any particular way or particular forum. The regulations specify the involvement of "Labor-Management Partnerships," but they do not expressly incorporate the National or Local Partnership Agreements. Furthermore, the Partnership Agreements would not necessarily require a full meeting of the Partnership Council. The National Partnership Agreement allows for delegation to committees, task forces, or work groups, while the Local Agreement provides for the consideration of section 7106(b) matters per unspecified appropriate guidelines. In our view, there was predecisional involvement in this case as reflected by joint sessions and various meetings between the Union and the Agency, apart from actual negotiations that led to the MOU. Hence, we find that the Union has not established that predecisional involvement occurred in a manner that is contrary to the regulations.

      Based on the foregoing, we find that the Union has not established that the award is deficient as contrary to the Agency's regulations.

C.     The Arbitrator Conducted A Fair Hearing

      The Union claims that the Arbitrator had a hearing impairment, failed to make arrangements for a court reporter or transcript of the arbitration proceedings, failed to advise the parties of hearing procedures in advance regarding the submission of documents, and, in general, failed to fully hear the case. We construe these contentions as a claim that the Arbitrator failed to conduct a fair hearing.

      The Authority will find an award deficient on this ground when it determines that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party and affected the fairness of the proceeding as a whole. American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA 124, 126 (1995). It is well established that an arbitrator has considerable latitude in conducting the hearing. U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 127, 53 FLRA 390, 396 (1997).

      The Union did not allege or establish that the Arbitrator refused to hear or consider pertinent and material evidence, or that the Arbitrator's actions prejudiced the Union. To the contrary, the Union refers to multiple exhibits that were submitted to the Arbitrator to support its position. Also, we note that the Union did not challenge the Arbitrator's statement that "[t]he contending parties were allowed ample opportunity to offer statements of position orally or in writing, submit testimonial and documentary evidence, examine and cross-examine witnesses and enter closing argument into the record." Award at 1. Accordingly, the Union has not provided any basis that demonstrates that the Arbitrator failed to conduct a fair hearing.

D.     The Award Is Not Based On Nonfacts

      The Union challenges the basis and accuracy of the following statements made by the Arbitrator: (1) the nurses affected were not patient care providers; (2) if an error occurred it was not intended and was corrected; and (3) no harm befell the Union members. The Union maintains that the Agency's "error" in using the earlier draft version of the MOU that listed Spinal Cord Injury as a specialty group to exempt these nurses from staff adjustments was not rectified. We construe these contentions as a claim that the award is based on nonfacts.

      However, the statements at issue are not factual findings that were made by the Arbitrator. Rather, the statements merely reflect the Arbitrator's representation of the "Agency's Contentions," and are clearly identified as such in the decision. Id. at 2. Accordingly, the Union's assertions do not rise to the level of a claim based on nonfact. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993) (to establish that an award is based on a nonfact, the central fact underlying the award must be clearly erroneous, but for which a different result would have been reached by the arbitrator).

V.     Decision

      The Union's exceptions are denied.






Footnote # 1 for 55 FLRA No. 92

   The MOU addresses the downsizing of the nursing staff, the criteria used in determining retention rankings, the placement and reassignment of retained nurses, and the ability of certain nurses who have received separation notices to exercise bumping rights into the designated speciality groups. The MOU also includes a list of the specialty groups and the requisite qualifications for such groups.


Footnote # 2 for 55 FLRA No. 92

   Speciality groups were not subject to staff adjustments.


Footnote # 3 for 55 FLRA No. 92

   Section 2(e) of VHA Directive 5111, entitled "Assignments, Staff Adjustments and Furloughs," provides:

e.     Local policies and procedures related to this Directive shall not be developed or implemented without predecisional involvement of Labor-Management Partnerships.

      Section 4, entitled "Labor-Management Relations," of the VHA Handbook 5111, entitled "Assignments, Staff Adjustments, and Furloughs," dated March 11, 1996, provides:

a.     As specified in paragraph 2e of VHA Directive 5111, local policies and procedures related to this