U.S. Department of Veterans Affairs, Medical Center, Coatesville, Pennsylvania (Agency) and National Association of Government Employees, Local R3-35 (Union)

[ v56 p966 ]

56 FLRA No. 161

U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
COATESVILLE, PENNSYLVANIA
(Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-35
(Union)

0-AR-3258

_____

DECISION

November 30, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1] 

Decision by Member Cabaniss for the Authority

I.     Statement of the Case

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

      The Arbitrator first determined that the grievance was arbitrable because the grievant was a member of the bargaining unit. The Arbitrator based this conclusion on the decision of an Authority Regional Director in a representation proceeding involving the parties. The Arbitrator next determined that the Agency did not comply with the parties' agreement when it restricted the grievant from performing his duties in particular offices within the Agency. As a result, the Arbitrator ordered that the restriction imposed on the grievant be terminated.

      For the reasons set forth below, the exceptions are denied.

II.     Background and Arbitrator's Award

      The grievant is a GS-9 computer specialist at the Veterans Administration Medical Center in Coatesville, Pennsylvania. His responsibilities include the installation of new computer systems, the upgrading of software, troubleshooting problems on the main frame and dealing with other computer related problems. The grievant became a GS-9 in April of 1996. While he was a GS-7, in 1994 or 1995, the grievant had joined the Union and signed-up for dues withholding. Award at 2. Approximately 16 months after being promoted to the GS-9 level (August of 1997), the Agency informed the grievant that he was not in the bargaining unit and unilaterally terminated his dues withholding. Id.

      On October 21, 1997, the grievant was called to service a computer in the offices of the Human Resources Department. Id. When he arrived at the office, the grievant asked the human resources employee if she had heard anything about the Union president's "suspension case," and whether the president had won his hearing. [n2]  Id. The employee stated that she did not feel it was appropriate to discuss that issue and she did not want to talk about it. Id. After her request, there was no further conversation about the matter. Id.

      When the grievant arrived for work the next day, he was advised by his supervisor that he was no longer allowed to service computers in the office of Human Resources. Award at 2. Later that same day, he was also told that he was no longer allowed to service the computers anywhere in the offices of the Director or Deputy Director. Id. After being unable to find out conclusively why these restrictions were implemented, [n3]  the grievant filed a grievance on November 4, 1997[n4]  Id. The Agency refused to address the grievance on the merits, alleging that the grievant was not a member of the bargaining unit. [n5]  Id. The Union's Step II grievance was also denied and the Agency did not respond to the Step III grievance. [ v56 p967 ]

      The Union invoked arbitration. However, because of the question about whether or not the grievant was a member of the bargaining unit, the parties agreed to place the case in abeyance so that the Union could file a unit clarification petition (UC petition) with the FLRA Regional Office. [n6]  The Unit clarification petition was decided on February 12, 1999, and the Regional Director found that the grievant's GS-9, computer specialist position was a part of the bargaining unit. Subsequent to this, the parties continued with the arbitration process.

      The issues at arbitration as stated by the Arbitrator were:

1.     Is the grievance of [the grievant] dated October 27, 1997, arbitrable?
2.     Did the Agency violate the terms of the Collective Bargaining Agreement (Contract) when it excluded the offices of the Director, the Deputy Director and Human Resources from the Grievant's area of work?
3.     If so, what should the remedy be?
4.     Is the Agency required to pay all or part of the arbitration filing fee? [n7] 

Award at 1.

      The Arbitrator first dealt with the issue of whether the grievance was arbitrable. The Arbitrator stated that after reviewing the Regional Director's opinion, it was evident that inclusion of the grievant's position in the Unit clarification petition was not for the purpose of determining the status of a newly created position, but rather to confirm the belief of the grievant and the Union that the grievant's position was always within the certified bargaining unit. Id. at 4. As such, the Arbitrator found the grievant was a member of the bargaining unit and the grievance filed on his behalf was arbitrable.

      The Arbitrator next looked at whether the Agency violated the terms of the parties' agreement when it excluded the offices of the Director, the Deputy Director and Human Resources from the grievant's area of work. The Arbitrator stated that while it is true that Article 5 of the parties' agreement gives the Agency the right to assign employees and work within the facility, it is also true that those rights are tempered by other sections of the agreement which allow employees to assist a labor organization without fear of reprisal and which require all personnel actions to be free of discrimination and reprisal. Award at 5-6.

      The Arbitrator found that the Agency's stated reason for why the work restriction was imposed, namely that the grievant was disruptive on two occasions in discussing non-work matters with Human Resources employees, was an attempt by the Agency to "prohibit the [g]rievant's freedom of expression in the workplace when no Agency policy justifying such prohibition was established." Id. at 6. Therefore, the Arbitrator found that there was no just cause for the Agency's restriction, that the Agency did not act in a fair manner, and that the restriction of the grievant's work area can only be concluded to be retaliation and discrimination for the grievant's open support of the Union president. Id. As such, the Arbitrator ordered the work restriction be removed and the grievant be allowed to enjoy the full freedom of employment within his work sphere. [n8] 

III.     Position of the Parties

A.     Agency's Exceptions

      The Agency contends that the award: (1) should be overturned because the grievant was not a member of the bargaining unit at the time the grievance arose, therefor the grievance is not arbitrable; and (2) is contrary to law, rule or regulation in that it (a) violates management's right to assign work under § 7106(a)(2)(B); [n9]  (b) violates management's right to discipline under § 7106(a)(2)(A); and (c) violates management's right to determine its internal security practices under § 7106(a)(1).

      First, the Agency maintains that the Arbitrator's arbitrability determination violates § 7121(b) of the Statute and Article 47, §§ 1 and 2 of the parties' agreement because the grievant was not a member of the unit [ v56 p968 ] when the grievance was filed. [n10]  The Agency alleges that the Union knew that the grievant was not a member of the bargaining unit and that he did not become a member until October 20, 1998 when the Union and the Agency signed a memorandum of understanding (MOU) including him in the unit. Exceptions at 6-7. The Agency asserts the Union knew of the grievant's non-unit status because the Union did not file a unit clarification petition until 2 months after the step II grievance was filed. The Agency further asserts that the Union's failure to respond to its August 4, 1997 memo stating that the grievant was not a member of the unit, also makes it clear the Union agreed the grievant was not a member of the unit. Therefore, argues the Agency, the grievant did not become a member of the unit until the MOU was signed, and the Arbitrator violated the parties' agreement by imputing retroactivity into the Regional Director's decision and deeming the grievance to be arbitrable. [n11] 

      The Agency next makes several different contrary to law exceptions. First, the Agency claims that the Arbitrator's award violates management's right to assign work under § 7106(a)(2)(B). The Agency asserts that in making his award, the Arbitrator "has ruled that the authority to assign work by the [g]rievant's Service Chief, [his supervisor], be abrogated, and the [g]rievant be awarded the unfettered right to decide where and when his work assignments will occur in direct violation of the [right to assign work]." Exceptions at 10. The Agency cites to NEA, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 739 (1996) as support for this.

      The second contrary to law, rule or regulation exception is that the award violates management's right to discipline under § 7106(a)(2)(A) of the Statute. The Agency alleges that the parties' agreement is clear as to what constitutes disciplinary action, and a restriction of work is not included. Exceptions at 11. The Agency asserts that for the Arbitrator to attempt to link a disciplinary action to the assignment of work is inappropriate. Id.

      The final contrary to law, rule or regulation exception is that the award violates management's right to determine its internal security practices under § 7106(a)(1). The Agency alleges that the Medical Center CEO and the Director of Human Resources were adamant that the restriction was necessary in the interest of Medical Center security and that the grievant should not have access to confidential information in their respective work areas. Id. at 10.

B.     Union's Opposition

      The Union maintains that the grievance is arbitrable and where a determination concerning the bargaining unit status of an employee is necessary to fully resolve a grievance at arbitration, the parties must place the grievance in abeyance pending the opinion of the Authority on the unit clarification petition. Opposition at 6. As support for this, the Union cites to United States Dep't of Veterans Affairs, 55 FLRA 781 (1999) (Veterans Affairs). Id. The Union also asserts that the Regional Director made the requisite findings and determined that the grievant's GS-9 computer specialist position was included in the bargaining unit. Id. at 7. Since the grievant's duties did not change from the time he was promoted to the GS-9 level, argues the Union, he was always a member of the bargaining unit. Id.

      The Union also alleges that the assertion by the Agency, i.e., that the Regional Director did not make a unit determination in this case and that the grievant only became a member of the unit when the parties signed a MOU, is "misinformed and legally inaccurate." Id. at 6-7. As such, the Union contends that the Arbitrator correctly found the grievance to be arbitrable. Id. at 7.

      The Union also disagrees with the Agency's second exception and alleges the exception "conspicuously ignores the Arbitrator's finding that it retaliated against the grievant based on his support of the local union president." Opposition at 8. The Union argues that the Agency's alleged unfettered right to assign work as it chooses is utterly without merit citing to United States Dep't of Transp., FAA, El Paso, Tex., 39 FLRA 1542, 1550 (1991); Letterkenny Army Depot, 35 FLRA 113, 118-119 (1990); and United States Customs Serv., Wash., D.C., 24 FLRA 773, 781-83 (1986). [ v56 p969 ]

IV.     Analysis

A.     The Grievance is Arbitrable.

      In United States Small Business Admin., 32 FLRA 847, 852 (1988) (SBA), reconsideration granted, 36 FLRA 155 (1990), the Authority held that an arbitrator is not empowered to determine the question of a grievant's bargaining-unit status, even if the unit question is raised as a collateral issue to a grievance otherwise properly brought under the collective bargaining agreement. The Authority noted that § 7105(a)(2)(A) of the Statute provides that the Authority shall "determine the appropriateness of units for labor organization representation." Moreover, § 7112(a)(1) directs that the "Authority shall determine the appropriateness of any unit."

      The Authority indicated that "[w]hen parties to a grievance are faced with such a grievability question [requiring a unit determination], they can place the grievance in abeyance pending the filing of a clarification of unit petition." Id. at 854.

      In the present case, the question of whether or not the grievant was a member of the bargaining unit is directly at issue. The Agency claims that the grievant was not a member of the bargaining unit at the time the grievance was filed and that he did not become a member of the unit until more than ten months later, when the Agency and the Union signed a MOU including him in the unit. Exceptions at 5-6. However, the Union alleges the grievant was always a member of the bargaining unit, that the Regional Director's decision shows he was always included, and therefore his grievance is arbitrable. Opposition at 7. Because there was a question as to the bargaining unit status of the grievant, the grievance was placed in abeyance pending the outcome of a unit clarification petition as permitted by Authority precedent. See SBA, 32 FLRA at 854.

      In his February 12, 1999 decision, [n12]  the RD found that after examining the statutory definition of "professional employee" as it related to several positions, including the grievant's GS-9 computer specialist position that:

the incumbents in these positions are not professional employees. The stipulated facts reflect that these employees do not perform duties that require knowledge acquired through an appropriate source of higher education. Furthermore the work they perform is not predominately intellectual or varied in nature but is routine mental or mechanical work [citations omitted].
Accordingly, I find that the incumbents of the above positions are not professional employees within the meaning of the Statute, and the incumbents of these positions should be included within the VAMC Coatesville component of the nonprofessional consolidated unit represented by NAGE.

Regional Director's Decision at 13.

The RD, therefore, made a determination that the grievant's position is within the bargaining unit represented by NAGE. However, it is still necessary to deal with the issue of what effect that determination has on the parties' arbitration case.

      It is clear that all appropriate unit determinations made by the Authority, pursuant to its exclusive jurisdiction under § 7105(a)(2)(A), must be followed by the parties and by arbitrators. See United States Dep't of Defense, Army and Air Force Exchange Serv., Dallas, Tex., 37 FLRA 71, 75 (1990). It is also clear that the purpose of the grievance being placed in abeyance pending the resolution of the Unit clarification petition is to "avoid the possibility that the grievant will be denied access to arbitration improperly[,]" and because "[t]he absence of a decision concerning the grievant's bargaining unit status would frustrate the Statute's policy favoring the resolution of employee grievances through arbitration. 5 U.S.C. § 7121(a)(1) and (b)." Headquarters, XVIII Airborne Corps, 34 FLRA 21, 25 (1989).

      These policies, combined with the fact that the grievant occupied the same position at the time of RD's determination that he held at the time the events giving rise to the grievance occurred, and that he held that position for a year and a half prior to the filing of the grievance, during which 16 months of union dues were withheld from his paycheck, lead us to conclude that the grievant is and was a member of the bargaining unit. Additionally, we also note that the representation case specifically dealt with whether certain positions fell within the already established bargaining unit definition.

      As such, the Agency's exception is denied and the grievance is arbitrable. [ v56 p070 ]

B.     The Award is Not Contrary to Law, Rule or Regulation.

1.     Standard of Review

      The Authority's role in reviewing arbitration awards depends upon the nature of the appealing party's exceptions. United States Customs Serv. v. F.L.R.A., 43 F.3d 682, 686 (D.C. Cir. 1994) (U.S. Customs). Where a party's exception challenges an award's consistency with law, the Authority reviews the question of law raised by the exception and the arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing U.S. Customs, 43 F.3d at 686-87). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

2.     The Award Does Not Violate Management's Right to Assign Work Under § 7106(a)(2)(B).

      The Authority's framework for resolving exceptions alleging that an award violates management's rights under § 7106 of the Statute is set forth in United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146, 151-54 (1997) (BEP). Upon finding that the award affects a management right under § 7106(a) of the Statute, the Authority applies a two-prong test to determine if the award is deficient.

      Under prong I of this framework, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. Id. at 153. If the award provides such a remedy, the Authority will find that the award satisfies prong I of the framework and will then address prong II.

      Under prong II of the BEP framework, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154. If the arbitrator's remedy reflects such a reconstruction, the Authority will find that the award satisfies prong II. An award that fails to satisfy either prong I or prong II will be set aside or remanded to the parties, as appropriate. See United States Dep't of Veterans Affairs, Medical and Reg'l Ctr., Togus, Me., 55 FLRA 1189, 1195 (1999).

      Proposals which require an agency to assign work to an employee affect management's right to assign work. See, e.g., International Fed'n of Prof'l and Technical Engineers, Local 4, 35 FLRA 31, 37-38 (1990). Proposals imposing conditions on management's ability to make, or not make, work assignments also affect management's right to assign work under §_7106(a)(2)(B) of the Statute. See, e.g., AFGE, Local 1345, 48 FLRA 168, 189 (1993). Consequently, by limiting management's ability to decide not to assign particular work to the grievant, the award affects management's right to assign work, and we must evaluate the award under the BEP framework.

      With regard to prong I, although the Arbitrator referenced many different contract provisions, it is evident that the Arbitrator was relying on Article 6  [n13]  of the parties' agreement. [n14]  Specifically, the Arbitrator interpreted and applied Article 6 as precluding the Agency from discriminating or retaliating against the grievant in making work assignments.

      We find that Article 6, as interpreted and applied by the Arbitrator, constitutes an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute. Specifically, Article 6 is a prophylactic provision designed to protect unit employees from discriminatory or retaliatory exercise of a management right based on union related activity. The Authority "has addressed requirements that an agency take various actions in a 'fair and equitable' or similar manner and . . . has concluded that such [a] requirement constitutes an appropriate arrangement under section 7106(b)(3)." United States Dep't of Veterans Affairs, Veterans Integrated Serv. Network 13, 56 FLRA No. 104 (Sept. 15, 2000) at 9, citing AFGE, Local 3258, 48 FLRA 232, 237 (1993); cf. NAGE, Locals R14-68 and R14-73, 42 FLRA 639, 644-46 (1991) (even though external legal requirement may not constitute "applicable law" within the meaning of § 7106(a)(2), requirement to comply with such requirement may constitute appropriate arrangement under § 7106(b)(3)). Consequently, Article 6 as interpreted and enforced by the Arbitrator [ v56 p971 ] satisfies prong I of BEP. We therefore proceed to the prong II analysis.

      Under prong II, the question is whether the Arbitrator's remedy is a proper reconstruction of what the Agency would have done had it not violated the parties' agreement. Here, the Arbitrator did not order that the grievant be assigned to service the computers in the offices of the Director or Deputy Director. Instead, the Arbitrator only ruled that the restriction placed on the grievant's area of work should be removed since it was put in place in retaliation for his union activity.

      The Arbitrator's award constitutes a reconstruction of what management would have done if it had not violated Article 6 of the parties' agreement. Consequently, the award satisfies prong II of the BEP framework. See United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 55 FLRA 163, 167 (1999) (award reinstating working conditions that would have existed if the Agency had not violated the agreement constitutes a reconstruction satisfying prong II).

      Accordingly, the exception is denied.

3.      The Award Does Not Violate Management's Right to Discipline Under § 7106(a)(2)(A).

      The Agency alleges that the Arbitrator's decision violates its right to discipline under § 7106(a)(2)(A). Exceptions at 10-11. Where, as here, an agency asserts that the arbitrator's award violates management's right to discipline, the Authority must first determine whether the award actually affects management's rights. See SBA, 55 FLRA at 184. If it does, then the Authority applies the two-prong test set forth in BEP. If the award does not affect management's rights, then the BEP analysis is not required and the exception will be denied.

      The Agency states several times in its exceptions that the award interferes with its right to discipline employees. Exceptions at 10 and 12. However, the Agency then asserts that "[t]here is no dispute by either party in this case that the grievant was not disciplined[.]" Id. at 11. Furthermore, the Agency refers to Article 45, § 3 of the parties' agreement and specifically shows how the work restriction placed on the grievant was not a disciplinary or adverse action. Id. The Agency asserts that the work restriction is the assignment of work and that "[f]or the Arbitrator to attempt to link a disciplinary action to assignment of work is erroneous at best and disingenuous at worst." Id.

      Based on these assertions, the Agency undercuts its own argument in that it states discipline was not in any way involved in this case. Therefore, if the work restriction is not discipline as argued by the Agency, but rather the assignment of work, then the removal of that restriction by the Arbitrator cannot be said to affect management's right to discipline. As such, the Agency has not shown how the removal of the work restriction by the Arbitrator affects its right to discipline. Therefore, the exception, consistent with BEP, provides no basis for overturning the award.

      Accordingly, the exception is denied.

4.      The Award Does Not Violate Management's Right to Determine Its Internal Security Practices Under § 7106(a)(1).

      The Agency asserts that the award violates management's right to determine its internal security practices. The only argument made in this regard was that Medical Center CEO and the Chief of Human Resources were "adamant that, in the interest of internal Medical Center security, the [g]rievant should not have access to confidential information in their work areas." Exceptions at 10. There is no rationale given for this statement by the Agency and no explanation is offered as to how the removal of the work restriction by the Arbitrator affects its ability to determine internal security practices. No further discernible argument with respect to this assertion is made. As such, the Agency claim is nothing more than a bare assertion, and in accordance with Authority precedent it must be denied. See, e.g., United States Dep't of Transp., FAA, Wash., D.C., 55 FLRA 322, 326 (1999); AFGE, Local 3615, 54 FLRA 494, 499 (1998).

      Accordingly, the exception is denied.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

      Article 6- Rights and Obligations of the Employee

      Section 1 - Each employee has the right, freely and without fear of penalty, or reprisal to form, join, and assist any labor organization, or to refrain from such activity. The freedom of such employees to assist the Union shall be recognized as extending to participation in the management of the Union, and acting for the Union in the capacity of a Union officer or steward.

      Section 2 - The Employer agrees that employees in the lawful exercise of these rights shall be protected from interference, restraint, coercion, or discrimination by any representative of the Employer.

      Section 3 - All personnel actions or practices must be free of discrimination or reprisal.



Footnote # 1 for 56 FLRA No. 161

   Member Pope did not participate in this decision.


Footnote # 2 for 56 FLRA No. 161

   In January of 1997, the president of the grievant's local union had been terminated. This precipitated a lengthy battle between the president and the Agency. The grievant and many of the employees in the Union wore green ribbons as a show of support for the terminated president. Award at 2.


Footnote # 3 for 56 FLRA No. 161

   The grievant had e-mail conversations with his immediate supervisor and the supervisor of the HR employee whose computer he had been fixing when he asked about the Union President. However, neither person gave him a definite explanation as to why the restrictions were implemented.


Footnote # 4 for 56 FLRA No. 161

   The Arbitrator stated that the grievance was filed on October 27, 1997, however, the grievance complaint form is dated November 4, 1997.


Footnote # 5 for 56 FLRA No. 161

   The Union filed a memo with the Agency on November 11, 1997 alleging that, among other positions, the grievant's position should be included in the bargaining unit.


Footnote # 6 for 56 FLRA No. 161

   The Arbitrator notes that while the parties agreed to place the arbitration in abeyance pending the outcome of the Unit clarification petition, they differed as to their understanding of what treatment should be given to the Unit clarification petition once it was rendered. Award at 2.


Footnote # 7 for 56 FLRA No. 161

   The Arbitrator determined that the Agency was responsible for one half of the filing fee. This determination was not excepted to and we therefore do not address this issue in the analysis.


Footnote # 8 for 56 FLRA No. 161

   The Arbitrator also ordered the Agency to reimburse the union fifteen dollars as its one-half share of the arbitration filing fee. The Agency does not except to that portion of the award.


Footnote # 9 for 56 FLRA No. 161

   The Agency mentions the closely related management rights to direct employees and to determine the personnel by whom agency operations will be conducted under § 7106(a)(2)(A) and (B) in their exceptions. However, the entire discussion in its exceptions relates only to the right to assign work and we treat the exception as such.


Footnote # 10 for 56 FLRA No. 161

   Article 47, §§ 1 and 2 in pertinent part provides:

Section 1 - Grievance means any complaint:
A. by any unit employee concerning any matter relating to the employment of the employee;
B. by the Union concerning any matter relating to the employment of unit employees;
C. by any unit employee, the Union or the Employer...
Section 2 - This negotiated grievance procedure shall be the sole procedure available to the Union, the Employer and th