U.S. Department of Veterans Affairs, Medical Center, Houston, Texas (Agency) and American Federation of Government Employees, Local 1633 (Union)

[ v57 p653 ]

57 FLRA No. 126

U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER, HOUSTON, TEXAS
(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1633
(Union)

0-AR-3439

_____

DECISION

December 17, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Samuel J. Nicholas, Jr. 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.

      In the initial award, the Arbitrator found that the grievance was arbitrable. In the merits award, the Arbitrator concluded that the Agency violated Article 22, §  8 of the parties' collective bargaining agreement and, as a remedy, ordered the Agency to promote the grievants. [n1]  For the following reasons, we conclude that the award is not deficient and deny the Agency's exceptions.

II.     Background and Arbitration Awards

      The Union filed grievances on behalf of two employees alleging that the Agency violated Article 22 of the parties' master agreement by filling positions based on pre-selection and favoritism, thereby denying the grievants an opportunity to be promoted. The parties held discussions in attempt to resolve the dispute, and the Agency agreed to -- but subsequently did not -- render a decision on the Step 2 grievance by a certain date. Thereafter, pursuant to Article 42, § 9 of the parties' agreement, the Union requested that the Agency grant the relief sought in the grievance. [n2]  Ultimately, the dispute was not resolved, and the parties submitted it to arbitration.

      At the initial hearing, the Agency moved to dismiss the grievance for lack of jurisdiction, arguing that under Article 42, § 7 of the parties' grievance procedure [n3] , the Union was required to process the grievance to Step 3 before requesting arbitration. The Arbitrator found that the Union violated the parties' agreement as alleged, but that the Agency also violated the parties' agreement by not responding timely to the Step 2 grievance. The Arbitrator concluded that these mutual errors should not preclude review on the merits.

      Subsequently, a hearing was held on the merits where the Arbitrator set forth the following issue: "Did [the] Agency violate the [parties' a]greement, namely Article 22, by its failure to promote the herein named [g]rievants?" Merits Award at 1. Specifically, the Union contended that the Agency violated Article 22 by unilaterally placing individuals in positions, thereby denying other employees the opportunity to be considered. See Opposition at 2-3; Exceptions, Exhibit 4. The Arbitrator found that the Agency, in its many discussions with the Union, agreed to "adhere to the mandated wording and intent of the language specified in Article 22, Section 8" of the parties' agreement. Merits Award at 2. The Arbitrator concluded that the Agency did not adhere to this provision and ordered that the grievants be promoted to GS-12 Computer Specialists. [ v57 p654 ]

III.     Positions of the Parties

A.     Agency's Exceptions

      According to the Agency, both awards fail to draw their essence from the parties' agreement. With respect to the initial award, the Agency claims that the grievance should have been dismissed for lack of jurisdiction because the Union was required to go to Step 3 of the grievance procedure before going to arbitration. With respect to the merits award, the Agency asserts that the Arbitrator ignored Article 22, §§ 6 and 7 of the parties' agreement [n4] , which allow the Agency to make certain non-competitive appointments. According to the Agency, the positions disputed by the grievants were filled non-competitively in accordance with either § 6 or § 7.

      The Agency also asserts that its actions were consistent with 5 C.F.R. § 335.102 and § 302.103. [n5]  Accordingly, the Agency asserts that the award violates 5 C.F.R. part 335.

B.     Union's Opposition

      According to the Union, the Arbitrator's interpretation of Article 22 of the parties' agreement, entitling the grievants to priority consideration, is reasonable and consistent with the plain language of the agreement. Also, according to the Union, the Agency's assertions with respect to 5 C.F.R. part 335 are conclusory.

IV.     Analysis and Conclusions

A.     The Awards Do Not Fail To Draw Their Essence from the Parties' Agreement

      In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); AFGE, Council 220, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find an arbitration award deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.

      An arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination. See AFGE, Local 2921, 50 FLRA 184, 185-86 (1995). By disputing the Arbitrator's decision to deny its motion to dismiss for lack of jurisdiction, the Agency directly challenges a procedural arbitrability determination based on the parties' agreement. See NFFE, Local 2030, 56 FLRA 667, 671-72 (2000). Consequently, the Agency's argument does not support a finding that the initial award is deficient.

      With respect to the merits award, the Arbitrator expressly found that "the parties' many discussions and understandings reached strongly obliged [the] Agency to adhere to . . . § 8" of the parties' agreement and that "such was not done" in this case. Merits Award at 2-3. Based on this finding, the Arbitrator determined that § 8 was applicable to the promotions at issue and the grievance was meritorious. Contrary to the Agency's argument, this determination does not demonstrate that the Arbitrator ignored other provisions of the parties' agreement. Consequently, the Agency's insistence that it complied with §§ 6 and 7 of the collective bargaining agreement provides no basis for the Authority to conclude that the award is deficient. [ v57 p655 ]

      Accordingly, we find that the initial and merit awards do not fail to draw their essence from the parties' agreement.

B.     The Merits Award Is Not Contrary To 5 C.F.R. Part 335

      When an exception involves the award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States DOD, Dep'ts of the Army and the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      Although the Agency is correct that it may promote, demote, or reassign certain employees under 5 C.F.R. part 335, it has not demonstrated that the award in this case prevents it from exercising these rights. In this regard, the award neither requires the Agency to reverse the promotions already made nor prevents the Agency from promoting, demoting, or reassigning other employees. Accordingly, we find that the award is not contrary to law.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 57 FLRA No. 126

   Article 22, §  8 provides, in relevant part:

Section 8 - Vacancy Announcements and Areas of Consideration
A.      All positions to be competitively filled in the bargaining unit by actions covered by this Article shall be posted unless filled under Section 7 which provides for exclusions from coverage.
B.      Prior to considering candidates from outside the AFGE bargaining unit, the Employer agrees to first consider internal candidates for selection.

Footnote # 2 for 57 FLRA No. 126

   Article 42, § 9 provides, in relevant part, that "[s]hould management fail to comply with the time limits for rendering a decision at Step 2 . . . the grievance shall be resolved in favor of the grievant."


Footnote # 3 for 57 FLRA No. 126

   Article 42, §7 provides, in relevant part, that "[i]f no mutually satisfactory settlement is reached as a result of the second step, the aggrieved party or the Union shall submit the grievanc