United States, Department of Veterans Affairs, Medical Center, Detroit, Michigan (Agency) and American Federation of Government Employees, Local 933 (Union)

[ v61 p371 ]

61 FLRA No. 68

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
DETROIT, MICHIGAN
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 933
(Union)

0-AR-3797
(60 FLRA 306 (2004))

_____

DECISION

October 31, 2005

_____

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 the award on remand of Arbitrator Joseph P. Girolamo filed by the Agency under § 7122 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 United States Dep't of Veterans Affairs Med. Ctr., Detroit, Mich., 60 FLRA 306 (2004) (VAMC Detroit), the Authority remanded an award to the Arbitrator for further findings. On remand, the Arbitrator found that the Agency violated several contract provisions that were negotiated under § 7106(b) of the Statute and that his previous direction to return the grievant to her operating room (OR) technician position reconstructed what management would have done if the Agency had complied with those contract provisions.

      For the following reasons, we deny the Agency's exceptions. In doing so, we emphasize that nothing in the Arbitrator's award or our decision precludes the Agency from reassigning the grievant based on factors other than the memoranda on which her previous reassignment was based.

II.     Background and Arbitrator's Awards

      This matter involves the third in a series of three awards (the merits award, the remedy award, and the remand award, respectively) by the Arbitrator. The background is set forth more fully in the Authority's decision in VAMC Detroit, 60 FLRA 306, and is summarized briefly here.

      In the merits award, the Arbitrator found that the Agency had reassigned the grievant, an OR technician, to a different position. The Arbitrator also found that the Agency subsequently proposed to suspend, and later remove, the grievant. The Arbitrator determined that the Agency's Associate Director for Patient Care (Associate Director) determined that removal was not warranted, but later indefinitely extended the grievant's reassignment based on several memoranda written by the nursing manager that were critical of the grievant. The Arbitrator found that neither the Associate Director nor the nursing manager had first-hand knowledge of the matters discussed in the memoranda and that, during the arbitration hearing, the grievant had rebutted the allegations therein. In addition, the Arbitrator found that the extension of the reassignment constituted discipline. Accordingly, the Arbitrator sustained the grievance.

      In the remedy award, the Arbitrator directed that the grievant be returned to an OR technician position. The Arbitrator also awarded backpay and benefits, as well as partial attorney fees at a rate of $100 per hour.

      Subsequently, the Agency filed exceptions with the Authority to the merits award and the remedy award. [n1] The Authority found that the direction to return the grievant to an OR technician position affected management's right to assign employees under § 7106(a)(2)(A) of the Statute. See VAMC Detroit, 60 FLRA at 309. Next, the Authority set forth the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP), [n2] but found that it was unable to apply the framework because it was unclear what contract provision or provisions the Arbitrator was enforcing. Consequently, the Authority remanded the matter to the parties for resubmission, absent settlement, for clarification. [ v61 p372 ]

      In the remand award -- the award at issue here -- the Arbitrator stated that "[i]t is clear that the memos by [the nursing manager] were the entire basis for the [g]rievant's removal from OR." Remand Award at 9. The Arbitrator found that neither the nursing manager nor the Associate Director "had firsthand knowledge" of the events described in the memoranda. Id. at 3. The Arbitrator also found that this lack of firsthand knowledge, and the fact that none of the documents discussed in the memoranda supported the Agency's claims, "require a finding that discipline was not for just cause." Id. Accordingly, the Arbitrator found that the Agency violated Article 13, Section 1 of the parties' agreement. [n3] 

      The Arbitrator also addressed Article 13, Section 4 of the agreement. Id. In this connection, the Arbitrator reiterated his previous finding that the extension of the reassignment constituted discipline, and he found that the reference to "appropriate procedures" in Article 13, Section 4 "necessarily relate[s] to a requirement that an administrative reassignment which is used for discipline must be for just cause." Id. at 4. As the Arbitrator found that the Agency lacked just cause for extending the disciplinary reassignment, he concluded that the Agency violated Article 13, Section 4. The Arbitrator also found that the Agency violated the following additional provisions of the parties' agreement: Article 13, Section 2(A)(1) and Section 10; Article 21, Sections 2(B), (C), and (D); and Article 23, Section 4(C).

      The Arbitrator rejected, as he did in the merits award, the Agency's claim that the reassignment constituted a performance-based, rather than disciplinary, action. The Arbitrator found that, even if the extension of the reassignment had constituted a performance-based action, the Agency would have been in violation of the agreement for failing to follow the procedures set forth in Article 26, Section 6(C).

      The Arbitrator found that the violated contract provisions were negotiated pursuant to § 7106(b) of the Statute. The Arbitrator also found that the Agency's "failure to establish that the discipline imposed was for just cause leads to the conclusion [that] the [g]rievant is entitled to be returned to her former position in OR and be made whole for any losses." Id. at 9-10. Accordingly, the Arbitrator concluded that returning the grievant to her OR technician position reconstructed what management would have done if it had followed the just cause provision. In reaching this conclusion, the Arbitrator cited the provision in Article 12, Section 10 that states that "[r]eassignments shall not be used as punishment, harassment or reprisal." Id. at 18.

      The Arbitrator determined that the Agency has "the right to reassign an employee when an objective and verifiable basis exists to support that action." Id. at 15. Although the Agency argued that returning the grievant to her OR technician position could endanger patient safety, the Arbitrator found that "the evidence presented fails to establish that the [g]rievant is a threat to patient safety." Id. In this connection, the Arbitrator stated that the grievant's performance appraisals reflected no performance problems, and that "not one witness who was present at any of the occurrences described [in the memoranda] gave testimony to verify that [the memoranda's] assertions were accurate." Id. at 16. The Arbitrator thus found it "impossible to conclude that patient safety is a real concern in this case." Id.

      Further, the Arbitrator addressed the Agency's reliance on Article 12, Section 10 of the parties' agreement. While noting the Agency's failure to raise that provision in a previous post-hearing brief, the Arbitrator found that, in any event, the Agency did not demonstrate that the provision permitted it to extend the grievant's reassignment in the circumstances of this case.

      Finally, the Arbitrator addressed the Union's request for attorney fees for work performed after the Authority's decision in VAMC Detroit, in connection with the remand proceedings. The Arbitrator noted that the Agency "in earlier proceedings did not dispute that an attorney hourly rate of $225 was fair and reasonable for Union counsel." Id. at 18. The Arbitrator noted that, in his earlier attorney fee award, he had reduced the requested rate from $225 to $100 per hour. [n4] However, the Arbitrator stated that the "requested attorney fee of $225 per hour is deemed reasonable and is warranted in the interest of justice[.]" Id. Accordingly, he awarded attorney fees at that rate.

III.     Positions of the Parties

A.      Agency Exceptions

      The Agency argues that the award excessively interferes with management's rights to assign employees, assign work, and determine the personnel by which Agency operations shall be conducted because it effectively precludes the Agency from reassigning the grievant, [ v61 p373 ] despite the Associate Director's determination that keeping the grievant in OR would be detrimental to patient care and safety. In addition, the Agency asserts that, on remand, the Arbitrator adopted "all of the suggestions offered by the Union" as to what contract provisions were violated. Exceptions at 16. With regard to the Arbitrator's alternative finding that the Agency failed to follow the procedures set forth in Article 26, governing performance-based actions, the Agency asserts that the Arbitrator was attempting to "cover all bases on appeal." Id. at 17. The Agency also asserts that the Arbitrator's statement that the Agency did not previously cite Article 12 in a post-hearing brief "implies some sort of disingenuousness on the part of the Agency[.]" Id.

      The Agency also challenges the Arbitrator's finding that the award reconstructs what it would have done if it had complied with the agreement. The Agency asserts that the Associate Director expressed concerns about statements made by the grievant during their meeting and, under the Arbitrator's interpretation and application of the parties' agreement, the Associate Director "is compelled to ignore the concerns raised during her meeting with the [g]rievant." Id. at 22. Further, the Agency notes that the Arbitrator did not find a violation of Article 12, Section 10, but relied on it in connection with his reconstruction analysis.

      In addition, the Agency cites title 38 of the United States Code. [n5]  In this connection, the Agency "restates its concerns about patient safety and its right to make determinations -- including reassignments -- consistent with its mission." Id. at 26. Moreover, the Agency notes the Arbitrator's finding in the remedy award that $100 per hour was a reasonable fee, and claims that the Arbitrator's decision to apply a $225 per hour rate for the remand proceedings was "vexatious and intended as reprisal for having appealed his earlier Awards." Id. at 28.

B.      Union Opposition

      The Union contends that the award satisfies BEP, noting that the Arbitrator found that the Agency lacked just cause for the discipline, thereby violating Article 13, Section 1 of the parties' agreement. According to the Union, the Agency does not dispute the Arbitrator's finding that the violated contract provisions were negotiated under § 7106(b) of the Statute. Further, the Union contends that the award reconstructs what management would have done if it had not violated the agreement. With regard to the Agency's reliance on title 38, the Union notes that the Authority previously held that title 38 does not apply in this case. Finally, the Union claims that the Agency never argued to the Arbitrator that a $225 per hour fee was unreasonable, and thus, there is no basis for the Agency's attorney fees exception.

IV.     Analysis and Conclusions

A.      The award is not contrary to law.

      The Agency argues that the award is contrary to law in various respects. The Authority reviews questions of law raised by exceptions to an arbitrator's 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 a standard of de novo review, the Authority determines 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 determination, the Authority defers to the arbitrator's underlying factual findings. See id.

1.     Management's rights under § 7106(a)(2)(A) and (B) of the Statute.

      The Authority previously held that the Arbitrator's direction to return the grievant to an OR technician position affects management's right to assign employees under § 7106(a)(2)(A) of the Statute. See VAMC Detroit, 60 FLRA at 309. The Agency argues, as it did in its exceptions to the remedy award, see id. at 307, that the award affects management's rights to assign work and determine the personnel by which Agency operations shall be conducted under § 7106(a)(2)(B) of the Statute. [n6]  The right to assign work includes, among other things, the determination as to whom or what positions duties will be assigned. See United States Dep't of Transp., FAA, 61 FLRA 54, 56 (2005). Similarly, the right to determine the personnel by which Agency operations shall be conducted includes the right to determine the particular employees to whom work will be assigned. See Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Fort Bragg Ass'n of Educators, 53 FLRA 898, 920 (1997). As the award requires the Agency to assign OR technician duties to the grievant, we find that the award affects management's rights to assign work and determine [ v61 p374 ] the personnel by which Agency operations shall be conducted.

      As the award affects management's rights, we apply the analysis set forth in BEP, 53 FLRA at 152-54. Under prong I of BEP, where the management right affected by an arbitration award is set forth in § 7106(a)(2) of the Statute, the Authority examines whether the award provides a remedy for a violation of either a provision negotiated under § 7106(b), or an applicable law within the meaning of § 7106(a)(2) of the Statute. See, e.g., United States Dep't of Commerce, Patent & Trademark Office, 60 FLRA 839, 841-42 (2005). If the award satisfies prong I of BEP, then under prong II, the Authority examines 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. BEP, 53 FLRA at 154.

      With regard to prong I of BEP, the Arbitrator found that the violated provisions of the parties' agreement were negotiated pursuant to § 7106(b) of the Statute. Although the Arbitrator did not specify a particular subsection of § 7106(b), the Agency construes the award as finding that the contract provisions "were arrangements under section 7106(b)(3) of the Statute[,]" and the Union does not dispute this construction. Exceptions at 23. Accordingly, we address whether the Arbitrator was enforcing an appropriate arrangement within the meaning of § 7106(b)(3).

      In determining whether a contract provision constitutes an appropriate arrangement under § 7106(b)(3) of the Statute, the Authority first determines whether the provision is an arrangement. See NTEU, 59 FLRA 978, 981 (2004). If it is, then the Authority determines whether the arrangement is appropriate, or if it is inappropriate because it excessively interferes with the affected management right. [n7]  See NTEU, 59 FLRA at 981. In assessing whether an arrangement excessively interferes with a management right, the Authority weighs the benefits afforded to employees under the provision against the intrusion on the exercise of management's rights. See id.

      The Agency does not dispute that the contract provisions enforced by the Arbitrator constitute arrangements. Therefore, we do not address that issue further. See United States DHS, United States Customs & Border Prot., 61 FLRA 113, 116 (2005) (DHS) (Member Armendariz dissenting on other grounds).

      With regard to whether the contract provisions are "appropriate" arrangements, the Agency asserts that the award excessively interferes with management's rights because it effectively precludes the Agency from reassigning the grievant, despite the Associate Director's determination that keeping the grievant in OR would be detrimental to patient care and safety. However, the Arbitrator expressly found that the Agency retains "the right to reassign an employee when an objective and verifiable basis exists to support that action." Remand Award at 15. The Arbitrator also found that the nursing manager's memoranda -- not any determination by the Associate Director based on the meeting with the grievant -- "were the entire basis for the [g]rievant's removal from OR[,]" and the Agency provides no basis for finding that determination deficient. Id. at 9. Thus, by setting aside the extension of the grievant's reassignment, the Arbitrator merely invalidated the Agency's use of the memoranda as the sole basis for the extension of the reassignment. The Arbitrator did not hold that the Agency would be precluded from reassigning the grievant in the future on the basis of factors other than the memoranda, including the grievant's statements to the Associate Director during their meeting. Accordingly, the Agency's assertion is misplaced and does not provide a basis for finding that the violated contract provisions excessively interfere with management's rights to assign employees, assign work, and determine the personnel by which Agency operations shall be conducted.

      The Agency also asserts that: the Arbitrator merely adopted the Union's suggestion on remand as to what provisions were violated; the Arbitrator's statements regarding Article 26 were an attempt to "cover all bases on appeal[,]" Exceptions at 17; and the Arbitrator made critical statements regarding the Agency's reliance on Article 12, Section 10. To the extent that the Agency is arguing that the Arbitrator was biased, we address those arguments separately below. However, the Agency's assertions do not explain how the violated contract provisions, as interpreted and enforced by the Arbitrator, excessively interfere with management's right to assign employees.

      For the foregoing reasons, we find that the Agency has not demonstrated that the Arbitrator erred in finding that the violated contract provisions were negotiated under § 7106(b) of the Statute. Accordingly, prong I of BEP is satisfied.

      With regard to prong II of BEP, as discussed above, the Arbitrator determined that the entire basis for the extension of the reassignment was the nursing manager's memoranda, and the Agency provides no basis for finding this determination deficient. The Arbitrator found that the nursing manager did not have firsthand [ v61 p375 ] knowledge of the incidents in the memoranda that formed the basis of the extension of the reassignment and, thus, that the Agency lacked just cause to extend the reassignment. Consequently, the Arbitrator concluded that returning the grievant to her OR position and making her whole for any losses would reconstruct what management would have done if it had complied with the just cause requirements of the parties' agreement. In addition, the Arbitrator found that the extension of the reassignment constituted discipline, and the Authority has held that an arbitrator's enforcement of a just cause provision, by setting aside or reducing the disciplinary action, "operates in effect to reconstruct what management would have done had the provision been followed." United States Dep't of Energy, S.W. Power Admin., Tulsa, Okla., 56 FLRA 624, 626 (2000).

      In these circumstances, we find that the award reconstructs what management would have done if it had complied with the just cause provisions. [n8]  Accordingly, we deny the exception. In doing so, however, we emphasize that nothing in the Arbitrator's award or our decision precludes the Agency from reassigning the grievant based on factors other than the memoranda (including any statements that she made to the Associate Director).

2.      Title 38 of the United States Code

      The Agency cites title 38 of the United States Code and reiterates that it has patient safety concerns. To the extent that the Agency is asserting that the remand award is contrary to title 38, the Authority previously has rejected the Agency's claim that title 38 - specifically, 38 U.S.C. § 7422 - limits the Arbitrator's authority, because the grievant is not covered by title 38. See VAMC Detroit, 60 FLRA at 308. Accordingly, the Agency provides no basis for setting aside the award as contrary to title 38, and we deny the exception.

B.      The Agency has not established that the Arbitrator was biased.

      As discussed previously, the Agency makes several claims challenging statements by the Arbitrator, which we construe as arguing that the Arbitrator was biased. To establish that an award is deficient because of bias, a party must establish that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. See United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 56 FLRA 381, 384 (2000) (Johnson Med. Ctr.), decision after remand, 57 FLRA 72 (2001). A party's claim that all of the arbitrator's findings were against that party, without more, does not satisfy this standard. See 56 FLRA at 385. Further, the fact that an arbitrator makes statements that are critical of a party does not demonstrate that the arbitrator was biased. See NAGE, Local R3-32, 59 FLRA 458, 460 (2003).

      The Agency claims that, on remand, the Arbitrator adopted the Union's suggestions regarding the contract provisions that were violated. To the extent that the Agency is claiming that the Arbitrator ruled against the Agency and for the Union in this regard, that claim, without more, does not establish that the Arbitrator was biased. See Johnson Med. Ctr., 56 FLRA at 385. With regard to the Agency's claim that the Arbitrator made statements that were intended to "cover all bases on appeal[,]" Exceptions at 17, the Agency does not explain how this demonstrates that the award was procured by improper means, that there was partiality or corruption on the part of the Arbitrator, or that the Arbitrator engaged in conduct that prejudiced the Agency. Thus, the Agency's claim does not demonstrate that the Arbitrator was biased. Similarly, with regard to the Arbitrator's statement that was critical of the Agency's reliance on Article 12, as noted above, the fact that an arbitrator makes statements that are critical of a party does not demonstrate that the arbitrator was biased. See NAGE, Local R3-32, 59 FLRA at 460. Thus, the Arbitrator's statement does not demonstrate that the Arbitrator was biased.

      Finally, the Agency contends that the Arbitrator's increase in the rate of attorney fees from $100 to $225 per hour was "vexatious and intended as reprisal for having appealed his earlier Awards[,]" which we construe as a claim that the Arbitrator was biased. Exceptions at 28. However, the Agency provides no evidence that the Arbitrator was motivated by the Agency's decision to file exceptions to his previous awards, rather than being motivated by some other consideration, such as a decision to reconsider his previous determination in light of the fact that neither party argued that $225 was an unreasonable rate. Further, there is no argument or basis for concluding that the Arbitrator was bound by his previous determination. In these circumstances, the Agency has not demonstrated that the award was procured by improper means, that there was partiality or corruption on the part of the Arbitrator, or that the Arbitrator engaged in misconduct that prejudiced the rights of the Agency. Accordingly, the Agency's contention does not demonstrate that the Arbitrator was biased, and we deny the exception.

V.     Decision

      The exceptions are denied. [ v61 p376 ]


Appendix

Article 12, Section 10 of the parties' agreement provides:

A.      Reassignments shall not be used as punishment, harassment or reprisal.
B.      The parties agree tha