United States Department of Veterans Affairs, St. Cloud Va Medical Center, St. Cloud, Minnesota (Agency) and American Federation of Government Employees, Local 390 (Union)

[ v62 p508 ]

62 FLRA No. 94

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
ST. CLOUD VA MEDICAL CENTER
ST. CLOUD, MINNESOTA
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 390
(Union)

0-AR-4074

_____

DECISION

July 10, 2008

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator John Remington filed by the Agency and the Union 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 determined that the Agency violated the parties' master collective bargaining agreement (CBA) and a memorandum of understanding (MOU) when it selected two nurses for advertised vacant positions in its Primary Care Service Line. [n1]  In this connection, the Arbitrator found that other nurses had more seniority and met the requirements of the parties' agreements for relocation to other positions.

      For the following reasons, we set aside the pertinent portions of the award pertaining to the Agency's contrary to law exception.

II.     Background and Arbitrator's Award

      The Agency advertised two Licensed Practical Nurse (LPN) positions in its Primary Care Service Line. These positions were filled by internal candidates who were not the most senior candidates to have applied. The Union grieved, contending that under the MOU and the CBA, the candidates with the most seniority who were in "good standing" should have been awarded the positions. Award at 6. The Agency denied the grievances, stating in relevant part that "[t]he Nurse Manager [the selecting official], determined that the candidates were not equally qualified and recommended the two who she determined to be best qualified for the position." Id. at 7.

      The Union submitted the matter to arbitration where the Arbitrator framed the issues, in pertinent part, as follows:

3.      Did the Employer violate the parties' Memorandum of Understanding (MOU) in the selection of candidates for open positions?
4.      Is the MOU in violation of management rights as provided by law?
5.      What is the appropriate remedy?

Id. at 2.

      The Arbitrator determined that as long as employees were seeking a requested "relocation from one area of the local installation to another . . . in the same position . . . within the same service with the same advancement potential[,]" then "relocation will be granted" based upon seniority, "provided that the employee has the requisite skills and abilities and effective and efficient staffing is not impaired." Id. at 11. The Arbitrator found that once an employee had met the minimal qualifications under the parties' agreements, then the employee with the most seniority should have been selected. The Arbitrator further found that, in making its selections, the Agency bypassed employees who met the minimal qualifications and had more seniority than the selectees.

      Moreover, the Arbitrator rejected the Agency's claim that each LPN position was subject to functional statements that imposed particular duties upon the position. In this respect, the Arbitrator determined that the "functional statements" were "at the very most, subsets" of the LPN position description and that under Article 12, Section 6 of the CBA, the position description controlled in determining whether employees met the requisite qualifications for the advertised positions. Id. at 12-13.

      For the foregoing reasons, the Arbitrator determined that the Agency violated the parties' agreements [ v62 p509 ] by failing to select the applicants with the requisite qualifications and the most seniority.

III.      Positions of the Parties

A.     Agency's Exceptions

1.     Exceptions

      The Agency argues that the award violates its rights to assign and hire employees, assign work, and make selections from any appropriate source under 5 U.S.C. § 7106(a). As relevant here, it contends that the right to assign employees includes "the right to establish the qualifications and skills for a position and to assess whether employees under consideration possess those qualifications including the right to determine whether employees are equally qualified in terms of specific knowledge, skills, and abilities." Agency Exceptions at 12. The Agency contends that bargaining over the use of seniority in making assignments has been permitted only after "management has determined that . . . employees are equally qualified." Id. at 12 (citing Professional Airways Systems Specialists, 56 FLRA 798 (2000)). The Agency contends that Article 12, Section 6 does not constitute either an appropriate arrangement under § 7106(b)(3) or a procedure under § 7106(b)(2). In this regard, the Agency argues that even if the provision is an arrangement, it excessively interferes with management's rights to determine the qualifications for employees because, as interpreted, it would allow management to set only minimum qualifications for nursing positions.

      The Agency also contends that the award is based on nonfacts and fails to draw its essence from the CBA.

2.     Union's Opposition

      The Union asserts that the award does not violate management's rights to assign employees and assign work because management had already "deemed" the non-selected employees to be qualified for the positions. Opposition at 1. In this connection, the Union argues that the employees' functions were "identical regardless of where the [nurses] worked[,]" and thus, the issue of individual qualifications is not relevant. Id. at 5. Finally, the Union argues that Article 12, Section 6 constitutes an appropriate arrangement.

B.     Union's Exceptions [n2] 

      The Union excepts to only the remedy portion of the award. In particular, the Union asserts that the Arbitrator exceeded his authority by granting relief to individuals "not [encompassed] within the . . . grievance[]" and by "vacating" the filled positions. Union's Exceptions at 1. According to the Union, it was "`not the intent of the Union to adversely impact the staff that were selected for the [Primary Care] positions and because of the upcoming expansion of Primary Care, it was the [Union's] request that the most senior staff who applied . . . be put into positions in Primary Care over ceiling.'" Id. at 2.

IV.     Analysis and Conclusions

     The award is contrary to management's right to assign employees under § 7106(a)(2) of the Statute.

      When a party's exception challenges an arbitration award's consistency with law, rule, or regulation, the Authority reviews the questions of law raised in the exception and the arbitrator's award de novo. See NFFE, Local 1437, 53 FLRA 1703, 1709 (1998). When applying a de novo standard of review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. Id. at 1710. In making that assessment, the Authority defers to the arbitrator's factual findings. See NTEU, Chapter 50, 54 FLRA 250, 253 (1998).

      When resolving an exception that alleges an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a) of the Statute. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies the framework established in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Under prong I of the BEP 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. See id. at 153. Under prong II, the Authority considers whether the award reflects a reconstruction of what management would have done had management not violated the law or contractual provision at issue. See id. at 154.

      [ v62 p510 ] The right to assign employees concerns the right to assign employees to positions. See AFGE, AFL-CIO, 2 FLRA 604, 613 (1980). The Authority has long held that the right to assign employees includes the right to establish the qualifications and skills needed for positions and to judge whether particular employees possess those qualifications and skills. See AFGE, Local 3935, 59 FLRA 481, 482 (2003) (Chairman Cabaniss dissenting on other grounds). In this regard, an agency may require that employees possess specific knowledge, skills, and abilities needed to do the work of a position, as well as job-related individual characteristics such as judgment and reliability. See AFGE, Local 1138, Council 214, 51 FLRA 1725, 1728-30 (1996) (Member Wassserman dissenting) (AFGE, Local 1138). Further, the Authority has determined that the right to assign employees is affected where management is required to base selection decisions on seniority without regard to whether employees possess all of the qualifications required by the agency. Id. at 1734.

      Here, the Arbitrator ordered the Agency to vacate the primary care positions, repost them, and fill them with the "most senior qualified applicants in good standing as required by Article 12" of the parties' CBA and the MOU. Award at 16. In so ordering, the Arbitrator determined that the parties' agreements "only require[] that the applicant be (minimally) qualified to perform all of the requisite duties of the position." Id at 14. That is, as interpreted by the Arbitrator, the agreements do not allow the Agency to take into account differences in qualifications and skills other than the minimum qualifications of the positions. By ordering the Agency to select the most senior qualified applicants based on minimal qualifications requirements, the award effectively precludes the Agency from addressing or considering other factors that the Agency finds that an employee should possess for assignment to the position.

      With regard to the Union's claim that the award does not affect the right to assign employees because the employees were already "deemed" by management to be qualified to fill the nursing positions, nothing in the award or the record indicates that the Agency had determined that the applicants for the primary care positions were equally qualified. Thus, the Union's claim provides no basis for finding that the award does not affect the right to assign employees. See e.g., United States Dep't of Veterans Affairs Med. Ctr., Detroit, Mich., 60 FLRA 306, 309 (2004) (award affected right to assign employees because agency had not determined that employees were equally qualified). Cf. Int'l Plate Printers, Die Stampers & Engravers Union of North America, AFL-CIO, Local 2, 25 FLRA 113, 115-16 (1987) (provision did not affect agency's right to assign employees because there was no indication in the record that employees would perform duties other than those which the agency had already assigned to their positions). Cf. AFGE, Local 1923, 41 FLRA 618, 624-25 (1991) (subsections 3, 4 , 5, and 6 did not affect right to assign employees because they applied only to employees whom agency had determined possessed the required qualifications).

      Accordingly, based on the foregoing, we find that the award affects management's right to assign employees under § 7106(a)(2) of the Statute, and we apply the BEP analysis.

      As previously stated, under prong I of the BEP 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. See 53 FLRA at 153.

      The parties dispute whether Article 12 constitutes an appropriate arrangement under § 7106(b)(3) of the Statute. [n3]  In determining whether a contract provision constitutes an appropriate arrangement, the Authority applies the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986). See NLRB and General Counsel of the NLRB, 60 FLRA 576, 579 (2005) (Chairman Cabaniss concurring and Member Pope dissenting on other grounds (citing NTEU, 59 FLRA 978, 981 (2004)) (NLRB). Under this analysis, the Authority first determines whether the provision is an arrangement for employees adversely affected by the exercise of a management right. NLRB, 60 FLRA at 579. An arrangement must seek to mitigate adverse effects flowing from the exercise of a management right. Id. (citation omitted). The claimed arrangement must also be sufficiently "tailored" to compensate only those employees suffering adverse effects attributable to the exercise of management's rights. Id. In this regard, § 7106(b)(3) brings within the duty to bargain proposals and provisions that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. Id.

      If the provision is an arrangement that is sufficiently tailored, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. Id. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against [ v62 p511 ] the intrusion on the exercise of management's right. Id. A provision excessively interferes with a management right if the benefits afforded employees under the provision are outweighed by the burdens imposed on the exercise of management's rights. See United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Fed. Satellite Low, La Tuna, Tex., 59 FLRA 374, 376 (2003) (Member Pope concurring) (citing United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Transfer Ctr., Okla. City, Okla., 58 FLRA 109, 111 (2002) (Chairman Cabaniss and Member Armendariz concurring; Member Pope concurring as to result)).

      Assuming that Article 12 constitutes an arrangement, for the following reasons, we find that it does not constitute an appropriate arrangement because it excessively interferes with management's right to assign employees.

      Here, Article 12 benefits more senior employees by allowing seniority to prevail in shift changes and in their relocation from one area of the installation to another. However, as interpreted by the Arbitrator, Article 12 and the MOU require that once employees meet the minimal qualifications of a position, then the Agency must rely solely on seniority in making a selection. Thus, the Arbitrator's interpretation of the agreements would eliminate the Agency's discretion to set more than minimal qualifications for filling such positions. This interpretation would effectively leave the Agency without discretion to determine the necessary qualifications for filling vacant LPN positions. See, e.g., AFGE, Local 1138, 51 FLRA at 1734 (proposal requiring employees to be assigned to certain positions based on seniority excessively interfered with management's right to assign employees because it required agency to make assignments to positions without regard to the agency's determination concerning an employee's qualifications to perform the duties and responsibilities of the position). This would place a significant burden on the Agency's right to assign employees. In these circumstances, we find that the burden on management's right to assign employees outweighs the benefits that the provisions afford more senior employees.

      We thus find that the award excessively interferes with management's right to assign employees under § 7106(a)(2) of the Statute, and as such does not satisfy prong I of BEP. In so finding, we emphasize that the contract provisions involved in this case are not enforceable only because of the way the Arbitrator interpreted them -- as encompassing only minimal qualifications, and not equal qualifications. See, e.g., NTEU, Chapter 168, 55 FLRA 237, 241 (1999) (in reviewing claims that an arbitrator's award is contrary to law, the Authority defers to the arbitrator's interpretation of the parties' collective bargaining agreement). Accordingly, we set aside the pertinent portions of the award pertaining to the Agency's contrary to law exception. [n4] 

V.     Decision

      The pertinent portions of the award pertaining to the Agency's contrary to law exception are set aside.


APPENDIX

Article 12, Section 6

The parties recognize that giving consideration to seniority promotes improved employee morale and productivity. However, the parties also recognize the paramount importance of effectively accomplishing the work. Employees may request to relocate from one area of the local installation to another (or from one shift to another) in the same position (PD#) within the same service with the same advancement potential. In filling such a vacancy, seniority will be considered and the request will be granted if the employee has the requisite skills and abilities, provided such relocation would be consistent with effective and efficient staffing. Management reserves the right to make the assignments based on other good faith considerations in assuring effective management of the work force.

Award at 3.

Memorandum of Understanding

1.      Employees may request to have a shift change or relocation change in the same position (PD#) per Article 12, Section 6, of the VA/AFGE Contract dated 1997. These requests are to be accomplished based on seniority, recognizing that the relocation must be consistent with effective and efficient staffing. Therefore, the [ v62 p512 ] employee must be in "good standing" as clarified by management and AFGE as follows:
a.      Sick Leave Restriction - Employee must not currently be on sick leave restriction.
b.      Disciplinary/Adverse Actions - Employee must not have any [sic] current disciplinary/adverse actions.
1)      Suspensions will only be considered "current" for four years.
2)      Proposed/pending disciplinary/adverse actions will be evaluated by management and AFGE to determine if the proposed/pending action against an employee should effect the employee's good standing determination.
c.      Performance - Employees must not currently be on a Performance Improvement Plan.
1)      An employee currently on an assistance plan of at least 30 days, intended to resolve performance issues prior to issuing a Performance Improvement Plan, would be considered not in good standing.
2)      Those employees rated less than successful/satisfactory would be considered not in good standing.

Award at 4-5.



Footnote # 1 for 62 FLRA No. 94 - Authority's Decision

   Pertinent provisions of the parties' agreements are set forth in the appendix to this decision.


Footnote # 2 for 62 FLRA No. 94 - Authority's Decision

   The Agency did not file an opposition to the Union's exceptions.


Footnote # 3 for 62 FLRA No. 94 - Authority's Decision

   The Union does not contend that Article 12 was negotiated under §§ 7106(b)(1) and (2) of the Statute. Therefore, we do not consider that issue.


Footnote # 4 for 62 FLRA No. 94 - Authority's Decision

   As the award is deficient under prong I of BEP, it is not necessary to address prong II of that framework. See SSA, Southeastern Program Serv. Ctr., Birmingham, Ala., 55 FLRA 320, 322 n.4 (1999). Additionally, we need not resolve the Agency's arguments that the award is contrary to management's rights to hire and assign work and to make selections from any appropriate source, or its remaining nonfact or essence exceptions. See id. Finally, as we grant the contrary to law exception and set aside th