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19:0535(67)AR - VA Medical Center, Newington, CT and NAGE Local R1-109 -- 1985 FLRAdec AR

[ v19 p535 ]
The decision of the Authority follows:

 19 FLRA No. 67
 LOCAL R1-109
                                            Case No. O-AR-806
    This matter is before the Authority on exceptions to the award of
 Arbitrator John J. Graham filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  The Union filed an opposition.
    The parties' stipulated and submitted to arbitration the following
          1.  Has the V.A. Medical Center complied with Article XXVI,
       Section I of the Master Agreement in its attempts to provide fair
       and equitable scheduling with equitable distribution of desirable
       days off in light of any already existing agreements and the needs
       of the service, and has Section V of Article XXVI of the
       Supplemental Agreement been complied with for Medical Technicians
       within their category and work area?
          2.  Has the grievant been treated fairly under present contract
    The Arbitrator in his award answered the submitted issues in the
 negative.  With respect to a remedy, the Arbitrator concluded that with
 so many medical technicians, the position held by the grievant, and
 medical technologists, a professional position excluded from the
 bargaining unit covered by the parties' agreements, qualified in the
 same work, the Activity "is in an advantageous position to minimize the
 inconvenience to all and to eliminate the oppression of any employees."
 Accordingly, as a remedy, the Arbitrator awarded as follows:
          Therefore, after Employer abides by the terms of Section 10,
       Article XXVI, Supplemental Agreement, the grievant shall be just
       one of a pool of all the technologists and technicians in the
       Laboratory Service doing the same work to share in the staffing
       for all undesirable shifts and days, and to compensate for the
       past over-assignment of the grievant to such undesirable shifts
       and days, the grievant shall not be called upon for her first turn
       in the staffing of such shifts for a period of nine months
       following the delivery of this Award.
    In one of its exceptions, the Agency essentially contends that the
 Arbitrator exceeded his authority by issuing an affirmative order as to
 nonbargaining-unit medical technologists when the stipulated issue
 related solely to the grievant and medical technicians.  The Authority
    The Authority has specifically found arbitration awards deficient as
 in excess of the arbitrator's authority when the arbitrator issued an
 affirmative order affecting positions and employees beyond the scope of
 the stipulated grievance.  E.g., U.S. Department of Justice, Federal
 Prison System, Federal Correctional Facility, Fort Worth, Texas and
 American Federation of Government Employees, Local 1298, AFL-CIO, 17
 FLRA No. 39 (1985);  Environmental Protection Agency, Region 9 and
 Engineers and Scientists of California, MEBA, AFL-CIO, 17 FLRA No. 56
 (1985).  In terms of this case, the Authority finds that by pooling all
 the medical technicians with nonbargaining-unit medical technologists as
 his affirmative relief, the Arbitrator exceeded his authority.  Thus,
 the award is deficient and must be modified.  /1/
    Accordingly, the award is modified to provide as follows:  /2/
          From the evidence submitted by the parties, all questions of
       the Statement of Issues are answered in the negative.
          Therefore, the Activity shall abide by the terms of Section 10,
       Article XXVI of the parties' Supplemental Agreement.
 Issued, Washington, D.C., July 31, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In view of this decision, it is unnecessary to address the other
 exceptions to the award.
    /2/ In its opposition the Union concedes that the Arbitrator exceeded
 his authority by affecting nonbargaining-unit positions beyond the scope
 of the stipulated grievance.  However, the Union maintains that the
 award should be modified by merely striking the reference to medical
 technologists.  Because the award is expressly and inextricably grounded
 on pooling of technologists and technicians, the Authority finds on the
 record before it that the modification asserted by the Union is not an
 appropriate resolution of the Agency's exception.  However, the
 Authority has indicated in such circumstances that the parties are not
 precluded from agreeing on a remedy or from agreeing to resubmit the
 issue of a remedy to the Arbitrator or to another arbitrator.  Overseas
 Education Association and Office of Dependents Schools, Department of
 Defense, 4 FLRA 98, 105-06 (1980).