27:0225(35)AR - Leavenworth VA Medical Center and Local No. 85, AFGE -- 1987 FLRAdec AR
[ v27 p225 ]
27:0225(35)AR
The decision of the Authority follows:
27 FLRA No. 35
LEAVENWORTH VETERANS ADMINISTRATION
MEDICAL CENTER
Activity
and
LOCAL NO. 85, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Union
Case No. 0-AR-1244
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Anne Holman Woolf filed by the Veterans Administration (the
Agency) under section 7122(a) of part 2425 of the Authority's Rules and
Regulations. The Union filed an opposition. /1/
II. BACKGROUND AND ARBITRATOR'S AWARD
The Union filed a grievance alleging that the Activity was not
utilizing student employees (both students hired for summer employment
and students employed as part of the stay-in-school program) in the
laundry in accordance with law or regulation. As a remedy, the Union
requested that the Activity "work students in accordance with law and
regulation."
The Arbitrator first determined that the grievance was grievable and
arbitrable. In particular, she ruled contrary to the arguments of the
Activity that the grievance concerned a "claimed violation,
misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment" under section 7103(a)(9)(C)(ii) of
the Statute. In determining that the utilization of the students (who
concededly are not part of the bargaining unit) concerned conditions of
employment of unit employees, the Arbitrator noted testimony that the
students perform the same duties as, and fill in for, unit employees on
a regular and recurring basis. She also noted that the Union had filed
the grievance to address the "grave" concerns of unit employees over the
utilization of students. She identified these concerns as including the
following: (1) the possible negative effect on performance evaluations
of unit employees when their assignments change because students take
over their original assignments; (2) the lessening of efforts to staff
to full capacity because students constituted 6.25% of the laundry
workforce; (3) the occupational health and safety consequences to unit
employees arising from the actions of unsupervisd students operating
machines on which they have not been sufficiently trained; and (4) the
effect on the safety and performance of unit employees resulting from
shifting their full attention from assigned duties to "also looking out
for the students." In finding that the grievance was grievable and
arbitrable, the Arbitrator also rejected the Activity's arguments that
the grievance directly challenged management rights under the Statute.
She noted that the Union was not proposing any specific method for the
exercise of management's right to assign work to the students other than
that required by law and regulations.
On the merits, the Arbitrator found that in certain respects the
Actvity was not utilizing the students in accordance with Federal
Personnel Manual chapter 308 (pertaining to the stay-in-school program)
and agency regulations. Accordingly, in her award, she directed that
the Activity change the manner of utilizing students so that the
utilization is fully in accordance with Government-wide regulations and
agency regulations. Because of the expressed concerns of the Union and
because the Arbitrator interpreted Article 5, Section 2(a) of the
parties' master collective bargaining agreement to permit a local
supplementary agreement on this matter, the Arbitrator in her award also
directed the Activity to comply with Article 5 if the Union requests
local supplementary bargaining on negotiable concerns as to the
utilization of students.
III. FIRST EXCEPTION
A. Contentions
The Agency contends that by finding the grievance to be grievable and
arbitrable, the award is contrary to the Statute because the grievance
involves the conditions of employment of students who are not unit
employees. The Agency argues that the grievance does not concern the
conditions of employment of unit employees, but instead seeks to
directly enforce the manner in which personnel policies, practices, and
conditions of employment apply to the nonbargaining unit employees.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that by finding the
grievance to be grievable and arbitrable, the award is contrary to the
Statute. Contrary to the arguments of the Agency, we cannot find that
the Arbitrator's determination that the grievance concerns a matter
covered by the statutory definition of grievance in section
7103(a)(9)(C)(ii) is contrary to the Statute.
Section 7103(a)(9)(C)(ii) specifically defines grievance to include
any complaint by a union concerning any claimed violation,
misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment. The grievance in this case alleged
that the Activity was not utilizing the students as required by
applicable laws and regulations. We find that the Union's grievance was
directed to the effect on working conditions of unit employees and is
encompassed by section 7103(a)(9)(C)(ii). In American Federation of
Government Employees, AFL-CIO, National Council of SSA Field Operations
Locals and Social Security Administration, 25 FLRA 50 (1987), Proposal 1
concerned the manner in which work assignments would be made to
volunteers and to students appointed under the stay-in-school program.
Although we concluded that the proposal conflicted with section
7106(a)(2)(B), we rejected the Agency's contention that the proposal did
not concern unit employees because it related to the work assignments of
these nonunit employees. We found that the proposal related to the
working conditions of unit employees, noting that the volunteers and
students work side-by-side with unit employees and are jointly engaged
in the furtherance of a common agency objective. Slip op. at 2. In
this case, the Arbitrator, similar to our finding in National Council of
SSA Field Operations Locals, found that the students performed the same
duties as, and fill in for, unit employees on a regular and recurring
basis. In addition, she identified other complaints over the alleged
improper utilization of students which relate to and affect the working
conditions of unit employees. For these reasons, no basis is provided
for finding the award deficient as alleged by the Agency.
IV. REMAINING EXCEPTIONS
A. Contentions
In its other exceptions, the Agency contends that the award is
deficient because it directs the Activity to negotiate with the Union if
the Union requests local supplementary bargaining. The Agency argues
for the same reasons that it argues that the grievance was not grievable
and arbitrable that the award requires the Activity to negotiate over
the conditions of employment of the students and that therefore the
award is contrary to the Statute. The Agency also argues that by
directing negotiation of a local supplementary agreement, the award is
contrary to the parties' master agreement.
B. Analysis and Conclusions
We conclude that the Agency fails to establish that the award is
deficient as alleged. For the same reasons we denied the Agency's first
exception and noting, in addition, that bargaining was directed only to
the extent the proposals are negotiable, we find that the award is not
contrary to the Statute by directing bargaining on the Union's
negotiable concerns regarding the effect on working conditions of unit
employees caused by the Activity's improper utilization of students. We
also find that the Agency's contention that the award is contrary to the
master agreement constitutes nothing more than disagreement with the
Arbitrator's interpretation and application of that agreement. It is
well established that such disagreement provides no basis for finding
the award deficient. For example, Department of the Air Force, Warner
Robins Air Logistics Center, Robins Air Force Base, Ga. and American
Federation of Government Employees, Local 987, 25 FLRA No. 80 (1987).
DECISION
Accordingly, the Agency's exceptions are denied. /2/
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In its opposition, the Union contends that the Agency's
exceptions are untimely. Under the Authority Rules and Regulations
pertaining to the time period for filing exceptions to an arbitration
award, the exceptions were timely filed and we reject the Union's
contention. See, for example, Defense Mapping Agency,
Hydrographic/Topographic Center and AFGE Local 3407, 23 FLRA No. 64
(1986).
(2) At the conclusion of its exceptions, the Agency requests that the
Authority set aside the Arbitrator's award of travel and per diem
expenses. Because the Arbitrator neither mentioned nor awarded travel
and per diem expenses and the Agency provides no explanation for its
request, the Agency's request is denied.