34:0524(87)AR - - VA Medical Center, Richmond, Virginia and AFGE Local 2145 - - 1990 FLRAdec AR - - v34 p524



[ v34 p524 ]
34:0524(87)AR
The decision of the Authority follows:


34 FLRA No. 87

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

VETERANS ADMINISTRATION MEDICAL CENTER

RICHMOND, VIRGINIA

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2145

0-AR-1559

_______

DECISION

January 24, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator John A. Mapp. The American Federation of Government Employees, Local 2145 (the Union) filed a grievance claiming that management had abused its discretion in appointing pharmacists above the minimum entry levels of GS grade 9, step 1 and GS grade 11, step 1. The Arbitrator ruled that the grievance was grievable and arbitrable. The Arbitrator also found that management had not abused its discretion. Accordingly, the Arbitrator denied the grievance.

The Union and the Veterans Administration (VA or the Agency) filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed a motion to dismiss the Agency's exception as untimely filed. The Agency filed an opposition to the Union's exceptions.

We conclude that the Agency's exception was untimely filed. Accordingly, we will dismiss the Agency's exception. We further conclude that the Union fails to establish that the award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Therefore, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

The VA Medical Center in Richmond, Virginia (the Activity) appointed a number of pharmacists at steps above the entry levels of GS grade 9, step 1 and GS grade 11, step 1, pursuant to VA Manual MP-5, Part II, Chapter 3, Section F (hereinafter "section F"), pertaining to individual appointments of General Schedule health-care personnel above the minimum rate of the appropriate grade. The Union filed a grievance claiming that management abused its discretion in using section F authority to appoint these pharmacists. The grievance was not resolved and was submitted to arbitration.

The Arbitrator stated the issues to be whether the grievance was grievable and arbitrable and whether management had abused its "discretion and authority." Arbitrator's Award at 3. The Arbitrator ruled that the grievance was grievable and arbitrable. On the merits, the Arbitrator determined that management had not abused its discretion in using section F authority to appoint pharmacists above the minimum rate because the Union failed to establish any "culpable wrong-doing by the [Activity]." Id. Accordingly, the Arbitrator denied the grievance.

III. Procedural Matters

After the Agency filed its exception, the Union filed a motion to dismiss the exception because it was not timely filed.

The Arbitrator's award is dated May 5, 1988, and was served on the parties by mail. In the absence of evidence to the contrary, we conclude that the award was served on the parties by mail that same day. See, for example, U.S. Department of Labor, Mine Safety and Health Administration and National Council of Field Labor Locals, American Federation of Government Employees, 32 FLRA 302 (1988). Under section 7122(a) of the Statute and the Authority's Rules and Regulations, in order to be timely filed, exceptions to the award had to be filed with the Authority no later than June 8, 1988. The Agency's exception was filed on June 23, 1988. Consequently, the exception was untimely filed and will be dismissed. The Agency's opposition to the Union's exceptions was timely filed and will be considered.

Subsequent to the Agency's filing of an opposition to the Union's exceptions, the Union filed a "Statement of New Material Facts," which noted the enactment of the Veterans' Benefits and Services Act of 1988. The Agency filed an objection to consideration of the Union's statement.

After these filings by the parties, the Authority requested that the parties file supplemental briefs addressing questions raised by the passage of the Veterans' Benefits and Services Act of 1988, Pub. L. No. 100-322, 102 Stat. 487, and the court's decision in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses). Both the Union and the Agency filed briefs. We have considered the supplemental briefs and the Union's "Statement of New Material Facts."

IV. Positions of the Parties

A. The Union

The Union contends that the award is deficient because the Arbitrator failed to address issues of discrimination and prohibited personnel practices and because the award contains no rationale for denying the grievance. The Union maintains that management discriminated against pharmacists who were not appointed above the minimum rate and committed prohibited personnel practices. The Union also claims that it established that management violated the legal restrictions incorporated in section F.

In its "Statement of New Material Facts," the Union states that the Veterans' Benefits and Services Act permits the VA Administrator to set rates of pay of pharmacists without regard to civil service law, rules, or regulations and thereby remedy the "unfair and inequitable situation secondary to [the Agency's] use of section 'F' authority." Statement at 2. In its supplemental brief, the Union maintains that neither the Veterans' Benefits and Services Act nor the court's decision in Colorado Nurses is applicable to the Arbitrator's award.

B. The Agency