34:0898(150)AR - - VA, Leavenworth, KS and AFGE Local 85 - - 1990 FLRAdec AR - - v34 p898
[ v34 p898 ]
The decision of the Authority follows:
34 FLRA No. 150
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 16, 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 Stanford C. Madden filed by the American Federation of Government Employees, Local 85 (the Union) 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 Veterans Administration, Leavenworth, Kansas (the Agency) did not file an opposition to the exceptions.(1)
The Agency reassigned an employee who was the Union vice president from one department to another. The reassignment did not affect the employee's grade or pay. The employee grieved, contending that "the Agency wrongfully and discriminatorily reassigned [her] because of her position as Union vice president." Arbitrator's Award at 1. The Arbitrator found that management's decision to reassign the grievant was not "unreasonable, arbitrary or discriminatory," and he denied the grievance. Award at 27.
For the reasons stated below, the Union's exceptions are denied.
II. Background and Arbitrator's Award
At the end of work on September 17, 1987, the Union vice president and another employee in the laundry department exchanged insults. After the two employees left the Agency's premises, a fight ensued. Subsequently, "there was an attempt by the Agency to secure further information about the incidents of September 17." Award at 11.
On October 15, 1987, the Union vice president was transferred from the laundry to the dietetics department. The other employee was reassigned to the housekeeping department. Neither the Union vice president nor the other employee suffered a loss in grade or pay because of the reassignments.
The Union vice president filed a grievance, signed by 78 unit employees, alleging that the Agency "wrongfully and discriminatorily reassigned [her] because of her position as Union vice president." Award at 1.
The grievance was submitted to arbitration. The Union contended that "the grievant was reassigned discriminatorily, without authority and in violation of employee rights as set forth in Article 10 of the Master Agreement." Award at 16. Article 10 provides in part that "all employees shall be treated fairly and equitably, and without discrimination in all aspects of personnel management, without regard to . . . union activity[.]" Award at 3. The Agency "denie[d] exceeding its authority or that it ha[d] treated the grievant differently from the treatment that has been or would be accorded any other employee."(2) Award at 16.
The Arbitrator concluded that the Union "fail[ed] to establish anti-union animus as an influencing motivation for the Agency's action." Award at 26. The Arbitrator found that "the Agency took non-disciplinary measures in an endeavor to allay the possibility of any recurrences of the bad relations which could escalate to the detriment of all concerned." Award at 23. The Arbitrator also concluded that "[r]eassignment is a management right" and "[t]he decision of management must be upheld unless it [is] unreasonable, arbitrary or discriminatory, which this reassignment was not." Award at 27.
The Arbitrator denied the grievance.
III. Position of the Union
The Union contends that the Arbitrator's award violates law, rules, regulations, and the parties' collective bargaining agreement. The Union asserts that the Arbitrator:(3)
(1) should have found that the reassignment was impermissible because "testimony by the Union proved beyond a shadow of doubt that the re-assignment was indeed discriminatory, arbitrary and unreasonable" (Exceptions at 1);
(2) violated the Statute by "not allow[ing] all 78 grievants to process the grievance . . . when he refused to recognize any of the grievants except [the Union vice president]" (id.);
(3) did not allow all witnesses to testify (id.);
(4) did not find the presence of union animus despite testimony to the contrary (id.);
(5) failed to find that reassignment of the grievant to a filled position violated rules, Agency regulations, and the parties' collective bargaining agreement (id. at 1-2);
(6) failed to establish a burden of proof on the Agency (id. at 2);
(7) when he failed to address the issues;
(8) failed to review the evidence or the transcripts (id.); and
(9) failed to take into account the fact that the grievant was in a protected status at the time of the incident because she was on official time. (Id.)
The Union has failed to establish that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute; that is, that the award is contrary to law, rule, or regulation or that it is deficient on other grounds similar to