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57 FLRA No. 110
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2274
UNITED STATES DEPARTMENT OF VETERANS
AFFAIRS, ALEDA E. LUTZ MEDICAL CENTER
November 8, 2001
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
Decision by Member Pope for the Authority
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Gordon F. Knight filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the Agency had not violated the parties' agreement when it noncompetitively reassigned an employee. Accordingly, the Arbitrator denied the Union's grievance.
For the reasons that follow, we find that the Union has failed to show that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Agency advertised to fill a position through competition, but filled the position noncompetitively by reassigning an employee who had returned to work with medical restrictions from a worker's compensation injury. The employee had not submitted her name for consideration prior to the application deadline. The Union filed a grievance contending that the reassignment violated the parties' agreement. When the grievance was not resolved, the matter was submitted to arbitration. [ v57 p587 ]
The Arbitrator found that, under Article 22, Section 7B of the parties' agreement, the Agency was authorized to reassign the employee noncompetitively because the position to which she was reassigned was the same grade, "had no known promotional potential," and did not provide experience required for a subsequent promotion. [n1] Award at 6. As a result, the Arbitrator concluded, the Union's reliance on the employee's failure to follow the competitive application procedure was "rendered meaningless." Id. at 8.
The Arbitrator also found that Article 38, Section 5 of the parties' agreement required the Agency to assign the employee temporary duties consistent with her medical condition pending the resolution of her worker's compensation claim, and to "more permanent[ly]" assign her such duties upon approval of her claim. [n2] Id. at 12. The Arbitrator determined that the employee was permanently reassigned three weeks prior to the approval of her claim. As a result, the Arbitrator found, the employee's reassignment was "premature and without authority[,] but later confirmed" by the approval of her claim. Id. at 13.
The Arbitrator concluded that the Union had not shown that the Agency had violated the parties' agreement, and that despite the "lack of authority" for the Agency's "premature" reassignment, there was no showing of harm to any bargaining unit member. Id. at 14. In addition, the Arbitrator concluded that there was no contractual authority to charge the Union's witness fees to the Agency. Accordingly, the Arbitrator denied the grievance.
III. Positions of the Parties
A. Union's Exceptions
The Union argues that the award is contrary to merit promotion procedures. Specifically, the Union argues that the award is contrary to 5 C.F.R. § 330.606(d)(19), which the Union contends excludes the reasonable accommodation of an injured employee from the coverage of merit promotion procedures. [n3] As a result of this exclusion, the Union argues, the employee's reassignment to a position that had already been advertised was subject to merit promotion procedures, including the application process for the position. The Union also argues that the award is contrary to Agency regulation MP-5. [n4] In this regard, the Union contends that MP-5 requires employees to be qualified for positions to which they are assigned, and that the employee was not qualified because she did not apply. The Union additionally argues that the award is contrary to 29 C.F.R. § 1614.203(g). [n5] In this regard, the Union contends that the Agency had no obligation to "reassign (reasonably accommodate)" the employee unless she was qualified, and that she was not qualified for the position to which she was reassigned because she did not apply. Id. at 2.
Further, the Union argues that it is "the author's intent and interpretation" of Article 22, Section 7B of the parties' agreement that an employee must apply and be qualified to be reassigned to a position. Id. at 3. The [ v57 p588 ] Union also argues that the Agency violated the parties' agreement by reassigning the employee prior to the approval of her workers' compensation claim.
The Union contends that the Arbitrator ignored the Union's post-hearing brief requesting that the Agency pay witness fees. In addition, the Union argues that the Arbitrator denied the Union the right to call a specific witness favorable to the Union.
B. Agency's Opposition
The Agency argues that the issues raised by the Union in its exceptions were not raised before the Arbitrator, and that the Union does not set forth any evidence or rulings in support of its arguments.
IV. Preliminary Issue
Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the arbitrator. United States Dep't of Def., Educ. Activity, Arlington, Va., 56 FLRA 985, 987 (2000) (DODEA, Arlington) (citation omitted).
The Agency argues generally that the issues raised by the Union were not raised before the Arbitrator. The record indicates that the issues of whether the employee's reassignment was permissible under 5 C.F.R. § 330.606(d)(19), Agency regulation MP-5, and Article 22, Section 7B of the parties' agreement were raised before the Arbitrator. See Award at 5-8. In addition, the Agency does not contest the Union's assertion that the Arbitrator precluded the Union from examining a witness. As that issue was determined by the Arbitrator, it was an issue raised at arbitration. Moreover, the Union's post-hearing brief was submitted after arbitration. Thus, the issue of whether the Arbitrator ignored that brief could not have been raised at arbitration, and is not barred from review by the Authority.
However, nothing in the record indicates that the issue of whether the employee's reassignment is contrary to 29 C.F.R. § 1614.203(g) was raised at arbitration. Accordingly, we will not consider the Union's exception that the award is contrary to that regulation.
V. Analysis and Conclusions
A. The Award is Not Contrary to Merit Promotion Procedures
The Authority reviews questions of law raised by an arbitrator's award and an exception to it de novo. NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citation omitted). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. United States Dep't of the Air Force, Warner Robins AFB, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.
The Union argues that the award is contrary to merit promotion procedures because 5 C.F.R. § 330.606(d)(19) establishes that reasonable accommodation is not an issue covered by such procedures. The regulations the Union refers to, however, relate to plans for employees displaced by downsizing or restructuring. 5 C.F.R. §§ 330.601-.602. The Union does not argue, and the record does not indicate, that the employee was displaced by downsizing or restructuring. Moreover, 5 C.F.R. § 330.606(d)(19) does not restrict the noncompetitive reassignment of any employee, but simply removes the reassignment of injured or disabled workers from the coverage of those particular regulations.
The Union argues that, under Agency regulation MP-5, an employee must be qualified to be assigned to a position, and that the employee was not qualified for the position to which she was reassigned because she did not apply through the competitive process. We reject the Union's contention that applying for a position is a necessary element of being qualified for the position. Application and qualification for employment are distinct concepts, which the Union appears to recognize in its exceptions when it asserts that an employee must "apply and be qualified." Exceptions at 3 (emphasis added). Moreover, the Union provides no support for its assertion that the qualification requirement in MP-5 includes a requirement that an employee apply.
In sum, the award is not contrary to 5 C.F.R. § 330.606(d)(19) or Agency regulation MP-5, Part 1, Chapter 300, Appendix B-1, and the Union has not demonstrated that the award is otherwise contrary to merit promotion procedures. [n6] [ v57 p589 ]
B. The Award Draws its Essence From the Parties' Agreement
We construe the Union's contentions that it is the author's intent and interpretation of Article 22, Section 7B of the parties' agreement that an employee must apply and be qualified to be assigned to a position, and that the Agency violated the parties' agreement by reassigning the employee prior to the approval of her workers' compensation claim, as an argument that the award does not draw its essence from the parties' agreement. The Authority will find an arbitrator's award deficient for failing to draw its essence from a collective bargaining agreement when the appealing party establishes that the award: is so unfounded in reason and fact and so unconnected with the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or cannot in any rational way be derived from the agreement or evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990).
The Arbitrator found that the employee's reassignment was permitted under Article 22, Section 7B because the reassignment was to a position at the same grade with no known promotional potential. Article 22, Section 7B does not mention application for a position, and the Union provides no other support for its contention that an employee who has not filed an application cannot be considered to be qualified.
With regard to the timing of the employee's reassignment, the Arbitrator found that the employee's reassignment was "contractually premature" under Article 38, Section 5 of the parties' agreement. Award at 13. However, the Arbitrator did not order a remedy because he found that no bargaining unit member was harmed. It is well-established that arbitrators are accorded broad discretion in fashioning appropriate remedies. United States Dep't of the Interior, United States Geological Survey, Nat'l Mapping Div., Mapping Applications Ctr., 55 FLRA 30, 33 (1998) (citation omitted). As the Arbitrator found that no harm was caused by the employee's premature reassignment, his failure to provide a remedy for that reassignment does not render the award deficient.
In sum, the Union has not demonstrated that the Arbitrator's award failed to draw its essence from the parties' agreement.
C. The Arbitrator Provided a Fair Hearing
We construe the Union's assertions that the Arbitrator ignored the Union's post-hearing brief requesting witness fees, and denied the Union the right to call a specific witness, as an argument that the Arbitrator failed to conduct a fair hearing. The Authority will find an award deficient when it determines that an arbitrator failed to conduct a fair hearing by refusing to consider pertinent and material evidence or by other actions which prejudice a party and affect the fairness of the proceeding as a whole. Antilles Consol. Educ. Ass'n, 50 FLRA 132, 134 (1995) (citation omitted).
The Arbitrator concluded that there was no contractual authority to charge the Agency with the Union's witness fees, and specifically stated that the Union had not pointed to any such authority. The Union did not submit a copy of its post-hearing brief with its exceptions, or otherwise provide evidence that the Arbitrator refused to consider the arguments made in its brief. Thus, the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing by not considering its post-hearing brief regarding witness fees. See NFFE, Local 1904, 56 FLRA 196, 201 (2000) (union provided no evidence that arbitrator ignored witness testimony).
The Union argues that it was denied the opportunity to present a witness. According to the Union, the witness was in the process of "preparing a position" to accommodate the employee. Exceptions at 3. However, the Union does not explain what it means by "preparing a position." As the Union does not otherwise describe information that it intended to elicit from the witness, its relevance, or how its omission prejudiced the hearing, the Union has not demonstrated that the Arbitrator failed to conduct a fair hearing by not allowing the Union to examine the witness. United States Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 56 FLRA 1057, 1073 (2001) (citation omitted).
The Union's exceptions are denied.
Footnote # 1 for 57 FLRA No. 110
A reassignment . . . to a position that does not provide specialized experience . . . that the employee does not already have and is required for subsequent promotion to a designated higher grade position or to a position having no known promotional potential may be taken on a noncompetitive basis.
Award at 2 & 6.
Footnote # 2 for 57 FLRA No. 110
A. When an employee requests and supports their request with appropriate medical information, [the Agency], will make a serious effort to assign the employee on a temporary basis to duties consistent with the employee's medical needs, pending resolution of their [worker's compensation] claim.
B. Where the employee requests and supports their request with [an] approved [worker's compensation] claim and appropriate medical information, the [Agency] will make a serious effort to assign the employee to duties consistent with the employee's medical needs.
Award at 3.
Footnote # 3 for 57 FLRA No. 110
(d) The following are not covered under this subpart:.
. . . .
(19) The internal placement of an injured or disabled worker whose agency has identified a position for which he or she can be reasonably accommodated.
Footnote # 4 for 57 FLRA No. 110
If [a] competitive service position does not provide promotion or placement in a position with promotion potential, qualified excepted service employees . . . may be selected and converted to the competitive service position without competition.
Footnote # 5 for 57 FLRA No. 110
If [an] agency has already posted a notice or announcement seeking applications for a specific vacant position at the time the agency has determined that the nonprobationary employee is unable to perform the essential functions of his or her position even with reasonable accommodation, then the agency does not have an obligation under this section to offer to reassign the individual to that position, but the agency must consider the individual on an equal basis with those who applied for the position.
Footnote # 6 for 57 FLRA No. 110
The Union also asserts that the Federal Employees Compensation Act, the Department of Labor Workers' Compensation Program, and Title 20, Chapter 1, Part 10 apply to this case. However, the Union does not point to any specific requirement or provision, or explain how the award is contrary to those laws. As such, these claims are denied as bare assertions. See United States Dep't of Energy, SW Power Admin., Tulsa, Okla., 56 FLRA 624, 626 (2000) (citation omitted).