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60 FLRA No. 67
DEPARTMENT OF VETERANS AFFAIRS
OF GOVERNMENT EMPLOYEES
September 30, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to two awards (the merits award and the remedy award) of Arbitrator Joseph P. Girolamo filed by the Agency under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. [n1] The Union filed an opposition to the Agency's exceptions.
In the merits award, the Arbitrator found that the Agency improperly disciplined the grievant by extending her reassignment to a medical supply technician position, and he sustained the grievance. In the subsequent remedy award, the Arbitrator awarded backpay and attorney fees and directed the Agency to reassign the grievant to her operating room technician position.
For the following reasons, we deny the Agency's nonfact, exceeded authority, and essence exceptions, and we remand this matter to the parties for resubmission to the Arbitrator, absent settlement, for clarification.
II. Background and Arbitrator's Awards
The Agency detailed the grievant, an operating room technician, to a medical supply technician position. When the detail was extended until further notice, a grievance was filed alleging that the extension violated the parties' agreement. The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue as "whether the employer violated the collective bargaining agreement when it reassigned the grievant from O.R. to another position under the circumstances herein." Merits Award at Cover Sheet.
The Arbitrator found that the reassignment resulted from several memoranda written by the clinical nursing manager for the operating room (nursing manager), which were critical of the grievant. The Arbitrator determined that the memoranda were not persuasive evidence that the grievant had engaged in misconduct because the nursing manager had no first-hand knowledge of the matters discussed therein and the grievant had rebutted them. The Arbitrator also determined that the memoranda were directed to higher levels of nursing supervision without notice to the grievant or the Union.
In addition, the Arbitrator rejected the Agency's claim that the extension of the detail did not constitute discipline. In this connection, the Arbitrator found that the Agency previously had proposed to suspend, and then remove, the grievant, but that those actions were rescinded and, instead, the reassignment was extended. The Arbitrator stated that, in these circumstances, and given the critical nature of the nursing manager's memoranda, the Agency's actions "certainly fall within the purview of an admonishment so that the resulting reassignment suggests that discipline is present[.]" Id. at 15. The Arbitrator also stated that "it is not indicated [that] the [g]rievant is unable to perform because of competency[,]" and the fact that the grievant was reassigned for "non-compliance with policies and procedures" indicated that the grievant was disciplined. Id. at 16.
The Arbitrator noted that Article 13, Section 1 of the parties' agreement indicates that actions based on unacceptable performance are addressed in Article 26 of the agreement and, insofar as Article 26 was concerned, "none of the procedures therein were followed in this case, even though Section 8 denotes `reassignment' as a `performance based action.'" [n2] Id. at 17. The Arbitrator stated that "the entire basis for the reassignment relates to alleged improper conduct and not qualifications[,]" and "the alleged misconduct has not been established via the discipline process so it cannot be found that a [ v60 p307 ] connection has been established between the [g]rievant's conduct and her qualifications." Id. at 19.
The Arbitrator also rejected the Agency's reliance on title 38 of the United States Code and § 7106 of the Statute. With regard to the former, the Arbitrator found that title 38 applies to specific personnel and that the grievant "is a [t]itle 5 employee[.]" Id. at 17. With regard to the latter, the Arbitrator acknowledged that management has rights under § 7106 but found the Union's argument -- that "the collective bargaining agreement constrains discipline by requiring good cause"-- to be "more persuasive." Id.
The Arbitrator sustained the grievance and retained jurisdiction to resolve any remaining remedy issues. In a subsequent remedy award, the Arbitrator found that the Agency's action "violated the Agreement to the extent that the proofs do not support a finding that the [g]rievant's removal from O.R. was proper." Remedy Award at 4. The Arbitrator directed that the grievant be reassigned to her former position as an operating room technician and be provided backpay and benefits from the date of her reassignment and partial attorney fees.
III. Positions of the Parties
A. Agency Exceptions
The Agency argues that the awards are based on a nonfact because there is no basis for the Arbitrator's determination that the reassignment constituted discipline. The Agency also argues that the Arbitrator exceeded his authority by disregarding limitations on his authority under 3 U.S.C. § 7422 [n3] and the parties' agreement, and that the awards fail to draw their essence from the agreement.
The Agency also argues that the awards violate management's rights under § 7106(a)(2) of the Statute to assign employees, assign work, and determine the personnel by which Agency operations shall be conducted. The Agency contends that the Arbitrator did not specify which contractual provisions were violated or what the Agency would have done if it had not violated those provisions.
Moreover, the Agency argues that no attorney fees are warranted because there was no violation of the parties' agreement or other unwarranted personnel action. According to the Agency, if the Authority agrees with the Agency's other exceptions, then there will be no backpay to support an award of fees, and the requirements of 5 U.S.C. § 7701(g) will not be met. [n4]
B. Union Opposition
The Union argues that the awards are not based on a nonfact, that the Arbitrator did not exceed his authority, and that the awards draw their essence from the parties' agreement. The Union asserts that the awards do not affect management rights, citing: United States DOD, Def. Logistics Agency, Def. Distrib. Ctr., Distrib. Depot Red River, Texarkana, Tex., 56 FLRA 690, 692-94 (2000) (DLA); United States Dep't of the Treasury, United States Customs Serv., N.Y., N.Y., 39 FLRA 278, 283-84 (1991) (Dep't of Treasury); and Buffalo Veterans Admin. Med. Ctr., 32 FLRA 601, 604-06 (1988) (Buffalo VA). Alternatively, the Union contends that the awards satisfy the requirements set forth in United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP). Finally, the Union claims that the award of attorney fees is not deficient.
IV. Analysis and Conclusions
A. The awards are not based on a nonfact.
To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. [ v60 p308 ] See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Colo., 48 FLRA 589, 593 (1993) (Lowry AFB). The Authority will not find an award deficient on the basis of the arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Nat'l Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir. 1985)). In addition, an arbitrator's interpretation of a collective bargaining agreement cannot be challenged on nonfact grounds. See, e.g., United States DOD, Educ. Activity, Arlington, Va., 59 FLRA 806, 808 (2004) (DODEA) (citation omitted).
The Agency challenges the Arbitrator's finding that the extension of the detail constituted discipline. Assuming that this finding is properly characterized as "factual," it was disputed at arbitration, see Merits Award at 1, and, consequently, cannot be challenged as a nonfact. See Lowry AFB, 48 FLRA at 594. Further, to the extent the exception challenges the Arbitrator's interpretation of the parties' agreement, the interpretation cannot be challenged on nonfact grounds. [n5] See DODEA, 59 FLRA at 808. Accordingly, the Agency has not demonstrated that the awards are based on a nonfact, and we deny the exception.
B. The Arbitrator did not exceed his authority.
The Agency argues that the Arbitrator exceeded his authority, citing 38 U.S.C. § 7422 and the parties' agreement. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. United States Dep't of Def., Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996).
As set forth above, note 3, 38 U.S.C. § 7422 applies to employees covered by 38 U.S.C. § 7421(b). It is undisputed that, as an operating room technician, the grievant is not covered by § 7421(b). See Exceptions at 4 (operating room technicians, "such as the [g]rievant, are not licensed health care professionals and are appointed under the authority set forth at [t]itle 5[;]" an operating room technician "is not a licensed health care professional and cannot be disciplined under [t]itle 38"). Thus, § 7422 does not apply to the grievant and provides no limitation on the Arbitrator's authority.
With regard to the parties' agreement, the only provision cited by the Agency is Article 12, Section 10, which provides that "reassignment is a subject more appropriate for collective bargaining." Exceptions at 29. The Agency does not explain how this provision, or any other provision in the parties' agreement, limits the Arbitrator's authority to provide a reassignment remedy. Accordingly, we conclude that the Agency has not demonstrated that the Arbitrator exceeded his authority by providing that remedy.
For the foregoing reasons, we deny the exception.
C. The awards draw their essence from the parties' agreement.
In order for an award to be found deficient as failing to draw its essence from the collective bargaining agreement, it must be established that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of an arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990). The Authority defers to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
The Agency's essence exception repeats the contractual arguments set forth in the exceeded authority exception. In this connection, as discussed previously, the only provision cited by the Agency is Article 12, Section 10, which provides that "reassignment is a subject more appropriate for collective bargaining." Exceptions at 29. Also as discussed previously, the Agency does not explain how this provision, or any other provision in the parties' agreement, limits the Arbitrator's authority to provide a reassignment remedy. Accordingly, we conclude that the Agency's essence exception provides no basis finding the awards deficient.
With regard to the Agency's claim that the Arbitrator erred by finding that the grievant was disciplined, Article 13, Section 2 of the parties' agreement provides, in pertinent part, that "[a] disciplinary action is defined as an admonishment . . . ." Opposition, Attachment Q at 36. The Arbitrator found that the Agency's actions fell "within the purview of an admonishment[.]" Merits Award at 15. The Agency does not cite any provision of the parties' agreement that either defines "admonishment" or indicates that the Arbitrator's finding was irrational, unfounded, implausible, or in manifest disregard [ v60 p309 ] of the parties' agreement. Accordingly, we conclude that the Agency's argument does not demonstrate that the awards fail to draw their essence from the parties' agreement.
For the foregoing reasons, we deny the exception.
D. The awards are remanded for clarification.
The Agency asserts the awards are contrary to law. The Authority reviews questions of law de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.
1. Section 7106 of the Statute
Where an agency asserts that an arbitrator's award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects management's rights. See United States Small Bus. Admin., 55 FLRA 179, 184 (1999) (SBA). If the award affects management's rights under § 7106, then the Authority applies the two-prong test established in the Authority's decision in BEP, 53 FLRA 146. Under prong I of BEP, the Authority examines whether the award provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute. BEP, 53 FLRA at 152-53. If it does, then under prong II of BEP, the Authority considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue. Id. at 154.
a. Effect on management rights
The Authority has held that an arbitration award ordering the reassignment of an employee affects management's right to assign employees. See SSA, Boston Region (Region 1), Lowell Dist. Office, Lowell, Mass., 57 FLRA 264, 268 (2001) (citations omitted) (Member Wasserman dissenting in part on other grounds). The remedy award orders the reassignment of the grievant, supporting a conclusion that the awards affect management's right to assign employees.
The decisions relied on by the Union do not support a contrary conclusion. In Buffalo VA, 32 FLRA at 604-06, the Authority found that management's right to assign employees was affected. In Dep't of Treasury, 39 FLRA at 283-84, the Authority found that the award was not contrary to the right to assign employees because the arbitrator enforced an appropriate arrangement - not because the award had no effect on management's rights. Finally, unlike DLA, 56 FLRA at 692-94, the instant case does not involve a situation where management has determined the grievant to be equally qualified to others and the award is merely enforcing a provision determining how equally-qualified employees will receive assignments. Thus, these decisions do not support a conclusion that the awards do not affect the Agency's right to assign employees.
For the foregoing reasons, we conclude that the awards affect management's right to assign employees.
b. BEP analysis
To apply the BEP analysis, it is essential to identify the law or contract provision that the arbitrator found violated. See United States Dep't of the Navy, Supervisor of Shipbuilding, Conversion & Repair, Newport News, Va., 56 FLRA 339, 343 (2000) (Dep't of Navy) (Chairman Wasserman dissenting), decision after remand, 57 FLRA 36 (2001) (Chairman Cabaniss dissenting in part); SBA, 55 FLRA at 184; United States DOD, Def. Logistics Agency, Def. Distrib. Depot, Norfolk, Va., 54 FLRA 180, 184 (1998) (DOD) (Member Wasserman dissenting). If the Authority is unable to determine which contract provisions were found violated, then the Authority will remand the matter to the parties for resubmission to the arbitrator, absent settlement, for clarification. See Dep't of Navy, 56 FLRA at 344; SBA, 55 FLRA at 185; DOD, 54 FLRA at 184.
In this case, we are unable to determine the basis for the Arbitrator's awards. In this regard, the Arbitrator stated that the Agency "violated the Agreement" because the reassignment was not "proper." Remedy Award at 4. However, the Arbitrator did not state which provisions of the parties' agreement was violated. Moreover, while the Arbitrator set forth several contract provisions and declared those provisions to "have relevance," Merits Award at 9, the Arbitrator did not further specify, and we are unable to determine from the record, which of those provisions the Arbitrator relied on in finding a violation and forming the remedy. Among other things, the Arbitrator cited Article 13, which sets forth procedures for taking disciplinary actions, but did not find a violation of that Article. The Arbitrator also did not indicate that he was finding a violation of the just cause provision. Moreover, the Arbitrator cited Article 26, concerning actions based on [ v60 p310 ] unacceptable performance, and stated that "none of the procedures therein were followed" here. Merits Award at 17. However, given the Arbitrator's repeated findings that this case does not involve unacceptable performance, see id. at 16, 18 & 19, the Arbitrator's reason for finding that Article 26 was not followed is not clear.
Because we cannot determine what contract provision(s) the Arbitrator was enforcing, we are unable to apply the BEP analysis. See, e.g., SBA, 55 FLRA at 184-85. Accordingly, we remand the awards to the parties for resubmission to the Arbitrator, absent settlement, for clarification. On remand, the Arbitrator must clarify what contract provisions were violated, and whether those provisions were negotiated pursuant to § 7106(b) of the Statute. If the Arbitrator determines that such a provision were violated, then any remedy must reconstruct what management would have done if it had complied with that provision.
For the foregoing reasons, we remand the awards for clarification. [n6]
2. The Back Pay Act and 5 U.S.C. § 7701(g)
The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, is a finding that the grievant was affected by an unjustified and unwarranted personnel action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See United States DOD, Def. Logistics Agency, Def. Distrib. Depot, Red River, Texarkana, Tex., 56 FLRA 62, 68 (2000) (citation omitted). If such a finding is made, then the Act further requires that an award of fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g), which pertains to attorney fee awards by the Merit Systems Protection Board.
A violation of a collective bargaining agreement constitutes an unjustified and unwarranted personnel action under the Back Pay Act. See United States Dep't of HHS, 54 FLRA 1210, 1220 (1998). As discussed previously, the Arbitrator did not specify, and we are unable to determine, what provisions of the parties' agreement were violated. As a result, we are also unable to determine whether there was an unjustified or unwarranted personnel action that would support an award of backpay and attorney fees here. Accordingly, we are not able, at this time, to determine whether the requirements for an award of attorney fees are met here. We note that attorney fees may not be awarded if backpay is not awarded. See United States Dep't of Veterans Affairs, Veterans Integrated Serv. Network 7, Network Bus. Office, Duluth, Ga., 60 FLRA 122, 123 (2004).
The nonfact, exceeded authority, and essence exceptions are denied. The awards are remanded to the parties for resubmission to the Arbitrator, absent settlement, for clarification.
Footnote # 1 for 60 FLRA No. 67 - Authority's Decision
The Agency filed exceptions to the merits award at the time the merits award issued but, in response to an order to show cause why the exceptions should not be dismissed as interlocutory, the Agency withdrew them. The exceptions at issue here challenge both the merits award and the remedy award.
Footnote # 2 for 60 FLRA No. 67 - Authority's Decision
If at any time during the appraisal year the supervisor identifies a significant performance-related problem with an employee, the supervisor will meet with the employee and union representatives, if requested, to advise the employee of the problem, determine the root cause, and develop a written assistance plan to resolve the problem. This counseling session will be documented in writing, and a copy will be provided to the employee.
Article 26, § 8(A) provides, in pertinent part:
Should all remedial action fail and the employee's performance is determined to be unacceptable, the supervisor will issue a rating of unacceptable performance to the employee. One of the following actions will be taken: reassignment . . . .
Opposition, Attachment Q at 95-97.
Footnote # 3 for 60 FLRA No. 67 - Authority's Decision
38 U.S.C. § 7422(b)(1) provides that, for employees listed in 5 U.S.C. § 7421(b), collective bargaining and grievance procedures may not cover "any matter . . . arising out of . . . professional conduct or competence[.]" The employees listed in 38 U.S.C. § 7421(b) are physicians, podiatrists, optometrists, registered nurses, physician assistants, and expanded-duty dental auxiliaries.
Footnote # 4 for 60 FLRA No. 67 - Authority's Decision
5 U.S.C. § 7701(g)(1) provides, in pertinent part, for an award of "reasonable attorney fees incurred by an employee" provided "the employee . . . is the prevailing party" and "payment by the agency is warranted in the interest of justice[.]"
Footnote # 5 for 60 FLRA No. 67 - Authority's Decision
Footnote # 6 for 60 FLRA No. 67 - Authority's Decision
We note that, as set forth above, it is unclear whether the grievant failed to comply with operating room policies and procedures. Compare Merits Award at 16 (Arbitrator stated that grievant engaged in "non-compliance with policies and procedures") with id. at 19 (Arbitrator stated that "alleged misconduct has not been established"). However, if the grievant has failed to comply, then on remand the obvious patient safety concerns presented by placing an employee with such a work record back into a hospital operating room environment should be addressed and resolved. This concern should not be interpreted to condone or permit any impropriety in the Agency's extension of the grievant's reassignment: any further action in this case must accord the grievant all procedural and substantive rights to which she is entitled. However, we find nothing inherently contradictory between protecting the rights of the grievant and the need for patient safety in the Agency's hospital operating rooms.