American Federation of Government Employees, Local 331 (Union) and United States, Department of Veterans Affairs, Va Maryland Health Care System (Agency)

[ v61 p550 ]

61 FLRA No. 103







May 2, 2006


Before the Authority: Dale Cabaniss, Chairman and Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on an exception to an award of Arbitrator Stephen B. Forman 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 did not file an opposition to the Union's exception.

      The Arbitrator denied the grievance, finding that the Agency's failure to timely respond to the grievance did not result in harmful error to the Union and that the Agency did not violate the parties' collective bargaining agreement by failing to provide the Union with the office space it requested. For the reasons set forth below, we deny the Union's exception.

II.     Background and Arbitrator's Award

      Prior to April 2004, AFGE Local 2146 (Local 2146) represented bargaining unit employees at the Agency's Baltimore Rehabilitation and Extended Care Center (BRECC). The Agency provided office space to Local 2146 at the BRECC. In April 2004, AFGE, at the national level, transferred the representational duties of the employees at the BRECC to the Union, AFGE, Local 331. The Union requested that the Agency provide it with the office space previously provided to Local 2146. The Agency denied the Union's request, stating that the Union could share the office space provided by the Agency to another union at the BRECC.

      The Union filed a grievance, which asserted that the Agency's refusal to provide the Union with the office space previously provided to Local 2146 violated the parties' master agreement. The grievance was not resolved and was submitted to arbitration. The Arbitrator stated the issues to be:

Whether the Agency failed to respond to the Union's Step 3 grievance within the time limits required under Section 7 (Procedure) of Article 42 of the parties' Master Agreement and if so, whether under Section 9 (Failure to Respond in Timely Manner) of Article 42 the grievance should therefore be resolved in favor of the Union? [n1] 
Whether the Agency violated Article 48 (Use of Official Facilities) of the parties' Master Agreement and/or Supplemental Agreement by failing to provide the Union office space required under these agreements and if so, what is the appropriate remedy? [n2] 

Award at 2-3.

      With regard to the Union's claim that the Agency violated Article 42, Section 7 by failing to timely respond to the grievance, the Arbitrator found that the Agency timely met with the Union to discuss the step-three grievance, but failed to respond to the grievance in a written decision within ten calendar days of the step-three [ v61 p551 ] grievance meeting as required by the parties' agreement. See Award at 15-16.

      In constructing a remedy for the Agency's violation of Article 42, Section 7, the Arbitrator determined that when the Agency fails to timely respond to a grievance, Article 42, Section 9 requires that a grievance be resolved in favor of the Union if the requested remedy "is legal and reasonable under the circumstances of the grievance." Id. at 16. The Arbitrator noted the Agency's claim that the remedy requested by the Union was "unreasonable because the Union failed to show that it was harmed by the Agency's failure to respond timely." Id. Consistent with the Agency's claim, the Arbitrator determined that the "harmful error doctrine applies to an agency's failure to follow procedures in a collective bargaining agreement." Id. at 17 (citing Battaglia v. Dep't of Health & Human Servs., 5 MSPR 152 (1981)). The Arbitrator found that the Union had not demonstrated that "it was harmed by the Agency's untimely response[.]" Id. at 18. Accordingly, the Arbitrator determined that the Agency's untimely response "cannot by itself be grounds for reversing [the Agency's] decision to not provide the additional office space requested by the Union." Id. at 18.

      With regard to the merits of the grievance, the Arbitrator determined that the Union failed to establish that the Agency's denial of the office space previously provided to Local 2146 "prevent[ed] the Union from carrying out its representational and partnership duties or otherwise . . . violate[d]" the parties' collective bargaining agreement. Id. at 24-25. [n3]  As such, the Arbitrator denied the grievance and ordered the Union and the Agency to split the Arbitrator's fees. See id. at 25.

III.     Union's Exception

      The Union claims that the Arbitrator erred in applying the Merit Systems Protection Board's harmful error rule in determining whether he was required to resolve the grievance in favor of the Union pursuant to Article 42, Section 9. Specifically, the Union asserts that where, as here, a grievance concerns a personnel action not otherwise appealable to the MSPB, the harmful error rule is "not applicable[.]" Exception at 1.

IV.     Analysis and Conclusion

      The Authority has determined that an arbitrator is not required to apply the harmful error rule except when resolving a grievance over performance-based actions covered by 5 U.S.C. § 4303 or serious adverse actions covered by 5 U.S.C. § 7512. See United States Dep't of the Interior, Bureau of Indian Affairs, Office of Indian Educ. Programs, Rapid City, S.D., 55 FLRA 329, 331 (1999). However, the Authority has also determined that nothing in law, rule, or regulation precludes an arbitrator from applying the harmful error rule in cases where its applicati