73 FLRA No. 12                                                                                                                                                                

 

NATIONAL ASSOCIATION

OF GOVERNMENT EMPLOYEES
LOCAL R3-74

SERVICE EMPLOYEES

INTERNATIONAL UNION

(Union)

and

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS
BUTLER VA MEDICAL CENTER

BUTLER, PENNSYLVANIA
(Agency)

 

0-AR-5776

 

_____

 

DECISION

 

June 14, 2022

 

_____

 

Before the Authority:  Ernest DuBester, Chairman, and

Colleen Duffy Kiko and Susan Tsui Grundmann, Members

 

I.             Statement of the Case

 

In this case, Arbitrator Norman R. Harlan denied a grievance alleging that the Agency violated the parties’ collective-bargaining agreement (CBA) when it reassigned an employee without following proper CBA procedures concerning department-initiated reassignments.  The Union argues that the Arbitrator’s award fails to draw its essence from the CBA because the Arbitrator ignored dispositive contract language.  As discussed below, we are unable to determine whether the award is deficient as raised in the Union’s exception, and we remand it for further action consistent with this decision.

 

II.            Background

 

                On April 21, 2020, the Agency reassigned a psychologist working as a Military Sexual Trauma Coordinator to the position of Local Recovery Coordinator (LRC).  On June 4, 2020, the Union filed a grievance alleging that the Agency had failed to solicit internal applicants for the LRC role, in violation of Article 7, Section 1 of the CBA, regarding employee rights, and in violation of Article 25, Section 7.  That provision states, in relevant part:

 

D.  The Department will adhere to the following procedures prior to effecting a Department initiated reassignment of an employee(s):

 

1. The Department will determine which employees are qualified for the

reassignment.

2.     The Department will solicit volunteers from within the pool of qualified employees, 30 days in advance of a Department initiated reassignment.

3.     A Department initiated reassignment of an emergent nature will be accomplished by detailing qualified employees on a temporary basis until such time the procedures for involuntary reassignment have been completed.

4.     If there are more volunteers than needed, the Department will reassign

        the employee(s) with the greatest amount of seniority in accordance with Article 60:  Seniority; and

5.     If there are not enough volunteers, the Department will reassign the employee(s) with the least amount of seniority in accordance with Article 60:  Seniority.[1]

 

The Union requested as a remedy that the Agency follow the procedures outlined in Article 25, including soliciting internal applicants for the LRC position and, if there are no interested qualified individuals, reassign the employee with the least amount of seniority.  The Agency denied the grievance[2] and the matter proceeded to arbitration.

 

                In an October 26, 2021 award, the Arbitrator noted that the Union’s representative defined the issue at the hearing by stating “I can just limit our request and remedy to posting this position and there be an application process.”[3]  The Arbitrator found that “[t]here is no language in either” Articles 4 or 5 of the CBA, regarding management and union rights, “which supports the relief sought by [the Union].”[4]  The Arbitrator then concluded that “[c]learly” there was no “express” or “implied” language within the CBA which required the Agency to post the LRC position.[5]  The Arbitrator noted that Article 41, Section 7 of the CBA – which provides that an arbitrator may not add to, subtract from, or modify the terms of the CBA – “expressly prohibits an arbitrator from ‘writing [c]ontract.’”[6]  The Arbitrator then denied the grievance.

 

                The Union filed an exception to the award on November 24, 2021.  The Agency did not file an opposition to the Union’s exception. 

 

III.          Analysis and Conclusion:  We remand the award for further findings concerning the Union’s essence exception.

 

                The Union argues that the Arbitrator’s conclusion that there is no explicit or implied language in the CBA that requires the Agency to post the LRC position fails to draw its essence from the CBA[7] because it ignores Article 25, Section 7, which “is directly applicable” to the department-initiated reassignment to the LRC position in this case.[8]  The Union argues that the Arbitrator’s inexplicable “ignorance of Article 25 can only be described as irrational or unconnected to the wording and purposes of the negotiated agreement.”[9]  The Union urges us to “remand this case back to arbitration with a different arbitrator for further proceedings.”[10]

 

                Given the Arbitrator’s brief and unsupported conclusion at issue here, we are unable to determine whether the Arbitrator’s contractual interpretation is deficient as failing to draw its essence from the agreement.  The Arbitrator did not discuss how or why the Arbitrator concluded that “[c]learly there is no express language or any implied language within the [CBA] which requires the Agency to post the position of [LRC].”[11]  The Arbitrator did not provide any factual support or legal analysis beyond this one conclusion.  The Arbitrator did not specify the CBA language that the Arbitrator reviewed and interpreted, or how the Arbitrator applied that language to the circumstances presented in this case.  Moreover, it is unclear from the award whether the Arbitrator even considered Article 25, Section 7, which is discussed at length in the Union’s grievance.  As a result, we are unable to determine whether the Arbitrator’s contractual interpretation was irrational, unfounded, implausible, or in manifest disregard of the agreement.[12] 

 

Where, as here, the arbitrator’s findings are insufficient for the Authority to determine whether the award is deficient on the grounds raised by a party’s exceptions, the Authority will remand the award.[13]  Accordingly, we remand the award to the parties for resubmission to arbitration, absent settlement, for further findings on whether the CBA required the Agency to post the LRC position.  Consistent with this decision, the resulting award should explain the contractual bases for any conclusions; explain any interpretations of the parties’ agreement; and provide adequate factual findings.[14]

 

IV.          Decision

 

                We remand this case for action consistent with this decision.[15]