Leavenworth Veterans Administration Medical Center and AFGE Local 85 (Authority decision, May 29, 1987)

Final FLRA decision. The Authority denies the VA's exceptions to an arbitration award directing the medical center to use student employees in accordance with applicable regulations and to bargain on negotiable concerns if the union requests it. Under 5 U.S.C. § 7123(a)(1), Authority orders involving arbitral awards generally are excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

AFGE Local 85 challenged how the Leavenworth VA Medical Center used summer and stay-in-school employees in its laundry. The students worked alongside bargaining unit employees, whose work assignments, performance reviews, and safety could be affected by the students' duties. An arbitrator found some use of the students inconsistent with federal and VA regulations and directed the center to comply with those rules. She also directed bargaining on negotiable concerns if the union sought a local supplement. The Authority held that the grievance concerned bargaining unit employees' working conditions, even though the students themselves were outside the unit, and denied the VA's exceptions.

Decision snapshot

• Authority: Union grievances over laws affecting working conditions under 5 U.S.C. § 7103(a)(9)(C)(ii).
• Outcome: Agency exceptions denied; regulatory compliance and conditional local bargaining directions stand.
• Key point: The use of nonunit students was grievable because it affected the work and safety of bargaining unit employees.

Full text (FLRA public release)

[ v27 p225 ]

27:0225(35)AR

The decision of the Authority follows:

27 FLRA No. 35

LEAVENWORTH VETERANS ADMINISTRATION
MEDICAL CENTER
Activity

and

LOCAL NO. 85, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Union

Case No. 0-AR-1244

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Anne Holman Woolf filed by the Veterans Administration (the Agency) under section 7122(a) of part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. /1/

II. BACKGROUND AND ARBITRATOR'S AWARD

The Union filed a grievance alleging that the Activity was not utilizing student employees (both students hired for summer employment and students employed as part of the stay-in-school program) in the laundry in accordance with law or regulation. As a remedy, the Union requested that the Activity "work students in accordance with law and regulation."

The Arbitrator first determined that the grievance was grievable and arbitrable. In particular, she ruled contrary to the arguments of the Activity that the grievance concerned a "claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment" under section 7103(a)(9)(C)(ii) of the Statute. In determining that the utilization of the students (who concededly are not part of the bargaining unit) concerned conditions of employment of unit employees, the Arbitrator noted testimony that the students perform the same duties as, and fill in for, unit employees on a regular and recurring basis. She also noted that the Union had filed the grievance to address the "grave" concerns of unit employees over the utilization of students. She identified these concerns as including the following: (1) the possible negative effect on performance evaluations of unit employees when their assignments change because students take over their original assignments; (2) the lessening of efforts to staff to full capacity because students constituted 6.25% of the laundry workforce; (3) the occupational health and safety consequences to unit employees arising from the actions of unsupervisd students operating machines on which they have not been sufficiently trained; and (4) the effect on the safety and performance of unit employees resulting from shifting their full attention from assigned duties to "also looking out for the students." In finding that the grievance was grievable and arbitrable, the Arbitrator also rejected the Activity's arguments that the grievance directly challenged management rights under the Statute. She noted that the Union was not proposing any specific method for the exercise of management's right to assign work to the students other than that required by law and regulations.

On the merits, the Arbitrator found that in certain respects the Actvity was not utilizing the students in accordance with Federal Personnel Manual chapter 308 (pertaining to the stay-in-school program) and agency regulations. Accordingly, in her award, she directed that the Activity change the manner of utilizing students so that the utilization is fully in accordance with Government-wide regulations and agency regulations. Because of the expressed concerns of the Union and because the Arbitrator interpreted Article 5, Section 2(a) of the parties' master collective bargaining agreement to permit a local supplementary agreement on this matter, the Arbitrator in her award also directed the Activity to comply with Article 5 if the Union requests local supplementary bargaining on negotiable concerns as to the utilization of students.

III. FIRST EXCEPTION

A. Contentions

The Agency contends that by finding the grievance to be grievable and arbitrable, the award is contrary to the Statute because the grievance involves the conditions of employment of students who are not unit employees. The Agency argues that the grievance does not concern the conditions of employment of unit employees, but instead seeks to directly enforce the manner in which personnel policies, practices, and conditions of employment apply to the nonbargaining unit employees.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that by finding the grievance to be grievable and arbitrable, the award is contrary to the Statute. Contrary to the arguments of the Agency, we cannot find that the Arbitrator's determination that the grievance concerns a matter covered by the statutory definition of grievance in section 7103(a)(9)(C)(ii) is contrary to the Statute.

Section 7103(a)(9)(C)(ii) specifically defines grievance to include any complaint by a union concerning any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. The grievance in this case alleged that the Activity was not utilizing the students as required by applicable laws and regulations. We find that the Union's grievance was directed to the effect on working conditions of unit employees and is encompassed by section 7103(a)(9)(C)(ii). In American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA 50 (1987), Proposal 1 concerned the manner in which work assignments would be made to volunteers and to students appointed under the stay-in-school program. Although we concluded that the proposal conflicted with section 7106(a)(2)(B), we rejected the Agency's contention that the proposal did not concern unit employees because it related to the work assignments of these nonunit employees. We found that the proposal related to the working conditions of unit employees, noting that the volunteers and students work side-by-side with unit employees and are jointly engaged in the furtherance of a common agency objective. Slip op. at 2. In this case, the Arbitrator, similar to our finding in National Council of SSA Field Operations Locals, found that the students performed the same duties as, and fill in for, unit employees on a regular and recurring basis. In addition, she identified other complaints over the alleged improper utilization of students which relate to and affect the working conditions of unit employees. For these reasons, no basis is provided for finding the award deficient as alleged by the Agency.

IV. REMAINING EXCEPTIONS

A. Contentions

In its other exceptions, the Agency contends that the award is deficient because it directs the Activity to negotiate with the Union if the Union requests local supplementary bargaining. The Agency argues for the same reasons that it argues that the grievance was not grievable and arbitrable that the award requires the Activity to negotiate over the conditions of employment of the students and that therefore the award is contrary to the Statute. The Agency also argues that by directing negotiation of a local supplementary agreement, the award is contrary to the parties' master agreement.

B. Analysis and Conclusions

We conclude that the Agency fails to establish that the award is deficient as alleged. For the same reasons we denied the Agency's first exception and noting, in addition, that bargaining was directed only to the extent the proposals are negotiable, we find that the award is not contrary to the Statute by directing bargaining on the Union's negotiable concerns regarding the effect on working conditions of unit employees caused by the Activity's improper utilization of students. We also find that the Agency's contention that the award is contrary to the master agreement constitutes nothing more than disagreement with the Arbitrator's interpretation and application of that agreement. It is well established that such disagreement provides no basis for finding the award deficient. For example, Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Ga. and American Federation of Government Employees, Local 987, 25 FLRA No. 80 (1987).

DECISION

Accordingly, the Agency's exceptions are denied. /2/

Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(1) In its opposition, the Union contends that the Agency's exceptions are untimely. Under the Authority Rules and Regulations pertaining to the time period for filing exceptions to an arbitration award, the exceptions were timely filed and we reject the Union's contention. See, for example, Defense Mapping Agency, Hydrographic/Topographic Center and AFGE Local 3407, 23 FLRA No. 64 (1986).

(2) At the conclusion of its exceptions, the Agency requests that the Authority set aside the Arbitrator's award of travel and per diem expenses. Because the Arbitrator neither mentioned nor awarded travel and per diem expenses and the Agency provides no explanation for its request, the Agency's request is denied.