Veterans Administration Medical Center (Activity) and American Federation of Government Employees, Local 1985 (Union) (Authority decision, June 30, 1980)

Final FLRA decision. This order concerns exceptions to an arbitration award under 5 U.S.C. § 7122. Under 5 U.S.C. § 7123(a)(1), such orders are generally 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

A VA medical center union challenged an arbitrator’s award. The Authority found that the union’s exception did not establish a ground for setting aside the award under the governing rules. It sustained the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Arbitrator’s award sustained; union exception rejected.
• Key point: The exception did not show a recognized defect in the award.

Full text (FLRA public release)

[ v03 p560 ]

03:0560(91)AR

The decision of the Authority follows:

3 FLRA No. 91

VETERANS ADMINISTRATION
MEDICAL CENTER
Activity

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 1985
Union

Case No. 0-AR-46

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR FERRIN Y. MATHEWS FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
7122(A)).

ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
WHEN THE ACTIVITY'S PERSONNEL SERVICE SENT ONLY THE NAME OF ONE HIGHLY
QUALIFIED CANDIDATE TO THE SELECTING OFFICIAL FOR CONSIDERATION WITH
RESPECT TO A PROMOTIONAL OPPORTUNITY. THE UNION FILED A GRIEVANCE
CONTENDING THAT SUCH ACTION BY THE ACTIVITY VIOLATED ARTICLE 24, SECTION
I(4) OF THE NEGOTIATED AGREEMENT, WHICH PROVIDES THAT "(N)O MORE THAN
THE 3 BEST QUALIFIED CANDIDATES WILL BE CERTIFIED. . . . "

THEREIN, THE UNION INTERPRETED THE CONTRACT SECTION TO MEAN:

(T)HE THREE HIGHEST RANKING CANDIDATES WILL BE CERTIFIED AND REFERRED
TO THE SELECTING

OFFICIAL FOR CONSIDERATION, REGARDLESS OF WHETHER OR NOT THEY ARE
HIGHLY QUALIFIED.

ADDITIONALLY, THE UNION ASSERTED THAT MANAGEMENT HAD AGREED TO SEND
THE NAMES OF THE THREE "HIGHEST RANKING CANDIDATES" TO THE SELECTING
OFFICIAL AND THAT SUCH PROCEDURE HAD BECOME AN ESTABLISHED PRACTICE.
THE PARTIES WERE UNABLE TO RESOLVE THE DISPUTE AND IT WAS ULTIMATELY
SUBMITTED TO ARBITRATION.

THE ISSUE AS STIPULATED BY THE PARTIES WAS:

WITH RESPECT TO MERIT PROMOTION OPPORTUNITY 79-5, DID THE MEDICAL
CENTER VIOLATE THE

CONTRACT OR PAST PRACTICE, IF SUCH EXISTED, BY REFERRING FOR
PROMOTION CONSIDERATION ONLY THE

SINGLE CANDIDATE DETERMINED TO BE "HIGHLY QUALIFIED"? IF SO, WHAT IS
THE REMEDY?

IN CONSIDERING THIS ISSUE THE ARBITRATOR CONCLUDED THAT "THE AGENCY
ACTED PROPERLY IN SUBMITTING . . . THE ONE NAME OF THE HIGHLY QUALIFIED
CANDIDATE . . . ." HE FOUND NOTHING IN THE PROVISIONS OF THE COLLECTIVE
BARGAINING AGREEMENT WHICH REQUIRED THE SUBMISSION OF AT LEAST THREE
"BEST QUALIFIED CANDIDATES" TO THE SELECTING OFFICIAL. THUS HE HELD:

THE WORDS "NO MORE THAN THE THREE BEST QUALIFIED CANDIDATES . . ."
DO NOT MEAN "AT LEAST

THREE BEST QUALIFIED CANDIDATES. . . . "

REJECTING THE UNION'S INTERPRETATION OF THE CONTRACT, THE ARBITRATOR
CONCLUDED THAT MANAGEMENT HAD NOT VIOLATED THE CONTRACT.

THE UNION ALSO CONTENDED BEFORE THE ARBITRATOR THAT MANAGEMENT'S
ACTION WAS CONTRARY TO ESTABLISHED PRACTICE. IN SUPPORT OF THIS
CONTENTION THE UNION INTRODUCED EVIDENCE OF FIVE INSTANCES WHERE HIGHLY
QUALIFIED AND QUALIFIED CANDIDATES, TOGETHER, HAD BEEN SUBMITTED TO THE
SELECTING OFFICIAL, OR WHERE ONLY QUALIFIED CANDIDATES HAD BEEN
SUBMITTED. ALTHOUGH THE ARBITRATOR RECOGNIZED THAT THE EXISTENCE OF
PAST PRACTICE COULD ALTER THE TERMS OF THE NEGOTIATED AGREEMENT, HE
FOUND THE EVIDENCE, AS RELIED UPON BY THE UNION, DID NOT ESTABLISH A
"CLEAR AND CONSISTENT PRACTICE" OVER A SUFFICIENTLY LONG PERIOD OF TIME
TO ESTABLISH AN AGREEMENT BY THE PARTIES THROUGH THEIR COURSE OF CONDUCT
AND ACTIONS. CONSEQUENTLY, FINDING NEITHER CONTRACT VIOLATION NOR PAST
PRACTICE WHICH WOULD ALTER THE CONTRACT, THE ARBITRATOR DENIED THE
GRIEVANCE.

THE UNION FILED EXCEPTIONS TO THE ARBITRATOR'S AWARD UNDER SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /1/
AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
44766. THE AGENCY DID NOT FILE AN OPPOSITION.

THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
UNION'S EXCEPTIONS, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
RELATIONS CASES.

IN ITS EXCEPTION THE UNION CONTENDS THE ARBITRATOR'S AWARD IS
ARBITRARY AND CAPRICIOUS IN THAT IT DOES NOT TAKE INTO ACCOUNT FACTS IN
EVIDENCE. TO SUPPORT ITS EXCEPTION THE UNION REFERS TO THE TESTIMONY OF
CERTAIN UNION WITNESSES CITED BY THE ARBITRATOR IN HIS AWARD AND STATES
THAT "THE UNION FEELS THAT A CASE IN SUPPORT OF PAST PRACTICES WAS
ESTABLISHED."

IT IS CLEAR FROM THE UNION'S EXCEPTION THAT THE UNION IS ATTEMPTING
TO RELITIGATE THE MERITS OF THE CASE BEFORE THE AUTHORITY AND ITS
EXCEPTION ACTUALLY CONSTITUTES DISAGREEMENT WITH THE ARBITRATOR'S
REASONING AND CONCLUSIONS BASED ON THE EVIDENCE AND TESTIMONY BEFORE
HIM.

THE AUTHORITY WILL NOT REVIEW AN ARBITRATOR'S AWARD WHERE, AS IN THIS
CASE, IT APPEARS THAT THE EXCEPTION CONSTITUTES DISAGREEMENT WITH THE
REASONING EMPLOYED BY THE ARBITRATOR ON THE MERITS OF THE ISSUE BEFORE
HIM. VETERANS ADMINISTRATION HOSPITAL, PERRY POINT, MARYLAND AND LOCAL
331, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, CASE NO. O-AR-55, 3
FLRA 34 (MAY 21, 1980). THEREFORE, THE UNION'S EXCEPTION TO THE
ARBITRATOR'S AWARD PROVIDES NO BASIS FOR FINDING THE AWARD DEFICIENT
UNDER 5 U.S.C. 7122(A) AND SECTION 2425.3 OF THE AUTHORITY'S INTERIM
RULES AND REGULATIONS.

FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
AUTHORITY'S INTERIM RULES AND REGULATIONS, WE HEREBY SUSTAIN THE
ARBITRATOR'S AWARD.

ISSUED, WASHINGTON, D.C., JUNE 30, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ 5 U.S.C. 7122(A) PROVIDES:

(A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
AUTHORITY AN EXCEPTION TO ANY ARBITRATOR'S AWARD PURSUANT TO THE
ARBITRATION (OTHER THAN AN AWARD RELATING TO A MATTER DESCRIBED IN
SECTION 7121(F) OF THIS TITLE). IF UPON REVIEW THE AUTHORITY FINDS THAT
THE AWARD IS DEFICIENT--

(1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION; OR

(2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
PRIVATE SECTOR

LABOR-MANAGEMENT RELATIONS; THE AUTHORITY MAY TAKE SUCH ACTION AND
MAKE SUCH RECOMMENDATIONS CONCERNING THE AWARD AS IT CONSIDERS
NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR REGULATIONS.