[ v34 p475 ]
34:0475(80)AR
The decision of the Authority follows:
34 FLRA NO. 80
U.S. DEPARTMENT OF VETERANS AFFAIRS
VETERANS ADMINISTRATION MEDICAL CENTER
GAINESVILLE, FLORIDA
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2779
0-AR-1720
DECISION
January 22, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the
award of Arbitrator Stanley H. Sergent filed by the American
Federation of Government Employees, Local 2779 (the Union) under
section 7122(a) of the Federal Service Labor - Management
Relations Statute (the Statute) and part 2425 of the Authority's
Rules and Regulations. The U.S. Department of Veterans Affairs,
Veterans Administration Medical Center, Gainesville, Florida (the
Agency) filed an opposition to the Union's exceptions. The
Arbitrator's award denied the grievance in which a carpenter
objected to performing duties which he considered to be painters'
duties.
For the reasons discussed below, we find that the Union's
exceptions do not establish that the award is deficient under any
of the grounds set forth in section 7122(a) of the Statute.
Accordingly, we will deny the Union's exceptions.
II. Background and Arbitrator's Award
In June 1988, the grievant, a WG-9 Carpenter, objected to
performing duties which he believed were within the Painter,
rather than the Carpenter, classification. On three
occasions the grievant was assigned to apply an aluminum roof
coating around ducts and air conditioning equipment on the roof
of the Medical Center. The aluminum roof coating was applied with
brushes and rollers, which the grievant believed characterized
the work as "painting." Award at 2-6.
The Arbitrator found that the grievant's job description
included performing roof repairs. Award at 4, 6. The grievant
acknowledged that roof repair was included in his position
description, but denied that painting was included and argued
that brushes and rollers were not listed among the tools of his
trade. Award at 6.
The Arbitrator first considered the arbitrability of the
grievance. The agency had argued that the requested remedy of the
reassignment of the work interfered with management's right to
assign work under the Statute. Award at 12. The Arbitrator
acknowledged management's right to assign work, but found nothing
which precluded the filing of the grievance. The Arbitrator noted
that the parties' agreement contained a broad definition of a
grievance, and he, therefore, found the grievance to be
arbitrable. Award at 13.
The Arbitrator then considered the merits of the grievance,
and determined that management could assign the roof coating
duties to the grievant. Award at 13. The Arbitrator found that
management has considerable discretion in assigning tasks and
that detailed job descriptions do not preclude the assignment of
other duties. Award at 14. The Arbitrator concluded that the
grievant's Carpenter position description was broad enough to
encompass the roof coating assignment. Award at 15. The
Arbitrator viewed the work at issue to constitute "roof repairs"
even though "painting" might describe the technique used. Award
at 16.
The Arbitrator concluded that management was not obligated
to comply with the portions of the parties' agreement pertaining
to job reclassification or negotiation of changes at the local
level regarding the grievant's assignment to apply the aluminum
roof coating. The Arbitrator also found that the grievant had not
been exposed to unreasonable working conditions. Therefore, the
Arbitrator found that no violation of the collective bargaining
agreement had occurred and he denied the grievance. Award at
16-17.
III. Positions of the Parties
A. The Union
The Union contends that the Arbitrator: (1) exceeded his
authority by answering questions which were not before him, and
(2) based his award on "Non Fact." Exceptions at 1. The Union
argues that the Arbitrator considered the question of whether
"Painting is a second classification to Carpentry." Id. The Union
also contends that the Arbitrator related the carpenter and
painter positions to maintenance work, rather than to journeyman
trade positions, when the Arbitrator cited a private sector
arbitration award. Id.
The Union attached statements from two witnesses. The Union
contends that the Arbitrator misunderstood the testimony of these
witnesses and arrived at erroneous conclusions regarding the
material used as the roof coating. Exceptions at 2. The Union
argues that the Arbitrator's confusion "created an erroneous
Central Fact and but for this Non Fact the award would or should
have gone the other way." Id.
B. The Agency
The Agency argues that the "Union's assertions muddle the
arbitrator's reasoning and are not a fair or accurate
representation of the (A)rbitrator's statements in the award."
Opposition at 5. The Agency states that the Arbitrator did not
find that painting is a second classification to carpentry.
Rather, the Agency argues, the Arbitrator found that painting is
a skill used by both painters and carpenters. Id.
The Agency contends that the Arbitrator's reference to a
private sector case stands for the proposition that, except in
highly specialized work, "there is much overlapping in jobs and
their classifications." Opposition at 6. The Agency argues that
the Union's exceptions constitute nothing more than disagreement
with the Arbitrator's finding of fact, reasoning, and
conclusions. Id.
IV. Discussion
Section 7122(a) of the Statute provides that an arbitration
award may be found 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 relations
cases.
The Union does not contend that the award is contrary to any
law, rule, or regulation. The Union contends that the award is
deficient because the "Arbitrator exceeded his authority
(answered questions not before him)" and because the "award (is)
based on Non Fact." Exceptions at 1.
We reject the Union's contention that the Arbitrator
exceeded his authority by answering questions not before him. We
conclude that the Union has misread the Arbitrator's award. The
Arbitrator has not, in the two instances raised by the Union,
addressed extraneous questions. Rather, the Arbitrator discussed
the reasons for his finding that the grievant's assignment to
apply protective roof coating was within the roof repair function
found in the grievant's position description. The Arbitrator
directly responded to the issue before him and the Union's
exception that the Arbitrator addressed questions not before him
is without merit. See Naval Air Rework Facility and National
Association of Government Inspectors, Local No. 257, 29 FLRA
1103, 1104 (1987) (exception contending that the arbitrator
decided an issue not before him was denied where the award was
directly responsive to the issue submitted).
We also reject the Union's contention that the award is
based on a nonfact. In order to show that an arbitrator's award
is deficient under the Statute because it is based on a nonfact,
the party must demonstrate that the central fact underlying the
award is concededly erroneous and is a gross mistake of fact, but
for which a different result would have been reached. See U.S.
Patent and Trademark Office and Patent Office Professional
Association, 32 FLRA 1168, 1177 (1988). The Union's contention
that the award is based on a nonfact constitutes nothing more
than disagreement with the Arbitrator's interpretation of the
parties' agreement, his findings of fact, and his evaluation of
the evidence and testimony. See, for example, Commander, Griffiss
Air Force Base and Local 2612, American Federation of Government
Employees, AFL - CIO, 31 FLRA 1187 (1988) (exceptions which
merely attempt to relitigate the merits of a grievance and
constitute nothing more than disagreement with an arbitrator's
interpretation of an agreement, credibility findings, and
evaluation of the evidence provide no basis for finding an award
deficient).
Based on the rationale and conclusions of the U.S. Court of
Appeals for the District of Columbia Circuit in Colorado Nurses
Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988), the
Authority has held that the Agency has no obligation to bargain
over the conditions of employment of professional
medical employees of the Department of Medicine and Surgery
subject to 38 U.S.C. 4108(a). U.S. Department of Veterans
Affairs, Medical Center, Danville, Illinois and American
Federation of Government Employees, Local 1963, 34 FLRA No. 29,
slip op. at 3, 4 (1990). The grievant in this case is not a
professional medical employee subject to section 4108(a).
Therefore, the court's decision in Colorado Nurses Association
does not affect the award in this case.
V. Decision
The Union's exceptions are denied.