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51 FLRA No. 39

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

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AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1843

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

NORTHPORT, NEW YORK

(Agency)

0-AR-2575

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DECISION

October 31, 1995

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Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Guy Raymond filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union did not file an opposition to the Agency's exceptions.

The grievant filed a grievance when the Agency rejected his requests for full-time employment. The Arbitrator sustained the grievance and ordered the grievant selected for full-time employment.

We conclude that the award is contrary to management's rights to hire and make selections for appointments under section 7106(a) of the Statute. Accordingly, we strike the order that the grievant be selected for full-time employment.

II. Arbitrator's Award

The grievant, a part-time employee, filed a grievance claiming that the Agency violated Article 10, Section 1-A of the parties' collective bargaining agreement⁽¹⁾ when it rejected his requests for full-time employment and, instead, selected outside applicants for full-time housekeeping positions.

The Arbitrator rejected the Agency's contentions that the grievance was not arbitrable under section 7121(c)(4) and section 7106(a) of the Statute. He ruled that the grievance was arbitrable because management had failed to establish a plan for the grievant's improvement as required by the instructions of the Federal Personnel Manual (FPM) on the proper administration of the performance appraisal system. The Arbitrator sustained the grievance, finding that the Agency had been arbitrary and capricious in administering its performance appraisal system by not following FPM chapter 430⁽²⁾ and that the Agency should "develop their own people" rather than hiring outside applicants. Award at 9. The Arbitrator ordered that the grievant be selected for the next full-time position for which part-time employees are eligible without any special "conditions". Id. The Arbitrator justified his award, in part, on the Agency's offer to the grievant of a full-time position on a trial basis as a settlement of the grievance.

III. Exceptions

A. Arbitrability of the Grievance

The Agency contends that the Arbitrator's determination that the grievance was arbitrable is contrary to section 7106(a) and section 7121(c)(4) of the Statute and is "founded on an erroneous perception of the claim presented[.]" Exceptions at 4. The Agency claims that the Arbitrator erred by construing the grievance as concerning performance appraisals and by basing his arbitrability ruling on FPM provisions that pertained only to performance appraisal systems. According to the Agency, the parties had agreed that the issue submitted to arbitration concerned only hiring, a management right under section 7106(a) of the Statute. The Agency maintains that the grievance was not arbitrable under section 7106(a) because it involved no permissible limitation on management's right to hire under applicable law or the parties' collective bargaining agreement. The Agency also argues that the grievance was not arbitrable under section 7121(c)(4) of the Statute because it concerned an appointment.

B. The Arbitrator's Order

The Agency contends that the Arbitrator's order that the grievant be selected is contrary to management's right to hire and select under section 7106(a)(2)(A) and (C). The Agency maintains that the award is based solely on the performance appraisal provisions of the FPM and asserts that FPM chapter 430 cannot support a remedy infringing on management's right to hire and select. The Agency also contends that the award is logically inconsistent because it orders the grievant selected on the basis of provisions relating to performance appraisals when that was not the subject of the grievance.

IV. Analysis and Conclusions

A. Arbitrability

1. The Arbitrator Did Not Exceed His Authority

The Authority will find an award deficient as in excess of an arbitrator's authority when the arbitrator resolves an issue not submitted to arbitration. E.g., U.S. Department of the Navy Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA No. 29 (1995). We construe the Agency's argument that the Arbitrator's arbitrability determination was founded on an erroneous view of the claim to be resolved as an assertion that the Arbitrator exceeded his authority by resolving an issue that the parties had not submitted to arbitration. In evaluating an arbitrator's exercise of authority to frame the issue submitted in the absence of a submission agreement, the Authority accords the same substantial deference as it accords an arbitrator's interpretation and application of the collective bargaining agreement. E.g., Veterans Administration and American Federation of Government Employees, Local 2798, 24 FLRA 447, 450 (1986).

Although the Agency claims that the parties stipulated the issues submitted to the Arbitrator and that those issues did not relate to performance appraisals, the Agency fails to provide any evidence of such a stipulation. In the absence of a stipulation and in light of the Arbitrator's conclusion that the Agency's failure to "develop" the grievant affected his consideration for full-time employment, Award at 9, we find that the Arbitrator's formulation of the issue as concerning administration of the Agency's performance appraisal system in accordance with FPM chapter 430 did not exceed his authority. See U.S. Department of Defense Dependents Schools and Overseas Education Association, 49 FLRA 658, 664 (1994). Accordingly, we deny this exception.

2. The Arbitrability Determination Is Not Contrary to Section 7121(c)(4)

Section 7121(c)(4) of the Statute precludes grievances over "any examination, certification, or appointment[.]" The Authority has held that the term "appointment" in section 7121(c)(4) relates to the initial entry of an applicant into the Federal service. E.g., U.S. Department of Defense Dependents Schools, Kaiserslautern, Germany and Overseas Education Association, 51 FLRA No. 23, slip op. at 3 (1995). Thus, section 7121(c)(4) will not preclude a grievance that does not concern an initial appointment into the Federal service. Id. at 3-5 (and cases cited therein). This case does not concern the grievant's initial appointment into the Federal service and, therefore, does not concern an appointment within the meaning of section 7121(c)(4). Accordingly, we deny this exception.

3. The Arbitrability Determination Is Not Contrary to Section 7106(a)

The Agency contends that the Arbitrator's arbitrability determination is contrary to section 7106(a). Accordingly, we must decide whether the grievance filed by the grievant was precluded by that provision. As acknowledged by the Agency, the grievance filed in this case claimed a violation of Article 10, Section 1-A of the parties' collective bargaining agreement. The Authority has found that contract provisions similar to Article 10, Section 1-A constituted provisions negotiated under section 7106(b)(3) of the Statute. E.g., National Treasury Employees Union, Chapter 174 and U.S. Department of the Treasury, Customs Service, Region IV, 45 FLRA 1051, 1058-59 (1992); U.S. Department of the Air Force, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 45 FLRA 489, 493 (1992). By seeking to enforce the provisions of Article 10, Section 1-A in the grievance, the Union was seeking to enforce a provision that we construe to have been negotiated under section 7106(b)(3) of the Statute. The Agency has not established, and it is not otherwise apparent, that the alleged violation of Article 10, Section 1-A was not arbitrable. Accordingly, we conclude that the grievance was arbitrable, and the Arbitrator's conclusion to that effect is not contrary to section 7106(a) of the Statute. That the Arbitrator did not rely on Article 10, Section 1-A in determining arbitrability does not affect our conclusion. Cf. American Federation of Government Employees, Local 2250 and U.S. Department of Veterans Affairs Medical Center, Muskogee, Oklahoma, 51 FLRA 52, 54 (1995) (arbitrator correctly determined that the grievance was arbitrable even though the arbitrator relied on the wrong statutory basis in doing so). Accordingly, we deny this exception.⁽³⁾

B. Order That the Grievant Be Selected

1. Order Is Not Logically Inconsistent

We construe the Agency's argument that the order is logically inconsistent as an assertion that the award is incomplete, ambiguous, or contradictory so as to make implementation impossible. In order for an award to be found deficient on this ground, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. E.g., Veterans Administration Hospital, Newington, Connecticut and National Association of Government Employees, Local R1-109, 5 FLRA 64, 66 (1981). The Agency has failed to show that implementation of the award is impossible. Moreover, the Arbitrator's order that the grievant be selected is clear and unambiguous. Accordingly, we deny this exception.

2. Order Conflicts With Section 7106(a)

The Authority has found remedies deficient as contrary to section 7106(a) when they were based on collective bargaining agreement provisions that did not relate or pertain to the management right affected by the ordered relief. E.g., Naval Undersea Warfare Engineering Station, Keyport, Washington and International Association of Machinists and Aerospace Workers, Local 282, 22 FLRA 957, 960 (1986); Department of Health and Human Services, Social Security Administration, Charlotte, North Carolina District and American Federation of Government Employees, Local 3509, AFL-CIO, 17 FLRA 103, 104-05 (1985). Thus, when a remedy awarded by an arbitrator affects a management right, there must be a sufficient nexus between the management right affected by the remedy and the violation for which the remedy provides relief. See id.; cf. U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 327-28 (1990) (in raising a performance rating, an arbitrator must reconstruct what the rating would have been if management had properly appraised the grievant).

In this case, we agree with the Agency that the Arbitrator's remedy was based solely on his finding that the Agency failed to properly administer its performance appraisal system because it did not comply with the FPM requirements pertaining to the identification of job elements, the establishment of performance standards, and management's appraisal of employees under performance appraisal systems.⁽⁴⁾ In this regard, the Arbitrator cited no source other than the FPM for his determination that outside applicants should not have been selected over the grievant. We find no evidence of any reliance by the Arbitrator on Article 10, Section 1-A of the parties' agreement.

The remedy awarded by the Arbitrator, based on his finding that the Agency failed to properly administer its performance appraisal system, affects management's exercise of its rights to hire and make selections for appointments.⁽⁵⁾ However, compliance with performance appraisal requirements does not pertain generally to hiring and making selections for appointments, and the Arbitrator has not explained any such connection in this case. As a result, the Arbitrator's finding that the Agency failed to properly administer its performance appraisal system is insufficient to support the Arbitrator's order that the grievant be selected for the next appropriate full-time vacancy. Consequently, the Arbitrator's order is contrary to management's rights to hire and select under sections 7106(a)(2)(A) and (C) of the Statute, and we strike the order.⁽⁶⁾

V. Decision

The award is modified by striking the second paragraph of the portion of the Arbitrator's decision entitled "Award."

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Article 10, Section 1-A pertinently provides:

In an atmosphere of mutual respect, all employees shall be treated fairly and equitably, and without discrimination in all aspects of personnel management[.]

Exceptions, Exhibit B.

2. Effective December 31, 1994, while this case was pending before the Authority, the FPM was abolished. We address the effect of the abolishment in note 4, infra.

3. In denying the Agency's exceptions to the Arbitrator's arbitrability determination, we reject the Agency's reliance on an arbitration award in which the arbitrator found that a grievance was not arbitrable under section 7121(c)(4) and section 7106(a). Arbitration awards are not precedential. See American Federation of Government Employees, Council 236 and General Services Administration, Region 9, 49 FLRA 13, 16 (1994). Moreover, in American Federation of Government Employees, Local 2654 and Veterans Administration Medical Center, Fresno, California, 27 FLRA 143, 144-45 (1987), the Authority, finding that the grievance was arbitrable consistent with section 7106(a) and section 7121(c)(4), set aside that award.

4. Although FPM chapter 430 is no longer in effect, supra note 2, its abolishment has no consequence in deciding this case. First, since the Agency has not excepted to the Arbitrator's conclusion that the FPM was violated, any changes in the FPM need not be considered. Moreover, even if the changes were relevant, we would not give retroactive effect to the abolishment of the FPM in the circumstances of this case because to do so would impair the grievant's rights under the chapter and there is no indication in the FPM Sunset Document that the Office of Personnel Management intended this result. See U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA No. 24, slip op. at 8-10 (1995) (no retroactive effect given to abolishment of an FPM Letter because to do so would impair rights).

5. The Arbitrator's reliance on the Agency's settlement offer as support for his order was misplaced.

6. Although we strike the selection order, the Arbitrator's finding of a violation of FPM chapter 430 is unaffected. The Authority has noted that in such circumstances the parties may agree on an appropriate remedy or the Union may submit the issue of an appropriate remedy to arbitration. See, e.g., Veterans Administration Medical Center, Newington, Connecticut and National Association of Government Employees, Local R1-109, 19 FLRA 535, 537 n.2 (1985).

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