FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between

AFGE Local 1045,

Union,
and FMCS No. 99-10263
DEPARTMENT OF VETERANS AFFAIRS, Grievant E.R. Watters, Jr.
Agency.
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OPINION OF THE ARBITRATOR

May 18, 2000

After a Hearing Held February 4, 2000 at Biloxi, MS

For the Union: For the Agency:

Andrew L. Brumsey Alan M. Hawthorne, Esq.
AFGE 10th District Regional Counsel
National Representative VA Medical Center
PO Box 3212 1500 E Woodrow Wilson Boulevard
Harvey, LA 70059-3212 Jackson, MS 39216
 This matter presents a threshold issue of arbitrability. As early as the

second-step grievance, the Union conceded:

We realize that the Chief, Domiciliary Operations is a non-bargaining

unit position. JX 8, emphasis supplied.

Article 22, Section 1 of the collective bargaining agreement provides in

pertinent part:

This article sets forth the merit promotion system, policies, and
procedures applicable to bargaining unit positions in the Department.
JX 1, emphasis supplied.

As a result of the Union’s admission and the plain language of the collective

bargaining agreement, I conclude that the grievance is not arbitrable.

This matter arises from the filling of a vacancy for the position of

Chief, Domiciliary Operations (“Dom Chief”) at the VA Gulf Coast

Veterans Health Care System Medical Center in Biloxi, Mississippi, where

employees are represented by Local 1045 of the American Federation of

Government Employees. An interview panel rated grievant fourth and the

successful candidate sixth in terms of job qualifications. The names of the

top three candidates were submitted to the Medical Center Director.

Although selection of the successful candidate seems to have been

somewhat surprising to some members of the interview panel and other

interested employees, it clearly appeared from the evidence presented at the

arbitration hearing that management was concerned primarily with

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applicants’ actual experience as a Dom Chief, not their ratings by the

interview panel.

In terms of actual experience as a Dom Chief, grievant fell short,

although there was no suggestion that he was not otherwise qualified for the

position. A subsidiary issue was grievant’s membership in the Union. The

testimony in that regard did not bolster grievant’s case of having had the

requisite managerial experience, as it tended to show that he did not work in

a policy-making or supervisory capacity. Grievant complained that the

Agency did not keep his personnel file up to date, but that had no bearing on

grievant’s work experience.

Grievant has been paying Union dues through payroll deduction since

early 1998, a method usually reserved for employees whose positions are

covered by the collective bargaining agreement. See JX 1, Article 41.

Agency employees whose positions are not covered by the collective

bargaining agreement nevertheless may join the Union, but they must pay

their dues by means other than payroll deduction. The Agency contends that

grievant’s present position is not covered by the collective bargaining

agreement and that his participation in the payroll deduction program was

the result of oversight. Resolution of this dispute must await agreement

between the parties or a ruling from the Federal Labor Relations Authority.

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See JX 1, Article 1, Section 4, and Article 9.

____________________________
E. Frank Cornelius, Arbitrator
May 18, 2000