15:0448(92)AR - VA Medical Center, Chillicothe, OH and AFGE Local 1631 -- 1984 FLRAdec AR
[ v15 p448 ]
The decision of the Authority follows:
15 FLRA No. 92 VETERANS ADMINISTRATION MEDICAL CENTER, CHILLICOTHE, OHIO Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1631, AFL-CIO Union Case No. O-AR-432 ORDER DISMISSING EXCEPTIONS This matter is before the Authority on exceptions to the award of Arbitrator Fred E. Kindig filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /1/ In his award, the Arbitrator found that the Activity acted improperly when it retroactively rescinded the promotions of four physician assistants /2/ and demoted them to their previous grade and pay level. For the reasons that follow, the Authority is without jurisdiction to review the Agency's exceptions and the exceptions therefore must be dismissed. Section 7122(a) of the Statute pertinently provides: Either party to arbitration under this chapter may file with the Authority on 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). As relevant to this case, the matters described in section 7121(f) of the Statute /3/ include matters similar to those covered under 5 U.S.C. 7512 which arise under other personnel systems. Matters covered under section 7512 are specified adverse actions including a reduction-in-grade and a reduction-in-pay. Under section 7121(f) judicial review of an arbitration award relating to similar matters that have arisen under another personnel system may be obtained in the same manner and on the same basis as that of a final decision in such a matter under applicable appellate procedures. In terms of this case, the award relates to a matter that is similar to those covered under section 7512 and has arisen under the personnel system governing professional employees of the agency's Department of Medicine and Surgery engaged in direct patient care, which is "(an)other personnel syste(m)" within the meaning of section 7121(f). /4/ Therefore, the Arbitrator's award relates to a matter described in section 7121(f), and under section 7122(a) exceptions to the award may not be filed with the Authority. Consequently, the Authority is without jurisdiction to review the exceptions and accordingly they are dismissed. Issued, Washington, D.C., August 9, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union filed an opposition which was untimely and therefore has not been considered by the Authority. /2/ It is not contested that these employees are professional employees in the agency's Department of Medicine and Surgery who have been appointed under 38 U.S.C.chapter 73. /3/ Section 7121(f) pertinently provides: In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures. /4/ See S. Rep. No. 95-969, 95th Cong., 2d Sess. 110 (1978) (in which the Senate Governmental Affairs Committee in explaining the provision of "other personnel systems" in what became section 7121(e)(1) of the Statute used title 38, United States Code as an example). However, the correction of assertedly erroneous promotions does not concern the disciplining of Department of Medicine and Surgery personnel for professional misconduct which has been held to be precluded from grievance and arbitration. VA Medical Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984); VA Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983).