16:0813(113)AR - VA Medical Center, Lebanon, PA and AFGE Local 1966 -- 1984 FLRAdec AR



[ v16 p813 ]
16:0813(113)AR
The decision of the Authority follows:


 16 FLRA No. 113
 
 VETERANS ADMINISTRATION MEDICAL
 CENTER, LEBANON, PENNSYLVANIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1966
 Union
 
                                            Case No. O-AR-771
 
                        ORDER DISMISSING EXCEPTION
 
    This matter is before the Authority on an exception to the award of
 Peter Florey filed by the Union under section 7122(a) of the Federal
 Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.  For the reasons that follow, the
 Authority is without jurisdiction to review the Union's exception and
 the exception therefore must be dismissed.
 
    The dispute in this matter concerns the termination of the grievant.
 The grievant was a physician in the agency's Department of Medicine &
 Surgery (DM&S) who had been appointed under 38 U.S.C. 4106(a), /1/ a
 section of the statutory provisions covering professional employees
 engaged in direct patient care, 38 U.S.C. chapter 73.  A professional
 standards board found the grievant not fully qualified and satisfactory
 and consequently he was terminated as a probationary employee pursuant
 to 38 U.S.C. 4106(b).  /2/ A grievance was filed and submitted to
 arbitration protesting the termination, primarily because the
 probationary review had not been completed before the expiration of the
 grievant's probationary period.  The Arbitrator determined that section
 4106(b) was applicable to the grievant and that consequently review of
 the grievant's termination as a probationary employee was precluded by
 law and the parties' collective bargaining agreement.  In its exception
 the Union essentially contends that the award is deficient because the
 Arbitrator erred when he determined that section 4106(b) was applicable
 to the grievant.
 
    Section 7122(a) of the Statute /3/ expressly precludes the filing of
 an exception to an arbitration award relating to a matter described in
 section 7121(f) of the Statute.  As relevant to this case, the matters
 described in section 7121(f) of the Statute /4/ 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 removal.  Under section 7121(f) the 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 raised under
 applicable appellate procedures.  In terms of this case, the Authority
 finds that the dispute, the substance of the award resolving that
 dispute, and the substance of the Union's