20:0854(106)AR - VA Medical Center, Fargo, ND and AFGE Local 3884, Fargo, ND -- 1985 FLRAdec AR



[ v20 p854 ]
20:0854(106)AR
The decision of the Authority follows:


 20 FLRA No. 106
 
 VETERANS ADMINISTRATION MEDICAL 
 CENTER, FARGO, NORTH DAKOTA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 3884,
 FARGO, NORTH DAKOTA
 Union
 
                                            Case No. 0-AR-1037
 
                        ORDER DISMISSING EXCEPTION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator John J. Flagler 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.  For the reasons that follow, the
 Authority is without jurisdiction to review the Agency's exception an
 the exception therefore must be dismissed.
 
    The dispute before the Arbitrator essentially concerned the removal
 for misconduct of the grievant, a registered nurse in the Agency's
 Department of Medicine & Surgery (DM&S) who had been appointed under the
 statutory provisions covering health-care professional employees engaged
 in direct patient care, 38 U.S.C. chapter 73.  The grievant was removed
 based on the findings of a disciplinary board convened in accordance
 with 38 U.S.C. 4110.  /1/ Before the Arbitrator the Union argued that
 the Agency had failed to fairly investigate this matter, and the
 Arbitrator agreed, finding that the Agency had committed substantial and
 harmful procedural errors.  The Arbitrator further found that these
 errors deprived the disciplinary board of jurisdiction, making its
 findings of no force and effect, and that the parties' collective
 bargaining agreement permitted him to take appropriate corrective action
 to restore to the grievant the rights denied her.  Accordingly, the
 Arbitrator ordered that the grievant be reinstated with backpay and
 directed that the Agency either drop the charges against her or
 reconstitute a new board of investigation to inquire into those charges.
  In its exception the Agency essentially contends on the basis of
 Veterans Administration, Washington, D.C. and Veterans Administration
 Medical Center, Minneapolis, Minnesota, 15 FLRA No. 176 (1984) that the
 award is contrary to law because the disciplinary procedures of 38
 U.S.C. 4110 preclude grievances over disciplinary actions taken in
 accordance with such procedures.  In its exception the Agency further
 contends that notwithstanding section 7122(a) and section 7121(f) of the
 Statute, the Authority should resolve the exception and find the award
 deficient.  The Authority finds contrary to the Agency that no basis is
 presented for the Authority to resolve the exception.
 
    Section 7122(a) of the Statute /2/ 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 /3/ include matters similar
 to those covered under 5 U.S.C. 757612 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 before the Arbitrator and the substance of the
 award resolving that dispute relate to the grievant's removal for
 professional misconduct to the provisions of 38 U.S.C. chapter 73, and
 the Authority concludes that such a matter is similar to those covered
 under section 7512 and has arisen under another personnel system within
 the meaning of section 7121(f).  E.g., Veterans Administration Medical
 Center, Lebanon, Pennsylvania and American Federation of Government
 Employees, Local 1966, 16 FLRA No. 113 (1984).  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, and apart from other considerations, /4/ the
 Authority is without jurisdiction to review the exception.  Accordingly,
 the exceptions and the request for a stay are dismissed.
 
    Issued, Washington, D.C. 13, 1985
  
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ Section 4110(a) provides for the appointment of disciplinary
 boards to determine charges of inaptitude, inefficiency, or misconduct
 of fulltime, nonprobationary physicians, dentists, nurses, and nurse
 anesthetists.
 
 
    /2/ Section 7122(a) of the Statute pertinently provides:
 
       Either party to arbitration under this chapter may file with the
       Authority an exception to any arbitrator's award pursuant to the
       arbitration (other then an award relating to a matter described in
       section 7121(f) of this title).
 
 
    /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/ In this regard, the Authority did decide in VA, Washington, D.C.,
 15 FLRA No. 176, cited by the Agency in its exception, essentially that
 because the procedures of 38 U.S.C. 4110 are intended to be the
 exclusive procedures for determining professional misconduct of covered
 employees, grievances over disciplinary actions taken pursuant to that
 provision are precluded by law.  However, that decision did not involve
 any question of the Authority's jurisdiction to resolve exceptions to
 arbitration awards under section 7122(a) of the Statute.  Rather, the
 question decided by the Authority in the cited unfair labor practice
 case was whether the Respondent Agency had violated section 7116(a)(1)
 and (5) of the Statute by failing to publish and put into effect a
 locally negotiated agreement provision concerning discipline of unit
 employees after an untimely disapproval of the provision by the Agency
 head.  The Authority found that the Respondent was under no obligation
 to bargain concerning disciplinary and adverse action proposals in