26:0371(45)AR - VA Medical Center, Omaha, Nebr., and AFGE, Local 2270 -- 1987 FLRAdec AR
[ v26 p371 ]
The decision of the Authority follows:
26 FLRA No. 45 VETERANS ADMINISTRATION MEDICAL CENTER, OMAHA, NEBRASKA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2270 Union Case No. 0-AR-1222 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator Henry M. Grether filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. II. BACKGROUND AND ARBITRATOR'S AWARD The grievants in this case are four certified respiratory therapists employed by the Activity. Their appointments were converted from appointments under Title 5, United States Code, in the regular civil service personnel system to appointments in the personnel system under Title 38. The appointment conversions were authorized by the 1983 amendments to Title 38 (Veterans Health Care Amendments of 1983, Pub. L. 98-160). Under the amendments to Title 38 and the implementing regulations of the Veterans Administration, VA Circular 00-85-9, the therapists were to be evaluated at the time of conversion to determine whether conversion should be at the same grade level or at a higher grade level. The grievants were not converted at a higher grade level. Rather than seeking review through the procedures provided in VA's regulations, the Union filed a grievance on their behalf under the provisions of the parties' Master Agreement. The grievance proceeded to arbitration. The parties stipulated that the threshold issue of arbitrability should be decided by the Arbitrator prior to consideration of the merits. The Arbitrator concluded that the grievance was not arbitrable. In reaching this conclusion the Arbitrator found, based principally upon his interpretation of Title 38 and its legislative history, that the promotion procedures were part of VA's appointment and compensation authority under Title 38; that Congress intended those procedures to be exclusive; that the negotiated grievance procedures of the parties' agreement authorized by Title 5 were inconsistent with Title 38; and that Congress intended that in such situations the Title 38 procedures were to be given precedence. As his award the Arbitrator determined that certified or registered respiratory therapists who are denied promotions under procedures described in VA Circular 00-85-9 are not entitled to grieve or arbitrate their nonselections under the parties' Master Agreement. III. EXCEPTION The Union contends that the award is contrary to law. The Union argues that the Arbitrator erroneously relied on the legislative history of the 1946 amendments to Title 38 rather than the legislative history of the 1983 amendments. The Union argues that the legislative history of the 1983 amendments reveals that Congress did not intend for the promotion procedures of Title 38 to bar grievances over the nonselection of respiratory therapists for promotion. Rather, the Union argues, Congress intended the amendments to Title 38 to supplement Title 5 rather than to displace it and the Arbitrator, by finding to the contrary, has misinterpreted the law. We agree. IV. ANALYSIS AND CONCLUSION In Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 66 (1987), petition for review filed, No. 87-1104 (D.C. Cir. Feb. 25, 1987), we specifically held that Title 38 employees are covered by the Statute. We determined that no conflict exists between the provisions of Title 38 and the provisions of the Statute, which as pertinent here permit collective bargaining concerning conditions of employment, except with regard to disciplinary and adverse actions for alleged professional inaptitude, inefficiency, or misconduct by Title 38 employees. Slip op. at 4-8. Since the grievance in this case concerns alleged nonselection for promotion and does not concern either a disciplinary action or an adverse action under Title 38, the Arbitrator's finding that utilization of the parties' negotiated grievance procedure to resolve the grievance was inconsistent with Title 38 is deficient as contrary to law. Moreover, section 7103(a)(9) of the Statute broadly defines "grievance" as any complaint "by any employee concerning any matter relating to the employment of the employees . . . or a claim of breach of a collective bargaining agreement or any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." Grievances of professional employees in the Agency's Department of Medicine and Surgery who are in the bargaining unit represented by the Union are grievable and arbitrable under the negotiated grievance procedures of the parties' collective bargaining agreement, unless the grievances are specifically excluded by the parties or by operation of law. See Bureau of Indian Affairs and National Federation of Federal Employees, Local 243, 25 FLRA No. 74 (1987), slip op. at 4. We find that where, as here, employees file a grievance alleging a violation of an agency regulation for not having been promoted, that claim constitutes a "