26:0371(45)AR - VA Medical Center, Omaha, Nebr., and AFGE, Local 2270 -- 1987 FLRAdec AR

 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 "grievance" within the meaning of section
 7103(a)(9).  In the absence of any specific exclusion, an arbitrator
 must find such a grievance to be properly grievable and arbitrable under
 negotiated grievance procedures.  Local R-1-185, National Association of
 Government Employees and the Adjutant General of the State of
 Connecticut, 25 FLRA No. 36 (1987).
 
    Therefore, based on our decision in Colorado Nurses Association, we
 reject the Arbitrator's finding that Title 38 excludes the alleged
 nonselection of the grievants for promotion from the scope of the
 parties' negotiated grievance procedure.  We conclude that the
 Arbitrator's determination that the grievance in this case was not
 arbitrable is contrary to law.
 
                               V.  DECISION
 
    For the above reasons, the Arbitrator's award in this case is set
 aside.  The case is remanded to the parties and they are directed to
 resubmit, jointly or separately, the grievance to the Arbitrator for
 consideration on the merits.
 
    Issued, Washington, D.C., March 24, 1987
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY