34:0131(29)AR - U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER DANVILLE, ILLINOIS and AFGE,LOCAL 1963 -- 1990 FLRAdec AR



[ v34 p131 ]
34:0131(29)AR
The decision of the Authority follows:


  34 FLRA NO. 29
 
              U.S. DEPARTMENT OF VETERANS AFFAIRS
                        MEDICAL CENTER
                      DANVILLE, ILLINOIS

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                          LOCAL 1963

                           0-AR-1566

		ORDER DISMISSING EXCEPTIONS

     			January 3, 1990

     Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Anne L. Draznin filed by the Veterans Affairs
Medical Center, Danville, Illinois (the Agency) under section
7122(a) of the Federal Service Labor - Management Relations
Statute (the Statute) and part 2425 of the Authority's Rules and
Regulations. The American Federation of Government Employees,
Local 1963, AFL - CIO (the Union) filed an opposition.

     The grievance concerned the Agency's involuntary
reassignment of a nurse based on her involvement in an alleged
patient abuse incident. The Arbitrator found that the manner in
which the Agency effected the reassignment violated the parties'
agreement. The Arbitrator rescinded the reassignment and directed
the Agency to assign the grievant to the ward and work station
where she had worked before the reassignment.

     We conclude that we are without jurisdiction to review the
Arbitrator's award because it concerns the conditions of
employment of professional medical employees who are
appointed under title 38 of the United States Code. Accordingly,
we dismiss the Agency's exceptions. 1

II. Background and Arbitrator's Award

     The grievant is a Registered Nurse at the Veterans
Administration Medical Center, Danville, Illinois. Before October
1986, the grievant worked on psychiatric wards 103-7 and 103-8.
In October 1986, she was voluntarily transferred to two different
psychiatric wards--wards 103-1 and 103-2.

     In July 1986, the Medical Center created a Board of
Investigation to investigate an alleged incident of patient abuse
on wards 103-7 and 103-8. The Board reported its findings to the
Medical Center Director in November 1986. In January 1987, the
grievant was notified that the Chief of Nursing Services was
recommending that she be demoted. The grievant protested the
proposed action.

     In March 1987, the grievant was notified that based on the
investigation, she would be involuntarily transferred to wards
101-3 and 101-4 effective April 12, 1987, for at least 1 year. At
that time, the Agency had not determined whether the grievant
merited discipline for her part in the alleged patient abuse
incident. The grievant filed a request with her supervisor for
reassignment back to wards 103-1 and 103-2 but was informed that
her request would not be honored for 1 year. The grievant grieved
the transfer and, subsequently, the Union filed a notice of its
intent to arbitrate the matter.

     On August 6, 1987, the grievant was notified that a written
reprimand was the appropriate discipline for her part in the
patient abuse incident. The grievant requested rescission of the
reprimand and again requested reassignment to wards 103-1 and
103-2.

     The grievant received a written reprimand in October 1987.
She grieved the reprimand and, in December 1987, was notified
that the written reprimand was rescinded. The involuntary
transfer to wards 101-3 and 101-4, however, was not rescinded and
the matter was submitted to arbitration. The issue agreed to by
the parties was "Whether the Medical Center Management
violated the Local Professional Agreement in the reassignment of
the Grievant . . . and if so, what is the appropriate remedy?"
Award at 1-2.

     The Agency argued that the involuntary transfer of the
grievant constituted an exercise of management's right to assign
employees under section 7106(a)(2)(A) of the Statute and that the
exercise of that right was not subject to arbitral review. The
Arbitrator determined that the grievance concerned the manner in
which the transfer was effectuated under the procedures of the
parties' contract rather than the right of the Agency to transfer
the grievant. Award at 12-17.

     The Arbitrator sustained the grievance and rescinded the
involuntary transfer. The Arbitrator also directed the Agency to:
(1) reassign the grievant to the ward and work station in which
she had worked prior to the reassignment; (2) make the grievant
whole for losses incurred as a result of the involuntary
transfer; and (3) delete from the grievant's records references
to the reasons for the involuntary reassignment which would
negatively reflect on the grievant's competence to perform the
work in her original ward.

III. Positions of the Parties

     A. Agency's Exceptions

     The Agency contends that the Arbitrator's award is deficient
under section 7122 of the Statute because the Arbitrator
interpreted the parties' agreement so as to prevent it from
exercising its right to assign employees under section
7106(a)(2)(A). The Agency argues that although an arbitrator may
enforce a legally negotiated procedure, the contract provisions
relied on by the Arbitrator in this case are not procedures
applicable to the assignment of an employee. The Agency claims
that the Arbitrator's remedy was based on her finding that the
reassignment was punitive and unfair rather than on the
enforcement of a procedure agreed to by the parties. Agency's
Exceptions at 6. The Agency requests that the award be set
aside.

     B. Union's Opposition

     The Union denies that the award violates section
7106(a)(2)(A) of the Statute and contends that the Agency must exercise its right to assign employees in accordance with
properly negotiated procedures or appropriate arrangements under
section 7106(b)(2) and (3). The Union notes that the Arbitrator
determined that the Agency did not follow negotiated procedures
in its reassignment of the grievant. Union's Opposition at 2. The
Union contends that the Arbitrator's award merely enforces
properly negotiated provisions of the parties' agreement. Id.

IV. Discussion

     A. Preliminary Matters

     On July 19, 1988, after the parties filed their submissions
in this case, the U.S. Court of Appeals for the District of
Columbia Circuit issued its decision in Colorado Nurses
Association v. FLRA,  851 F.2d 1486 (D.C. Cir. 1988). The court
reversed the Authority's ruling that the Veterans Administration
(VA) is obligated to bargain over conditions of employment for
professional medical employees of the Department of Medicine and
Surgery (DM&S) appointed under title 38 of the United States
Code.

     On November 30,  1988, the Authority directed the parties to
file supplemental briefs addressing the application, if any, of
the court's decision in Colorado Nurses Association and
subsequent Authority decisions involving title 38 DM&S
professional medical employees to the resolution of this case.

     The Agency filed a supplemental brief reiterating the
arguments in its exceptions to the Arbitrator's award. The Union
filed a supplemental brief stating that the Colorado Nurses
Association decision should have no effect on this case because
the Agency has notified the Union of its intention to comply with
collective bargaining agreements covering title 38 employees
until further notice.

     B. Analysis

     In Colorado Nurses Association, the court held that the VA
Administrator has "exclusive" authority to determine the
conditions of employment of professional medical employees of
DM&S. 851 F.2d at 1489. The court stated that, under 38 U.S.C.
4108, the authority of the VA Administrator "is exempt from all
laws governing the terms and conditions of federal employment
except as otherwise explicitly provided in the DM & S Statute(.)"
Id. The court concluded that the VA had no obligation to
bargain over, among other things, a proposal which "would
establish a grievance and arbitration procedure for DM & S
professional medical employees concerning conditions of
employment(.)" Id. at 1487.

     Based on the court's decision in Colorado Nurses
Association, the Authority found that the VA has no obligation to
bargain over the conditions of employment of professional medical
employees of the DM&S which are within the discretion of the VA
Administrator under 38 U.S.C. 4108. See, for example, Veterans
Administration, Washington, D.C., 33 FLRA  426 (1988); and
Veterans Administration, Washington, D.C., 33 FLRA  600 (1988).
We now find that the authority of the VA Administrator under 38
U.S.C. 4108 to establish conditions of employment of professional
medical employees of DM&S is not subject to sections 7121 and
7122 of the Statute. Sections 7121 and 7122 govern, respectively,
negotiated grievance and arbitration procedures and appeals from
arbitration awards rendered pursuant to those procedures. We
reach this conclusion for two reasons.

     First, as noted above, the court stated in Colorado Nurses
Association that the authority of the VA Administrator under 38
U.S.C. 4108 is exempt from all laws governing the terms and
conditions of federal employment "except as otherwise explicitly
provided in the DM & S Statute(.)" 851 F.2d at 1489. Title 38 of
the United States Code contains no exception for negotiated
grievance and arbitration procedures under section 7121 of the
Statute or for review of arbitration awards by the Authority
under section 7122. Accordingly, the exercise of the VA
Administrator's authority under 38 U.S.C. 4108 is not grievable
and arbitrable under section 7121 of the Statute.

     Second, even assuming that the VA Administrator could
exercise his authority under 38 U.S.C. 4108 by agreeing to
arbitrate disputes over conditions of employment of professional
medical employees of DM&S, any arbitration award issued pursuant
to such an agreement would not be an award issued under section
7121 of the Statute. Therefore, that award would not be subject
to review by the Authority under section 7122 of the Statute.

     Section 7121 of the Statute requires "any collective
bargaining agreement" which is negotiated under the Statute to
contain a negotiated grievance and arbitration 
procedure. Section 7122 of the Statute provides that either party
to "arbitration under th(e) (Statute)" may file exceptions to
arbitration awards with the Authority. Section 7103(a)(12) of the
Statute defines "collective bargaining" as the performance of the
obligation to (1) bargain over "conditions of employment"; and
(2) execute, on request of either party, a written document
incorporating any "collective bargaining agreement" reached as a
result of that bargaining.

     A "collective bargaining agreement" results from the
performance of the statutory obligation to bargain over
conditions of employment. The VA is not obligated under the
Statute to bargain over the conditions of employment of
professional medical employees of DM&S, including the
establishment of negotiated grievance and arbitration procedures.
Therefore, these professional medical employees are not eligible
for coverage by a "collective bargaining agreement" negotiated
under the Statute. Because these employees are not eligible for
coverage by a collective bargaining agreement negotiated under
the Statute, they are not eligible for coverage by a negotiated
grievance procedure under section 7121 of the Statute.
Accordingly, the Authority does not have jurisdiction to review
exceptions filed to arbitration awards involving conditions of
employment of professional medical employees of the DM&S.

     The award in this case concerns a professional medical
employee of the DM&S. Therefore, it is not an award which results
from arbitration under the Statute. Accordingly, the Authority
has no jurisdiction under section 7122(a) of the Statute to
consider exceptions to this award. See American Federation of
Government Employees Council, San Francisco Region and Department
of Health and Human Services, Social Security Administration, 9
FLRA  161 (1982) (arbitration pursuant to a negotiated advisory
hearing procedure was not binding arbitration within the meaning
of section 7121 of the Statute and exceptions to that decision
are not subject to Authorit