34:0788(133)AR - - AFGE Local 331 and VA Medical Center, Perry Point, MD - - 1990 FLRAdec AR - - v34 p788

[ v34 p788 ]
The decision of the Authority follows:

34 FLRA No. 133










February 9, 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 Thomas F. Gibson, Jr. filed by the American Federation of Government Employees, Local 331 (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. The United States Department of Veterans Affairs (the Agency) filed an opposition to the exceptions on behalf of the Veterans Administration Medical Center, Perry Point, Maryland (the Activity).

The grievance concerned the annual proficiency evaluation and rating of a staff psychiatrist at the Activity. The Arbitrator found that the grievance was not grievable and that he did not have the authority to review the grievant's evaluation and rating. Accordingly, the Arbitrator denied the grievance.

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

II. Background and Arbitrator's Award

The grievant is a Department of Medicine and Surgery (DM&S) staff psychiatrist employed at the Activity. For the annual appraisal period ending January 27, 1988, the grievant received an overall proficiency rating of "satisfactory." She filed a grievance disputing the proficiency evaluation and rating, and the grievance was submitted to arbitration.

The Arbitrator determined that, under Agency regulations and the parties' local agreement, the grievant was foreclosed from filing a grievance disputing the content and rating of her proficiency evaluation and the Arbitrator was not authorized to review her proficiency evaluation. Accordingly, the Arbitrator denied the grievance.

III. Positions of the Parties

The Union contends that the award is contrary to law and is based on non-facts. The Union argues that contrary to the finding of the Arbitrator, the grievance was grievable and arbitrable. The Union requests that the Authority cancel the grievant's proficiency rating and direct that the grievant's performance be reevaluated by management as appropriate.

The Agency argues that the Arbitrator correctly applied Agency regulations and the local agreement in determining that the grievance was not grievable. The Agency notes that in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses Association), the court held that the Veterans Administration (VA) Administrator had no obligation to bargain over conditions of employment for professional medical employees of the DM&S appointed under title 38 of the United States Code. The Agency also notes that the Authority has adopted the court's decision in Colorado Nurses Association. The Agency maintains that the adoption of Colorado Nurses Association confirms that title 38 employees are legally barred from seeking redress through grievance and arbitration procedures. In addition, the Agency argues that the parties' local agreement specifically precludes title 38 employees from utilizing the negotiated grievance procedure to challenge proficiency and performance ratings.

IV. Analysis and Conclusions

We find that the authority of the VA Administrator (now the Secretary of Veterans Affairs) under 38 U.S.C. º 4108 to establish conditions of employment of professional medical employees of the DM&S