36:0476(58)AR - - Veterans Affairs, Medical Center, Fresno, CA and AFGE Local 2654 - - 1990 FLRAdec AR - - v36 p476
[ v36 p476 ]
The decision of the Authority follows:
36 FLRA No. 58
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF VETERANS AFFAIRS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
ORDER DISMISSING EXCEPTIONS
July 30, 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 Wilma R. K. Rader 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. The Agency filed an opposition to the Union's exceptions.
The Arbitrator found that the Agency properly evaluated the grievant, a staff physician, on his annual proficiency report and that the evaluation was not the result of harassment. The Arbitrator directed the Agency to delete one comment from the report, but in all other respects denied the grievance.
For the following reasons, 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 of the Agency's Department of Medicine and Surgery (DM&S). Accordingly, we will dismiss the Union's exceptions.
II. Background and Arbitrator's Award
The grievant, a staff physician in the Ambulatory Care Section of the Medical Center in Fresno, California, received a rating of "low satisfactory" in the category of "clinical competence" on his proficiency report covering the period from June 20, 1987, to June 20, 1988. A grievance over the rating was filed and was submitted to arbitration on the following issues:
1. Did the Employer properly evaluate [the grievant] concerning his clinical competence on his 1987-1988 Proficiency Report? If not, what shall be the remedy?
2. If the Employer did not properly evaluate [the grievant], was that evaluation the result of harassment? If so, what shall be the remedy?
Award at 1-2.
The Arbitrator found that the Agency properly evaluated the grievant. In particular, the Arbitrator found that the Agency's assertion that the grievant's clinical skills were "not always on the high end of the spectrum of clinical competence" was supported by a preponderance of the evidence. Id. at 12. In addition, although the Arbitrator found "ample evidence" of a "breakdown in communication" between the grievant and his supervisor, the Arbitrator concluded that there was "no convincing evidence of harassment." Id. at 9. Accordingly, except for one comment in the proficiency report, which the Arbitrator ordered the Agency to delete from the report because it was not supported by a preponderance of the evidence, the Arbitrator denied the grievance.
III. Positions of the Parties
The Union asserts that the Arbitrator's award is deficient because the Arbitrator failed to follow the proper legal standard in determining whether the Agency properly evaluated the grievant. The Union claims, in this regard, that the Arbitrator failed to determine whether the grievant's competence met the standard of other physicians with similar practices in the grievant's community. In addition, the Union asserts that the Arbitrator relied on "incompetent evidence" in concluding that there was no evidence of harassment of the grievant by the Agency.
The Agency argues that the Union's exceptions do not establish that the award is deficient. According to the Agency, the Union's exceptions constitute mere disagreement with the award and an attempt to relitigate the merits of the case.
IV. Analysis and Conclusions
In American Federation of Government Employees, Local 331 and Veterans Administration Medical Center, Perry Point, Maryland, 34 FLRA 788, 790-91 (1990), we concluded that we lacked jurisdiction to review exceptions filed to an arbitration award concerning the annual proficiency evaluation and rating of a staff psychiatrist. We noted that the authority of the Secretary of Veterans Affairs under 38 U.S.C. § 4108 to establish conditions of employment of professional medical employees of the DM&S is not subject to sections 7121 and 7122 of the Statute. We noted also that because professional medical employees of the DM&S are not eligible for coverage by a collective bargaining agreement negotiated under the Statute, even if the Secretary of Veterans Affairs agrees to arbitrate disputes over conditions of employment of professional employees of the DM&S, the resulting arbitration award is not an award issued pursuant to section 7121 of the Statute. As such an award is not issued pursuant to section 7121 of the Statute, we found that it is not reviewable by the Authority under section 7122 of the Statute. See also U.S. Department of Veterans Affairs Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA 131 (1990), petition for review filed sub nom. American Federation of Government Employees, Local 1963 v. FLRA, No. 90-2080 (C.D. Ill. March 5, 1990).
In this case, the grievant is a staff physician at the Medical Center. The grievant's proficiency report references "DM&S" regulations. In the absence of any evidence or assertion to the contrary, therefore, we conclude that the grievant is a professional medical employee of the DM&S.
As the award in this case concerns a professional medical employee of the DM&S, it is not an arbitration award resulting from arbitration under the Statute. Accordingly, the Authority has no jurisdiction under section 7122(a) of the Statute to consider the Union's exceptions to the award. We will, therefore, dismiss the exceptions. In so doing, however, we note that there is nothing in the record before us to indicate that the grievant was engaged in activities protected by the Statute or that the Union's allegation that the grievant's evaluation constituted harassment of the grievant included, or was intended to include, an allegation that the Agency's evaluation of the grievant constituted an unfair labor practice under section 7