37:0111(5)AR - - Veterans Affairs, Medical Center, Newington, CT and NAGE Local R1-109 - - 1990 FLRAdec AR - - v37 p111

[ v37 p111 ]
The decision of the Authority follows:

37 FLRA No. 5









LOCAL R1-109




September 7, 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 Rodney E. Dennis 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 grievance was timely filed but that because it concerned the denial of the grievant's promotion, the grievance was barred from arbitration as a matter of law. For the following reasons, we conclude that the award is contrary to law. Consequently, we will set aside the award and remand it to the parties to request that the Arbitrator make findings consistent with this decision.

II. Background and Arbitrator's Award

The grievant is a GS-5 licensed practical nurse (LPN) who was appointed to her position pursuant to 38 U.S.C. § 4104(3). Employees appointed pursuant to section 4104(3) of title 38 are considered to be "hybrid" employees because they retain certain rights provided by title 5, United States Code. In February 1989, the grievant was reviewed for promotion to GS-6 by a Local Standards Board but was denied the promotion. The Medical Center Director agreed with the Board's decision to retain the grievant as a GS-5 LPN. On April 13, 1989, the Union filed a grievance over the Agency's failure to promote the grievant. An independent board reviewed the decision of the Local Standards Board and, on July 12, 1989, concurred with the decision that the grievant did not meet the requirements for promotion to GS-6. The parties exhausted the grievance procedure without resolving the dispute and the matter was submitted for arbitration.

Before the Arbitrator, the Agency argued that the personnel actions of "hybrid" employees, such as the licensed practical nurse in this case, were not reviewable under the parties' collective bargaining agreement. The Agency contended that "in the health care arena, peer group evaluation of qualifications for promotion is an established procedure and not reviewable by an Arbitrator under the Collective Bargaining Agreement." Award at 6. The Agency further argued that "it has authority to appoint and set pay for LPN's . . . independent of civil service procedure" and that "along with this power to appoint goes the authority to promote or not promote." Id. at 5.

Before the Arbitrator, the Union argued that the grievance was arbitrable because licensed practical nurses have the right under the parties' collective bargaining agreement to use an outside arbitrator to review the validity of a decision not to promote such employees. The Union further argued that "it was not the intent of Congress to diminish or impair in any way the rights of hybrid employees enjoyed under the Collective Bargaining Agreements that cover them." Id. at 6.

The Arbitrator found that the grievance was barred by title 38, United States Code. The Arbitrator noted that in 1988, Congress modified title 38 "to make sure that the Title 5 rights of hybrid employees were protected and that the use of outside [a]rbitrators to resolve disputes was preserved." Id. at 6-7. However, the Arbitrator found that, notwithstanding the 1988 clarification of the rights of "hybrid" employees, "nowhere in the legislation or the committee reports does it state or imply that promotions are subject to Title 5 coverage" and that "the legislative intent was to exclude the appointment, promotion, and pay levels of hybrid employees from the normal review procedures outlined in Collective Bargaining Agreements." Id. Because the grievance concerned the Agency's failure to promote a "hybrid" employee, the Arbitrator concluded that the grievance was not arbitrable.

III. Positions of the Parties

A. The Union

The Union contends that the award is contrary to law and does not draw its essence from the parties' collective bargaining agreement. The Union argues that although legislation in 1983 granted the Administrator "the authority to use Title 38 appointment, pay, and promotion policies to hire the 'hybrid' medical employees[,]" the legislative history shows that these employees "were to remain under the Title 5 personnel system." Exceptions at 3 (citation omitted). The Union further argues that in 1988, Congress passed 38 U.S.C. § 4106(g)(3) "to resolve once and for all that those employees appointed under 38 USC 4104 (3) would suffer no loss of collective bargaining rights, including access to negotiated grievance procedures." Id. at 4. Therefore, the Union asserts that the "fact that the Agency has exercised its authority under [section 4106(g)(1) of] Title 38 to set up a . . . system for LPN promotions does not remove promotion decisions from the grievance procedure." Id.

The Union contends that, consistent with Authority precedent, "hybrid" medical employees may grieve career ladder promotion decisions made pursuant to the Agency's procedures. According to the Union, the parties' collective bargaining agreement "did not exclude LPN promotion decisions from their grievance procedure" and "[b]arring any exclusion by the parties[,] the Authority has consistently held these issues to be grievable and arbitrable cases." Id. at 9.

The Union further contends that 5 U.S.C. § 7121(e) "clearly contemplates the existence of internal appellate procedures established by the Agency" and that, in this case, "the grievant exercised her option to have the promotion reviewed under the grievance procedure negotiated by her Union." Id. at 5.

B. The Agency

The Agency asserts that the Union has failed to show that the award is contrary to law. The Agency argues that 38 U.S.C. § 4106(g)(1) grants the Secretary of Veterans Affairs "the exclusive authority to determine conditions related to the appointment, promotion, and pay" of employees appointed under 38 U.S.C. § 4104(3). Opposition at 5. The Agency also argues that under 38 U.S.C. § 4119, title 5 may not override provisions of title 38 "absent a specific reference in title 5 stating that the title 38 section is to be overridden." Id.

The Agency cites two court decisions on disciplinary actions holding that "where Congress intended a procedure to be exclusive, the VA had no duty to bargain over the procedures." Id., citing Veterans Administration Medical Center, Northport, New York v. FLRA, 732 F.2d 1128 (2d Cir. 1984) and Veterans Administration Medical Center, Minneapolis, Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983). The Agency asserts that "[a]s with the disciplinary process, the provision governing the promotion of hybrid appointees is exclusive" because "[t]he plain language of [38 U.S.C. § 4106(c)] requires the Secretary of Veterans Affairs to establish rules for promotions of covered employees[.]" Id. at 6. The Agency concludes that "because there is no specific reference in [38 U.S.C. § 4106(c)] that makes it subject to the provisions of title 5, it is not a matter that is subject to the [Federal Service] Labor-Management Relations Statute" and, thus, the grievance is not arbitrable. Id.

As to the Union's argument that 38 U.S.C. § 4106(g)(3) makes the grievance subject to arbitration, the Agency contends that "hybrid" employees like the grievant retain "all title 5 rights, except with respect to matters that the VA ha[s] exercised its title 38 authorities (appointments, pay, and promotions)." Id. at 7. The Agency maintains that the reference to "grievances" in section 4106(g)(3) only applies to "grievances of actions arising under title 5" and "does not apply to actions arising under title 38[.]" Id.

IV. Analysis and Conclusions

We find that the Arbitrator's award is contrary to 38 U.S.C. § 4106(g)(3). Accordingly, we will set aside the award.

A. Applicability of 38 U.S.C. § 4106(c), (g)(1), and (g)(3)

The record indicates that the grievant is a licensed practical nurse appointed pursuant to section 4104(3) of title 38. The Agency argues that section 4106(g)(1) of title 38 "governing the promotion of hybrid appointees is exclusive" because "[t]he plain language of [38 U.S.C. § 4106(c)] requires the Secretary of Veterans Affairs to establish rules for promotions of covered employees[.]" Opposition at 6. Therefore, the Agency contends that the grievance in this case is not arbitrable. We reject the Agency's argument for the following reasons.

Section 4106(g)(1) of title 38 provides, in part, that the Administrator (A) may use the authority in subsection (a) of this section to establish the qualifications for and . . . to appoint individuals to positions listed in section 4104(3) of this title, and (B) may use the authority provided in subsection (c) of this section for the promotion and advancement of Veterans' Administration employees serving in such positions.

Section 4106(c) provides, in part, that "[p]romotions . . . shall be made only after examination given in accordance with regulations prescribed by the Administrator."

With respect to employees appointed under section 4104(3), section 4106(g)(3) of title 38 provides that

[n]otwithstanding any other provision of this title or other law, all matters relating to adverse actions, disciplinary actions, and grievance procedures involving individuals appointed to such positions . . . shall be resolved under the provisions of title 5 as though such individuals had been appointed under such title.

Because section 4106(g)(3) states that it is to apply