United States, Department of Veterans Affairs, Maryland Health Care System, Baltimore, Maryland (Agency) and Professional Staff Nurses, Association Local 1998, Service Employees, International Union (Union)

[ v59 p384 ]

59 FLRA No. 55

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS,
MARYLAND HEALTH CARE SYSTEM
BALTIMORE, MARYLAND
(Agency)

and

PROFESSIONAL STAFF NURSES
ASSOCIATIO,N LOCAL 1998,
SERVICE EMPLOYEES
INTERNATIONAL UNION
(Union)

0-AR-3692

_____

DECISION

October 9, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Roger P. Kaplan filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. [n1] 

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement when it reassigned registered nurses from one site to another without completing negotiations. For the reasons that follow, we find that the award is deficient as contrary to law and we set it aside.

II.     Background and Arbitrator's Award

      The grievance in this case was filed by the Professional Staff Nurses Association (the Union) on behalf of registered nurses at the VA Maryland Health Care System (Agency). The Agency is comprised of several separate facilities throughout Maryland.

      Following a review of operations, the Agency planned to move several programs from one facility to another. The Agency planned to relocate the nurses with the inpatient programs in which they worked. [n2]  Prior to any actual relocations, the Union and the Agency established ground rules for bargaining. However, negotiations were never completed.

      In June 2002, several nurses received notice that they were being reassigned. As a result, the Union filed a grievance alleging that the reassignment constituted a violation of Article X, Section 2 of the parties' collective bargaining agreement. [n3]  The Agency denied the grievance and the Union invoked arbitration.

      The arbitration hearing took place in December 2002. In January 2003, the Agency filed with the Arbitrator a Request to Stay Proceedings pending a determination by the Agency's Under Secretary for Health (Under Secretary) as to whether the grievance raised an issue that was not grievable pursuant to 38 U.S.C. § 7422. [n4]  The Union responded to the request, asserting that it was unaware of any proceeding pending before the Under Secretary.

      In February 2003, the Under Secretary determined that the grievance involved a matter "concerning or arising out of professional conduct or competence and thus exempted from collective bargaining and negotiated grievance procedures . . . ." Award at 2; Exceptions, Exhibit 4. The Agency submitted this determination to the Arbitrator, and asserted that as a result of this determination, the Arbitrator "lacks jurisdiction over the matter." Exceptions; Exhibit 7. In support of this contention, the Agency cited United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Asheville, N.C., 57 FLRA 681, 683 (2002) (VA Asheville). The Union submitted a reply brief to the Arbitrator, challenging the Under Secretary's determination and contending that the grievance should be sustained.

      Acknowledging these submissions, the Arbitrator framed the issues before him as follows:

1. Is the grievance arbitrable? [ v59 p385 ]
2. If so, did the Agency violate Articles I, II, IV and/or X of the Collective Bargaining Agreement?
3. If so, what is the appropriate remedy?

Award at 3.

      The Arbitrator found that the decision of the Under Secretary "that the instant grievance involves the professional conduct or competence of the nurses is misplaced." Id. at 8-9. In particular, the Arbitrator questioned the validity of the Agency's argument that the grievance was not arbitrable because "[s]uch a jurisdictional challenge made after the arbitration hearing and presented after the filing of post-hearing briefs appears to be a last-minute attempt to remove the decision from the grievance process[.]" Id. at 8. The Arbitrator found that this challenge lacked merit and he denied the claim.

      As to the merits, the Arbitrator found that the Agency violated Article X, Section 2 of the agreement by failing to negotiate fully with the Union and by failing to make "every effort" to avoid the reassignment of the nurses. Id. at 13. To remedy the violation, the Arbitrator ordered the parties to "negotiate the remedy with respect to the two (2) nurses reassigned to Perry Point . . . ." Id. at 15. [n5] 

III.     Agency's Exceptions

      The Agency asserts that the award is contrary to 38 U.S.C. § 7422. According to the Agency, § 7422 grants exclusive authority to the Secretary of Veterans Affairs (or his designee) to determine whether a matter is excluded from collective bargaining and negotiated grievance procedures. Citing, among other cases, Veterans Administration, Long Beach, Cal., 48 FLRA 970 (1993) (VA Long Beach), the Agency claims that the Under Secretary's determination that the relocation of nurses concerned professional conduct or competence within the meaning of § 7422 is not subject to review. According to the Agency, the grievance was not arbitrable and the award must be set aside.

      The Agency also disputes the Arbitrator's finding that the Agency's jurisdictional challenge was untimely. In this regard, the Agency asserts that it first raised the § 7422 issue during its opening statement at the arbitration hearing. Further, the Agency contends that, under Authority precedent, jurisdictional arguments may be raised at any time. Finally (citing VA Asheville), the Agency maintains that the Authority has determined that once the Under Secretary "has issued a 7422 determination--whenever in the process that may be--that decision deprives" an arbitrator of jurisdiction. Exceptions at 2.

IV.     Analysis and Conclusions

      When an exception involves an award's consistency with law, the Authority reviews any question of law raised by the exception and the award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of Def., Dep'ts of the Army & the Air Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

      The issue raised by the Agency's exception in this case is similar to United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Amarillo, Tex, 49 FLRA 1511 (1994) (VA Amarillo). In VA Amarillo, a grievance was filed alleging that a registered nurse was denied her right to union representation. The agency denied the grievance based on a determination by the Chief Medical Director (on behalf of the Secretary of Veterans Affairs) that the matter was not grievable under § 7422. The union invoked arbitration and the arbitrator sustained the grievance, finding that the matter did not involve professional conduct, competence, or peer review within the meaning of § 7422. The Authority cited VA Long Beach, which held that the Secretary has exclusive authority to make a determination as to whether a matter is excluded from coverage under the negotiated grievance procedures under § 7422. VA Amarillo, 49 FLRA at 1516. The Authority also cited its holding in VA Long Beach that the Authority "was `required by law to treat the grievance as non-arbitrable.'" Id. (quoting VA Long Beach, 48 FLRA at 976.). In VA Amarillo, the Authority found that since the Secretary had determined that the grievance was not arbitrable, the award finding the grievance arbitrable was inconsistent with the law. On that basis, the Authority set aside the award.

      We reach the same result here. The Under Secretary in this case made a determination under § 7422 that the reassignment of the nurses was a matter concerning or arising out of professional conduct or competence, and, as such, was not grievable under the negotiated [ v59 p386 ] grievance procedure. That determination is not reviewable by the Authority, regardless of the fact that the determination was issued after the grievance was filed. See VA Asheville, 57 FLRA at 683 (in unfair labor practice case, the Authority did not have jurisdiction to review agency's alleged noncompliance with arbitration award where the Under Secretary's § 7422 determination was made after the arbitrator's award was issued and during pendency of the ULP proceeding because "[p]arties may raise arguments regarding the Authority's jurisdiction at any stage of the Authority's proceedings").

      Accordingly, consistent with the cases cited above, the Arbitrator's award that the grievance in this case is arbitrable is contrary to law and must be set aside.

V.     Decision

      The award is set aside.


APPENDIX

Article X: Details/Re-Assignments

Section 2-Permanent Re-Assignment.

The Parties agree that if it becomes necessary to permanently reassign a Nurse from their regularly scheduled unit/ ward due to staffing needs, the reassignment will be as follows:

A.     Every effort will be made not to reassign Registered Nurses outside the same physical division (site specific), i.e. Baltimore within Baltimore, BRECC within BRECC, Perry Point within Perry Point.
B.     Volunteers from the sending unit will be accepted first.
C.     If no volunteer is available, then the Nurse, who is least senior, in terms of assignment to the sending unit, will be reassigned.
D.     Nurses who are permanently re-assigned outside their area of interest may submit a request for re-assignment. Clinical experience, educational preparations, and patient care needs will be considered in terms of re- assignment requests as follows:
(1)     The Nurse Recruiter will acknowledge all requests for reassignment within 15 days of receipt of the request.
(2)     All requests for reassignment will be maintained for consideration for a period no less than   six (6) months.

38 U.S.C. § 7422. Collective bargaining

(a) Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations).
(b) Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of employees described in section 7421(b) of this title may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title.
(c) For purposes of this section, the term "professional conduct or competence" means any of the following:
(1) Direct patient care.
(2) Clinical competence.
(d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.



Footnote # 1 for 59 FLRA No. 55 - Authority's Decision

   As the Union's opposition appeared to be untimely, the Authority's Case Control Office issued an Order to Sho