American Federation of Government Employees, Local 446 (Union) and United States, Department of Veterans Affairs , Medical Center, Asheville, North Carolina (Agency)

[ v59 p451 ]

59 FLRA No. 70

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 446
(Union)

and

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER
ASHEVILLE, NORTH CAROLINA
(Agency)

0-AR-3702

_____

DECISION

November 19, 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 Patricia Thomas Bittel filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator determined that she did not have the authority to decide the arbitrability of the grievance and retained jurisdiction to hear the grievance on its merits pending a determination from the Under Secretary of Health pursuant to 38 U.S.C. § 7422(d), as to whether the subject matter of the grievance could be grieved.

      For the following reasons, we find that the Union's exceptions are interlocutory and that no extraordinary circumstances have been presented warranting review of the exceptions at this time. Accordingly, we dismiss the exceptions without prejudice.

II.      Background

      The Union filed a grievance alleging that the Agency violated Article 2 of the agreement as well as § 7114 of the Statute when Agency officials did not notify the Union that they were meeting with employees to discuss the use of fee basis nurses as a way to avoid paying Union members overtime. [n1]  Award at 2. Article 2 states, "nonbargaining unit employees shall not be scheduled on overtime to perform the duties of bargaining unit employees for the sole purpose of eliminating the need to schedule bargaining unit employees for overtime." See id.

      The Agency contested the arbitrability of the case and the parties jointly agreed on the following issue on the merits: "[W]hether the employer violated the collective bargaining agreement by denying overtime due to use of fee basis nurses. If so, what shall be the remedy?" See id.

      The Agency argued that the case was not arbitrable because the distribution of overtime is an exclusive management right that is not negotiable or arbitrable under Title 38 of the United States Code. [n2]  Id. at 4. The Agency alleged that the Under Secretary of Health previously determined that Title 38 precludes grievances concerning the distribution of overtime. [n3]  Id. at 5.

      The Union argued that the Under Secretary never made a determination about the arbitrability of this specific case. Award at 5. Thus, the Title 38 exemptions do not apply. Id. In addition, the Union claimed that an arbitrator may hear a case unless the Under Secretary has made a determination that the grievance is not arbitrable. Id.

      The Arbitrator first considered whether the arbitrability of the grievance had already been resolved. Id. The Arbitrator examined Article 42, which addresses the grievance procedure and Title 38 exemptions to the procedure. Id. According to Note 2 in Article 42, the Title 38 exemptions "shall only serve to preclude a grievance . . . ." [n4]  Id. at 3 (emphasis added). The Arbitrator interpreted "a grievance" to mean that the Under [ v59 p452 ] Secretary must make a determination on each specific grievance. Id. Since there was no determination by the Under Secretary in this case, the Arbitrator found, "[t]he arbitrability of the instant grievance has yet to be determined." See id. at 5.

      After determining that the arbitrability of this grievance had not yet been decided, the Arbitrator focused on the Union's argument that a determination by the Under Secretary was unnecessary and that the Arbitrator could hear the grievance without such a determination. Id. The Arbitrator found that the language in the agreement could be interpreted to mean, as the Union suggested, that grievances are arbitrable unless the Under Secretary has already determined that the grievance is precluded under Title 38. Id. Under this interpretation, an arbitrator would be permitted to decide whether the grievance is exempt from arbitration under 38 U.S.C. § 7422(b). Id.

      The Arbitrator found that the language could also be interpreted to mean that a grievance may not proceed to arbitration until after the Under Secretary makes a determination on the arbitrability. Id. at 5-6. Under this interpretation, the Under Secretary, not an arbitrator, would have the authority to determine "the eligibility of a grievance for arbitration." See id.

      The Arbitrator examined the agreement to determine the appropriate interpretation. Id. at 6. According to Note 1, "[a]ny questions concerning the extent of the exclusions . . . will be resolved in accordance with the VA Partnership Council's Guide to Collective Bargaining and Joint Resolution of 38 U.S.C. § 7422 Issues [Guide]." See id. at 3. The Arbitrator found that Note 1 incorporated the terms of the Guide into the agreement and that the Guide grants final authority to make arbitrability determinations under 38 U.S.C. § 7422 to the Under Secretary. Id. at 6.

      The Arbitrator then addressed the issue of whether this case involved rules of overtime because the Guide specifically states rules of overtime are not exempt from arbitration. Id. The Arbitrator determined that the issue raised in this case did not address rules for earning overtime, but rather, focused on the availability of overtime and the impact of using fee basis nurses on overtime. Id. The Arbitrator explained that part of the Union's requested remedy, backpay for lost overtime, "generally arises `out of the establishment, determination, adjustment of employee compensation' within the meaning of 38 U.S.C. § 7422(d)." See id. Based on these findings, the Arbitrator concluded that "it is not at all clear that this case falls within the scope of permissible bargaining and arbitration . . . ." See id.

      After examining the agreement and the Guide, the Arbitrator concluded that Note 2 could not logically be interpreted to mean that review by the Under Secretary could be circumvented. Award at 7. The Arbitrator found that the Guide clarified that final authority to determine if a matter is within the scope of arbitration and bargaining is given to the Secretary of Veterans Affairs or the Secretary's designee. Id. The Arbitrator stated that the Union's suggested interpretation that the parties may proceed to arbitration unless the Under Secretary has already made the determination that arbitration is precluded under Title 38 would conflict with the clear language in Notes 1 and 2 of the agreement. Id. at 8.

      In addition, the Arbitrator found that the Union's interpretation would conflict with Title 38. Id. Title 38 states that questions of arbitrability "shall be decided by the Secretary[,]" thus mandating that the Under Secretary, as the Secretary's designee, determine the scope of exemptions. Id.

      Based on these findings, the Arbitrator concluded that she had no authority to determine the arbitrability because the agreement and Title 38 grant that authority to the Secretary of Veterans Affairs or the Secretary's designee. Id. The Arbitrator found that the grievance was not "ripe for arbitration" and stayed the proceedings pending a determination from the Under Secretary. Id. The Arbitrator ordered the parties to obtain a determination on arbitrability from the Under Secretary. Id. at 8 9.

III.      Positions of the Parties

A.     Union's Exceptions

1.      The award is deficient because the Arbitrator exceeded her authority.

      The Union alleges that by failing to rule on an issue submitted, the Arbitrator exceeded her authority. Exceptions at 4. The Union also argues that the grievance [ v59 p453 ] is arbitrable until the Under Secretary of Health declares otherwise. Id. The Union states, "An arbitrator has a limited number of choices . . . . She may find the matter arbitrable or not. If she finds it arbitrable, then she should rule on the merits. The Arbitrator here did none of these and simply sent the issue of arbitrability back to the parties." See id.

2.      The award is deficient as failing to draw its essence from the agreement.

      The Union preliminarily alleges that the Agency argued for the first time at hearing that it has the unreviewable right to determine compensation under Title 38. Exceptions at 4. Because the Agency did not raise the issue at the appropriate stage of the grievance procedure, the argument should not be included in the award. Id.

      In addition, the Union argues that the agreement includes the procedure the Agency must follow when addressing Title 38 issues. Id. at 5. The Agency did not follow that procedure and the agreement does not provide any procedure for arbitrators to forward a Title 38 issue to the Under Secretary for review. Id.

      Finally, the Union argues, "any issue is arbitrable under 38 U.S.C. § 7422 until such time as the Undersecretary [sic] declares it otherwise." See id. Once the Under Secretary makes a determination, that decision is unreviewable and therefore, the Arbitrator does not have the authority to order a decision from the Under Secretary before making a ruling on the merits of the grievance. Id.

B.      Agency's Opposition

1.      The Arbitrator did not exceed her authority.

      The Agency contends that the Arbitrator did not exceed her authority, she merely recognized that the Under Secretary of Health has sole discretion to determine what issues are arbitrable under Title 38. Opposition at 2. The Arbitrator did not fail to address the issues submitted to her, she simply postponed making a decision until the Under Secretary makes a determination regarding the arbitrability of this case. Id.

2.      The award draws its essence from the agreement.

      The Agency alleges that under Title 38, there is no time limit in which the Under Secretary must make a determination on arbitrability. Opposition at 3, (citing United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Asheville, N.C., 57 FLRA 681 (2002)). The Agency agrees with the Union that the parties' agreement does not provide a procedure for an arbitrator to forward a matter to the Under Secretary for determination and states that this is the very reason why the Agency has forwarded the case to the Under Secretary. Opposition at 2.

IV.      Analysis and Conclusions

      Upon review, the Authority finds that prior to resolving the exceptions on their merits, the Authority must resolve whether the exceptions are interlocutory. United States Dep't of Justice, 52 FLRA 1093, 1098 (1997) ("[I]t is well settled that the Authority may raise sua sponte such questions as it finds relevant and necessary in any case before it.") (citing Naval Air Station Fallon, Fallon, Nevada, 51 FLRA 1254 (1996); United States Dep't of the Air Force Base, 375th Combat Support Group, Scott Air Force, Ill., 50 FLRA 84, 87 (1995)).

      Section 2429.11 of the Authority's Regulations states, "[T]he Authority . . .ordinarily will not consider interlocutory appeals." See 5 C.F.R. § 2429.11. In arbitration cases, this means that ordinarily, the Authority will not resolve exceptions filed to an arbitration award unless the award constitutes a final resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of Health and Human Servs., Ctrs. for Medicare and Medicaid Servs., 57 FLRA 924, 926 (2002) (HHS); AFGE Nat'l Council of EEOC Locals No. 216, 47 FLRA 525, 530 (1993); Navy Pub. Works Ctr., San Diego, Cal., 27 FLRA 407, 408 (1987). According to Authority precedent, an award that postpones the determination of an issue submitted to arbitration is not considered to be a final award on the proceedings. See HHS, 57 FLRA at 926.

      An exception is considered interlocutory when it concerns a preliminary ruling as opposed to a final award. United States Dep't of Def., Army and Air Force Exch. Serv., 38 FLRA 587 (1990). Exceptions filed before an arbitrator makes a final disposition on all of the issues presented will be considered interlocutory. See HHS, 57 FLRA at 926.

      While the Authority ordinarily will not consider interlocutory appeals, when an interlocutory appeal raises a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case, extraordinary circumstances may exist warranting review of the exception. See Library of Cong., 58 FLRA 486, 487 (2003) (Member Pope dissenting) (citing United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1232 (2000)). [ v59 p454 ]

      The Authority must first consider whether the Arbitrator's award was an interim or a final award. The Arbitrator stated that the grievance involved not only the issue on the merits as agreed to by the parties, but also the matter of procedural arbitrability raised by the Agency. Award at 2. The Arbitrator only addressed the arbitrability issue and specifically stayed the proceedings and retained jurisdiction over the matter "pending either notification of a lack of arbitral jurisdiction or, if arbitral jurisdiction is proper, the rendering of a final decision." See id. at 8-9. Finally, the Arbitrator titled the award an "Interim Decision." See id. at 1. Applying Authority precedent, we find that this award does not constitute a final resolution of all issues submitted to arbitration. See HHS, 57 FLRA at 926 and Award at 1, 9. Because the award is not final, the Union's exceptions are interlocutory.

      Based on the finding that the exceptions are interlocutory, the Authority must consider whether the Union's exceptions present extraordinary circumstances, such as a jurisdictional defect, the resolution of which would advance the ultimate disposition of the case.

      The Union argues that the Arbitrator exceeded her authority by not making a final determination on the arbitrability of the grievance and that the award fails to draw its essence from the agreement. [n5]  Exceptions at 4. Neither one of these arguments presents a jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. The Arbitrator interpreted the agreement to mean that she must wait for the Under Secretary's determination on arbitrability before proceeding to the merits and placed the case on hold by staying the proceedings pending a determination from the Under Secretary. Award at 8-9. Therefore, the Authority finds that the Union's exceptions are interlocutory and there are no extraordinary circumstances warranting review.

V.      Decision

      Based on the foregoing, the Authority finds the Union's exceptions are interlocutory and dismisses the exceptions without prejudice.


APPENDIX

Title 38 - Veterans Benefits

Part V - Boards, Administrations and Services

Chapter 74 - Veterans Health Administration Personnel

Subchapter II - Collective Bargaining and Personnel Administration

Sec. 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.
(e) A petition for judicial review or petition for enforcement under section 7123 of title 5 in any case involving employees described in section 7421(b) of this title or arising out of the applicability of chapter 71 of title 5 to employees in those positions, shall be taken only in the United States Court of Appeals for the District of Columbia Circuit.



Footnote # 1 for 59 FLRA No. 70 - Authority's Decision

   Fee basis nurses are nurses who are not members of the bargaining unit and who fill in upon the employer's request. Award at 2.


Footnote # 2 for 59 FLRA No. 70 - Authority's Decision

   38 U.S.C. § 7422(b) prohibits collective bargaining regarding "any matter or question concerning or arising out of . . . the establishment, determination, or adjustment of employee compensation under this title." Further, § 7422(d) states: "an issue of whether a matter or question concerns or arises out of . . . 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." The language of 38 U.S.C. § 7422 is set forth in the Appendix to this decision.


Footnote # 3 for 59 FLRA No. 70 - Authority's Decision

   The Secretary of Veterans Affairs may designate someone to determine whether issues are negotiable or arbitrable under 38 U.S.C. § 7422(b) and (d) and has designated the Under Secretary for Health. Award at 3.


Footnote # 4 for 59 FLRA No. 70 - Authority's Decision

   The pertinent text of Note 2 follows:

The language in Paragraph C [Paragraph C enumerates the matters that are excluded from the grievance procedure in compliance with Title 38] in this Section shall only serve to preclude a grievance where the Secretary, or a lawfully appointed designee of the Secretary (currentl