15:0448(92)AR - VA Medical Center, Chillicothe, OH and AFGE Local 1631 -- 1984 FLRAdec AR

 15 FLRA No. 92
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER, CHILLICOTHE, OHIO
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1631, AFL-CIO
 Union
 
                                            Case No. O-AR-432
 
                        ORDER DISMISSING EXCEPTIONS
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Fred E. Kindig filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.  /1/ In his award, the Arbitrator
 found that the Activity acted improperly when it retroactively rescinded
 the promotions of four physician assistants /2/ and demoted them to
 their previous grade and pay level.  For the reasons that follow, the
 Authority is without jurisdiction to review the Agency's exceptions and
 the exceptions therefore must be dismissed.
 
    Section 7122(a) of the Statute pertinently provides:
 
          Either party to arbitration under this chapter may file with
       the Authority on exception to any arbitrator's award pursuant to
       the arbitration (other than an award relating to a matter
       described in section 7121(f) of this title).
 
    As relevant to this case, the matters described in section 7121(f) of
 the Statute /3/ include matters similar to those covered under 5 U.S.C.
 7512 which arise under other personnel systems.  Matters covered under
 section 7512 are specified adverse actions including a
 reduction-in-grade and a reduction-in-pay.  Under section 7121(f)
 judicial review of an arbitration award relating to similar matters that
 have arisen under another personnel system may be obtained in the same
 manner and on the same basis as that of a final decision in such a
 matter under applicable appellate procedures.  In terms of this case,
 the award relates to a matter that is similar to those covered under
 section 7512 and has arisen under the personnel system governing
 professional employees of the agency's Department of Medicine and
 Surgery engaged in direct patient care, which is "(an)other personnel
 syste(m)" within the meaning of section 7121(f).  /4/ Therefore, the
 Arbitrator's award relates to a matter described in section 7121(f), and
 under section 7122(a) exceptions to the award may not be filed with the
 Authority.  Consequently, the Authority is without jurisdiction to
 review the exceptions and accordingly they are dismissed.
 
    Issued, Washington, D.C., August 9, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union filed an opposition which was untimely and therefore
 has not been considered by the Authority.
 
 
    /2/ It is not contested that these employees are professional
 employees in the agency's Department of Medicine and Surgery who have
 been appointed under 38 U.S.C.chapter 73.
 
 
    /3/ Section 7121(f) pertinently provides:
 
          In matters similar to those covered under sections 4303 and
       7512 of this title which arise under other personnel systems and
       which an aggrieved employee has raised under the negotiated
       grievance procedure, judicial review of an arbitrator's award may
       be obtained in the same manner and on the same basis as could be
       obtained of a final decision in such matters raised under
       applicable appellate procedures.
 
 
    /4/ See S. Rep. No. 95-969, 95th Cong., 2d Sess. 110 (1978) (in which
 the Senate Governmental Affairs Committee in explaining the provision of
 "other personnel systems" in what became section 7121(e)(1) of the
 Statute used title 38, United States Code as an example).  However, the
 correction of assertedly erroneous promotions does not concern the
 disciplining of Department of Medicine and Surgery personnel for
 professional misconduct which has been held to be precluded from
 grievance and arbitration.  VA Medical Center, Northport, New York v.
 FLRA, 732 F.2d 1128 (2d Cir. 1984);  VA Medical Center, Minneapolis,
 Minnesota v. FLRA, 705 F.2d 953 (8th Cir. 1983).