16:0813(113)AR - VA Medical Center, Lebanon, PA and AFGE Local 1966 -- 1984 FLRAdec AR

 16 FLRA No. 113
 
 VETERANS ADMINISTRATION MEDICAL
 CENTER, LEBANON, PENNSYLVANIA
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1966
 Union
 
                                            Case No. O-AR-771
 
                        ORDER DISMISSING EXCEPTION
 
    This matter is before the Authority on an exception to the award of
 Peter Florey filed by the Union under section 7122(a) of the Federal
 Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.  For the reasons that follow, the
 Authority is without jurisdiction to review the Union's exception and
 the exception therefore must be dismissed.
 
    The dispute in this matter concerns the termination of the grievant.
 The grievant was a physician in the agency's Department of Medicine &
 Surgery (DM&S) who had been appointed under 38 U.S.C. 4106(a), /1/ a
 section of the statutory provisions covering professional employees
 engaged in direct patient care, 38 U.S.C. chapter 73.  A professional
 standards board found the grievant not fully qualified and satisfactory
 and consequently he was terminated as a probationary employee pursuant
 to 38 U.S.C. 4106(b).  /2/ A grievance was filed and submitted to
 arbitration protesting the termination, primarily because the
 probationary review had not been completed before the expiration of the
 grievant's probationary period.  The Arbitrator determined that section
 4106(b) was applicable to the grievant and that consequently review of
 the grievant's termination as a probationary employee was precluded by
 law and the parties' collective bargaining agreement.  In its exception
 the Union essentially contends that the award is deficient because the
 Arbitrator erred when he determined that section 4106(b) was applicable
 to the grievant.
 
    Section 7122(a) of the Statute /3/ expressly precludes the filing of
 an exception to an arbitration award relating to a matter described in
 section 7121(f) of the Statute.  As relevant to this case, the matters
 described in section 7121(f) of the Statute /4/ 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 removal.  Under section 7121(f) the 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 raised under
 applicable appellate procedures.  In terms of this case, the Authority
 finds that the dispute, the substance of the award resolving that
 dispute, and the substance of the Union's exception to the award all
 relate to the grievant's termination pursuant to section 4106(b), and
 the Authority concludes that such a matter is similar to those covered
 under section 7512 and has arisen under another personnel system within
 the meaning of section 7121(f).  See Veterans Administration Medical
 Center, Hines, Illinois and Illinois Nurses Association, Hines Local
 Unit, 16 FLRA No. 46 (1984);  Veterans Administration Medical Center,
 Chillicothe, Ohio and American Federation of Government Employees, Local
 1631, AFL-CIO, 15 FLRA No. 92 (1984).  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
 exception and accordingly it is dismissed.
 
    Issued, Washington, D.C., December 13, 1984
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       /s/ Ronald W. Haughton
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 4106(a) provides:
 
          (a) Appointments of physicians, dentists, podiatrists,
       optometrists, and nurses shall be made only after qualifications
       have been satisfactorily established in accordance with
       regulations prescribed by the Administrator, without regard to
       civil-service requirements.
 
 
    /2/ Section 4106(b) provides:
 
          (b) Such appointments as described in subsection (a) of this
       section shall be for a probationary period of two years and the
       record of each person serving under such appointment in the
       Medical, Dental, and Nursing Services shall be reviewed from time
       to time by a board, appointed in accordance with regulations of
       the Administrator, and if said board shall find him not fully
       qualified and satisfactory he shall be separated from the service.
 
 
    /3/ Section 7122(a) of the Statute pertinently provides:
 
          Either party to arbitration under this chapter may file with
       the Authority an 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).
 
 
    /4/ 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.