[ v20 p854 ]
The decision of the Authority follows:
20 FLRA No. 106 VETERANS ADMINISTRATION MEDICAL CENTER, FARGO, NORTH DAKOTA Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3884, FARGO, NORTH DAKOTA Union Case No. 0-AR-1037 ORDER DISMISSING EXCEPTION This matter is before the Authority on an exception to the award of Arbitrator John J. Flagler 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. For the reasons that follow, the Authority is without jurisdiction to review the Agency's exception an the exception therefore must be dismissed. The dispute before the Arbitrator essentially concerned the removal for misconduct of the grievant, a registered nurse in the Agency's Department of Medicine & Surgery (DM&S) who had been appointed under the statutory provisions covering health-care professional employees engaged in direct patient care, 38 U.S.C. chapter 73. The grievant was removed based on the findings of a disciplinary board convened in accordance with 38 U.S.C. 4110. /1/ Before the Arbitrator the Union argued that the Agency had failed to fairly investigate this matter, and the Arbitrator agreed, finding that the Agency had committed substantial and harmful procedural errors. The Arbitrator further found that these errors deprived the disciplinary board of jurisdiction, making its findings of no force and effect, and that the parties' collective bargaining agreement permitted him to take appropriate corrective action to restore to the grievant the rights denied her. Accordingly, the Arbitrator ordered that the grievant be reinstated with backpay and directed that the Agency either drop the charges against her or reconstitute a new board of investigation to inquire into those charges. In its exception the Agency essentially contends on the basis of Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Minneapolis, Minnesota, 15 FLRA No. 176 (1984) that the award is contrary to law because the disciplinary procedures of 38 U.S.C. 4110 preclude grievances over disciplinary actions taken in accordance with such procedures. In its exception the Agency further contends that notwithstanding section 7122(a) and section 7121(f) of the Statute, the Authority should resolve the exception and find the award deficient. The Authority finds contrary to the Agency that no basis is presented for the Authority to resolve the exception. Section 7122(a) of the Statute /2/ 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 /3/ include matters similar to those covered under 5 U.S.C. 757612 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 before the Arbitrator and the substance of the award resolving that dispute relate to the grievant's removal for professional misconduct to the provisions of 38 U.S.C. chapter 73, 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). E.g., Veterans Administration Medical Center, Lebanon, Pennsylvania and American Federation of Government Employees, Local 1966, 16 FLRA No. 113 (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, and apart from other considerations, /4/ the Authority is without jurisdiction to review the exception. Accordingly, the exceptions and the request for a stay are dismissed. Issued, Washington, D.C. 13, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 4110(a) provides for the appointment of disciplinary boards to determine charges of inaptitude, inefficiency, or misconduct of fulltime, nonprobationary physicians, dentists, nurses, and nurse anesthetists. /2/ 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 then an award relating to a matter described in section 7121(f) of this title). /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/ In this regard, the Authority did decide in VA, Washington, D.C., 15 FLRA No. 176, cited by the Agency in its exception, essentially that because the procedures of 38 U.S.C. 4110 are intended to be the exclusive procedures for determining professional misconduct of covered employees, grievances over disciplinary actions taken pursuant to that provision are precluded by law. However, that decision did not involve any question of the Authority's jurisdiction to resolve exceptions to arbitration awards under section 7122(a) of the Statute. Rather, the question decided by the Authority in the cited unfair labor practice case was whether the Respondent Agency had violated section 7116(a)(1) and (5) of the Statute by failing to publish and put into effect a locally negotiated agreement provision concerning discipline of unit employees after an untimely disapproval of the provision by the Agency head. The Authority found that the Respondent was under no obligation to bargain concerning disciplinary and adverse action proposals insofar as such proposals related to disputes regarding alleged professional misconduct as such matters are exclusively controlled by 38 U.S.C. 4110. Accordingly, the Authority held that since the agreement provision in dispute was not limited in any way, it conflicted with applicable law and, therefore, the Respondent did not violate the Statute as alleged by failing to publish, effectuate or abide by the provision.