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The decision of the Authority follows:
34 FLRA NO. 29
U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER DANVILLE, ILLINOIS and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1963 0-AR-1566 ORDER DISMISSING EXCEPTIONS January 3, 1990 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator Anne L. Draznin filed by the Veterans Affairs Medical Center, Danville, Illinois (the Agency) under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The American Federation of Government Employees, Local 1963, AFL - CIO (the Union) filed an opposition. The grievance concerned the Agency's involuntary reassignment of a nurse based on her involvement in an alleged patient abuse incident. The Arbitrator found that the manner in which the Agency effected the reassignment violated the parties' agreement. The Arbitrator rescinded the reassignment and directed the Agency to assign the grievant to the ward and work station where she had worked before the reassignment. We conclude that we are without jurisdiction to review the Arbitrator's award because it concerns the conditions of employment of professional medical employees who are appointed under title 38 of the United States Code. Accordingly, we dismiss the Agency's exceptions. 1 II. Background and Arbitrator's Award The grievant is a Registered Nurse at the Veterans Administration Medical Center, Danville, Illinois. Before October 1986, the grievant worked on psychiatric wards 103-7 and 103-8. In October 1986, she was voluntarily transferred to two different psychiatric wards--wards 103-1 and 103-2. In July 1986, the Medical Center created a Board of Investigation to investigate an alleged incident of patient abuse on wards 103-7 and 103-8. The Board reported its findings to the Medical Center Director in November 1986. In January 1987, the grievant was notified that the Chief of Nursing Services was recommending that she be demoted. The grievant protested the proposed action. In March 1987, the grievant was notified that based on the investigation, she would be involuntarily transferred to wards 101-3 and 101-4 effective April 12, 1987, for at least 1 year. At that time, the Agency had not determined whether the grievant merited discipline for her part in the alleged patient abuse incident. The grievant filed a request with her supervisor for reassignment back to wards 103-1 and 103-2 but was informed that her request would not be honored for 1 year. The grievant grieved the transfer and, subsequently, the Union filed a notice of its intent to arbitrate the matter. On August 6, 1987, the grievant was notified that a written reprimand was the appropriate discipline for her part in the patient abuse incident. The grievant requested rescission of the reprimand and again requested reassignment to wards 103-1 and 103-2. The grievant received a written reprimand in October 1987. She grieved the reprimand and, in December 1987, was notified that the written reprimand was rescinded. The involuntary transfer to wards 101-3 and 101-4, however, was not rescinded and the matter was submitted to arbitration. The issue agreed to by the parties was "Whether the Medical Center Management violated the Local Professional Agreement in the reassignment of the Grievant . . . and if so, what is the appropriate remedy?" Award at 1-2. The Agency argued that the involuntary transfer of the grievant constituted an exercise of management's right to assign employees under section 7106(a)(2)(A) of the Statute and that the exercise of that right was not subject to arbitral review. The Arbitrator determined that the grievance concerned the manner in which the transfer was effectuated under the procedures of the parties' contract rather than the right of the Agency to transfer the grievant. Award at 12-17. The Arbitrator sustained the grievance and rescinded the involuntary transfer. The Arbitrator also directed the Agency to: (1) reassign the grievant to the ward and work station in which she had worked prior to the reassignment; (2) make the grievant whole for losses incurred as a result of the involuntary transfer; and (3) delete from the grievant's records references to the reasons for the involuntary reassignment which would negatively reflect on the grievant's competence to perform the work in her original ward. III. Positions of the Parties A. Agency's Exceptions The Agency contends that the Arbitrator's award is deficient under section 7122 of the Statute because the Arbitrator interpreted the parties' agreement so as to prevent it from exercising its right to assign employees under section 7106(a)(2)(A). The Agency argues that although an arbitrator may enforce a legally negotiated procedure, the contract provisions relied on by the Arbitrator in this case are not procedures applicable to the assignment of an employee. The Agency claims that the Arbitrator's remedy was based on her finding that the reassignment was punitive and unfair rather than on the enforcement of a procedure agreed to by the parties. Agency's Exceptions at 6. The Agency requests that the award be set aside. B. Union's Opposition The Union denies that the award violates section 7106(a)(2)(A) of the Statute and contends that the Agency must exercise its right to assign employees in accordance with properly negotiated procedures or appropriate arrangements under section 7106(b)(2) and (3). The Union notes that the Arbitrator determined that the Agency did not follow negotiated procedures in its reassignment of the grievant. Union's Opposition at 2. The Union contends that the Arbitrator's award merely enforces properly negotiated provisions of the parties' agreement. Id. IV. Discussion A. Preliminary Matters On July 19, 1988, after the parties filed their submissions in this case, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988). The court reversed the Authority's ruling that the Veterans Administration (VA) is obligated to bargain over conditions of employment for professional medical employees of the Department of Medicine and Surgery (DM&S) appointed under title 38 of the United States Code. On November 30, 1988, the Authority directed the parties to file supplemental briefs addressing the application, if any, of the court's decision in Colorado Nurses Association and subsequent Authority decisions involving title 38 DM&S professional medical employees to the resolution of this case. The Agency filed a supplemental brief reiterating the arguments in its exceptions to the Arbitrator's award. The Union filed a supplemental brief stating that the Colorado Nurses Association decision should have no effect on this case because the Agency has notified the Union of its intention to comply with collective bargaining agreements covering title 38 employees until further notice. B. Analysis In Colorado Nurses Association, the court held that the VA Administrator has "exclusive" authority to determine the conditions of employment of professional medical employees of DM&S. 851 F.2d at 1489. The court stated that, under 38 U.S.C. 4108, the authority of the VA Administrator "is exempt from all laws governing the terms and conditions of federal employment except as otherwise explicitly provided in the DM & S Statute(.)" Id. The court concluded that the VA had no obligation to bargain over, among other things, a proposal which "would establish a grievance and arbitration procedure for DM & S professional medical employees concerning conditions of employment(.)" Id. at 1487. Based on the court's decision in Colorado Nurses Association, the Authority found that the VA has no obligation to bargain over the conditions of employment of professional medical employees of the DM&S which are within the discretion of the VA Administrator under 38 U.S.C. 4108. See, for example, Veterans Administration, Washington, D.C., 33 FLRA 426 (1988); and Veterans Administration, Washington, D.C., 33 FLRA 600 (1988). We now find that the authority of the VA Administrator under 38 U.S.C. 4108 to establish conditions of employment of professional medical employees of DM&S is not subject to sections 7121 and 7122 of the Statute. Sections 7121 and 7122 govern, respectively, negotiated grievance and arbitration procedures and appeals from arbitration awards rendered pursuant to those procedures. We reach this conclusion for two reasons. First, as noted above, the court stated in Colorado Nurses Association that the authority of the VA Administrator under 38 U.S.C. 4108 is exempt from all laws governing the terms and conditions of federal employment "except as otherwise explicitly provided in the DM & S Statute(.)" 851 F.2d at 1489. Title 38 of the United States Code contains no exception for negotiated grievance and arbitration procedures under section 7121 of the Statute or for review of arbitration awards by the Authority under section 7122. Accordingly, the exercise of the VA Administrator's authority under 38 U.S.C. 4108 is not grievable and arbitrable under section 7121 of the Statute. Second, even assuming that the VA Administrator could exercise his authority under 38 U.S.C. 4108 by agreeing to arbitrate disputes over conditions of employment of professional medical employees of DM&S, any arbitration award issued pursuant to such an agreement would not be an award issued under section 7121 of the Statute. Therefore, that award would not be subject to review by the Authority under section 7122 of the Statute. Section 7121 of the Statute requires "any collective bargaining agreement" which is negotiated under the Statute to contain a negotiated grievance and arbitration procedure. Section 7122 of the Statute provides that either party to "arbitration under th(e) (Statute)" may file exceptions to arbitration awards with the Authority. Section 7103(a)(12) of the Statute defines "collective bargaining" as the performance of the obligation to (1) bargain over "conditions of employment"; and (2) execute, on request of either party, a written document incorporating any "collective bargaining agreement" reached as a result of that bargaining. A "collective bargaining agreement" results from the performance of the statutory obligation to bargain over conditions of employment. The VA is not obligated under the Statute to bargain over the conditions of employment of professional medical employees of DM&S, including the establishment of negotiated grievance and arbitration procedures. Therefore, these professional medical employees are not eligible for coverage by a "collective bargaining agreement" negotiated under the Statute. Because these employees are not eligible for coverage by a collective bargaining agreement negotiated under the Statute, they are not eligible for coverage by a negotiated grievance procedure under section 7121 of the Statute. Accordingly, the Authority does not have jurisdiction to review exceptions filed to arbitration awards involving conditions of employment of professional medical employees of the DM&S. The award in this case concerns a professional medical employee of the DM&S. Therefore, it is not an award which results from arbitration under the Statute. Accordingly, the Authority has no jurisdiction under section 7122(a) of the Statute to consider exceptions to this award. See American Federation of Government Employees Council, San Francisco Region and Department of Health and Human Services, Social Security Administration, 9 FLRA 161 (1982) (arbitration pursuant to a negotiated advisory hearing procedure was not binding arbitration within the meaning of section 7121 of the Statute and exceptions to that decision are not subject to Authority review under section 7122). V. Order The Agency's exceptions are dismissed. FOOTNOTES Footnote 1 In light of our determination, the Union's request that we take administrative notice of a decision of the Merit Systems Protection Board is moot.