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49:1511(136)AR - - VA Medical Center, Amarillo, TX and NFFE, Local 1138 - - 1994 FLRAdec AR - - v49 p1511

[ v49 p1511 ]
The decision of the Authority follows:

49 FLRA No. 136










LOCAL 1138





July 5, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Charles J. Morris filed by 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.(1) The Union filed a motion to stay this proceeding and the Agency filed an opposition to the motion.(2)

The Arbitrator sustained a grievance alleging that the Agency improperly denied an employee's request for Union representation during a Professional Standards Board review. For the reasons that follow, we find that the award is contrary to law. Accordingly, we will set aside the award.

II. Background and Arbitrator's Award

The Agency proposed to remove during her probationary period a registered nurse who had been appointed pursuant to 38 U.S.C. § 7403.(3) The nurse requested to be represented by the Union during her appearance before the Professional Standards Board (hereinafter the Board) and the Union requested official time for the representation. When the Agency denied the requests, the Union filed a grievance. The Agency denied the grievance on the grounds that the Chief Medical Director, on behalf of the Secretary of Veterans Affairs (hereinafter, the Secretary) had determined under 38 U.S.C. § 7422 that the matter was not grievable.(4)

The Union invoked arbitration over the matter,(5) and the Arbitrator framed the issues for resolution as follows:

1. Does the Arbitrator have jurisdiction over the issue of arbitrability?

2. If so, is the grievance arbitrable?

3. If so, must the Agency honor a nurse's request to be represented by a Union representative when she appears before a Professional Standards Board?

4. If so, is that Union representative entitled to official time when representing the nurse?

Award at 2-3.

The Arbitrator determined that he was authorized, under section 7121(a)(1) of the Statute,(6) to determine whether the grievance was arbitrable. The Arbitrator also determined that the grievance was arbitrable because, under section 7103(a)(C)(ii) of the Statute, the definition of "grievance" includes claimed violations of law, rule, regulation, or a collective bargaining agreement. The Arbitrator stated that, as "[b]oth statutory and collective bargaining provisions appl[ied] . . . [,] there [was] more than a mere presumption of arbitrability." Award at 20.

On the merits, the Arbitrator determined that, as the issue before him involved only whether the affected employee was entitled to Union representation during the Board proceeding, the matter did not involve professional conduct, competence, or peer review under 38 U.S.C. § 7422. In addition, the Arbitrator noted that the Agency proposed to remove the affected employee during her probationary period. According to the Arbitrator, "Congress did not want collectively bargained grievance procedures to apply to permanent or tenured [t]itle 38 employees[.]" Award at 21. However, the Arbitrator concluded that there was no statutory prohibition on application of such procedures to probationary employees. The Arbitrator concluded that the affected employee was entitled to Union representation under section 7114(a)(2)(B) of the Statute(7) and Article 20 of the parties agreement.(8) Thus, the Arbitrator sustained the grievance.

As his award, the Arbitrator directed the Agency to recognize that the affected employee "and other Title 38 probationary employees . . . are entitled to Union representation when appearing before a Professional Standards Board, and that such representation must be treated as official time under [the parties' agreement]." Id. at 27. The Arbitrator further directed the Agency to reimburse the Union for the "value of the official time . . . for its representation of [the employee]." Id. at 28.

III. Exceptions

The Agency asserts, as relevant here, that the award is contrary to law. In particular, the Agency contends that the Arbitrator lacked jurisdiction over the case because the Chief Medical Director determined that, under 38 U.S.C. § 7422, the grievance was not arbitrable.

The Agency also contends that the award is contrary to 38 U.S.C. § 7425(b).(9) In this connection, the Agency argues that the Arbitrator could not permit Union representation during a Board proceeding because the Secretary has issued a regulation precluding such representation.(10)

IV. Analysis and Conclusions

In Wisconsin Federation of Nurses and Health Professionals, Veterans Administration Staff Nurses Council, Local 5032 and U.S. Department of Veterans Affairs, Clement J. Zablocki Medical Center, Milwaukee, Wisconsin, 47 FLRA 910 (1993), petition for review filed, No. 93-1496 (D.C. Cir. Aug. 13, 1993), the Authority dismissed a petition for review of negotiability issues involving a provision addressing professional conduct and competence of employees appointed under title 38. The Authority concluded that, under 38 U.S.C. § 7422(b), such matters are not subject to collective bargaining. The Authority also concluded that, under 38 U.S.C. § 7422(d), the Secretary has exclusive authority to determine whether a proposal concerns such matters. Similarly, in Veteran Administration, Long Beach California, 48 FLRA 970, 975 (1993) (VA, Long Beach), the Authority concluded that 38 U.S.C. § 7422(b) "specifically excludes matters concerning professional conduct or competence, [and] peer review . . . from coverage under negotiated grievance procedures." The Authority concluded further that the Secretary has exclusive authority under 38 U.S.C. § 7422(d) to determine whether a grievance involves such matters and that, as the Secretary had determined that the grievance involved in VA, Long Beach concerned professional conduct and competence, the Authority was "required by law to treat the grievance as nonarbitrable." VA, Long Beach, 48 FLRA at 976.

In this case, the Agency determined, pursuant to 38 U.S.C. § 7422(d), that the grievance concerned the peer review process and, therefore, was not arbitrable. The Agency's determination is not reviewable. Consequently, the Arbitrator's award that the grievance is arbitrable is inconsistent with law and must be set aside.

V. Decision

The Arbitrator's award is set aside.

(If blank, the decision does not have footnotes.)

1. The Union filed an opposition to the Agency's exceptions. However, as the opposition was not timely filed, it has not been considered in this decision.

2. The Union requests that the Authority stay proceedings until the U.S. Court of Appeals for the Fifth Circuit reviews the Authority's decision in Department of Veterans Affairs Medical Center, Jackson, Mississippi, 48 FLRA 787 (1993), decision on reconsideration, 49 FLRA 171 (1994)(VAMC, Jackson), reconsideration denied, 49 FLRA 701 (1994), petition for review filed, No. 94-40347 (5th Cir. Apr. 26, 1994). However, as we conclude that it would not effectuate the purposes and policies of the Statute to stay these proceedings, we deny the Union's request. See National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 28 FLRA 1052 (1987).

3. 38 U.S.C. § 7403 provides, as relevant here:

(a)(1) Appointments . . . of health-care professionals . . . may be made only after qualifications have been satisfactorily established in accordance with regulations prescribed by the Secretary, without regard to civil-service requirements.

. . . .

(b)(2) The record of each person serving under such an appointment . . . shall be reviewed from time to time by a board, appointed in accordance with regulations of the Secretary. . . .

4. 38 U.S.C. § 7422 provides, in pertinent part:

(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 . . . .

(b) Such collective bargaining . . . 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 . . . .

. . . .

(d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, [or] (2) peer review . . . shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency. . . .

5. The Agency notified the Arbitrator that it would not participate in a hearing because the Chief Medical Director, on behalf of the Secretary, had determined that the disputed issue concerned professional conduct and peer review, within the meaning of 38 U.S.C. § 7422. However, the Arbitrator "fully considered the Agency's [written] views and legal positions" and, as the Union waived its right to a hearing, decided the case based on the parties' written submissions. Award at 3.

6. Section 7121(a)(1) provides, as relevant here, that collective bargaining agreements negotiated under the Statute "shall provide procedures for the settlement of grievances, including questions of arbitrability. . . ."

7. Section 7114(a)(2)(B) of the Statute provides that a union shall be given the opportunity to be represented at:

(B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if--

(i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and

(ii) the employee requests representation.

8. Article 20, Section 6, of the parties' agreement provides:

An employee may be represented by the Union when appearing before a professional standards board to contest a proposed separation during the probationary period.

Award at 9.

9. 38 U.S.C. § 7425(b) provides as follows:

Notwithstanding any other provision of law, no provision of title 5 or any other law pertaining to the civil service system which is inconsistent with any provision of section 7306 of this title or this chapter shall be considered to supersede, override, or otherwise modify such provision of that section or this chapter except to the extent that such provision of title 5 or of such other law specifically provides, by specific reference to a provision of this chapter, or such provision to be superseded, overridden, or otherwise modified.

10. The Agency relies on VA Manual MP-5, Part II, section 4.06(4), which provides that a probationary employee in a Board proceeding "has no entitlement to legal or other representation." Exceptions at 8.