VA Medical Center Hines and Illinois Nurses Association (Authority decision, October 22, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing exceptions to an arbitration award. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to an Authority order involving an arbitration award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

An arbitrator reduced a VA nurse's removal to a 90-day suspension and later awarded attorney fees. The VA challenged the supplemental fee award. The Authority had dismissed exceptions to the original removal award for lack of jurisdiction because the matter fell under a different review route for certain personnel actions. It held that the related fee award was not separate from that original matter, so it also lacked jurisdiction over the new exceptions and dismissed them.

Decision snapshot

• Authority: Arbitration review limits under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Agency's exceptions to attorney fee award dismissed for lack of jurisdiction.
• Key point: A supplemental fee award tied to a removal case follows the same jurisdictional route as the original award.

Full text (FLRA public release)

[ v20 p510 ]

20:0510(61)AR

The decision of the Authority follows:

20 FLRA No. 61

VETERANS ADMINISTRATION
MEDICAL CENTER,
HINES, ILLINOIS
Activity

and

ILLINOIS NURSES ASSOCIATION,
HINES LOCAL UNIT
Union

Case No. 0-AR-1010

ORDER DISMISSING EXCEPTIONS

This matter is before the Authority on exceptions to a supplemental award of Arbitrator Aaron S. Wolff 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 exceptions and the exceptions therefore must be dismissed.

In his original award, the Arbitrator converted the grievant's removal for misconduct to a suspension for 90 days. The grievant, a nurse in the Agency's Department of Medicine and Surgery, was appointed under 38 U.S.C.chapter 73. The Agency's exceptions to the original award were dismissed by the Authority for lack of jurisdiction under section 7122(a) of the Statute /1/ on the ground that the award related to a matter described in section 7121(f) of the Statute /2/ because it related to a matter similar to those covered under 5 U.S.C. 7512, i.e., a removal, and had arisen under another personnel system. Veterans Administration Medical Center, Hines, Illinois and Illinois Nurses Association, Hines Local Unit, 16 FLRA No. 46(1984). In his supplemental award, to which the Agency has filed the instant exceptions, the Arbitrator awarded the grievant reasonable attorney fees related to the removal action.

With respect to jurisdiction under section 7122(a), the Authority has previously indicated that an award of attorney fees by an arbitrator in supplement to the arbitrator's award relating to a matter described in section 7121(f) is not separate and distinct from the award directly resolving the section 7121(f) matter. Thus, the Authority dismissed the exceptions to the supplemental award of attorney fees finding that such award related to a matter described in section 7121(f) within the meaning of section 7122(a) of the Statute. National Weather Service Employees Organization (MEBA, AFL-CIO) and National Weather Service, Western Region, 17 FLRA No. 91(1985), reconsideration denied, June 26, 1985. In terms of this case, the Authority similarly finds that the supplemental award of attorney fees is not separate and distinct from the original award and that therefore the supplemental award of attorney fees likewise relates to a matter described in section 7121(f) within the meaning of section 7122(a) of the Statute. Consequently, the Authority is without jurisdiction to review the Agency's exceptions and accordingly, and apart from other considerations, they are dismissed.

Issued, Washington, D.C., October 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ 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).

/2/ 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.