U.S. Department of Veterans Affairs, Medical Center, Fresno, California and American Federation of Government Employees, Local 2654 (Authority decision, July 30, 1990)

Final FLRA decision. This is a final order dismissing exceptions to an arbitration award for lack of Authority jurisdiction under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116. The Authority found no unfair labor practice allegation in these exceptions.

Plain-English summary

AFGE Local 2654 challenged an arbitration award concerning a staff physician's proficiency rating at the Fresno VA Medical Center. The arbitrator had largely upheld the rating and rejected the physician's harassment claim, while ordering removal of one unsupported comment. The Authority did not review the merits of the union's challenge. It held that the physician was a professional medical employee of the VA's Department of Medicine and Surgery and that the resulting award was outside its statutory arbitration review jurisdiction. The union's exceptions were dismissed, leaving the arbitration award in place.

Decision snapshot

• Authority: Arbitration review jurisdiction under 5 U.S.C. §§ 7121 and 7122(a).
• Outcome: Union exceptions dismissed for lack of jurisdiction; award left in place.
• Key point: An award about this professional medical employee's conditions of employment was not reviewable under the federal labor statute's arbitration provisions.

Full text (FLRA public release)

[ v36 p476 ]
36:0476(58)AR

The decision of the Authority follows:

36 FLRA No. 58

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS
AFFAIRS

MEDICAL CENTER

FRESNO, CALIFORNIA

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 2654

(Union)

0-AR-1846

ORDER DISMISSING
EXCEPTIONS

July 30, 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 Wilma R. K. Rader filed by the Union 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 Agency filed an opposition to the Union's exceptions.

The Arbitrator found that the Agency properly evaluated the grievant, a staff physician, on his annual proficiency report and that the evaluation was not the result of harassment. The Arbitrator directed the Agency to delete one comment from the report, but in all other respects denied the grievance.

For the following reasons, we conclude that we are without jurisdiction to review the Arbitrator's award because it concerns the conditions of employment of a professional medical employee of the Agency's Department of Medicine and Surgery (DM&S). Accordingly, we will dismiss the Union's exceptions.

II. Background and Arbitrator's Award

The grievant, a staff physician in the Ambulatory Care Section of the Medical Center in Fresno, California, received a rating of "low satisfactory" in the category of "clinical competence" on his proficiency report covering the period from June 20, 1987, to June 20, 1988. A grievance over the rating was filed and was submitted to arbitration on the following issues:

1. Did the Employer properly evaluate [the grievant]
   concerning his clinical competence on his 1987-1988 Proficiency Report? If not, what shall be the remedy?

2. If the Employer did not properly evaluate [the
   grievant], was that evaluation the result of harassment? If so, what shall be the remedy?

Award at 1-2.

The Arbitrator found that the Agency properly evaluated the grievant. In particular, the Arbitrator found that the Agency's assertion that the grievant's clinical skills were "not always on the high end of the spectrum of clinical competence[]" was supported by a preponderance of the evidence. Id. at 12. In addition, although the Arbitrator found "ample evidence" of a "breakdown in communication" between the grievant and his supervisor, the Arbitrator concluded that there was "no convincing evidence of harassment." Id. at 9. Accordingly, except for one comment in the proficiency report, which the Arbitrator ordered the Agency to delete from the report because it was not supported by a preponderance of the evidence, the Arbitrator denied the grievance.

III. Positions of the Parties

The Union asserts that the Arbitrator's award is deficient because the Arbitrator failed to follow the proper legal standard in determining whether the Agency properly evaluated the grievant. The Union claims, in this regard, that the Arbitrator failed to determine whether the grievant's competence met the standard of other physicians with similar practices in the grievant's community. In addition, the Union asserts that the Arbitrator relied on "incompetent evidence" in concluding that there was no evidence of harassment of the grievant by the Agency.

The Agency argues that the Union's exceptions do not establish that the award is deficient. According to the Agency, the Union's exceptions constitute mere disagreement with the award and an attempt to relitigate the merits of the case.

IV. Analysis and Conclusions

In American Federation of Government Employees, Local 331 and Veterans Administration Medical Center, Perry Point, Maryland, 34 FLRA 788, 790-91 (1990), we concluded that we lacked jurisdiction to review exceptions filed to an arbitration award concerning the annual proficiency evaluation and rating of a staff psychiatrist. We noted that the authority of the Secretary of Veterans Affairs under 38 U.S.C. § 4108 to establish conditions of employment of professional medical employees of the DM&S is not subject to sections 7121 and 7122 of the Statute. We noted also that because professional medical employees of the DM&S are not eligible for coverage by a collective bargaining agreement negotiated under the Statute, even if the Secretary of Veterans Affairs agrees to arbitrate disputes over conditions of employment of professional employees of the DM&S, the resulting arbitration award is not an award issued pursuant to section 7121 of the Statute. As such an award is not issued pursuant to section 7121 of the Statute, we found that it is not reviewable by the Authority under section 7122 of the Statute. See also U.S. Department of Veterans Affairs Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA 131 (1990), petition for review filed sub nom. American Federation of Government Employees, Local 1963 v. FLRA, No. 90-2080 (C.D. Ill. March 5, 1990).

In this case, the grievant is a staff physician at the Medical Center. The grievant's proficiency report references "DM&S" regulations. In the absence of any evidence or assertion to the contrary, therefore, we conclude that the grievant is a professional medical employee of the DM&S.

As the award in this case concerns a professional medical employee of the DM&S, it is not an arbitration award resulting from arbitration under the Statute. Accordingly, the Authority has no jurisdiction under section 7122(a) of the Statute to consider the Union's exceptions to the award. We will, therefore, dismiss the exceptions. In so doing, however, we note that there is nothing in the record before us to indicate that the grievant was engaged in activities protected by the Statute or that the Union's allegation that the grievant's evaluation constituted harassment of the grievant included, or was intended to include, an allegation that the Agency's evaluation of the grievant constituted an unfair labor practice under section 7116(a)(1) or (2) of the Statute. Accordingly, we express no views on the extent, if any, to which an arbitration award concerning such a matter would be reviewable under section 7122 of the Statute.

V. Order

The Union's exceptions are dismissed.

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