Veterans Administration Medical Center, Lebanon, Pennsylvania and American Federation of Government Employees, Local 1966 (Authority decision, December 13, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing an exception to an arbitration award for lack of jurisdiction. The order concerns an arbitration award under 5 U.S.C. § 7122. Section 7123(a)(1) generally excludes such orders from judicial review unless they involve an unfair labor practice under § 7118. The decision identifies a different review route under § 7121(f) for covered personnel actions.

Plain-English summary

A physician at the Lebanon VA Medical Center was removed after a professional standards board found him unsatisfactory during a probationary appointment. The union grieved the removal and challenged the arbitrator's conclusion that the special VA probationary statute applied. The Authority did not decide whether the arbitrator was right about the removal. It held that the dispute concerned an action under another personnel system similar to a removal covered by 5 U.S.C. § 7512. Section 7122(a) barred an exception to that kind of arbitration award, so the Authority dismissed the union's filing for lack of jurisdiction.

Decision snapshot

• Authority: Arbitration review limits under 5 U.S.C. §§ 7121(f) and 7122(a).
• Outcome: Union's exception dismissed for lack of Authority jurisdiction.
• Key point: An arbitration award about a covered personnel removal under another personnel system cannot be challenged through an FLRA exception.

Full text (FLRA public release)

[ v16 p813 ]

16:0813(113)AR

The decision of the Authority follows:

16 FLRA No. 113

VETERANS ADMINISTRATION MEDICAL
CENTER, LEBANON, PENNSYLVANIA
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1966
Union

Case No. O-AR-771

ORDER DISMISSING EXCEPTION

This matter is before the Authority on an exception to the award of Peter Florey filed by the Union 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 Union's exception and the exception therefore must be dismissed.

The dispute in this matter concerns the termination of the grievant. The grievant was a physician in the agency's Department of Medicine & Surgery (DM&S) who had been appointed under 38 U.S.C. 4106(a), /1/ a section of the statutory provisions covering professional employees engaged in direct patient care, 38 U.S.C. chapter 73. A professional standards board found the grievant not fully qualified and satisfactory and consequently he was terminated as a probationary employee pursuant to 38 U.S.C. 4106(b). /2/ A grievance was filed and submitted to arbitration protesting the termination, primarily because the probationary review had not been completed before the expiration of the grievant's probationary period. The Arbitrator determined that section 4106(b) was applicable to the grievant and that consequently review of the grievant's termination as a probationary employee was precluded by law and the parties' collective bargaining agreement. In its exception the Union essentially contends that the award is deficient because the Arbitrator erred when he determined that section 4106(b) was applicable to the grievant.

Section 7122(a) of the Statute /3/ 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 /4/ include matters similar to those covered under 5 U.S.C. 7512 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 procedures. In terms of this case, the Authority finds that the dispute, the substance of the award resolving that dispute, and the substance of the Union's exception to the award all relate to the grievant's termination pursuant to section 4106(b), 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). See Veterans Administration Medical Center, Hines, Illinois and Illinois Nurses Association, Hines Local Unit, 16 FLRA No. 46 (1984); Veterans Administration Medical Center, Chillicothe, Ohio and American Federation of Government Employees, Local 1631, AFL-CIO, 15 FLRA No. 92 (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, the Authority is without jurisdiction to review the exception and accordingly it is dismissed.

Issued, Washington, D.C., December 13, 1984
/s/ Henry B. Frazier III
Henry B. Frazier III, Acting
Chairman
/s/ Ronald W. Haughton
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ Section 4106(a) provides:

(a) Appointments of physicians, dentists, podiatrists, optometrists, and nurses shall be made only after qualifications have been satisfactorily established in accordance with regulations prescribed by the Administrator, without regard to civil-service requirements.

/2/ Section 4106(b) provides:

(b) Such appointments as described in subsection (a) of this section shall be for a probationary period of two years and the record of each person serving under such appointment in the Medical, Dental, and Nursing Services shall be reviewed from time to time by a board, appointed in accordance with regulations of the Administrator, and if said board shall find him not fully qualified and satisfactory he shall be separated from the service.

/3/ 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).

/4/ 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.