70 FLRA No. 160                                                                                                                                                              

 

UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

DAYTON, OHIO

(Agency)

 

and

 

NATIONAL NURSES UNITED

(Union)

 

0‑AR‑5343

 

_____

 

ORDER DISMISSING EXCEPTIONS

 

August 31, 2018

 

_____

 

Before the Authority:  Colleen Duffy Kiko, Chairman, and Ernest DuBester and James T. Abbott, Members

(Member Abbott dissenting)

 

1. Statement of the Case

 

In this case, we find that we do not have jurisdiction over exceptions to an arbitration award concerning the termination of an employee appointed to the Agency under 38 U.S.C. § 7401(1), and we dismiss the exceptions.

 

2. Background and Arbitrator’s Award

 

The grievant is a registered nurse.  A patient’s wife reported that the grievant verbally abused the patient (the allegation).  An Agency Administrative Investigation Board (Investigation Board) investigated the allegation and recommended that the Agency terminate the grievant.  The Agency did so.  The Union filed a grievance alleging that the termination violated the parties’ collective‑bargaining agreement because the Agency lacked just cause.

 

On December 18, 2017, Arbitrator            Howard Tolley issued an award finding that the Agency failed to show that it had just cause for terminating the grievant.  As a remedy, the Arbitrator directed the Agency to reinstate the grievant, with backpay.

 

On January 16, 2018, the Agency filed exceptions to the award.  On February 20, 2018, the Union filed an opposition to the Agency’s exceptions.

 

3. Analysis and Conclusion:  The Authority does not have jurisdiction over the exceptions.

 

In its exceptions, the Agency argues that the award is based on nonfacts.^[1]  On January 26, 2018, the Authority’s Office of Case Intake and Publication issued an order directing the Agency to show cause why the Authority should not dismiss the exceptions for lack of jurisdiction because the award concerns a termination.

 

In response to the order, the Agency argues that the Authority must assert jurisdiction because the grievant cannot appeal her termination to the             Merit Systems Protection Board (MSPB).^[2]  However, for the reasons discussed below, the MSPB’s lack of jurisdiction^[3] does not mean that the Authority has jurisdiction.

 

As a registered nurse, the grievant was appointed under 38 U.S.C. § 7401(1).^[4]  Employees appointed under this provision (appointees) are treated differently than those appointed under other subsections of § 7401 and those appointed under title 5.  Simply put, appointees do not have the same protections afforded to other federal employees because Congress established an exclusive disciplinary system for appointees in 38 U.S.C. §§ 7461-7463.^[5]  The grievant’s termination is governed by 38 U.S.C. § 7463,^[6] under which an appointee may challenge an adverse action using either (a) the Agency’s internal grievance procedure,^[7] or (b) the parties’ negotiated grievance procedure.^[8]

 

Here, the grievant chose to challenge her termination using the parties’ negotiated grievance procedure, and her grievance went to arbitration.  Generally, a party may file exceptions to an arbitration award with the Authority.  However, the Authority lacks jurisdiction to review an arbitration award            “relating to a matter described in § 7121(f)” of the Federal Service Labor-Management Relations Statute (the Statute).^[9]  As relevant here, the matters described in § 7121(f) include adverse actions that:  (1) arise under “other personnel systems” outside title 5;^[10] and (2) are “similar to” serious adverse actions,^[11] such as removals, covered by 5 U.S.C. § 7512 (Chapter 75).^[12]  The legislative history of the Statute states that appointees like the grievant belong to an “other personnel system.”^[13]  The MSPB and federal courts also recognize that appointees are part of an “other personnel system.”^[14]  Further, the grievant’s termination is “similar to” a removal covered by Chapter 75.^[15]  Thus, because the grievant’s termination arises under an                       “other personnel system[]” and is “similar to” a      Chapter 75 adverse action,^[16] the only potential review would be “judicial review of [the Arbitrator’s] award . . . 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.”^[17]

 

Nevertheless, the Agency argues that § 7121(f) grants the Authority jurisdiction over individuals who are not covered by Chapter 75, such as appointees.^[18]  For support, the Agency cites precedent stating that the Authority’s jurisdictional analysis under § 7121(f)    “looks . . . to whether the claim involved in arbitration is one reviewable by the [MSPB], and on appeal, by the . . . Federal Circuit.”^[19]  However, the Agency misunderstands the Authority’s jurisdictional analysis.  The Authority has not held that, if the MSPB lacks jurisdiction over a claim, then the Authority must have jurisdiction over that claim.^[20] 

 

Because neither the Statute nor title 38 provides for further review by the Authority of arbitration awards involving an appointee’s termination, we lack jurisdiction over the Agency’s exceptions.^[21]

 

4. Order

 

We dismiss the Agency’s exceptions.

 

 

Member Abbott, dissenting:

 

                I cannot join my colleagues in their conclusion that the Authority does not have jurisdiction to resolve the exceptions before us.

 

                Without a doubt, Congress intended for Title 38 (professional medical) employees to be treated differently when it comes to appealing disciplinary actions concerning medical competency, negligence, etc.  However, I do not agree with my colleagues’ interpretation of § 7121(f) of the Federal Service Labor‑Management Relations Statute.1

 

Sentence 2 of § 7121(f) provides that       “matters similar to those covered under sections 4303 [performance-based actions] and 7512 [discipline as here] . . . which arise under other personnel systems            [e.g. Title 38] and which an aggrieved employee has raised under the negotiated grievance procedure [as here], judicial review of an arbitrator’s award may be obtained in the same manner and on the same basis as could be obtained . . . under applicable appellate procedures.”  The language in Sentence 2, which makes judicial review optional—“judicial review . . . may be obtained”—in disciplinary matters arising in “other personnel systems,” stands in stark contrast with the language in Sentence 1, which makes judicial review mandatory—             “judicial review shall apply”—in disciplinary matters challenged under a negotiated grievance procedure.  This distinction has to mean something.2  A plain reading indicates that in matters arising out of                       “other personnel systems,” judicial review is an option, not a requirement, as is the case of matters arising out of Sentence 1.

 

Thus, if judicial review is not a requirement then there is no other basis upon which to conclude that the Authority does not have jurisdiction to review an arbitrator’s award arising out of an                            “other personnel system” (other than the Authority’s own preference to not assume jurisdiction).  Therefore, while it may be true that “[t]he Authority has not held that, if the MSPB lacks jurisdiction over a claim, then the Authority must have jurisdiction,”3 that is not the proper question.  The ultimate question is whether the Authority does or does not have jurisdiction.

 

As explained above, there is no preemption of Authority jurisdiction to be found in Sentence 2 of            § 7121(f).  Here, we have but one more example where the Authority has made an incorrect (and long-standing) statutory interpretation, which is “support[ed]                [by nothing more] than the Authority’s own repetition of it.”4

 

The majority’s choice to not recognize our jurisdiction, under these circumstances, leaves the Agency with no avenue to challenge the Arbitrator’s purportedly erroneous determination that there was no “just cause” to discipline the grievant.  This is no small matter.  In past decisions, cited by my colleagues, the Authority has admitted to this unreasonable result.5  I do not believe that Congress intended to give arbitrators final, unreviewable say as to what discipline is and is not “just,” especially when that discipline arises out of      Title 38 discipline concerning medical competency, negligence, etc.

 

I would conclude that there is no statutory exclusion and that the Authority has jurisdiction.