Corps of Engineers, Kansas City District (Activity) and National Federation of Federal Employees, Local 29 (Union)
[ v08 p86]
The decision of the Authority follows:
8 FLRA NO. 14
CORPS OF ENGINEERS, KANSAS CITY DISTRICT Activity and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union Case No. 0-AR-118
This matter is before the Authority on an exception to the award of Arbitrator Henry M. Grether filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (5 U.S.C. 7122(a)).
According to the Arbitrator, this matter concerns the removal of the grievant from his position as a clerk typist during his probationary period for unacceptable work performance. The grievant filed a grievance protesting his removal and claiming that he was not given a full and fair trial period prior to his separation and that he had been given no reason to believe that his work performance was unsatisfactory. The grievance was ultimately submitted to arbitration with the Arbitrator stating the issues as follows:
(1) Is this grievance grievable/arbitrable under the terms of the Agreement as those terms are affected by controlling law?
(2) Was the grievant given a full and fair trial period prior to his separation?
The Arbitrator determined that the first question to be decided was whether the grievance was grievable and arbitrable. Concluding that grievances over management's decision as to whether to retain a probationary employee had been excluded by law from coverage by a negotiated grievance procedure, the Arbitrator ruled that the grievance was not grievable or arbitrable and that therefore he lacked jurisdiction to decide the merits of the grievance. Specifically, the Arbitrator determined that
the probationary period, including the discretionary decision of whether to continue the probationer's employment beyond that period, comes within the statutory exclusionary language of 5 U.S.C. [ v8 p86 ] 7121(c)(4). 1 This is so because it falls within the meaning of the phrase, "any examination, certification, or appointment." (Footnote added.)
Accordingly, the Arbitrator's award was as follows:
Without deciding the merits, this grievance is denied on the grounds that it is not grievable/arbitrable.
The Union has filed an exception to the Arbitrator's award under section 7122(a) of the Federal Service Labor - Management Relations Statute 2 and part 2425 of the Authority's rules and regulations, 5 CFR part 2425, contending that the award is contrary to section 7121(c)(4) of the Statute. The Agency filed an opposition. In addition, the Office of Personnel Management, the National Treasury Employees Union, and the American Federation of Government Employees each filed amicus curiae briefs pursuant to section 2429.9 of the Authority's rules and regulations.
The question before the Authority is whether, on the basis of the Union's exception, the Arbitrator's award is deficient because it is contrary to any law, rule, or regulation, or is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations cases. [ v8 p87 ]
The Union's exception that the award is contrary to section 7121(c)(4) of the Statute states a ground upon which the Authority will find an award deficient under section 7122(a)(1) of the Statute. As was noted, the Arbitrator determined that grievances over management's decision as to whether to retain a probationary employee had been excluded from the permissible coverage of a negotiated grievance procedure by the language of section 7121(c)(4) of the Statute which excludes grievances concerning "any examination, certification, or appointment." On this basis alone, he ruled that he had no jurisdiction to hear the merits of the grievance and accordingly denied the grievance as not grievable or arbitrable. Thus, this award bears no material difference from the award reviewed by the Authority in National Council of Field Labor Locals of the American Federation of Government Employees, AFL - CIO and United States Department of Labor, 4 FLRA No. 51 (1980). In that case the Authority found deficient as contrary to section 7121 of the Statute the arbitrator's award which ruled that the language of section 7121(c)(4), excluding grievances concerning "any examination, certification, or appointment," proscribes the use of a negotiated grievance procedure and arbitration to grieve the separation of a probationary employee. In setting aside the award in that case, the Authority considered and rejected arguments identical to those made in this case by the Agency and the Office of Personnel Management and determined that
nothing in the language of section 7121(c)(4), or in the legislative history of the Statute, (indicates) that Congress intended to exclude grievances or arbitration over the termination of probationers when it excluded grievances respecting "any examination, certification, or appointment" from the scope of permiss