National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO (Union) and United States Department of Labor (Agency)

 



[ v08 p245 ]
08:0245(52)AR
The decision of the Authority follows:


 8 FLRA No. 52
 
 NATIONAL COUNCIL OF
 FIELD LABOR LOCALS
 OF THE AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES,
 AFL-CIO
 Union
 
 and
 
 UNITED STATES DEPARTMENT
 OF LABOR
 Agency
 
                                            Case No. O-AR-190
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR MARK SANTER FILED BY THE UNION UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. SEC.
 7122(A)) (THE STATUTE) AND PART 2425 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR PART 2425).  THE AGENCY FILED AN OPPOSITION AND THE
 OFFICE OF PERSONNEL MANAGEMENT (OPM) FILED A BRIEF AS AN AMICUS CURIAE.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN THE GRIEVANT WAS TERMINATED DURING HIS PROBATIONARY PERIOD.  A
 GRIEVANCE WAS FILED DISPUTING THE TERMINATION AND REQUESTING A STAY OF
 THE TERMINATION.  ALTHOUGH THE STAY WAS INITIALLY GRANTED, IT WAS
 SUBSEQUENTLY REVOKED.  THE GRIEVANCE WAS NOT RESOLVED AND WAS ULTIMATELY
 SUBMITTED TO ARBITRATION.
 
    ON THE MERITS OF THE GRIEVANCE, THE ARBITRATOR STATED THE ISSUES
 BEFORE HIM AS FOLLOWS:
 
    1.  DID MANAGEMENT VIOLATE THE AGREEMENT BY NOT STAYING THE ACTION
 AFTER NOTICE THAT THE
 
    ACTION HAD BEEN MADE THE SUBJECT OF A GRIEVANCE?
 
    2.  AND, IF SO, DID THE EMPLOYEE HAVE A FULL AND FAIR TRIAL PRIOR TO
 HIS SEPARATION?
 
    3.  IF NOT, WHAT IS THE REMEDY?  WITH RESPECT TO THE STAY ISSUE, THE
 ARBITRATOR RULED THAT MANAGEMENT HAD VIOLATED THE AGREEMENT BY NOT
 STAYING THE ACTION, BUT HE CONCLUDED THAT NO "SUBSTANTIVE" REMEDY WAS
 AVAILABLE.  WITH RESPECT TO THE SECOND ISSUE, THE ARBITRATOR RULED THAT
 THE GRIEVANT HAD BEEN GRANTED A FULL AND FAIR TRIAL PRIOR TO HIS
 SEPARATION IN ACCORDANCE WITH THE PROVISIONS OF FEDERAL PERSONNEL MANUAL
 CHAPTER 315, SUBCHAPTER 8, CONCERNING THE EVALUATION AND SEPARATION OF
 PROBATIONARY EMPLOYEES.
 
    IN ITS FIRST EXCEPTION THE UNION CONTENDS THAT BY FINDING THAT THE
 GRIEVANT WAS GIVEN A FULL AND FAIR TRIAL, THE AWARD VIOLATES FPM CHAPTER
 315, SUBCHAPTER 8.  IN SUPPORT OF THIS EXCEPTION, THE UNION MAINTAINS
 THAT PRIOR TO HIS TERMINATION THE GRIEVANT WAS INFORMED THAT HIS
 PERFORMANCE WAS NOT OF AN ACCEPTABLE LEVEL OF COMPETENCE TO WARRANT A
 WITHIN-GRADE INCREASE AND THAT HE HAD 100 CALENDAR DAYS TO MEET THE
 ESTABLISHED STANDARDS.  STATING THAT APPROXIMATELY ONE MONTH LATER THE
 GRIEVANT WAS NOTIFIED THAT HE WAS TO BE TERMINATED, THE UNION ARGUES
 THAT THE GRIEVANT'S TERMINATION WAS PREMATURE AND THAT CONSEQUENTLY THE
 ARBITRATOR'S FINDING THAT THE GRIEVANT WAS GIVEN A FULL AND FAIR TRIAL
 VIOLATES FPM CHAPTER 315, SUBCHAPTER 8.
 
    THIS EXCEPTION FAILS TO PROVIDE A BASIS FOR FINDING THE AWARD
 DEFICIENT.  AS HAS BEEN NOTED, THE ARBITRATOR SPECIFICALLY ADDRESSED THE
 FPM REQUIREMENTS FOR THE SEPARATION OF A PROBATIONARY EMPLOYEE.  HE
 NOTED IN PARTICULAR THAT SUBCHAPTER 8-4 OF FPM CHAPTER 315 PROVIDES THAT
 A DECISION TO TERMINATE A PROBATIONARY EMPLOYEE SHOULD NOT BE MADE UNTIL
 THE EMPLOYEE HAS A FULL AND FAIR TRIAL, BUT ALSO STATES THAT THE LENGTH
 OF SUCH TRIAL CANNOT BE DESCRIBED IN TERMS OF A CERTAIN PERIOD OF TIME.
 INSTEAD, THE PERIOD IS DESCRIBED AS WHATEVER TIME IT TAKES TO CAREFULLY
 APPRAISE THE EMPLOYEE'S POSTAPPOINTMENT PERFORMANCE AND CONDUCT AND TO
 ARRIVE AT A CONSIDERED JUDGMENT AS TO WHETHER THE EMPLOYEE SHOULD BE
 RETAINED.  WITH SPECIFIC REFERENCES TO THESE PROVISIONS, THE ARBITRATOR
 EXPRESSLY FOUND THAT IN EVALUATING THE GRIEVANT'S PERFORMANCE THE
 ACTIVITY HAD ACCORDED HIM A FULL AND FAIR TRIAL CONSISTENT WITH FPM
 CHAPTER 315, SUBCHAPTER 8.  THE UNION'S ASSERTIONS FAIL TO DEMONSTRATE
 OTHERWISE.  RATHER, ITS ASSERTIONS ARE FOUNDED ON MATTERS RELATING
 SOLELY TO WITHIN-GRADE INCREASES WHICH ARE WHOLLY UNRELATED TO THE
 SEPARATION OF PROBATIONARY EMPLOYEES AND IN NO MANNER ESTABLISH THAT THE
 ARBITRATOR'S FINDING THAT THE GRIEVANT WAS ACCORDED A FULL AND FAIR
 TRIAL PRIOR TO HIS SEPARATION IS CONTRARY TO THE FPM.  CONSEQUENTLY, THE
 UNION'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE ARBITRATOR'S AWARD
 DEFICIENT.
 
    IN ITS SECOND EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR
 EXCEEDED HIS AUTHORITY WHEN HE FAILED TO AWARD A REMEDY AFTER FINDING
 THAT THE ACTIVITY HAD VIOLATED THE PARTIES' AGREEMENT BY NOT STAYING THE
 GRIEVANT'S SEPARATION.  IN SUPPORT OF THIS EXCEPTION, THE UNION
 MAINTAINS THAT "(A)S A MINIMUM" UNDER THE PARTIES' AGREEMENT, THE
 GRIEVANT WAS "ENTITLED TO RECEIVE RETROACTIVE BACKPAY (FOR THE PERIOD
 DURING WHICH THE GRIEVANT'S SEPARATION SHOULD HAVE BEEN STAYED)."
 THEREFORE, THE UNION ARGUES THAT THE ARBITRATOR EXCEEDED HIS AUTHORITY
 BY NOT ENFORCING THE PARTIES' AGREEMENT IN THIS RESPECT.
 
    THIS EXCEPTION FAILS TO PROVIDE A BASIS FOR FINDING THE AWARD
 DEFICIENT.  DESPITE ITS ASSERTIONS THAT THE AGREEMENT MANDATED SUCH A
 REMEDY, THE UNION HAS NOT ESTABLISHED THAT THE PARTIES' AGREEMENT
 REQUIRED "(A)S A MINIMUM , . . RETROACTIVE BACKPAY." INSTEAD, THE
 UNION'S EXCEPTION CONSTITUTES AN ATTEMPT TO HAVE ITS OWN REMEDY
 SUBSTITUTED FOR AND PREVAIL OVER THE ARBITRATOR'S DETERMINATION THAT NO
 SUBSTANTIVE REMEDY WAS APPROPRIATE AND THEREFORE NO BASIS HAS BEEN
 PROVIDED FOR FINDING THE AWARD DEFICIENT UNDER THE STATUTE.  SEE
 VETERANS ADMINISTRATION HOSPITAL, NEWINGTON, CONNECTICUT AND NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLO