09:1075(154)AR - VA Hospital and AFGE Local No. 228l -- 1982 FLRAdec AR



[ v09 p1075 ]
09:1075(154)AR
The decision of the Authority follows:


 9 FLRA No. 154
 
 VETERANS ADMINISTRATION
 HOSPITAL
 Activity
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL NO. 2281
 Union
 
                                            Case No. O-AR-127
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR PRESTON J. MOORE 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 DID NOT
 FILE AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE GRIEVANCE IN THIS MATTER
 AROSE WHEN THE GRIEVANT WAS TERMINATED FROM EMPLOYMENT DURING HER
 PROBATIONARY PERIOD FOR TAKING EXCESSIVE LEAVE.  THE GRIEVANCE WAS
 ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR STATED THE ISSUES AS FOLLOWS:
 
    NO. 1.  IS THE MATTER ARBITRABLE?
 
    NO. 2.  IF SO, DID THE HOSPITAL VIOLATE THE AGREEMENT BY TERMINATING
 A PROBATIONARY EMPLOYEE WITHOUT ESTABLISHING JUST CAUSE?  IF SO, WHAT IS
 THE PROPER REMEDY?
 
    IN HIS AWARD, THE ARBITRATOR FIRST RULED THAT THE MATTER WAS
 ARBITRABLE ON THE BASIS THAT CERTAIN PROCEDURAL RIGHTS WITH RESPECT TO
 REMOVALS ARE GRANTED PROBATIONERS BY THE FEDERAL PERSONNEL MANUAL AND
 THAT "SUCH RIGHTS ARE ARBITRABLE." HOWEVER, WITH RESPECT TO THE MERITS
 OF THE GRIEVANCE, AND RESPONDING TO THE UNION'S ARGUMENT THAT THE
 DISCHARGE HAD NOT BEEN FOR "JUST CAUSE" AS REQUIRED BY THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT, THE ARBITRATOR FOUND THAT "BEING A
 PROBATIONARY EMPLOYEE, THE GRIEVANT DOES NOT HAVE THE RIGHT TO THE
 GRIEVANCE PROCEDURE" AND THUS DOES NOT HAVE THE RIGHT TO HAVE HER
 REMOVAL ADJUDICATED UNDER THE JUST CAUSE PROVISIONS OF THE AGREEMENT.
 HE BASED THIS FINDING ON SECTION 7121(C)(4) OF THE STATUTE WHICH STATES:
 
    (C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
 RESPECT TO ANY GRIEVANCE CONCERNING --
 
   *          *          *          *
 
 
    (4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT(.)
 
    NOTING THAT THE PROBATIONARY PERIOD IS CONSIDERED TO BE A PART OF THE
 EXAMINING PROCESS UNDER PROVISIONS OF THE FEDERAL PERSONNEL MANUAL, /1/
 THE ARBITRATOR FOUND THAT THE ACTIVITY HAD THE RIGHT TO TERMINATE A
 PROBATIONARY EMPLOYEE SUCH AS THE GRIEVANT "WITHOUT BEING REQUIRED TO
 ESTABLISH JUST CAUSE UNDER THE GRIEVANCE PROCEDURE." HE ALSO FOUND THAT
 "ALTHOUGH A PROBATIONARY EMPLOYEE NEED NOT BE TERMINATED FOR JUST CAUSE,
 THE EMPLOYER MUST ESTABLISH COMPLIANCE WITH THE FEDERAL PERSONNEL MANUAL
 AND THE DIRECTIVES OF THE OFFICE OF PERSONNEL MANAGEMENT." THE
 ARBITRATOR CONCLUDED THAT THE PROCEDURAL ASPECTS OF THE GRIEVANT'S
 TERMINATION WERE IN COMPLIANCE WITH THOSE AUTHORITIES AND THAT THERE WAS
 SUFFICIENT REASON TO FIND THAT HER TAKING OF EXCESSIVE LEAVE MADE HER
 NOT QUALIFIED FOR CONTINUED SERVICE.  HE THEREFORE DENIED THE GRIEVANCE.
 
    THE UNION, IN ITS EXCEPTION, CONTENDS, INTER ALIA, THAT THE AWARD IS
 DEFICIENT BECAUSE IT IS CONTRARY TO SECTION 7121(C)(4) OF THE STATUTE.
 
    THE AUTHORITY AGREES THAT THE AWARD IN THIS CASE IS DEFICIENT.  THE
 ARBITRATOR DETERMINED THAT THE GRIEVANT WAS PRECLUDED FROM GRIEVING THE
 "JUST CAUSE" OF HER TERMINATION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE
 SOLELY BY THE LANGUAGE IN SECTION 7121(C)(4) OF THE STATUTE WHICH
 EXCLUDES GRIEVANCES CONCERNING "ANY EXAMINATION, CERTIFICATION, OR
 APPOINTMENT." IN THIS RESPECT, THE AWARD IS SIMILAR TO 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
 ARBITRATOR'S AWARD WHICH HELD 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.  THE
 AUTHORITY 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 PERMISSIBLE COVERAGE
 BY NEGOTIATED GRIEVANCE
 
    PROCEDURES.  TO THE CONTRARY, THE STATUTE IN NO WAY MANDATES LESSER
 TREATMENT FOR PROBATIONERS
 
    THAN FOR OTHER EMPLOYEES.
 
    THUS, WHILE THE PARTIES MAY MUTUALLY AGREE TO LIMIT THE SCOPE OF
 THEIR NEGOTIATED GRIEVANCE PROCEDURE OR OTHER PROVISIONS OF THEIR
 AGREEMENT AS THEY MAY APPLY TO PROBATIONERS, SUCH LIMITATIONS ARE NOT
 IMPOSED STATUTORILY BY SECTION 7121(C)(4) OF THE STATUTE.  SEE NATIONAL
 COUNCIL OF FIELD LABOR LOCALS AT 7.  /2/ THEREFORE, TO THE EXTENT THAT
 IT DENIES THE GRIEVANCE ON THE BASIS THAT SECTION 7121(C)(4) OF THE
 STATUTE PRECLUDES PROBATIONERS FROM GRIEVING THE JUST CAUSE OF A REMOVAL
 THROUGH A NEGOTIATED GRIEVANCE PROCEDURE, THE AWARD IS DEFICIENT AS
 CONTRARY TO SECTION 7121.
 
    ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
 2425.4 OF THE AUTHORITY'S RULES AND REGULATIONS, THE ARBITRATOR'S AWARD,
 TO THE EXTENT INDICATED ABOVE, IS SET ASIDE.  /3/
 
    ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    LEON B. APPLEWHAITE, MEMBER, DISSENTING:
 
    I RESPECTFULLY DISSENT IN THE ULTIMATE DECISION REACHED BY MY FELLOW
 MEMBERS IN THIS CASE.  NOTHING IN THE LANGUAGE OF SECTION 7121(C)(4) OR
 IN THE LEGISLATIVE HISTORY OF THE STATUTE INDICATES THAT CONGRESS
 INTENDED TO INCLUDE ANY GRIEVANCE RELATING TO THE MERITS OF THE
 TERMINATION OF PROBATIONARY EMPLOYEES, EITHER THROUGH THE NEGOTIATED
 GRIEVANCE PROCEDURE OR ARBITRATION.  THE STATUTE SPECIFICALLY EXCLUDES
 GRIEVANCES RESPECTING "ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT"
 FROM THE SCOPE OF PERMISSIBLE COVERAGE BY NEGOTIATED GRIEVANCE
 PROCEDURES.  THE ARBITRATOR, IN CONSIDERING THE GRIEVANCE OF A
 PROBATIONARY EMPLOYEE, MUST BE LIMITED TO PROCEDURAL ISSUES AND NOT THE
 SUBSTANTIVE MERITS OF THE GRIEVANCE.
 
    ARBITRATION OF GRIEVANCES INVOLVING PROBATIONARY EMPLOYEES ON
 SUBSTANTIVE ISSUES APPEARS TO BE CLEARLY INCONSISTENT WITH THE INTENT OF
 CONGRESS AS REFLECTED IN THE STATUTORY SCHEME.  TENURED EMPLOYEES ARE
 PERMITTED THE OPTION, UNDER SECTION 7121 OF THE STATUTE, TO ACHIEVE,
 THROUGH A NEGOTIATED GRIEVANCE PROCEDURE, AN EQUIVALENT MEASURE OF
 PROTECTION AS THAT WHICH CONGRESS HAS GRANTED THEM IN A STATUTORY
 APPEALS PROCEDURE OR UNDER TITLE VII OF THE CIVIL SERVICE REFORM ACT
 (CSRA).
 
    IN THE MAJORITY DECISION, MY FELLOW MEMBERS ARE, IN FACT, PROVIDING
 PROBATIONARY EMPLOYEES WITH NEGOTIATED AND STATUTORY PROTECTION OF THE
 SCOPE EQUIVALENT TO THAT WHICH CONGRESS DELIBERATELY DENIED THEM UNDER
 THE CSRA.  SUCH PROTECTION WAS GRANTED TO TENURED COMPETITIVE /4/
 EMPLOYEES BY CONGRESSIONAL AFFIRMATION OF THE PRESIDENTIAL INTENT.
 
    MANAGERS ARE WEAKENED IN THEIR ABILITY TO REWARD THE BEST AND MOST
 TALENTED PEOPLE -- AND
 
    TO FIRE THOSE FEW WHO ARE UNWILLING TO WORK.
 
    THE SAD FACT IS THAT IT IS EASIER TO PROMOTE AND TRANSFER INCOMPETENT
 EMPLOYEES THAN TO GET
 
    RID OF THEM.  A SPEEDIER AND FAIRER DISCIPLINARY SYSTEM WILL CREATE A
 CLIMATE IN WHICH
 
    MANAGERS MAY DISCHARGE NON-PERFORMING EMPLOYEES-- USING DUE PROCESS .
 . . .
 
    THE LEGISLATION I AM PROPOSING TODAY WOULD GIVE ALL COMPETITIVE
 EMPLOYEES A STATUTORY RIGHT
 
    OF APPEAL.
 
    PRESIDENT CARTER IN HIS SUBMISSION OF THE CSRA TO CONGRESS CLEARLY
 STATED THAT THE PURPOSES OF THE ACT WERE TO ATTAIN MORE EFFECTIVE
 GOVERNMENT OPERATIONS, EFFICIENCY OF GOVERNMENT, AND LESS CUMBERSOME
 AND
 BURDENSOME PROCEDURES FOR THE REMOVAL OF UNSATISFACTORY EMPLOYEES.
 
    (T)HE SYSTEM HAS SERIOUS DIFFICULTIES.  IT HAS BECOME A BUREAUCRATIC
 MAZE WHICH NEGLECTS
 
    MERIT, TOLERATES POOR PERFORMANCE, PERMITS ABUSE OF LEGITIMATE
 EMPLOYEE RIGHTS, AND MIRES
 
    EVERY PERSONNEL ACTION IN RED TAPE, DELAY AND CONFUSION.
 
    IT IS APPARENT THAT IN THE ENACTMENT OF THE CSRA CONGRESS INTENDED
 MANAGEMENT TO RETAIN THE FLEXIBILITY TO EXPEDITIOUSLY TERMINATE
 EMPLOYEES WHOSE PERFORMANCE OR CONDUCT WAS NOT ACCEPTABLE.  IN THIS
 REGARD, CONGRESS EXPRESSLY DENIED PROBATIONARY EMPLOYEES SIGNIFICANT
 PROTECTIONS WHICH ARE GRANTED TO NON-PROBATIONARY EMPLOYEES, I.E.,
 TENURED EMPLOYEES.  THIS WAS DONE IN COMPARABLE PROVISIONS FOR OTHER
 AGENCIES CREATED WITHIN THE SAME SPECTRUM OF THE CSRA, THAT IS, FOR THE
 MERIT SYSTEMS PROTECTION BOARD (MSPB) AND EQUAL EMPLOYMENT OPPORTUNITY
 COMMISSION (EEOC).  UNDER THOSE PROVISIONS PROBATIONARY EMPLOYEES ARE
 EXCLUDED FROM THE COVERAGE OF STATUTORY APPEAL PROCEDURES THROUGH
 WHICH
 NON-PROBATIONERS MAY APPEAL REMOVALS OR REDUCTIONS IN GRADE FOR
 UNACCEPTABLE PERFORMANCE, /5/ AND SERIOUS ADVERSE ACTIONS /6/ TO THE
 MSPB.
 
    IN SECTIONS 4303 AND 7513 OF THE CSRA, CONGRESS SPECIFICALLY
 ESTABLISHED STATUTORY PROCEDURES FOR TENURED EMPLOYEES TO APPEAL
 VARIOUS
 ACTIONS TO THE MSPB INCLUDING, AS HERE RELEVANT, TERMINATIONS BASED ON
 EITHER UNACCEPTABLE PERFORMANCE OR CONDUCT.  FURTHER, CONGRESS PROVIDED
 IN SECTION 7121 OF THE STATUTE, THAT SUCH TENURED EMPLOYEES, WHO ARE
 COVERED BY SECTIONS 4303 AND 7511, AT THEIR OPTION CAN PURSUE AND APPEAL
 THE ADVERSE ACTION THROUGH A NEGOTIATED GRIEVANCE PROCEDURE IF ONE IS
 AVAILABLE.  CONGRESS EXPRESSLY PROVIDED THAT IF AN EMPLOYEE OPTED FOR
 THE NEGOTIATED GRIEVANCE , PROCEDURE, /7/ THE ARBITRATOR MUST APPLY THE
 SAME BURDEN OF PROOF AND STANDARD OF REVIEW AS REQUIRED OF THE MSPB.
 THE STATUTORY APPEAL PROCEDURES ARE ONLY AVAILABLE TO TENURED EMPLOYEES
 AND, THEREFORE, THE AFOREMENTIONED STANDARDS WOULD ONLY APPLY TO TENURED
 EMPLOYEES.  CONSEQUENTLY, PROBATIONARY EMPLOYEES DO NOT FALL WITHIN THE
 COVERAGE OF SECTION 7121(E).  THE INTENDED EFFECT OF THIS LIMITATION IS
 TO PROMOTE CONSISTENCY, I.E., TO PRECLUDE EMPLOYEES FROM ACHIEVING A
 GREATER MEASURE OF PROTECTION UNDER ONE PROCEDURE THAN THE OTHER.  /8/
 THIS STATUTORY SCHEME FURTHERS A MAJOR PURPOSE OF THE CSRA:  TO EASE THE
 PROCESS FOR MANAGEMENT TO REMOVE UNFIT EMPLOYEES.  /9/ THAT IS, CONGRESS
 ESTABLISHED FOR TENURED EMPLOYEES THE PARTICULAR DEGREE OF PROTECTION IT
 CONSIDERED APPROPRIATE, UNDER APPLICABLE STATUTORY PROCEDURES, AND
 CORRELATIVELY PROHIBITED NEGOTIATED PROCEDURES FROM AFFORDING SUCH
 EMPLOYEES ANY GREATER PROTECTION.  IT IS CLEAR, OF COURSE, THAT CONGRESS
 INTENDED THE CSRA TO ESTABLISH A BALANCE BETWEEN NECESSARY PROTECTION
 FOR EMPLOYEES AND NECESSARY AUTHORITY FOR MANAGEMENT.  /10/ IT IS
 EQUALLY APPARENT THAT BE MEANS OF THE STATUTORY SCHEME JUST DISCUSSED
 CONGRESS AIMED TO ASSURE THAT, IN STRIKING THIS BALANCE, THE PROTECTION
 FOR TENURED EMPLOYEES BEING TERMINATED FOR UNACCEPTABLE PERFORMANCE OR
 CONDUCT AVAILABLE THROUGH NEGOTIATED PROCEDURES WOULD NOT HAVE THE
 POTENTIAL TO SUBORDINATE THE POWER AND FLEXIBILITY PROVIDED TO
 MANAGEMENT UNDER THE CSRA.
 
    CONGRESS WAS MINDFUL OF THE STATUS OF EXISTING LAW AND REGULATION
 CONCERNING EMPLOYEES SERVING A PROBATIONARY OR TRIAL PERIOD UNDER AN
 INITIAL APPOINTMENT.  THE AUTHORIZATION FOR A PROBATIONARY PERIOD IS
 CONTAINED IN 5 U.S.C. SEC. 3321, WHICH PROVIDES IN RELEVANT PART:
 
    (A) THE PRESIDENT MAY TAKE SUCH ACTION, . . . AS SHALL PROVIDE . . .
 FOR A PERIOD OF
 
    PROBATION--
 
    (1) BEFORE AN APPOINTMENT IN THE COMPETITIVE SERVICE BECOMES FINAL(.)
 
    THE GOVERNMENT-WIDE REGULATIONS WHICH PROVIDE FOR IMPLEMENTATION OF
 SUCH A PROBATIONARY PERIOD, 5 CFR PART 315, MANDATE, IN PART, THAT ALL
 NEW APPOINTEES TO CAREER POSITIONS IN THE FEDERAL SERVICE MUST SERVE A
 PROBATIONARY PERIOD OF ONE YEAR.
 
    IN THE CASE OF NATIONAL COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND THE UNITED STATES
 DEPARTMENT OF LABOR, 4 FLRA NO. 51 (1980), THE UNION FILED AN EXCEPTION
 TO AN ARBITRATION AWARD WHICH INVOLVED A GRIEVANCE CONCERNING THE
 TERMINATION OF A PROBATIONARY EMPLOYEE.  THE ARBITRATOR DISMISSED THE
 GRIEVANCE IN ITS ENTIRETY HOLDING THAT THE GRIEVANCE HAD BEEN RENDERED
 NON-GRIEVABLE AND NON-ARBITRABLE, AS A MATTER OF LAW AFTER THE EFFECTIVE
 DATE OF THE STATUTE, BY SECTION 7121(C)(4).  THE AUTHORITY SET ASIDE THE
 AWARD ON THE SOLE GROUND THAT THE ARBITRATOR'S INTERPRETATION