10:0312(58)AR - DOD Dependents Schools and Overseas Education Association -- 1982 FLRAdec AR



[ v10 p312 ]
10:0312(58)AR
The decision of the Authority follows:


 10 FLRA No. 58
 
 DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOLS
 Agency
 
 and
 
 OVERSEAS EDUCATION ASSOCIATION
 Union
 
                                            Case No. O-AR-285
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR WALTER N. KAUFMAN 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 FILED AN
 OPPOSITION.  /1/
 
    THE DISPUTE IN THIS MATTER CONCERNS THE SEPARATION OF THE GRIEVANT
 DURING HIS PROBATIONARY PERIOD.  A GRIEVANCE PROTESTING THE SEPARATION
 WAS FILED AND ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR FIRST ADDRESSED THE ACTIVITY'S CLAIM THAT THE
 GRIEVANCE WAS NOT SUBJECT TO ARBITRATION.  IN THIS RESPECT THE
 ARBITRATOR NOTED THE UNION'S ARGUMENT THAT PROBATIONARY EMPLOYEES ARE
 NOT EXCLUDED FROM COVERAGE OF THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT, AND HE EXPRESSLY CONCLUDED THAT THE PARTIES' AGREEMENT DID
 NOT PLAINLY EXCLUDE GRIEVANCES OVER THE SEPARATION OF PROBATIONARY
 EMPLOYEES.  HE FURTHER CONCLUDED THAT THE ACTIVITY'S COURSE OF CONDUCT
 PRECLUDED ANY ASSERTION IN THIS CASE THAT IT WAS THE INTENT OF THE
 AGREEMENT TO EXCLUDE SUCH GRIEVANCES.  ACCORDINGLY, THE ARBITRATOR
 DETERMINED THAT THE GRIEVANCE WAS ARBITRABLE.
 
    AS TO THE GRIEVANT'S SEPARATION, THE ARBITRATOR QUOTED FROM THE
 NOTIFICATION TO THE GRIEVANT THAT HE WAS BEING SEPARATED FOR
 "(I)NABILITY TO EXERCISE PROFESSIONAL JUDGMENT AND TO FOLLOW ACCEPTABLE
 STANDARDS OF CONDUCT IN DEALING WITH STUDENTS." ON THE BASIS OF THE
 EVIDENCE IN THIS REGARD, THE ARBITRATOR DETERMINED THAT THE GRIEVANT'S
 SEPARATION WAS FAIR AND REASONABLE AND NOT ARBITRARY OR CAPRICIOUS.
 THEREFORE, AS HIS AWARD THE ARBITRATOR RULED THAT THE GRIEVANCE WAS
 ARBITRABLE, BUT ON THE MERITS HE DENIED THE GRIEVANCE FINDING THAT THE
 SEPARATION WAS IN ACCORDANCE WITH APPLICABLE AUTHORITY AND THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.
 
    IN ITS EXCEPTIONS THE UNION CONTENDS THAT THE AWARD IS DEFICIENT
 BECAUSE THE ARBITRATOR ERRONEOUSLY CONCLUDED THAT THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT "RECOGNIZES AND EXCEPTS FROM ITS
 APPLICATION EMPLOYEES PERFORMING DURING A PROBATIONARY PERIOD," AND THE
 UNION CONTENDS THAT THE AWARD IS DEFICIENT BECAUSE THE ARBITRATOR FAILED
 TO CONCLUDE THAT THE GRIEVANT WAS SEPARATED FOR INEFFICIENCY.  HOWEVER,
 THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.
 
    AS HAS BEEN NOTED, THE ARBITRATOR EXPRESSLY DETERMINED THAT THE
 GRIEVANCE IN THIS CASE WAS ARBITRABLE AND EXPRESSLY DETERMIN