10:0314(59)AR - AFGE Local 206l and GSA Region 3 -- 1982 FLRAdec AR



[ v10 p314 ]
10:0314(59)AR
The decision of the Authority follows:


 10 FLRA No. 59
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2061, AFL-CIO
 Union
 
 and
 
 GENERAL SERVICES ADMINISTRATION,
 REGION 3
 Activity
 
                                            Case No. O-AR-316
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR WILLIAM M. EDGETT FILED BY THE AGENCY 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 UNION FILED
 AN OPPOSITION.
 
    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 ACTIVITY CLAIMED THE
 MATTER WAS NOT ARBITRABLE.
 
    THE ARBITRATOR DETERMINED THAT UNDER THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT GRIEVANCES OVER THE SEPARATION OF PROBATIONARY
 EMPLOYEES WERE SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE.  ON THE
 MERITS THE ARBITRATOR FOUND THAT IT HAD NOT BEEN SHOWN THAT THE
 SEPARATION WAS IMPROPER.  ACCORDINGLY, AS HIS AWARD THE ARBITRATOR RULED
 THAT THE GRIEVANCE WAS ARBITRABLE, BUT DENIED THE GRIEVANCE ON THE
 MERITS.
 
    THE AGENCY FILED AN EXCEPTION TO THE PORTION OF THE AWARD RULING THAT
 THE GRIEVANCE ARBITRABLE.  IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE
 AWARD IS CONTRARY TO CASE LAW UNDER EXECUTIVE ORDER NO. 11491 (THE
 ORDER) RELATING TO DETERMINATIONS OF GRIEVABILITY AND ARBITRABILITY BY
 THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT RELATIONS WHICH
 THE AGENCY CLAIMS APPLIES BECAUSE THE PARTIES' AGREEMENT WAS NEGOTIATED
 UNDER THE ORDER AND HAS BEEN CONTINUED UNDER SECTION 7135 OF THE
 STATUTE.  SPECIFICALLY, THE AGENCY CLAIMS THAT THERE MUST BE A
 DETERMINATION THAT THE GRIEVANCE CONCERNED THE MEANING OR APPLICATION OF
 SUBSTANTIVE PROVISIONS OF THE AGREEMENT AND THAT IN THIS CASE NO
 SUBSTANTIVE PROVISION WAS INVOLVED.  THUS, THE AGENCY MAINTAINS THAT THE
 ARBITRATOR WAS REQUIRED TO FIND THAT THIS GRIEVANCE WAS NOT ARBITRABLE.
 
    THE AGENCY'S EXCEPTION PROVIDES NO BASIS FOR FINDING THE AWARD
 DEFICIENT.  THE CASE LAW CITED BY THE AGENCY ONLY PERTAINS TO
 GRIEVABILITY AND ARBITRABILITY DETERMINATIONS BY THE ASSISTANT SECRETARY
 AND NOT BY ARBITRATORS AND IS THEREFORE INAPPOSITE.  IN NO DECISION OF
 THE FEDERAL LABOR RELATIONS COUNCIL, IN REVIEWING UNDER THE ORDER AN
 ARBITRATION AWARD DETERMINING WHETHER A GRIEVANCE WAS ON A MATTER
 SUBJECT TO THE NEGOTIATED GRIEVANCE PROCEDURE, WAS IT HELD THAT AN AWARD
 WAS DEFICIENT BECAUSE THE ARBITRATOR FAILED TO EX RESSLY STATE AN AWARD
 WAS DEFICIENT BECAUSE THE ARBITRATOR FAILED TO EXPRESSLY STATE THE
 SUBSTANTIVE PROVISION OR PROVISIONS OF THE PARTIES' AGR