10:0496(84)AR - AFGE Local 3369 and SSA, New York Region -- 1982 FLRAdec AR



[ v10 p496 ]
10:0496(84)AR
The decision of the Authority follows:


 10 FLRA No. 84
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 3369, AFL-CIO
 Union
 
 and
 
 SOCIAL SECURITY ADMINISTRATION,
 NEW YORK REGION
 Activity
 
                                            Case No. O-AR-302
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR BENJAMIN H. WOLF 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.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE SEPARATION OF THE GRIEVANT
 DURING HER PROBATIONARY PERIOD.  A GRIEVANCE WAS FILED PROTESTING THE
 SEPARATION AND THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION
 WITH A THRESHOLD ISSUE OF WHETHER GRIEVANCES OVER THE SEPARATION OF
 PROBATIONERS ARE PRECLUDED FROM COVERAGE BY THE NEGOTIATED GRIEVANCE
 PROCEDURE OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.
 
    AT THE OUTSET THE ARBITRATOR NOTED THAT THE PARTIES' AGREEMENT HAD
 BEEN NEGOTIATED UNDER EXECUTIVE ORDER NO. 11491 (THE ORDER) AND
 ACCORDINGLY CONTAINED, AS REQUIRED, THE LANGUAGE OF SECTION 12(A) OF THE
 ORDER IN ARTICLE III PROVIDING, AS RELEVANT TO THIS CASE, THAT THE
 AGREEMENT WAS GOVERNED BY APPROPRIATE REGULATIONS INCLUDING THE FEDERAL
 PERSONNEL MANUAL (FPM).  WITH REGARD TO THE QUESTION OF ARBITRABILITY,
 THE UNION ESSENTIALLY ARGUED THAT NO LAW OR REGULATION PRECLUDED ALL
 GRIEVANCES OVER THE SEPARATION OF PROBATIONERS FROM THE PERMISSIBLE
 COVERAGE OF A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE ORDER.  THE
 ARBITRATOR, HOWEVER, REJECTED THE UNION'S ARGUMENT.  HE DETERMINED,
 INSTEAD, THAT "THE SPIRIT AND LANGUAGE OF THE FPM" CLEARLY REFUTED THAT
 THESE GRIEVANCES WERE ARBITRABLE.  THE ARBITRATOR WAS PARTICULARLY
 PERSUADED BY THE PROVISION OF FPM CHAPTER 315, SUBCHAPTER 8-4A(3)
 STATING THAT THE PROBATIONER IS NOT GIVEN A RIGHT OF REPLY TO THE NOTICE
 OF SEPARATION.  /1/ EMPHASIZING THIS PROVISION OF THE FPM AND THE FPM
 REFERENCE IN SECTION 12(A) OF THE ORDER INCORPORATED IN ARTICLE III OF
 THE AGREEMENT, THE ARBITRATOR RULED THAT THE FPM AND, CORRESPONDINGLY,
 THE PARTIES' AGREEMENT PRECLUDE GRIEVANCES OVER THE SEPARATION OF
 PROBATIONERS.  CONSEQUENTLY, AS HIS AWARD THE ARBITRATOR FOUND THE
 GRIEVANCE NONARBITRABLE.
 
    AS ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE AWARD
 FINDING THE GRIEVANCE NONARBITRABLE IS DEFICIENT AND MUST BE SET ASIDE.
 IN PARTICULAR, THE UNION MAINTAINS THAT THE FPM DOES NOT PRECLUDE
 PROBATIONARY EMPLOYEES FROM GRIEVING THEIR SEPARATION, AND CONSEQUENTLY
 THE PARTIES' AGREEMENT LIKEWISE DOES NOT, BY REFERENCE TO THE FPM,
 PRECLUDE GRIEVAN