17:0372(58)CA - Director of Administration, HQ, Air Force and AFGE-GAIU Council of HQ, USAF Locals and OPM -- 1985 FLRAdec CA



[ v17 p372 ]
17:0372(58)CA
The decision of the Authority follows:


 17 FLRA No. 58
 
 DIRECTOR OF ADMINISTRATION
 HEADQUARTERS, U.S. AIR FORCE
 Respondent
 
 and
 
 AFGE-GAIU, COUNCIL OF HEADQUARTERS
 USAF LOCALS, AFL-CIO
 Charging Party
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT
 Intervenor /1/
 
                                            Case Nos. 3-CA-1700 
                                                      3-CA-1791
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this consolidated
 proceeding, including the stipulation of facts and the parties'
 contentions, the Authority finds:
 
    The complaint in Case No. 3-CA-1700 alleges that the refusal of the
 Director of Administration, Headquarters, U.S. Air Force (the
 Respondent) to process a grievance over a probationary employee's
 termination or to participate in arbitration of the grievance
 constituted a failure to negotiate in good faith and a "patent breach"
 of the parties' negotiated agreement in violation of section 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute (the
 Statute), and additionally constituted a refusal to comply with the
 requirements of section 7121 of the Statute /2/ in violation of section
 7116(a)(1) and (8).  /3/ In Case No. 3-CA-1791, it is additionally
 alleged that the Respondent violated section 7116(a)(1), (5) and (8) of
 the Statute by refusing to grant the terminated employee's Union
 representative official time to represent him in his grievance.
 
    The Respondent terminated the employment of Ronald A. Lewis, the
 probationary employee, on September 17, 1980.  Thereafter, Lewis filed a
 grievance under the negotiated grievance procedure.  At each step of the
 grievance procedure, the Respondent refused to meet with the grievant
 and his Union representative and also rejected the Union's request that
 the grievance be submitted to arbitration, contending that the matter of
 Lewis' termination was not grievable.  The Respondent also denied the
 request of Lewis' Union representative, Fred Small, for official time
 under the parties' negotiated agreement to represent the grievant.
 Small had previously been granted official time when meeting with,
 preparing and/or presenting appeals of terminated unit employees.
 
    In Case No. 3-CA-1700 the Respondent concedes that it unilaterally
 refused to process the grievance of Lewis over his termination.  The
 sole reason given by the Respondent for its refusal was that "such
 termination is part of the total examination process and as such is
 precluded by law from arbitration under" section 7121(c)(4) of the
 Statute.  /4/
 
    The United States Court of Appeals for The district of Columbia
 Circuit recently held in Department of Justice, Immigration and
 Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), that a
 proposal to make the termination of probationary employees grievable and
 arbitrable under the parties' collective bargaining agreement was
 inconsistent with law and regulation.  Thereafter, in applying the
 court's decision, the Authority concluded in U.S. Department of Labor,
 Labor Management Services Administration, Cleveland, Ohio and National
 Union of Compliance Officers, 13 FLRA 677 (1984), /5/ "that in enacting
 the . . . (Statute) . . . Congress did not intend grievances and
 arbitration procedures negotiated under the Statute to cover grievances
 concerning the termination of probationary employees. . . ." Thus, in
 following the court's decision, the Authority concluded that grievances
 over the termination of probationary employees are as a matter of law
 not cognizable under grievance-arbitration procedures negotiated under
 the Statute.  Therefore, it follows that an agency's refusal to proceed
 to arbitration of a grievance concerning the termination of a
 probationary employee cannot be held to be violative of the Statute.  In
 so concluding, the decision herein must be distinguished from that in
 Department of Labor, Employment Standards Administration/Wage and Hour
 Division, Washington, D.C., 10 FLRA 316 (1982), wherein the Authority
 held that a refusal by either party to participate in negotiated
 contractual procedures for the settlement of grievances, including
 arbitration of threshold arbitrability questions, would conflict with
 the requirements of section 7121 of the Statute and be violative of
 section 7116(a)(1) and (8).  At the time of the holding in that case,
 the courts and the Authority had not concluded that as a matter of law
 grievances over the termination of probationary employees are excluded
 from the coverage of all grievance procedures negotiated pursuant to
 section 7121.  In the instant case, the issue involves only that matter
 of clearly established law.  Thus, the instant case presents no
 threshold question or any other question of interpretation or statutory
 construction which can legitimately be resolved by an arbitrator.
 Accordingly, the Authority shall dismiss the section 7116(a)(1) and (8)
 allegations of the complaint in Case No. 3-CA-1700.  The Authority shall
 also dismiss the section 7116(a)(5) allegation of the complaint.  Thus,
 even assuming that the parties' negotiated agreement purported to
 require the Respondent to proceed to arbitration concerning the
 termination of probationary employees, a matter which is subject to
 differing and arguable interpretations, such requirement would be
 contrary to law and regulation and hence unenforceable.  See, e.g.,
 Wisconsin Army National Guard and Association of Civilian Technicians,
 14 FLRA 57 (1984).  In a word, it would be a pointless and hollow
 exercise to require the parties to proceed to arbitration over an issue
 which, as a matter of law, is not cognizable under any grievance
 procedure negotiated under the Statute.
 
    The Authority shall also dismiss the complaint in Case No. 3-CA-1791,
 concluding that the Respondent's denial of official time to the
 grievant's Union representative did not violate the Statute.  In this
 regard, the General Counsel argued that Respondent's denial of official
 time to the grievant's Union representative constituted a unilateral
 change in an established condition of employment based upon the
 Respondent's past practice of granting such time for Union
 representatives to represent terminated unit employees.  The Authority
 concludes that, in the circumstances of this case, there was no change
 in established past practice.  Respondent had granted official time for
 Union representatives engaged in representing unit employees in
 grievances under the negotiated grievance procedure.  Since, as a matter
 of law, a grievance over the termination of a probationary employee is
 not and cannot be covered by negotiated grievance procedures, it follows
 that Respondent's denial of official time in these circumstances was not
 a change of past practice with respect to official time in connection
 with grievances which are covered by the negotiated grievance procedure.
  The General Counsel also alleged that the denial of official time in
 these circumstances contravened section 7121 of the Statute.  However,
 as has been established, grievance procedures under section 7121 do not
 cover grievances concerning the termination of probationary employees.
 
                                   ORDER
 
    IT IS ORDERED that the consolidated complaint in Case Nos. 3-CA-1700
 and 3-CA-1791 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., March 28, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Regional Director granted a motion to intervene filed by the
 Office of Personnel Management (OPM) pursuant to section 2423.22(b)(1)
 of the Authority's Rules and Regulations.
 
 
    /2/ Section 7121 provides in pertinent part:
 
          Sec. 7121.  Grievance procedures
 
          (a)(1) Except as provided in paragraph (2) of this subsection,
       any collective bargaining agreement shall provide procedures for
       the settlement of grievances, including questions of arbitrability
       . . . .
 
                                .  .  .  .
 
          (b) Any negotiated grievance procedure referred to in
       subsection (a) of this section shall--
 
                                .  .  .  .
 
          (3) include procedures that--
 
                                .  .  .  .
 
          (C) provide that any grievance not satisfactorily settled under
       the negotiated grievance procedure shall be subject to binding
       arbitration which may be invoked by either the exclusive
       representative or the agency.
 
 
    /3/ Section 7116(a)(1), (5) and (8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under t