26:0292(37)AR - SSA, Mid-America Program Service Center, and AFGE, Local 1336 -- 1987 FLRAdec AR



[ v26 p292 ]
26:0292(37)AR
The decision of the Authority follows:


 26 FLRA No. 37
 
 SOCIAL SECURITY ADMINISTRATION, 
 MID-AMERICA PROGRAM SERVICE CENTER
 Agency
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, LOCAL 1336
 Union
 
                                            Case No. 0-AR-1218
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator John R. Thornell filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    A grievance was filed in this case by the Union on behalf of former
 employees of the Agency who had voluntarily resigned and who had
 subsequently applied to the Agency for reinstatement.  According to the
 Arbitrator, the grievance essentially claimed that the applications for
 reinstatement were not properly considered as required by Article 26,
 Section 5B.14, which pertinently provides that when a former employee
 applies for reinstatement and is eligible for consideration, the
 personnel office will determine the bargaining-unit position for which
 the individual can be considered and whether consideration must be
 competitive.  The grievance was not resolved and was submitted to
 arbitration on the issues of whether the grievance was arbitrable and
 whether the Agency violated the collective bargaining agreement.
 
    The Arbitrator first determined that the grievance pertained to a
 matter that was grievable and arbitrable and that the grievance was
 timely.  On the merits, the Arbitrator determined that the applications
 for reinstatement had been processed and considered as required by
 Article 26, Section 5B.14 of the collective bargaining agreement.
 Accordingly, as his award, the Arbitrator denied the grievance.
 
                             III.  EXCEPTIONS
 
    In its exceptions the Agency contends that by finding the grievance
 to be grievable and arbitrable, the award is contrary to the Statute.
 Specifically, the Agency argues that the grievance is not within the
 statutory definition of grievance set forth in section 7103(a)(9)
 because the individuals who applied for reinstatement are not employees
 as defined in section 7103(a)(2).  The Agency also argues that the
 grievance concerns a matter of appointment and that the grievance is
 therefore precluded by section 7121(c)(4).
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    We conclude that the Agency fails to establish that by finding the
 grievance to be grievable and arbitrable, the award is contrary to the
 Statute.  Contrary to the arguments of the Agency, we conclude that the
 grievance concerns a matter covered by the statutory definition of
 grievance in section 7103(a)(9) and does not concern an appointment
 within the meaning of section 7121(c)(4).
 
    Section 7103(a)(9)(C)(i) specifically defines grievance to include
 any complaint by a union concerning a claim of breach of a collective
 bargaining agreement.  We find that the Union's grievance claiming a
 breach by the Agency of Article 26, Section 5B.14 of the parties'
 collective bargaining agreement is encompassed by section
 7103(a)(9)(C)(i).  Because Article 26, Section 5B.14 specifically
 pertains to former employees who have applied for reinstatement, we also
 find that the Union's grievance is not otherwise excluded from the
 coverage of section 7103(a)(9) because it was filed by the Union on
 behalf of such individuals.  Similarly, because Article 26, Section
 5B.14 was interpreted by the Arbitrator to only require the Agency to
 consider the application for reinstatement of a former employee and not
 to require the Agency to rehire such an applicant, Award at 9, we find
 that the grievance as decided by the Arbitrator does not concern an
 appointment within the meaning of section 7121(c)(4).  Consequently, the
 grievance was not precluded from consideration by the Arbitrator on the
 merits.
 
                               V.  DECISION
 
    Accordingly, the Agency's exceptions are denied.
 
    Issued, Washington, D.C. March 18, 1987.
 
                                       /s/ Jerry L. Calhoun,