26:0292(37)AR - SSA, Mid-America Program Service Center, and AFGE, Local 1336 -- 1987 FLRAdec AR
[ v26 p292 ]
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.