General Services Administration, Region 2, New York City, New York (Agency) and American Federation of Government Employees, Council 236 (Union)

[ v58 p588 ]

58 FLRA No. 147

GENERAL SERVICES ADMINISTRATION
REGION 2
NEW YORK CITY, NEW YORK
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
COUNCIL 236
(Union)

0-AR-3649

_____

DECISION

June 10, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Bernard Wray filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator determined that a grievance challenging a probationary employee's separation was arbitrable. For the reasons that follow, we find that the award is deficient because it is contrary to law and regulation. Accordingly, we set aside the award.

II.     Background and Arbitrator's Award

      The grievant, a probationary employee, was presented by the Agency the option of voluntarily resigning or being terminated based on unsatisfactory work performance. The grievant resigned and the Union filed a grievance alleging that the grievant's separation was in violation of Article 16, §§ B and D of the parties' agreement because the grievant's supervisor ignored the requirements of § B and the grievant was not furnished with required documents. [n1]  The Agency denied the grievance, alleging that the matter was excluded from the scope of the grievance procedure under Article 34, § 5G of the parties' agreement because it was not appealable to the Merit Systems Protection Board (MSPB). [n2]  The grievance was unresolved and submitted to arbitration, where the only issue before the Arbitrator was whether the grievance was arbitrable.

      The Arbitrator found that the only two reasons a probationary employee may appeal a separation to the MSPB -- allegations that the separation is based on partisan political reasons or marital status -- are not at issue in the instant case. Nevertheless, the Arbitrator stated that he "failed to find any precedents based on the same or similar facts and circumstances which would justify the Agency's argument that Article 16 would not be binding on both sides." Award at 3. Therefore, the Arbitrator found the grievance arbitrable and remanded the matter to the parties to "conduct a full [g]rievance/[a]rbitration pursuant to Article 34 of the [parties'] [a]greement." Id.

III.     Positions of the Parties

A.     Agency's Exceptions

      Relying on Dep't of Justice, Immigration and Naturalization Serv. v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (DOJ, INS) and Authority case law, the Agency contends that the award is contrary to law and regulation. The Agency asserts that the court in DOJ, INS held that coverage under a negotiated grievance procedure of a grievance concerning the separation of a probationary employee is precluded by law and regulation. The Agency also cites, among other Authority decisions, Dep't of Health and Human Services, SSA, 14 FLRA 164 (1984) (SSA), where the Authority, relying on DOJ, INS, reversed an arbitrator's award that found arbitrable a grievance concerning the termination of a probationary employee for unsatisfactory work performance. According to the Agency, the Authority determined that the award was "contrary to the statutory and regulatory scheme set forth in 5 U.S.C. 3321 and 5 CFR part 315, subpart H." [n3]  Exceptions at 13 (quoting SSA, 14 FLRA at 164-65).

      The Agency further asserts that the award fails to draw its essence from the parties' agreement because separation actions of probationary employees that are [ v58 p589 ] not appealable to the MSPB are not arbitrable under Article 34.

B.     Union's Opposition

      As a threshold matter, the Union asserts that the Agency's exceptions are untimely. On the merits, the Union contends that the Agency did not comply with the requirements of Article 16, §§ B and D of the parties' agreement and that, in such circumstances, an arbitrator can order the probationary period to "beg[in] anew with the proper materials and supervision." Opposition at 3.

IV.     Preliminary Issue

      The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the arbitrator serves the award on the filing party. See 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the United States mail or is delivered in person. See 5 C.F.R. § 2429.27(d). If the award is served by mail, then five days are added to the period for filing exceptions. See 5 C.F.R. § 2429.22.

      The Arbitrator's award was served on the parties by mail on December 17, 2002. [n4]  Considering the 35 days for filing exceptions permitted in these circumstances, the due date was January 21, 2003. As the Agency's exceptions were filed on January 21, 2003, the exceptions were filed timely.

V.     Analysis and Conclusions

      The Authority reviews questions of law and regulation raised by an arbitrator's award and an exception to it de novo. See United States Dep't of Health and Human Services, Centers for Medicare and Medicaid Services, Baltimore, Md., 57 FLRA 704, 706 (2002). In applying a standard of de novo review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See United States Dep't of the Air Force, Warner Robins Air Force Base, Ga., 56 FLRA 541, 543 (2000) (citation omitted). In making such a determination, the Authority defers to the arbitrator's underlying factual findings. Id.

      The Authority has uniformly held that a grievance concerning the separation of a probationary employee is excluded from the scope of negotiated grievance procedures based on the statutory and regulatory scheme for a probationary period of employment set forth in 5 U.S.C 3321 and 5 C.F.R. part 315, subpart H. See AFGE, Local 2006, 58 FLRA 297, 298 (2003); SSA, 14 FLRA 164 at 164-65. Here, the Union's grievance clearly challenges the grievant's separation during her probationary period. Thus, based on Authority precedent, the Arbitrator erred by finding the grievance arbitrable. As such, the award is deficient as contrary to the statutory and regulatory scheme set forth above. [n5] 

VI. Decision

      The award is set aside.


Appendix

1.     5 U.S.C § 3321, entitled "Competitive service; probationary period" provides, in pertinent part, that:

The President may take such action, including the issuance of rules, regulations, and directives, as shall provide . . . for a period of probation--
(1) before an appointment in the competitive sevice becomes final[.]

2.     5 C.F.R. part 315, subpart H provides, as relevant here, that:

§ 315.804 Termination of probationers for
unsatisfactory performance
. . . .

(a) When an agency decides to terminate an employee serving a probationary or trial period because his work performance . . . during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency's conclusions as to the inadequacies of his performance or conduct.

§ 315.806 Appeal rights to the Merit Systems
Protection Board
.

(a) Right of appeal. An employee may appeal to the Merit Systems Protection Board in writing an agency's decision to terminate him under § 315.804 . . . only as provided in paragraph[] (b) . . . of this section.

(b) On discrimination. An employee may appeal under this paragraph a termination not required by statute which he or she alleges was based on partisan political reasons or marital status.



Footnote # 1 for 58 FLRA No. 147 - Authority's Decision

   Article 16, §§ B and D provide, in pertinent part, that:

B. Probationary period employees will be advised in writing of the applicable critical elements and performance standards for their job at the beginning of the probationary period. The supervisor will explain the requirements and answer any questions the employee may have. The supervisor will observe the employee closely during the probationary period bringing to the employee's attention any performance problems.
D. Probationary employees are to receive a copy of the Standards of Conduct and violations of those standards will result in the employee's termination.

Footnote # 2 for 58 FLRA No. 147 - Authority's Decision

   Article 34, § 5G provides that the grievance procedure does not apply to "[a]ny separation action not appealable to the MSPB."


Footnote # 3 for 58 FLRA No. 147 - Authority's Decision

   The relevant text of these provisions is set forth in the Appendix to this decision.


Footnote # 4 for 58 FLRA No. 147 - Authority's Decision

   The Agency states in its exceptions that the envelope transmitting the award was postmarked December 19, 2002. However, the Agency did not provide the envelope in