National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO (Union) and United States Department of Labor (Activity)  

 4 FLRA No. 51
 
 NATIONAL COUNCIL OF FIELD LABOR
 LOCALS OF THE AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO
 Union
 
 and
 
 UNITED STATES DEPARTMENT
 OF LABOR
 Activity
 
                                            Case No. O-AR-60
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR MARK SANTER FILED BY THE UNION UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7122(A)).
 
    ACCORDING TO THE ARBITRATOR THIS GRIEVANCE AROSE WHEN THE ACTIVITY
 TERMINATED THE GRIEVANT DURING HIS PROBATIONARY PERIOD.  AT THE REQUEST
 OF THE UNION THE ACTIVITY INITIALLY STAYED THE ACTION BECAUSE A
 GRIEVANCE HAD BEEN FILED WITH RESPECT TO THE DISMISSAL.  HOWEVER, THE
 ACTIVITY SUBSEQUENTLY REVOKED THE STAY AS BEING CONTRARY TO THE PARTIES'
 COLLECTIVE BARGAINING AGREEMENT.  THE GRIEVANCE WAS EVENTUALLY SUBMITTED
 TO ARBITRATION.
 
    THE ARBITRATOR STATED THE FOLLOWING ISSUES:
 
    IS THE FOLLOWING GRIEVABLE/ARBITRABLE UNDER TERMS OF THE AGREEMENT AS
 THOSE TERMS ARE
 
    AFFECTED BY CONTROLLING LAW?
 
    IF SO, DID MANAGEMENT VIOLATE THE AGREEMENT BY NOT STAYING THE ACTION
 AFTER NOTICE THAT THE
 
    ACTION HAD BEEN MADE THE SUBJECT OF A GRIEVANCE?
 
    AND, IF SO, DID THE EMPLOYEE HAVE A FULL AND FAIR TRIAL PRIOR TO HIS
 SEPARATION?
 
    IF NOT, WHAT IS THE REMEDY?
 
    THE ARBITRATOR FOUND THAT THE AGREEMENT REQUIRED HIM TO MAKE
 ARBITRABILITY DETERMINATIONS PRIOR TO ADDRESSING THE MERITS OF THE
 ORIGINAL GRIEVANCE.  /1/ IN DETERMINING THE ARBITRABILITY OF THE
 GRIEVANCE BEFORE HIM HE CONSIDERED THE EFFECT OF THE ENACTMENT OF THE
 STATUTE ON THE PARTIES' AGREEMENT, WHICH WAS NEGOTIATED UNDER EXECUTIVE
 ORDER NO.  11491, AS AMENDED.  THE ARBITRATOR CONCLUDED THAT THE
 EXCLUSION FROM A GRIEVANCE PROCEDURE OF "ANY EXAMINATION" IN SECTION
 7121(C)(4) OF THE STATUTE /2/ PROSCRIBES USE OF A NEGOTIATED GRIEVANCE
 AND ARBITRATION PROCEDURE TO GRIEVE THE TERMINATION OF A PROBATIONER.
 THUS, ALTHOUGH HE FOUND THAT THE ACTIVITY HAD RECOGNIZED A PROBATIONER'S
 RIGHT TO GRIEVE "THIS TYPE OF ISSUE" UNDER THE TERMS OF THE PARTIES'
 AGREEMENT WHILE THE EXECUTIVE ORDER WAS IN EFFECT, HE NOTED THAT UNDER
 SECTION 7135 OF THE STATUTE /3/ ONLY LAWFUL PORTIONS OF THE AGREEMENT
 SURVIVE.  THEREFORE, CONCLUDING THAT PROBATIONERS NO LONGER HAD THE
 RIGHT TO GRIEVE THEIR SEPARATION THROUGH A NEGOTIATED PROCEDURE BECAUSE
 OF THE EXCLUSION IN SECTION 7121(C)(4), THE ARBITRATOR MADE THE
 FOLLOWING AWARD:
 
    THE ISSUE IS NOT GRIEVABLE/ARBITRABLE UNDER THE TERMS OF THE
 AGREEMENT AS THOSE TERMS ARE
 
    AFFECTED BY CONTROLLING LAW.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /4/
 AND PART 2425 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, 44 F.R.
 44766.  THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTION, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S AWARD
 VIOLATES SECTION 7121 OF THE STATUTE BY IMPOSING A REDUCTION IN THE
 SCOPE OF THE GRIEVANCE PROCEDURE BEYOND THAT REQUIRED BY LAW WITHOUT THE
 MUTUAL AGREEMENT OF THE PARTIES.  THE UNION ASSERTS THAT CONTRARY TO THE
 ARBITRATOR'S AWARD, THE TERM "EXAMINATION" AS USED IN SECTION 7121(C)(4)
 DOES NOT PRECLUDE GRIEVANCES INVOLVING THE SEPARATION OF PROBATIONERS.
 IN ITS OPPOSITION THE AGENCY CONTENDS THAT THE AWARD, HOLDING THAT THE
 SEPARATION OF A PROBATIONER IS NOT A GRIEVABLE MATTER UNDER THE
 AGREEMENT AS IT IS AFFECTED BY THE STATUTE, IS IN CONFORMITY WITH LAW
 AND THE PARTIES' AGREEMENT.
 
    THE UNION'S EXCEPTION THAT THE AWARD VIOLATES THE STATUTE STATES A
 GROUND ON WHICH THE AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION
 7122(A)(1) OF THE STATUTE.  FOR THE REASONS THAT FOLLOW THE AUTHORITY
 FINDS THAT THE ARBITRATOR'S AWARD HOLDING THE GRIEVANCE TO BE
 NONARBITRABLE IS DEFICIENT BECAUSE IT IS CONTRARY TO SECTION 7121 OF THE
 STATUTE AND MUST BE SET ASIDE.
 
    AS PREVIOUSLY NOTED, THE ARBITRATOR DETERMINED THAT UNDER SECTION
 7135 OF THE STATUTE ONLY "LAWFUL" PORTIONS OF EXISTING AGREEMENTS
 CONTINUE IN EFFECT AFTER THE EFFECTIVE DATE OF THE STATUTE.  HE FURTHER
 DETERMINED THAT SECTION 7121(C)(4) OF THE STATUTE EXCLUDES PROBATIONERS'
 GRIEVANCES OVER THEIR TERMINATION FROM COVERAGE BY A NEGOTIATED
 GRIEVANCE PROCEDURE.  THEREFORE, THE ARBITRATOR CONCLUDED THAT EXISTING
 PROVISIONS IN THE PARTIES' NEGOTIATED AGREEMENT WHICH WOULD ALLOW
 PROBATIONERS TO GRIEVE WERE NO LONGER LAWFUL AND HE FOUND THE GRIEVANCE
 NONARBITRABLE.  HOWEVER, WE FIND NOTHING IN THE LANGUAGE OF SECTION
 7121(C)(4), OR IN THE LEGISLATIVE HISTORY OF THE STATUTE, TO INDICATE
 THAT CONGRESS INTENDED TO EXCLUDE GRIEVANCES OR ARBITRATION OVER THE
 TERMINATION OF PROBATIONERS WHEN IT EXCLUDED GRIEVANCES RESPECTING "ANY
 EXAMINATION, CERTIFICATION, OR APPOINTMENT" FROM THE SCOPE OF
 PERMISSIBLE COVERAGE BY NEGOTIATED GRIEVANCE PROCEDURES.  TO THE
 CONTRARY, THE STATUTE IN NO WAY MANDATES LESSER TREATMENT FOR
 PROBATIONERS THAN FOR OTHER EMPLOYEES.
 
    SECTION 7103(A)(2) OF THE STATUTE DEFINES "EMPLOYEE," FOR PURPOSES OF
 THE STATUTE, AS FOLLOWS:
 
    (2) 'EMPLOYEE' MEANS AN INDIVIDUAL--
 
    (A) EMPLOYED IN AN AGENCY;  OR
 
    (B) WHOSE EMPLOYMENT IN AN AGENCY HAS CEASED BECAUSE OF ANY UNFAIR
 LABOR PRACTICE UNDER
 
    SECTION 7116 OF THIS TITLE AND WHO HAS NOT OBTAINED ANY OTHER REGULAR
 AND SUBSTANTIALLY
 
    EQUIVALENT EMPLOYMENT, AS DETERMINED UNDER REGULATIONS PRESCRIBED BY
 THE FEDERAL LABOR
 
    RELATIONS AUTHORITY;
 
    BUT DOES NOT INCLUDE--
 
    (I) AN ALIEN OR NONCITIZEN OF THE UNITED STATES WHO OCCUPIES A
 POSITION OUTSIDE THE UNITED
 
    STATES;
 
    (II) A MEMBER OF THE UNIFORMED SERVICES;
 
    (III) A SUPERVISOR OR A MANAGEMENT OFFICIAL
 
    (IV) AN OFFICER OR EMPLOYEE IN THE FOREIGN SERVICE OF THE UNITED
 STATES EMPLOYED IN THE
 
    DEPARTMENT OF STATE, THE AGENCY FOR INTERNATIONAL DEVELOPMENT, OR THE
 INTERNATIONAL
 
    COMMUNICATION AGENCY;  OR
 
    (V) ANY PERSON WHO PARTICIPATES IN A STRIKE IN VIOLATION OF SECTION
 7311 OF THIS TITLE;
 
    PROBATIONERS, WHO ARE "INDIVIDUAL(S) EMPLOYED IN AN AGENCY," FALL
 WITHIN THE BROAD DEFINITION OF SUBPART (A) OF SECTION 7103(A)(2) AND ARE
 NOT AMONG THE FIVE ENUMERATED EXCLUSIONS LISTED THEREIN.  IN ADDITION,
 SECTION 7103(A)(9) OF THE STATUTE DEFINES "GRIEVANCE," FOR PURPOSES OF
 THE STATUTE, AS FOLLOWS:
 
    (9) 'GRIEVANCE' MEANS ANY COMPLAINT--
 
    (A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
 OF THE EMPLOYEE;
 
    (B) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
 EMPLOYMENT OF ANY
 
    EMPLOYEE;  OR
 
    (C) BY ANY EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--
 
    (I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
 COLLECTIVE BARGAINING
 
    AGREEMENT;  OR
 
    (II) ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
 ANY LAW, RULE, OR
 
    REGULATION AFFECTING CONDITIONS OF EMPLOYMENT;  SINCE, AS INDICATED,
 PROBATIONERS ARE "EMPLOYEES" AS THAT TERM IS DEFINED IN THE STATUTE,
 THEIR COMPLAINTS FALL WITHIN THIS BROAD DEFINITION OF THE TERM
 "GRIEVANCE." THEREFORE, IF RIGHTS ACCORDED EMPLOYEES BY THE STATUTE ARE
 IN SOME MANNER RESTRICTED FOR PROBATIONERS, THE RESTRICTION MUST BE
 FOUND ELSEWHERE.
 
    AS TO WHETHER THE LANGUAGE OF SECTION 7121(C)(4) EXCLUDES
 PROBATIONERS' GRIEVANCES REGARDING THEIR SEPARATION FROM THE PERMISSIBLE
 SCOPE OF COVERAGE BY A NEGOTIATED GRIEVANCE PROCEDURE, THE UNION ASSERTS
 IN ITS EXCEPTION THAT NOTHING IN THE LANGUAGE OF SECTION 7121(C)(4) OR
 IN THE LEGISLATIVE HISTORY OF THE STATUTE INDICATES SUCH A CONGRESSIONAL
 INTENT.  THE AGENCY ARGUES IN ITS OPPOSITION AND IN SUPPORT OF THE
 ARBITRATOR'S AWARD THAT BY USE OF THE WORD "EXAMINATION" IN SECTION
 7121(C)(4) OF THE STATUTE CONGRESS INTENDED TO EXCLUDE ALL MATTERS
 PERTAINING TO THE "EXAMINING PROCESS" AND THAT THIS INCLUDES MATTERS
 INVOLVING THE SEPARATION OF PROBATIONERS.  IN ADDITION, THE AGENCY
 CONTENDS THAT THE WORD "APPOINTMENT" IN SECTION 7121(C)(4) OF THE
 STATUTE EXCLUDES GRIEVANCES INVOLVING THE SEPARATION OF PROBATIONERS
 BECAUSE AN "APPOINTMENT" DOES NOT BECOME FINAL UNTIL AFTER THE
 PROBATIONARY PERIOD HAS BEEN SUCCESSFULLY COMPLETED.  /5/ HOWEVER, WE
 FIND NOTHING IN THE STATUTE TO SUPPORT THE ARBITRATOR'S AWARD OR THE
 AGENCY'S POSITION.
 
    THE ARBITRATOR BASED HIS AWARD, AND THE AGENCY BASES ITS ARGUMENTS,
 ON AN INTERPRETATION OF THE WORD "EXAMINATION" IN SECTION 7121(C)(4).
 THE AGENCY PRINCIPALLY RELIES UPON LANGUAGE IN THE FEDERAL PERSONNEL
 MANUAL (FPM) WHICH DESCRIBES THE PROBATIONARY PERIOD AS "A FINAL AND
 HIGHLY SIGNIFICANT STEP IN THE EXAMINING PROCESS." /6/ THE AGENCY
 THEREFORE ASSERTS THAT BECAUSE MATTERS RESPECTING "EXAMINATION" ARE
 EXCLUDED IN SECTION 7121(C)(4), MATTERS RESPECTING THE SEPARATION OF
 PROBATIONERS ARE STATUTORILY EXCLUDED FROM COVERAGE BY A NEGOTIATED
 GRIEVANCE PROCEDURE.  HOWEVER, IT IS NOTED THAT THE LANGUAGE USED BY
 CONGRESS WAS NOT THE PHRASE "EXAMINING PROCESS" BUT ONLY THE WORD
 "EXAMINATION." WE FIND NOTHING IN THE STATUTE OR IN ITS LEGISLATIVE
 HISTORY TO SUPPORT THE ARBITRATOR'S FINDING AND AWARD AND THE AGENCY'S
 ARGUMENT THAT CONGRESS INTENDED THE WORD "EXAMINATION" TO BE SYNONYMOUS
 WITH THE WORDS "EXAMINING PROCESS," A PHRASE USED IN THE FPM EXPLAINING
 HOW THE PROBATIONARY PERIOD IS UTILIZED.  NOR ARE WE AWARE OF ANY OTHER
 PROVISIONS OF LAW IN WHICH CONGRESS HAS USED THE WORD "EXAMINATION" AS
 EQUIVALENT TO THE PHRASE "EXAMINING PROCESS" AND WHICH WOULD SUPPORT THE
 ARBITRATOR'S FINDING AND AWARD THAT BY USE OF THE WORD "EXAMINATION" IN
 SECTION 7121(C)(4) CONGRESS INTENDED BY OPERATION OF LAW TO PRECLUDE
 GRIEVANCES INVOLVING THE SEPARATION OF A PROBATIONER FROM COVERAGE BY A
 ,NEGOTIATED GRIEVANCE PROCEDURE.
 
    WHILE THE ARBITRATOR'S AWARD FINDING THE GRIEVANCE NONARBITRABLE WAS
 BASED ON AN INTERPRETATION OF THE WORD "EXAMINATION" IN SECTION
 7121(C)(4), THE AGENCY ADDITIONALLY ASSERTS THAT THE WORD "APPOINTMENT"
 IN SECTION 7121(C)(4) ALSO PRECLUDES GRIEVANCES OVER THE SEPARATION OF
 PROBATIONERS FROM COVERAGE BY A NEGOTIATED GRIEVANCE PROCEDURE.  IN
 SUPPORT OF THIS ARGUMENT THE AGENCY REFERS TO 5 U.S.C. 3321 WHICH
 PROVIDES FOR A PERIOD OF PROBATION "BEFORE AN APPOINTMENT IN THE
 COMPETITIVE SERVICE BECOMES FINAL(.)" AGAIN, HOWEVER, WE FIND NOTHING IN
 THE LEGISLATIVE HISTORY OF THE STATUTE TO INDICATE THAT CONGRESS
 INTENDED ITS USE OF THE WORD "APPOINTMENT," IN AND OF ITSELF, TO REFER
 TO THE PROBATIONARY PERIOD.  INSTEAD, AN EXAMINATION OF RELEVANT LAWS
 AND REGULATIONS INDICATES THAT GENERAL USAGE OF THE TERM "APPOINTMENT"
 REFERS TO THE ACTION WHICH TAKES PLACE AT THE TIME AN INDIVIDUAL IS
 INITIALLY HIRED INTO THE FEDERAL SERVICE.  THUS, THE LEGISLATIVE HISTORY
 TO THE CODIFICATION OF TITLE 5 OF THE UNITED STATES CODE, IN EXPLAINING
 A SLIGHT WORDING CHANGE IN 5 U.S.C. 3321 FROM THE WAY IT APPEARED IN THE
 ORIGINAL CIVIL SERVICE ACT, /7/ STATED THAT THE " . . . WORDING IS
 CHANGED BECAUSE IN PRACTICE AN APPOINTMENT IS NOT MADE AFTER PROBATION.
 THE WORDS 'OR EMPLOYMENT' ARE OMITTED AS INCLUDED WITHIN 'APPOINTMENT.'"
 /8/ THE FPM PROVIDES THAT "(A)N ELIGIBLE GIVEN A CAREER-CONDITIONAL OR
 CAREER APPOINTMENT BY SELECTION FROM A CERTIFICATE OF ELIGIBLES IS
 REQUIRED TO SERVE A PROBATIONARY PERIOD OF ONE YEAR." /9/ IT ALSO
 PROVIDES THAT "(A)N APPLICANT SELECTED FROM A CERTIFICATE OF ELIGIBLES
 SHOULD NORMALLY BE APPOINTED TO THE POSITION FOR WHICH SELECTED WITHIN A
 REASONABLE AMOUNT OF TIME (30 DAYS) FROM THE DATE OF SELECTION." /10/
 THEREFORE, WE FIND NO BASIS FOR HOLDING THAT BY USE OF THE WORD
 "APPOINTMENT" IN SECTION 7121(C)(4) CONGRESS INTENDED THAT GRIEVANCES
 OVER THE SEPARATION OF PRO0ATIONERS WERE, BY OPERATION OF LAW, TO BE
 EXCLUDED FROM COVERAGE BY A NEGOTIATED GRIEVANCE PROCEDURE.
 
    IT IS CLEAR THAT CONGRESS WAS AWARE OF THE UNIQUE STATUS OF
 PROBATIONERS UNDER THE CIVIL SERVICE LAWS AND REGULATIONS WHEN IT
 ENACTED THE CIVIL SERVICE REFORM ACT OF 1978.  PROBATIONERS ARE
 SPECIFICALLY IDENTIFIED AND DENIED CERTAIN RIGHTS ACCORDED OTHER
 EMPLOYEES BY THE ACT.  THEY MAY NOT APPEAL A REMOVAL OR REDUCTION IN
 GRADE FOR "UNACCEPTABLE PERFORMANCE" TO THE MERIT SYSTEMS PROTECTION
 BOARD (MSPB), A RIGHT GIVEN OTHER EMPLOYEES UNDER SECTION 4303(E) OF THE
 ACT.  CONGRESS DENIED PROBATIONERS THIS RIGHT BY FORTHRIGHTLY STATING
 THAT THE SECTION DOES NOT APPLY TO SUCH ACTIONS WHEN THEY ARE TAKEN
 AGAINST PROBATIONERS.  (5 U.S.C. 4303(F)).  ALSO PROBATIONERS MAY NOT
 APPEAL AN "ADVERSE ACTION" TO THE MSPB UNDER SECTION 7513(D) OF THE ACT.
  THIS RIGHT WAS DENIED WHEN CONGRESS CHOSE TO DEFINE THE TERM "EMPLOYEE"
 IN SUBCHAPTER II, CHAPTER 75 OF TITLE 5, UNITED STATES CODE, AS:
 
    SEC. 7511.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS SUBCHAPTER--
 
    (1) 'EMPLOYEE' MEANS--
 
    (A) AN INDIVIDUAL IN THE COMPETITIVE SERVICE WHO IS NOT SERVING A
 PROBATIONARY OR TRIAL
 
    PERIOD UNDER AN INITIAL APPOINTMENT OR WHO HAS COMPLETED 1 YEAR OF
 CURRENT CONTINUOUS
 
    EMPLOYMENT UNDER OTHER THAN A TEMPORARY APPOINTMENT LIMITED TO 1 YEAR
 OR LESS;  AND
 
    (B) A PREFERENCE ELIGIBLE IN AN EXECUTIVE AGENCY IN THE EXCEPTED
 SERVICE, AND A PREFERENCE
 
    ELIGIBLE IN THE UNITED STATES POSTAL SERVICE OR THE POSTAL RATE
 COMMISSION, WHO HAS COMPLETED
 
    1 YEAR OF CURRENT CONTINUOUS SERVICE IN THE SAME OR SIMILAR
 POSITIONS;
 
    THUS, IN TWO SPECIFIC AREAS WHERE THE SEPARATION OF FEDERAL EMPLOYEES
 MAY BE INVOLVED, CONGRESS HAS DETERMINED THAT CERTAIN APPELLATE RIGHTS
 AVAILABLE TO OTHER EMPLOYEES SHOULD NOT BE AVAILABLE TO PROBATIONERS AND
 EXPLICITLY DENIED THOSE RIGHTS TO THEM.  WE FIND NO BASIS FOR INFERRING
 SUCH CONGRESSIONAL INTENT IN SECTION 7121(C)(4) CONSIDERING THE WORDING
 USED BY CONGRESS IN THAT SECTION AS WELL AS THE BROAD DEFINITIONS OF THE
 TERMS "EMPLOYEE" AND "GRIEVANCE" SPECIFICALLY USED BY CONGRESS IN THE
 STATUTE.
 
    THEREFORE, THE ARBITRATOR'S AWARD, FINDING THE GRIEVANCE
 NONARBITRABLE ON THE BASIS OF SECTION 7121(C)(4), MUST BE SET ASIDE AS
 CONTRARY TO THAT SECTION.  THE ARBITRATOR OBSERVED IN THE OPINION
 ACCOMPANYING HIS AWARD THAT MOST AGREEMENTS IN THE PRIVATE SECTOR
 EXCLUDE GRIEVANCES BASED ON THE TERMINATION OF A PROBATIONER.  HOWEVER,
 THAT RESULT HAS BEEN REACHED THROUGH THE MUTUAL AGREEMENT OF THE
 PARTIES, NOT BY OPERATION OF LAW.  SECTION 7121(A)(2) OF THE STATUTE
 PERMITS THE PARTIES IN THE FEDERAL SECTOR TO NEGOTIATE EXCLUSIONS TO THE
 BROAD SCOPE GRIEVANCE PROCEDURE PERMITTED BY THE STATUTE IF THEY CHOOSE
 TO DO SO, INCLUDING EXCLUSIONS PERTAINING TO GRIEVANCES OVER THE
 SEPARATION OF PROBATIONERS.  HOWEVER, SECTION 7121(C)(4) DOES NOT
 MANDATE SUCH EXCLUSIONS.
 
    ACCORDINGLY, PURSUANT TO SECTION 7122(A) OF THE STATUTE AND SECTION
 2425.4 OF THE AUTHORITY'S INTERIM RULES AND REGULATIONS, THE
 ARBITRATOR'S AWARD FINDING THE GRIEVANCE NONARBITRABLE IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION OF THE FEDERAL LABOR RELATIONS AUTHORITY IN
 THIS SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE PARTIES BELOW:
 
    MR. RONALD D. KING, DIRECTOR
 
    CONTRACT AND APPEALS DIVISION
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    1325 MASSACHUSETTS AVENUE, N.W.
 
    WASHINGTON, D.C.  20005
 
    MS. BARBARA J. SULLIVAN
 
    ATTORNEY
 
    OFFICE OF THE SOLICITOR
 
    DEPARTMENT OF LABOR
 
    200 CONSTITUTION AVENUE,N.W., ROOM N2414
 
    WASHINGTON, D.C. 20210
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ACCORDING TO THE ARBITRATOR ARTICLE 16, SECTION 7 OF THE
 AGREEMENT PROVIDES:
 
    SECTION 7-- GRIEVABILITY/ARBITRABILITY DECISIONS
 
    THE ARBITRATOR SHALL HAVE THE AUTHORITY TO MAKE ALL GRIEVABILITY
 AND/OR ARBITRABILITY
 
    DETERMINATIONS OTHER THAN THOSE INVOLVING THE APPLICABILITY OF
 STATUTORY APPEALS
 
    PROCEDURE.  THE ARBITRATOR SHALL MAKE GRIEVABILITY AND/OR
 ARBITRABILITY DETERMINATIONS PRIOR
 
    TO ADDRESSING THE MERITS OF THE ORIGINAL GRIEVANCE.
 
    /2/ 5 U.S.C. 7121(C)(4) PROVIDES:
 
    SEC. 7121.  GRIEVANCE PROCEDURES
 
    (C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
 RESPECT TO ANY GRIEVANCE
 
    CONCERNING--
 
   *          *          *          *
 
 
    (4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT;  . . .
 
    /3/ 5 U.S.C.7135 PROVIDES IN PERTINENT PART:
 
    SEC. 7135. CONTINUATION OF EXISTING LAWS, RECOGNITIONS, AGREEMENTS,
 AND PROCEDURES
 
    (A) NOTHING CONTAINED IN THIS CHAPTER SHALL PRECLUDE--
 
    (1) THE RENEWAL OR CONTINUATION OF AN EXCLUSIVE RECOGNITION,
 CERTIFICATION OF AN EXCLUSIVE
 
    REPRESENTATIVE, OR A LAWFUL AGREEMENT BETWEEN AN AGENCY AND AN
 EXCLUSIVE REPRESENTATIVE OF ITS
 
    EMPLOYEES, WHICH IS ENTERED INTO BEFORE THE EFFECTIVE DATE OF THIS
 CHAPTER;  OR
 
   *          *          *          *
 
 
    (B) POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED UNDER AND
 DECISIONS ISSUED UNDER
 
    EXECUTIVE ORDERS 11491, 11616, 11636, 11787, AND 11838, OR UNDER ANY
 OTHER EXECUTIVE ORDER, AS
 
    IN EFFECT ON THE EFFECTIVE DATE OF THIS CHAPTER, SHALL REMAIN IN FULL
 FORCE AND EFFECT UNTIL
 
    REVISED OR REVOKED BY THE PRESIDENT, OR UNLESS SUPERSEDED BY SPECIFIC
 PROVISIONS OF THIS
 
    CHAPTER OR BY REGULATIONS OR DECISIONS ISSUED PURSUANT TO THIS
 CHAPTER.
 
    /4/ 5 U.S.C. 7122(A) PROVIDES:
 
    SEC. 7122.  EXCEPTIONS TO ARBITRAL AWARDS
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    MATTER DESCRIBED IN SECTION 7121(F) OF THIS TITLE).  IF UPON REVIEW
 THE AUTHORITY FINDS THAT
 
    THE AWARD IS DEFICIENT--
 
    (1) BECAUSE IT IS CONTRARY TO ANY LAW, RULE, OR REGULATION;  OR
 
    (2) ON OTHER GROUNDS SIMILAR TO THOSE APPLIED BY FEDERAL COURTS IN
 PRIVATE SECTOR
 
    LABOR-MANAGEMENT RELATIONS;
 
    THE AUTHORITY MAY TAKE SUCH ACTION AND MAKE SUCH RECOMMENDATIONS
 CONCERNING THE AWARD AS IT
 
    CONSIDERS NECESSARY, CONSISTENT WITH APPLICABLE LAWS, RULES, OR
 REGULATIONS.
 
    /5/ AS PART OF ITS OPPOSITION IN THIS CASE THE AGENCY SUBMITTED A
 BRIEF PREPARED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM) ON THIS
 QUESTION AND FILED WITH THE AUTHORITY IN ANOTHER CASE.  OPM'S ARGUMENTS
 MADE IN THAT BRIEF HAVE BEEN FULLY CONSIDERED AS PART OF THE AGENCY'S
 OPPOSITION IN THIS CASE AND ARE REFERRED TO HEREIN AS CONTENTIONS OF THE
 AGENCY.
 
    /6/ THE AGENCY PARTICULARLY RELIES UPON FPM CHAP. 315, SUBCHAP. 8,
 SEC. 8-1(A).
 
    /7/ PENDLETON ACT, CH.27 SEC. 2(2)4, 22 STAT. 404(1883).
 
    /8/ H.R. REP. NO.901, 89TH CONG., 1ST SESS. 45 (1965).  THE SENATE
 JUDICIARY COMMITTEE REPORT CONTAINED IDENTICAL LANGUAGE, S. REP. NO.
 1380, 89TH CONG., 2D SESS.  65 (1966).
 
    /9/ FPM CHAP. 315, SUBCHAP. 8, SEC. 8-2A.
 
    /10/ FPM CHAP. 332, SUBCHAP. 4, SEC. 4-12.