Veterans Administration Medical Center, Franklin Delano Roosevelt Hospital, Montrose, New York (Activity) and Local 1119, American Federation of Government Employees (Union)

 8 FLRA No. 48
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER, FRANKLIN
 DELANO ROOSEVELT HOSPITAL,
 MONTROSE, NEW YORK
 Activity
 
 and
 
 LOCAL 1119, AMERICAN
 FEDERATION OF GOVERNMENT
 EMPLOYEES
 Union
 
                                            Case No. O-AR-303
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR EDWARD WEISS FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
 U.S.C. SEC. 7122(A)) AND PART 2425 OF THE AUTHORITY RULES AND
 REGULATIONS (5 CFR PART 2425).
 
    ACCORDING TO THE ARBITRATOR THE PARTIES SUBMITTED TO ARBITRATION THE
 ISSUE OF WHETHER A GRIEVANCE OVER THE SEPARATION OF A PROBATIONARY
 EMPLOYEE WAS ARBITRABLE UNDER THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT DATED MARCH 3, 1980.  BEFORE THE ARBITRATOR THE ACTIVITY
 PRINCIPALLY ARGUED THAT GRIEVANCES PERTAINING TO THE SEPARATION OF A
 PROBATIONARY EMPLOYEE ARE EXCLUDED FROM COVERAGE BY A NEGOTIATED
 GRIEVANCE PROCEDURE AS A MATTER OF LAW UNDER SECTION 7121(C) OF THE
 STATUTE /1/ AND ARE EXCLUDED FROM THE PARTIES' GRIEVANCE PROCEDURE BY
 THE NEGOTIATED EXCLUSION FOR GRIEVANCES CONCERNING "(E)XAMINATION,
 CERTIFICATION AND APPOINTMENT." FINDING THAT THE AUTHORITY'S DECISION IN
 NATIONAL COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND UNITED STATES DEPARTMENT OF LABOR, 4
 FLRA NO. 51 (1980), FULLY ANSWERED ALL THE ISSUES RAISED BY THE PARTIES,
 THE ARBITRATOR REJECTED THE POSITION OF THE ACTIVITY.  ON THE BASIS OF
 NATIONAL COUNCIL OF FIELD LABOR LOCALS, THE ARBITRATOR DETERMINED THAT
 GRIEVANCES PERTAINING TO THE SEPARATION OF A PROBATIONARY EMPLOYEE WERE
 NOT EXCLUDED FROM COVERAGE BY A NEGOTIATED GRIEVANCE PROCEDURE BY
 SECTION 7121(C)(4), AND HE DETERMINED THAT THE AGREEMENT'S EXCLUSION OF
 GRIEVANCES CONCERNING EXAMINATION, CERTIFICATION, AND APPOINTMENT DID
 NOT CONSTITUTE A NEGOTIATED EXCLUSION OF GRIEVANCES PERTAINING TO THE
 SEPARATION OF PROBATIONARY EMPLOYEES.  ACCORDINGLY, AS HIS AWARD, HE
 RULED THAT THE GRIEVANCE OF A PROBATIONARY EMPLOYEE PERTAINING TO HIS
 SEPARATION WAS ARBITRABLE UNDER THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.
 
    IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
 LAW AND REGULATION.  IN SUPPORT OF THIS EXCEPTION, HOWEVER, THE AGENCY
 HAS ONLY MAINTAINED THAT THE AUTHORITY'S INTERPRETATION OF SECTION
 7121(C)(4) OF THE STATUTE IN NATIONAL COUNCIL OF FIELD LABOR LOCALS WAS
 LEGALLY INCORRECT AND THAT CONSEQUENTLY THE ARBITRATOR'S AWARD RELYING
 ON THAT DECISION IS DEFICIENT.  BECAUSE THE AUTHORITY IN NATIONAL
 COUNCIL OF FIELD LABOR LOCALS CONSIDERED AND REJECTED THE ARGUMENTS
 PRESENTED BY THE AGENCY IN THIS CASE, ITS EXCEPTION, FOR THE REASONS SET
 FORTH IN GREATER DETAIL IN THAT DECISION, PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT.  ACCORD, CORPS OF ENGINEERS, KANSAS CITY DISTRICT
 AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29, 8 FLRA NO. 14
 (1982).  THE AGENCY'S EXCEPTION IS THEREFORE DENIED.
 
    ISSUED, WASHINGTON, D.C., MARCH 24, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 5 U.S.C. SEC. 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(.)