09:0171(24)AR - Elmendorf AFB and AFGE Local 1668 -- 1982 FLRAdec AR

 9 FLRA No. 24
 
 ELMENDORF AIR FORCE BASE
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1668
 Union
 
                                            Case No. 0-AR-281
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR CORNELIUS J. PECK FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE AGENCY FILED AN
 OPPOSITION.
 
    THIS MATTER CONCERNS THE REMOVAL OF THE GRIEVANT DURING HIS
 PROBATIONARY PERIOD.  A GRIEVANCE WAS FILED PROTESTING THE REMOVAL AND
 THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION WITH A THRESHOLD
 ISSUE THAT QUESTIONED:  "DOES APPLICABLE LAW EXCLUDE GRIEVANCES
 CONCERNING REMOVALS OF PROBATIONARY CIVIL SERVICE EMPLOYEES?"
 
    IN THIS REGARD THE ARBITRATOR EXPRESSLY ACKNOWLEDGED THAT THIS
 QUESTION HID ALREADY BEEN DECIDED IN THE NEGATIVE BY THE AUTHORITY 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).  HOWEVER, ON THE URGING OF THE ACTIVITY AND
 RECOGNIZING A SUBSTANTIAL CHANCE THAT AN AWARD SUSTAINING THE ACTIVITY'S
 CLAIM THAT SUCH GRIEVANCES ARE EXCLUDED BY LAW FROM THE PERMISSIBLE
 COVERAGE OF A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE STATUTE WOULD BE
 FOUND DEFICIENT BY THE AUTHORITY, THE ARBITRATOR DECIDED TO GIVE "FRESH
 CONSIDERATION TO THE ARGUMENTS PRESENTED BY THE (ACTIVITY)."
 ACKNOWLEDGING THAT THESE ARGUMENTS PRESENTED BY THE ACTIVITY WERE
 IDENTICAL TO THOSE THAT HAD BEEN CONSIDERED AND REJECTED BY THE
 AUTHORITY IN NATIONAL COUNCIL OF FIELD LABOR LOCALS, THE ARBITRATOR
 NEVERTHELESS DETERMINED THAT THE "ANALYSIS (OF THE AUTHORITY) IS
 UNPERSUASIVE." CONSEQUENTLY, ON THE BASIS OF THESE ARGUMENTS, THE
 ARBITRATOR HELD CONTRARY TO THE AUTHORITY THAT "APPLICABLE LAW EXCLUDES
 GRIEVANCES CONCERNING REMOVALS OF PROBATIONARY CIVIL SERVICE EMPLOYEES
 FROM PROVISIONS OF COLLECTIVE BARGAINING AGREEMENTS WHICH MAY BE
 NEGOTIATED UNDER THE (STATUTE)." CONSEQUENTLY, THE ARBITRATOR EXPLAINED
 THAT "(T)HIS MAKES IT UNNECESSARY FOR ME TO DETERMINE WHETHER THE
 AGREEMENT IN EFFECT BETWEEN THE (ACTIVITY) AND THE UNION EXCLUDES SUCH
 COMPLAINTS FROM THE GRIEVANCE AND ARBITRATION PROVISIONS OF THE
 AGREEMENT." AS HIS AWARD, THE ARBITRATOR FOUND THE GRIEVANCE TO BE
 NONARBITRABLE.
 
    IN ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS ON THE BASIS OF
 NATIONAL COUNCIL OF FIELD LABOR LOCALS THAT THE AWARD IS CONTRARY TO THE
 STATUTE BECAUSE THESE GRIEVANCES ARE NOT EXCLUDED BY LAW FROM THE
 PERMISSIBLE COVERAGE OF A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE
 STATUTE.  THE AUTHORITY AGREES.
 
    THE AUTHORITY HAS UNIFORMLY HELD THAT GRIEVANCES CONCERNING THE
 REMOVAL, SEPARATION, OR TERMINATION OF AN EMPLOYEE DURING THE EMPLOYEE'S
 PROBATIONARY PERIOD ARE NOT EXCLUDED BY GOVERNING LAW OR REGULATION FROM
 THE PERMISSIBLE COVERAGE OF A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE
 STATUTE.  AS ACKNOWLEDGED BY THE ARBITRATOR, THIS WAS PRECISELY THE
 DECISION OF THE AUTHORITY IN NATIONAL COUNCIL OF FIELD LABOR LOCALS AND
 SUCH DECISION HAS BEEN CONSISTENTLY FOLLOWED.  SEE VETERANS
 ADMINISTRATION MEDICAL CENTER, FRANKLIN DELANO ROOSEVELT HOSPITAL,
 MONTROSE, NEW YORK AND LOCAL 1119, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, 8 FLRA NO. 48 (1982);  CORPS OF ENGINEERS, KANSAS CITY
 DISTRICT AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29, 8 FLRA
 NO. 14 (1982).  MOREOVER, THE AUTHORITY EXPRESSLY REAFFIRMED ITS
 DECISION IN NATIONAL COUNCIL OF FIELD LABOR LOCALS IN AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION AND
 NATURALIZATION SERVICE COUNCIL AND U.S. DEPARTMENT OF JUSTICE,
 IMMIGRATION AND NATURALIZATION SERVICE, 8 FLRA NO. 75 (1982) AT 22.
 CONSEQUENTLY, THE ARBITRATOR'S AWARD, BY FINDING THE GRIEVANCE
 NONARBITRABLE ON THE EXPRESS BASIS THAT SUCH GRIEVANCES ARE EXCLUDED BY
 LAW FROM THE PERMISSIBLE COVERAGE OF A GRIEVANCE PROCEDURE NEGOTIATED
 UNDER THE STATUTE, IS DEFICIENT AS CONTRARY TO THE STATUTE AND IS
 ACCORDINGLY SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JUNE 23, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY