09:0676(78)AR - OPM, Washington, DC and AFGE Local 32 -- 1982 FLRAdec AR

 9 FLRA No. 78
 
 OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C.
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 32
 Union
 
                                            Case No. O-AR-232
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
 ARBITRATOR SEYMOUR STRONGIN FILED BY THE AGENCY 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 UNION FILED AN
 OPPOSITION.
 
    THE DISPUTE IN THIS MATTER AROSE WHEN THE GRIEVANT WAS TERMINATED
 DURING HIS PROBATIONARY PERIOD.  A GRIEVANCE WAS FILED, WHICH THE AGENCY
 CLAIMED WAS NOT ARBITRABLE, AND THE GRIEVANCE WAS ULTIMATELY SUBMITTED
 TO ARBITRATION.
 
    AT THE OUTSET OF THE ARBITRATION HEARING, THE AGENCY AGAIN CLAIMED
 THAT THE GRIEVANCE WAS NOT ARBITRABLE, ARGUING THAT SUCH GRIEVANCES WERE
 EXCLUDED FROM COVERAGE UNDER A NEGOTIATED GRIEVANCE PROCEDURE BY
 SECTION
 7121(C)(4) OF THE STATUTE.  /1/ THE AGENCY CONCEDED TO THE ARBITRATOR,
 HOWEVER, THAT ITS POSITION WAS CONTRARY TO 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).  ON THE BASIS OF NATIONAL COUNCIL OF FIELD LABOR
 LOCALS, THE ARBITRATOR REJECTED THE AGENCY'S CONTENTION AND FOUND THE
 GRIEVANCE TO BE ARBITRABLE.
 
    ON THE MERITS OF THE GRIEVANCE, THE ARBITRATOR RULED THAT THE AGENCY
 HAD THE BURDEN OF JUSTIFYING THE GRIEVANT'S TERMINATION.  FINDING THAT
 THE GRIEVANT WAS TERMINATED ULTIMATELY FOR "UNSATISFACTORY PRODUCTION,"
 THE ARBITRATOR FOUND THE DISPOSITIVE QUESTION BEFORE HIM TO INVOLVE AN
 APPRAISAL OF THE GRIEVANT'S PRODUCTION.  IN THIS REGARD THE ARBITRATOR
 NOTED THAT AT THE ARBITRATION HEARING THE AGENCY SUBMITTED A STATEMENT
 BY THE CHIEF OF THE GRIEVANT'S DIVISION PERTAINING TO THE UNSATISFACTORY
 PRODUCTION OF THE GRIEVANT, BUT OFFERED NO OTHER EVIDENCE ON THIS ISSUE.
  THE ARBITRATOR NOTED THAT IN CONTRAST THE GRIEVANT TESTIFIED THAT THE
 FIGURES CONTAINED IN THAT STATEMENT WERE IN ERROR AND HE PRODUCED HIS
 LOGBOOK IN WHICH HE HAD ENTERED EACH DAY THE CASES HE SUBMITTED FOR
 REVIEW.  IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR COMMENTED
 THAT THE GRIEVANT'S TESTIMONY, HIS LOGBOOK, AND TWO EXHIBITS PREPARED BY
 THE UNION, WHICH SHOWED THAT THE GRIEVANT'S PRODUCTION MET AND EXCEEDED
 THE AGENCY'S EXPECTATIONS, WERE ALL PART OF THE RECORD.  HE FURTHER
 NOTED THAT THE AGENCY DID NOT CROSS EXAMINE THE GRIEVANT, DID NOT
 PRESENT ANY REBUTTAL TESTIMONY, AND DID NOT REQUEST ANY TIME IN WHICH TO
 EXAMINE EITHER THE GRIEVANT'S LOGBOOK OR ITS OWN RECORDS.  HE ALSO
 STATED THAT IN ITS POST-HEARING BRIEF THE AGENCY TOTALLY IGNORED THE
 GRIEVANT'S TESTIMONY AND LOGBOOK AND THE EXHIBITS OF THE UNION.
 ACCORDINGLY, THE ARBITRATOR DECIDED AS FOLLOWS:
 
    THE RECORD LEAVES NO ROOM FOR DOUBT THAT THE ACTIVITY'S DECISION TO
 TERMINATE THE GRIEVANT
 
    RESTED ON ITS VIEW OF THE GRIEVANT'S ALLEGEDLY UNSATISFACTORY
 PRODUCTION.  THE EVIDENCE BEFORE
 
    THE ARBITRATOR AS TO THE GRIEVANT'S PRODUCTION, HOWEVER, INDICATES
 THAT THE ACTIVITY DID NOT
 
    GIVE HIM PROPER CREDIT FOR THE WORK HE PERFORMED.  TO BE SURE, THIS
 IS SELF-SERVING EVIDENCE
 
    PRODUCED BY THE GRIEVANT IN THE FORM OF A NOTEBOOK HE ALLEGEDLY KEPT
 AT THE TIME OF THE
 
    EVENTS.  THE ARBITRATOR, HOWEVER, MUST CHOOSE BETWEEN THAT TANGIBLE
 EVIDENCE PRODUCED BEFORE
 
    HIM AND AVAILABLE FOR EXAMINATION BY THE ACTIVITY AND THE
 CONCLUSIONAL, SECOND-HAND SUMMARY
 
    PREPARED BY (THE GRIEVANT'S DIVISION CHIEF) BUT NOT SUPPORTED BY THE
 PRODUCTION RECORDS OR BY
 
    TESTIMONY.  IT IS POSSIBLE, OF COURSE, THAT THE GRIEVANT'S RECORDS
 ARE ERRONEOUS.  IT IS ALSO
 
    POSSIBLE, AS THE GRIEVANT TESTIFIED HE WAS TOLD WHEN HE CALLED THE
 MATTER TO THE ATTENTION OF
 
    HIS SECTION CHIEF, THAT THE ACTIVITY WAS "EXPERIENCING COMPUTER
 PROBLEMS." THE ARBITRATOR, IN
 
    ANY EVENT, CAN ONLY DECIDE ON THE EVIDENCE BEFORE HIM, TRUSTING TO
 THE ADVERSARIAL SYSTEM TO
 
    SHOW WHICH OF THE CONFLICTING RECORDS IS CORRECT.  HERE, WHERE THERE
 WAS NO CROSS EXAMINATION
 
    OR OTHER CHALLENGE TO THE GRIEVANT'S DETAILED CONTEMPORARY RECORD,
 THE ARBITRATOR MUST ACCEPT
 
    IT AS ACCURATE.
 
    ON THE BASIS OF GRIEVANT'S LOG, HIS PRODUCTION MET ACTIVITY
 "EXPECTATIONS" AND INDEED
 
    WARRANTED HIS PROMOTION TO GS-7, THE GRADE ACHIEVED BY THOSE IN HIS
 TRAINEE GROUP WHO MET
 
    THOSE TESTS AND WERE UNCONDITIONALLY ASSIGNED AS CLAIMS EXAMINERS.
 IT FOLLOWS THAT THE
 
    GRIEVANCE MUST BE SUSTAINED, AND THAT THE GRIEVANT SHOULD BE
 REINSTATED.  HE SHOULD BE GIVEN
 
    BACKPAY AS A GS-5 FROM THE DATE OF HIS TERMINATION UNTIL THE FIRST
 ANNIVERSARY OF HIS
 
    EMPLOYMENT, FROM WHICH POINT ON HE SHOULD BE GIVEN BACKPAY AS A GS-7,
 THE GRADE AT WHICH HE
 
    SHOULD NOW BE PLACED.
 
    IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S
 DETERMINATION THAT THE GRIEVANCE WAS ARBITRABLE IS CONTRARY TO SECTION
 7121(C)(4) OF THE STATUTE.  HOWEVER, FOR THE REASONS SET FORTH IN
 GREATER DETAIL IN NATIONAL COUNCIL OF FIELD LABOR LOCALS, 4 FLRA NO. 51,
 AND EXPRESSLY REAFFIRMED 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, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING
 THE AWARD DEFICIENT.  ACCORD 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).  THEREFORE, THIS
 EXCEPTION IS DENIED.
 
    IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS BASED
 ON A NONFACT.  SPECIFICALLY, THE AGENCY CONTENDS THAT THE CENTRAL FACT
 UNDERLYING THE AWARD IS THE ARBITRATOR'S STATEMENT THAT THE GRIEVANT WAS
 TERMINATED FOR UNSATISFACTORY PRODUCTION WHILE IN THE RETIREMENT CLAIMS
 DIVISION, WHICH STATEMENT THE AGENCY MAINTAINS IS DEMONSTRABLY FALSE,
 MISLEADING, AND A GROSS MISTAKE OF FACT BUT FOR WHICH THE ARBITRATOR
 WOULD HAVE REACHED A DIFFERENT RESULT.  IN SUPPORT OF THIS EXCEPTION,
 THE AGENCY ASSERTS THAT THE GRIEVANT'S TERMINATION WAS NOT "EVEN
 PRIMARILY BASED ON HIS PRODUCTION LEVELS WHILE ASSIGNED TO THE
 RETIREMENT CLAIMS DIVISION." CITING THE NOTIFICATION TO THE GRIEVANT OF
 HIS TERMINATION, THE AGENCY CLAIMS THAT IT IS CLEAR THAT THE TERMINATION
 WAS BASED INSTEAD ON DEFICIENCIES IN BOTH THE GRIEVANT'S PERFORMANCE AND
 CONDUCT OVER HIS ENTIRE TEN-MONTH PERIOD AS A TRAINEE.  WITH RESPECT TO
 THE GRIEVANT'S PRODUCTION, THE AGENCY ARGUES THAT THE GRIEVANT'S
 TESTIMONY AND EVIDENCE WERE UNCORROBORATED IN THE RECORD AND SUBMITS
 THAT HIS FIGURES WERE SHOWN IN A SUBSEQUENT AUDIT TO HAVE BEEN
 ERRONEOUS.  THE AGENCY ALSO DISPUTES THE ARBITRATOR'S FINDING THAT THERE
 WAS NO CREDIBLE EVIDENCE IN THE RECORD TO CHALLENGE THE GRIEVANT'S
 ASSERTIONS REGARDING HIS PRODUCTION AND MAINTAINS THAT IT WAS INCUMBENT
 ON THE ARBITRATOR TO HAVE CONSIDERED THE AGENCY'S EVIDENCE CHALLENGING
 THE GRIEVANT'S UNAUTHENTICATED LOGBOOK.
 
    IN OPPOSITION THE UNION PRINCIPALLY ARGUES THAT THE ARBITRATOR'S
 FAILURE TO SPECIFICALLY ADDRESS THE GRIEVANT'S CONDUCT DOES NOT
 ESTABLISH THAT THE ARBITRATOR DID NOT CONSIDER THE EVIDENCE PRESENTED AS
 TO THE GRIEVANT'S ALLEGED MISCONDUCT.  THE UNION MAINTAINS THAT INSTEAD
 IT SHOULD ONLY INDICATE THAT THE ARBITRATOR DID NOT VIEW THE GRIEVANT'S
 CONDUCT AS JUSTIFYING HIS TERMINATION.  THE UNION NOTES THAT THE AGENCY
 ONLY MENTIONED THE GRIEVANT'S CONDUCT IN ONE SENTENCE IN ITS
 POST-HEARING BRIEF.  THE UNION THEREFORE CLAIMS THAT IN THESE
 CIRCUMSTANCES THE ARBITRATOR COULD PROPERLY CONSIDER THAT THE GRIEVANT'S
 CONDUCT WAS NOT A SERIOUS BASIS FOR HIS TERMINATION.
 
    THIS EXCEPTION FAILS TO PROVIDE A BASIS FOR FINDING THE AWARD
 DEFICIENT.  AS NOTED, THE ARBITRATOR FIRST RULED THAT THE AGENCY HAD THE
 BURDEN OF JUSTIFYING THE GRIEVANT'S TERMINATION.  ON THE BASIS OF THE
 EVIDENCE PRESENTED, THE ARBITRATOR DETERMINED THAT THE AGENCY'S DECISION
 TO TERMINATE THE GRIEVANT HAD ULTIMATELY RESTED ON ITS VIEW THAT HIS
 PRODUCTION WAS UNSATISFACTORY AND THAT THEREFORE THE DISPOSITIVE ISSUE
 BEFORE HIM INVOLVED AN APPRAISAL OF THE GRIEVANT'S PRODUCTION.  THE
 AGENCY HAS NOT ESTABLISHED IN WHAT MANNER THIS DETERMINATION IS
 "DEMONSTRABLY FALSE." THE EMPHASIS OF THE AGENCY'S EXCEPTION IS THAT THE
 GRIEVANT'S TERMINATION WAS INDIVISIBLY BASED ON THE GRIEVANT'S OVERALL
 PERFORMANCE AND CONDUCT DURING HIS ENTIRE PROBATIONARY PERIOD AND WAS
 NOT PRIMARILY OR ULTIMATELY BASED ON HIS PRODUCTION WHILE ASSIGNED TO
 THE RETIREMENT CLAIMS DIVISION.  HOWEVER, THE GRIEVANT'S TERMINATION
 NOTICE EXPRESSLY ADVISED THAT THE GRIEVANT WAS BEING TERMINATED BECAUSE
 OF HIS "FAILURE TO MEET THE PERFORMANCE REQUIREMENTS OF (HIS) POSITION."
 MOREOVER, THE PRINCIPAL EXPLANATION PROVIDED WAS AS FOLLOWS:
 
    BASED ON YOUR RECORD DURING THESE FOUR MONTHS (IN THE RETIREMENT
 CLAIMS DIVISION), YOU HAVE
 
    NOT ATTAINED THE LEVEL OF KNOWLEDGE NECESSARY TO SUCCESSFULLY CARRY
 OUT THE RESPONSIBILITIES
 
    OF A CIVIL SERVICE RETIREMENT CLAIMS EXAMINER.
 
    SPECIFICALLY, DURING YOUR CONDITIONAL REASSIGNMENT, THE NUMBER OF
 CLAIMS YOU WERE ABLE TO
 
    PROCESS HAS NOT INCREASED SIGNIFICANTLY, AND YOUR RATE OF ACCURACY
 DECREASED.  THE NUMBER OF
 
    CASES PER DAY THAT YOU ARE PROCESSING HAS NEVER REACHED THE MINIMUM
 LEVEL FOR TRANSFER FROM
 
    THE TRAINING SECTION TO THIS DIVISION.
 
    FURTHERMORE, THE GRIEVANT'S CONDUCT WAS ONLY MENTIONED IN ONE
 SENTENCE AS THE LAST EXPLANATION OF HIS TERMINATION AND WAS INTRODUCED
 BY "(I)N ADDITION." AS HAS BEEN NOTED BY THE UNION, THE GRIEVANT'S
 CONDUCT WAS ALSO ONLY MENTIONED IN ONE SENTENCE OF THE AGENCY'S
 POST-HEARING BRIEF.  IN SUCH CIRCUMSTANCES, AND WITH THE PARTIES UNABLE
 TO AGREE ON A STIPULATION OF THE ISSUES TO BE SUBMITTED TO THE
 ARBITRATOR, THE AGENCY HAS NOT SUBSTANTIATED THAT THE ARBITRATOR'S VIEW
 OF THIS CASE AS ULTIMATELY RESTING ON WHETHER THE GRIEVANT'S PRODUCTION
 JUSTIFIED HIS TERMINATION IS, AS ASSERTED BY THE AGENCY, "DEMONSTRABLY
 FALSE, MISLEADING AND A GROSS MISTAKE OF FACT BUT FOR WHICH THE
 ARBITRATOR WOULD UNDOUBTEDLY HAVE REACHED A DIFFERENT RESULT."
 
    MOREOVER, WITH RESPECT TO THESE TYPES OF CASES, THE AUTHORITY HAS
 EXPRESSLY HELD:
 
    THERE IS NO REQUIREMENT IN LAW OR REGULATION WHICH WOULD REQUIRE AN
 ARBITRATOR TO EXPRESSLY
 
    ADDRESS THE SECONDARY CHARGES IN CASES SUCH AS THIS AND, WITH NO SUCH
 REQUIREMENT APPARENT
 
    UNDER THE PARTIES' AGREEMENT, IT IS CLEAR THAT THE ARBITRATOR WAS NOT
 OBLIGATED TO
 
    SPECIFICALLY DISCUSS THESE CHARGES.  THE FACT THAT HIS OPINION
 ACCOMPANYING THE AWARD DID NOT
 
    MENTION SUCH CHARGES DOES NOT ESTABLISH THAT HE DID NOT RULE ON THEM.
 
    IMMIGRATION AND NATURALIZATION SERVICE AND AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, 8 FLRA NO. 53(1982) AT 2.  THUS, THE
 ARBITRATOR'S EMPHASIS ON THE GRIEVANT'S PRODUCTION DOES NOT ESTABLISH
 THAT THE ARBITRATOR DID NOT RULE THAT THE ALLEGED MISCONDUCT FAILED TO
 JUSTIFY THE GRIEVANT'S TERMINATION AND DOES NOT THEREFORE ESTABLISH THAT
 THE ARBITRATOR ERRONEOUSLY JUDGED THE GRIEVANT'S TERMINATION SOLELY ON
 THE BASIS OF THE GRIEVANT'S PRODUCTION DURING HIS FOUR MONTHS IN THE
 RETIREMENT CLAIMS DIVISION.
 
    LIKEWISE, THE AGENCY'S ASSERTIONS REGARDING THE ARBITRATOR'S
 CONSIDERATION AND EVALUATION OF EVIDENCE AS TO THE GRIEVANT'S PRODUCTION
 FAIL TO DEMONSTRATE THAT THE AWARD IS IN ANY MANNER DEFICIENT.  IN LIGHT
 OF THE DETAILED COMMENTS BY THE ARBITRATOR ON THE EVIDENCE AND TESTIMONY
 PRESENTED AND NOT PRESENTED, IT IS CLEAR THAT THESE ASSERTIONS
 CONSTITUTE NOTHING MORE THAN AN ATTEMPT BY THE AGENCY TO RELITIGATE THIS
 CASE BEFORE THE AUTHORITY.  BECAUSE THIS EXCEPTION THEREFORE PROVIDES NO
 BASIS FOR FINDING THE AWARD DEFICIENT, THE EXCEPTION IS DENIED.
 
    IN ITS THIRD EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS
 DEFICIENT "TO THE EXTENT THAT (THE ARBITRATOR) DIRECTED THE ACTIVITY TO
 PROMOTE THE GRIEVANT TO THE GS-7 LEVEL WITH BACKPAY, EFFECTIVE ON THE
 FIRST ANNIVERSARY OF HIS EMPLOYMENT WITH THE AGENCY." IN OPPOSITION THE
 UNION ARGUES THAT THE AWARD IS CONSISTENT WITH THE BACK PAY ACT,
 ASSERTEDLY BECAUSE OF A PAST PRACTICE REQUIRING AUTOMATIC CAREER LADDER
 PROMOTIONS UPON SATISFACTORY PERFORMANCE AS A GS-5 CLAIMS EXAMINER.
 
    THE AUTHORITY FINDS THAT THE ARBITRATOR'S ORDER OF A CAREER LADDER
 PROMOTION TO GS-7 WITH BACKPAY RETROACTIVE TO THE FIRST ANNIVERSARY DATE
 OF THE GRIEVANT'S EMPLOYMENT WITH THE AGENCY IS DEFICIENT AS CONTRARY TO
 THE BACK PAY ACT, 5 U.S.C. 5596, AND MUST BE MODIFIED ACCORDINGLY.  THE
 BACK PAY ACT MAKES IT CLEAR THAT AN AWARD OF RETROACTIVE PROMOTION AND
 BACKPAY IS ONLY AVAILABLE WHEN AN AGGRIEVED EMPLOYEE WOULD HAVE RECEIVED
 A PROMOTION IF THE EMPLOYEE HAD NOT SUFFERED AN UNJUSTIFIED OR
 UNWARRANTED PERSONNEL ACTION.  5 U.S.C. 5596(B)(1)(A)(I) (SUPP. IV
 1980);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2811 AND U.S.
 GOVERNMENT DISTRICT OFFICE, SOCIAL SECURITY ADMINISTRATION, ST. PAUL,
 MINNESOTA, 7 FLRA NO. 97(1982).  ACCORDINGLY, IN ORDER FOR A RETROACTIVE
 PROMOTION AND BACKPAY TO BE AUTHORIZED UNDER THE ACT, THERE MUST BE A
 DETERMINATION NOT ONLY THAT THE EMPLOYEE SUFFERED AN UNJUSTIFIED OR
 UNWARRANTED PERSONNEL ACTION, BUT ALSO THAT SUCH UNWARRANTED ACTION
 DIRECTLY RESULTED IN THE DENIAL OF A PROMOTION TO THE EMPLOYEE THAT THE
 EMPLOYEE OTHERWISE WOULD HAVE RECEIVED.  ID. AT 3.  IN TERMS OF THIS
 CASE, THE ARBITRATOR HAS NOT MADE THE NECESSARY FINDING THAT THE
 AGENCY'S UNJUSTIFIED TERMINATION OF THE GRIEVANT DURING HIS PROBATIONARY
 PERIOD DIRECTLY RESULTED IN AN IMPROPER DENIAL OF A CAREER LADDER
 PROMOTION TO GS-7 THAT THE GRIEVANT OTHERWISE WOULD HAVE RECEIVED.  IN
 THESE CASES, IT IS NECESSARY TO BE ABLE TO RECONSTRUCT ON THE BASIS OF
 THE EVIDENCE AND THE ARBITRATOR'S AWARD THAT THE RESPONSIBLE AGENCY
 OFFICIALS WOULD ORIGINALLY HAVE PROMOTED THE AGGRIEVED EMPLOYEE IF THE
 UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED.  SEE ID.  THE AWARD AND
 THE EVIDENCE IN THIS CASE DO NOT ESTABLISH THAT HAD THE GRIEVANT NOT
 BEEN TERMINATED, HE WOULD HAVE BEEN PROMOTED.
 
    THE PERSONNEL ACTION IN THIS CASE WAS THE GRIEVANT'S TERMINATION
 DURING HIS PROBATIONARY PERIOD.  THE ARBITRATOR EXPRESSLY FOUND THAT THE
 AGENCY'S APPRAISAL OF THE GRIEVANT AS ESSENTIALLY LACKING IN FITNESS FOR
 PERMANENT GOVERNMENT SERVICE AND ITS ACTION TERMINATING HIM WERE
 UNJUSTIFIED AND UNWARRANTED.  HOWEVER, BECAUSE THE GRIEVANT WAS
 TERMINATED DURING HIS PROBATIONARY PERIOD, HE WAS NEVER APPRAISED AS TO
 WHETHER HE HAD THE NECESSARY ABILITY TO PERFORM AT THE NEXT HIGHER GRADE
 OF HIS CAREER LADDER, WHICH APPRAISAL IS DISTINCT FROM AND UNRELATED TO
 THE APPRAISAL OF THE FITNESS AND CAPACITY OF A PROBATIONARY EMPLOYEE.
 IN RECONSTRUCTING THIS ACTION, THE UNJUSTIFIED APPRAISAL AND TERMINATION
 OF THE GRIEVANT WITH RESPECT TO HIS PRODUCTION DOES NOT AND CANNOT
 ESTABLISH THAT A DENIAL OF A CAREER LADDER PROMOTION WOULD ALSO HAVE
 BEEN UNJUSTIFIED AND UNWARRANTED.  IN THIS REGARD THE GRIEVANT'S
 PRODUCTION WAS NEVER APPRAISED IN RELATION TO WHETHER HE SHOULD RECEIVE
 A CAREER LADDER PROMOTION, AND, FURTHER, UNDER THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT PRODUCTION IS ONLY ONE ELEMENT IN THE APPRAISAL OF
 AN EMPLOYEE FOR A CAREER LADDER PROMOTION.  CONSEQUENTLY, THE AWARD AND
 DECISION ARE MODIFIED TO ONLY PROVIDE THAT THE GRIEVANT SHOULD BE
 REINSTATED AS A GS-5 AND SHOULD BE GIVEN BACKPAY AS A GS-5 FROM THE DATE
 OF HIS TERMINATION.
 
    ISSUED, WASHINGTON, D.C., JULY 28, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    LEON B. APPLEWHAITE, MEMBER, CONCURRING:
 
    ALTHOUGH I AM IN AGREEMENT WITH MY FELLOW MEMBERS AS TO THE ULTIMATE
 RESOLUTION OF THIS APPEAL, I FEEL IT IS NECESSARY THAT LIMITATIONS BE
 PLACED ON THE REASONING SET FORTH THEREIN.  THE ARBITRATOR, IN THIS
 CASE, HELD THAT THE GRIEVANCE OF THE PROBATIONARY EMPLOYEE WAS
 ARBITRABLE AND PROCEEDED TO ADDRESS THE ISSUE OF THE GRIEVANT'S
 SEPARATION.  INSOFAR AS THE ARBITRATOR'S DETERMINATIONS REGARDING THE
 SEPARATION AROSE FROM MANAGEMENT'S MISTAKE AS TO A MATERIAL QUANTITATIVE
 FACT AND NOT A DISAGREEMENT WITH A QUALITATIVE DISCRETIONARY
 DETERMINATION ON THE PART OF MANAGEMENT, THE AWARD IS NOT VIOLATIVE OF
 THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., JULY 28, 1982
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7121(C)(4) PROVIDES:
 
    SECTION 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(.)