10:0496(84)AR - AFGE Local 3369 and SSA, New York Region -- 1982 FLRAdec AR

 10 FLRA No. 84
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 3369, AFL-CIO
 Union
 
 and
 
 SOCIAL SECURITY ADMINISTRATION,
 NEW YORK REGION
 Activity
 
                                            Case No. O-AR-302
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR BENJAMIN H. WOLF 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.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE SEPARATION OF THE GRIEVANT
 DURING HER PROBATIONARY PERIOD.  A GRIEVANCE WAS FILED PROTESTING THE
 SEPARATION AND THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION
 WITH A THRESHOLD ISSUE OF WHETHER GRIEVANCES OVER THE SEPARATION OF
 PROBATIONERS ARE PRECLUDED FROM COVERAGE BY THE NEGOTIATED GRIEVANCE
 PROCEDURE OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.
 
    AT THE OUTSET THE ARBITRATOR NOTED THAT THE PARTIES' AGREEMENT HAD
 BEEN NEGOTIATED UNDER EXECUTIVE ORDER NO. 11491 (THE ORDER) AND
 ACCORDINGLY CONTAINED, AS REQUIRED, THE LANGUAGE OF SECTION 12(A) OF THE
 ORDER IN ARTICLE III PROVIDING, AS RELEVANT TO THIS CASE, THAT THE
 AGREEMENT WAS GOVERNED BY APPROPRIATE REGULATIONS INCLUDING THE FEDERAL
 PERSONNEL MANUAL (FPM).  WITH REGARD TO THE QUESTION OF ARBITRABILITY,
 THE UNION ESSENTIALLY ARGUED THAT NO LAW OR REGULATION PRECLUDED ALL
 GRIEVANCES OVER THE SEPARATION OF PROBATIONERS FROM THE PERMISSIBLE
 COVERAGE OF A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE ORDER.  THE
 ARBITRATOR, HOWEVER, REJECTED THE UNION'S ARGUMENT.  HE DETERMINED,
 INSTEAD, THAT "THE SPIRIT AND LANGUAGE OF THE FPM" CLEARLY REFUTED THAT
 THESE GRIEVANCES WERE ARBITRABLE.  THE ARBITRATOR WAS PARTICULARLY
 PERSUADED BY THE PROVISION OF FPM CHAPTER 315, SUBCHAPTER 8-4A(3)
 STATING THAT THE PROBATIONER IS NOT GIVEN A RIGHT OF REPLY TO THE NOTICE
 OF SEPARATION.  /1/ EMPHASIZING THIS PROVISION OF THE FPM AND THE FPM
 REFERENCE IN SECTION 12(A) OF THE ORDER INCORPORATED IN ARTICLE III OF
 THE AGREEMENT, THE ARBITRATOR RULED THAT THE FPM AND, CORRESPONDINGLY,
 THE PARTIES' AGREEMENT PRECLUDE GRIEVANCES OVER THE SEPARATION OF
 PROBATIONERS.  CONSEQUENTLY, AS HIS AWARD THE ARBITRATOR FOUND THE
 GRIEVANCE NONARBITRABLE.
 
    AS ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE AWARD
 FINDING THE GRIEVANCE NONARBITRABLE IS DEFICIENT AND MUST BE SET ASIDE.
 IN PARTICULAR, THE UNION MAINTAINS THAT THE FPM DOES NOT PRECLUDE
 PROBATIONARY EMPLOYEES FROM GRIEVING THEIR SEPARATION, AND CONSEQUENTLY
 THE PARTIES' AGREEMENT LIKEWISE DOES NOT, BY REFERENCE TO THE FPM,
 PRECLUDE GRIEVANCES OVER THE SEPARATION OF PROBATIONERS.  IN ITS
 OPPOSITION THE AGENCY ARGUES THAT THE EXCEPTION SHOULD BE DENIED
 BECAUSE, AS FOUND BY THE ARBITRATOR, THE PARTIES' AGREEMENT DOES NOT
 PROVIDE FOR GRIEVANCES OVER THE SEPARATION OF PROBATIONARY EMPLOYEES.
 
    THE AUTHORITY FINDS THAT THE AWARD IS DEFICIENT BECAUSE THE GROUNDS
 ON WHICH THE ARBITRATOR FOUNDED HIS AWARD DO NOT CONSTITUTE A LEGITIMATE
 BASIS ON WHICH TO HAVE DETERMINED THE GRIEVANCE TO BE NONARBITRABLE.
 SEE MARINE CORPS LOGISTICS SUPPORT BASE, PACIFIC, BARSTOW, CALIFORNIA
 AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1482, 3
 FLRA 396(1980).  AS NOTED, THE ARBITRATOR FOUND THE GRIEVANCE
 NONARBITRABLE ON THE EXPRESS BASIS THAT THE FPM AND, CORRESPONDINGLY,
 THE PARTIES' AGREEMENT PRECLUDE ALL GRIEVANCES OVER THE SEPARATION OF
 PROBATIONERS.  THE AUTHORITY FINDS THAT THIS AWARD IS DEFICIENT BECAUSE
 THE FPM DOES NOT PRECLUDE PROBATIONARY EMPLOYEES FROM GRIEVING THEIR
 SEPARATION.
 
    CONTRARY TO THE SPECIFIC DETERMINATIONS OF THE ARBITRATOR, THE FPM
 DOES NOT OPERATE TO PRECLUDE ALL GRIEVANCES OVER THE SEPARATION OF
 PROBATIONERS FROM THE PERMISSIBLE COVERAGE OF A GRIEVANCE PROCEDURE
 NEGOTIATED UNDER THE ORDER, AND CONSEQUENTLY THE PARTIES' AGREEMENT
 LIKEWISE DOES NOT, BY ITS REFERENCE TO THE FPM, PRECLUDE GRIEVANCES OVER
 THE SEPARATION OF PROBATIONERS FROM COVERAGE BY THE PARTIES' NEGOTIATED
 GRIEVANCE PROCEDURE.  THE FPM PROVISIONS RELIED ON BY THE ARBITRATOR
 RELATE SOLELY TO THE STATUTORY AND REGULATORY PERSONNEL PROCESS FOR THE
 SEPARATION OF PROBATIONARY EMPLOYEES.  IN PARTICULAR, FPM CHAPTER 315,
 SUBCHAPTER 8-4A(3), STATING THAT THE PROBATIONER IS NOT GIVEN A RIGHT OF
 REPLY TO A SEPARATION NOTICE BASED ON POST-APPOINTMENT PERFORMANCE OR
 CONDUCT, WHICH THE ARBITRATOR FOUND PARTICULARLY PERSUASIVE, PERTAINS TO
 THE PROCESS IN REACHING A FINAL AGENCY DECISION ON THE SEPARATION
 ACTION.  COMPARE SUBCHAPTER 8-4A WITH SUBCHAPTER 8-4B (PROVIDING FOR
 ADVANCE NOTICE, RIGHT OF REPLY, AND CONSIDERATION OF REPLY BEFORE A
 FINAL AGENCY DECISION ON A SEPARATION ACTION INITIATED FOR
 PRE-APPOINTMENT CONDUCT).  IT DOES NOT PERTAIN TO WHAT PROCEDURES MAY BE
 AVAILABLE TO THE PROBATIONER ONCE NOTIFIED OF THE AGENCY'S FINAL
 DECISION TO SEPARATE.  THUS, THE FPM PROVISIONS RELIED ON BY THE
 ARBITRATOR NEITHER CONCERN NOR ADDRESS WHETHER A GRIEVANCE MAY PROPERLY
 BE FILED UNDER A NEGOTIATED GRIEVANCE PROCEDURE BY A PROBATIONARY
 EMPLOYEE ADVERSELY AFFECTED BY A SEPARATION DECISION.  SUCH
 DETERMINATIONS MUST, INSTEAD, BE MADE IN ACCORDANCE WITH PROVISIONS
 APPLICABLE TO THE PERMISSIBLE COVERAGE OF A NEGOTIATED GRIEVANCE
 PROCEDURE.  CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 3669,
 AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
 MINNESOTA, 4 FLRA NO. 53(1980), RECONSIDERATION DENIED APRIL 28, 1982
 (IN WHICH EXPRESS DETAILED PROVISIONS OF TITLE 38 OF THE EMPLOYEES WERE
 FOUND NOT TO PRECLUDE DISCIPLINARY GRIEVANCES OF SUCH EMPLOYEES
 OTHERWISE WITHIN THE PERMISSIBLE COVERAGE OF A NEGOTIATED GRIEVANCE
 PROCEDURE).
 
    FOR THESE REASONS, THE ARBITRATOR'S DETERMINATIONS ON WHICH HE
 EXPRESSLY BASED HIS AWARD ARE DEFICIENT AND ARE NOT A PROPER BASIS ON
 WHICH TO FIND THE GRIEVANCE NONARBITRABLE.  CONSEQUENTLY, HIS AWARD IS
 SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 18, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ AT ALL TIMES RELEVANT TO THIS CASE, THE PROVISIONS OF FPM CHAPTER
 315, SUBCHAPTER 8-4 RELATING TO THE SEPARATION OF PROBATIONERS HAVE
 REMAINED SUBSTANTIALLY UNCHANGED.  IN PARTICULAR, SUBCHAPTER 8-4A(3) HAS
 PROVIDED THAT THE PROBATIONER IS NOT GIVEN A RIGHT OF REPLY TO THE
 NOTICE OF SEPARATION WHEN THE SEPARATION ACTION, AS IN THIS CASE, IS FOR
 UNSATISFACTORY PERFORMANCE OR CONDUCT AFTER APPOINTMENT.