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17:0372(58)CA
The decision of the Authority follows:
17 FLRA No. 58
DIRECTOR OF ADMINISTRATION
HEADQUARTERS, U.S. AIR FORCE
Respondent
and
AFGE-GAIU, COUNCIL OF HEADQUARTERS
USAF LOCALS, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor /1/
Case Nos. 3-CA-1700
3-CA-1791
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this consolidated
proceeding, including the stipulation of facts and the parties'
contentions, the Authority finds:
The complaint in Case No. 3-CA-1700 alleges that the refusal of the
Director of Administration, Headquarters, U.S. Air Force (the
Respondent) to process a grievance over a probationary employee's
termination or to participate in arbitration of the grievance
constituted a failure to negotiate in good faith and a "patent breach"
of the parties' negotiated agreement in violation of section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute), and additionally constituted a refusal to comply with the
requirements of section 7121 of the Statute /2/ in violation of section
7116(a)(1) and (8). /3/ In Case No. 3-CA-1791, it is additionally
alleged that the Respondent violated section 7116(a)(1), (5) and (8) of
the Statute by refusing to grant the terminated employee's Union
representative official time to represent him in his grievance.
The Respondent terminated the employment of Ronald A. Lewis, the
probationary employee, on September 17, 1980. Thereafter, Lewis filed a
grievance under the negotiated grievance procedure. At each step of the
grievance procedure, the Respondent refused to meet with the grievant
and his Union representative and also rejected the Union's request that
the grievance be submitted to arbitration, contending that the matter of
Lewis' termination was not grievable. The Respondent also denied the
request of Lewis' Union representative, Fred Small, for official time
under the parties' negotiated agreement to represent the grievant.
Small had previously been granted official time when meeting with,
preparing and/or presenting appeals of terminated unit employees.
In Case No. 3-CA-1700 the Respondent concedes that it unilaterally
refused to process the grievance of Lewis over his termination. The
sole reason given by the Respondent for its refusal was that "such
termination is part of the total examination process and as such is
precluded by law from arbitration under" section 7121(c)(4) of the
Statute. /4/
The United States Court of Appeals for The district of Columbia
Circuit recently held in Department of Justice, Immigration and
Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), that a
proposal to make the termination of probationary employees grievable and
arbitrable under the parties' collective bargaining agreement was
inconsistent with law and regulation. Thereafter, in applying the
court's decision, the Authority concluded in U.S. Department of Labor,
Labor Management Services Administration, Cleveland, Ohio and National
Union of Compliance Officers, 13 FLRA 677 (1984), /5/ "that in enacting
the . . . (Statute) . . . Congress did not intend grievances and
arbitration procedures negotiated under the Statute to cover grievances
concerning the termination of probationary employees. . . ." Thus, in
following the court's decision, the Authority concluded that grievances
over the termination of probationary employees are as a matter of law
not cognizable under grievance-arbitration procedures negotiated under
the Statute. Therefore, it follows that an agency's refusal to proceed
to arbitration of a grievance concerning the termination of a
probationary employee cannot be held to be violative of the Statute. In
so concluding, the decision herein must be distinguished from that in
Department of Labor, Employment Standards Administration/Wage and Hour
Division, Washington, D.C., 10 FLRA 316 (1982), wherein the Authority
held that a refusal by either party to participate in negotiated
contractual procedures for the settlement of grievances, including
arbitration of threshold arbitrability questions, would conflict with
the requirements of section 7121 of the Statute and be violative of
section 7116(a)(1) and (8). At the time of the holding in that case,
the courts and the Authority had not concluded that as a matter of law
grievances over the termination of probationary employees are excluded
from the coverage of all grievance procedures negotiated pursuant to
section 7121. In the instant case, the issue involves only that matter
of clearly established law. Thus, the instant case presents no
threshold question or any other question of interpretation or statutory
construction which can legitimately be resolved by an arbitrator.
Accordingly, the Authority shall dismiss the section 7116(a)(1) and (8)
allegations of the complaint in Case No. 3-CA-1700. The Authority shall
also dismiss the section 7116(a)(5) allegation of the complaint. Thus,
even assuming that the parties' negotiated agreement purported to
require the Respondent to proceed to arbitration concerning the
termination of probationary employees, a matter which is subject to
differing and arguable interpretations, such requirement would be
contrary to law and regulation and hence unenforceable. See, e.g.,
Wisconsin Army National Guard and Association of Civilian Technicians,
14 FLRA 57 (1984). In a word, it would be a pointless and hollow
exercise to require the parties to proceed to arbitration over an issue
which, as a matter of law, is not cognizable under any grievance
procedure negotiated under the Statute.
The Authority shall also dismiss the complaint in Case No. 3-CA-1791,
concluding that the Respondent's denial of official time to the
grievant's Union representative did not violate the Statute. In this
regard, the General Counsel argued that Respondent's denial of official
time to the grievant's Union representative constituted a unilateral
change in an established condition of employment based upon the
Respondent's past practice of granting such time for Union
representatives to represent terminated unit employees. The Authority
concludes that, in the circumstances of this case, there was no change
in established past practice. Respondent had granted official time for
Union representatives engaged in representing unit employees in
grievances under the negotiated grievance procedure. Since, as a matter
of law, a grievance over the termination of a probationary employee is
not and cannot be covered by negotiated grievance procedures, it follows
that Respondent's denial of official time in these circumstances was not
a change of past practice with respect to official time in connection
with grievances which are covered by the negotiated grievance procedure.
The General Counsel also alleged that the denial of official time in
these circumstances contravened section 7121 of the Statute. However,
as has been established, grievance procedures under section 7121 do not
cover grievances concerning the termination of probationary employees.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 3-CA-1700
and 3-CA-1791 be, and it hereby is, dismissed.
Issued, Washington, D.C., March 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Regional Director granted a motion to intervene filed by the
Office of Personnel Management (OPM) pursuant to section 2423.22(b)(1)
of the Authority's Rules and Regulations.
/2/ Section 7121 provides in pertinent part:
Sec. 7121. Grievance procedures
(a)(1) Except as provided in paragraph (2) of this subsection,
any collective bargaining agreement shall provide procedures for
the settlement of grievances, including questions of arbitrability
. . . .
. . . .
(b) Any negotiated grievance procedure referred to in
subsection (a) of this section shall--
. . . .
(3) include procedures that--
. . . .
(C) provide that any grievance not satisfactorily settled under
the negotiated grievance procedure shall be subject to binding
arbitration which may be invoked by either the exclusive
representative or the agency.
/3/ Section 7116(a)(1), (5) and (8) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/4/ Section 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(.)
/5/ See also Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees, Local
3342, 14 FLRA 164 (1984).