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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).