19:0297(41)AR - VA Medical Center of Cleveland and AFGE Local 31 -- 1985 FLRAdec AR
[ v19 p297 ]
The decision of the Authority follows:
19 FLRA No. 41 VETERANS ADMINISTRATION MEDICAL CENTER OF CLEVELAND Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 31 Union Case No. O-AR-802 DECISION This matter is before the Authority on an exception to the award of Arbitrator Alan M. Wolk filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. According to the Arbitrator, the grievance in this case claimed that the separation of the grievant was unjust in violation of law and the parties' collective bargaining agreement. The grievant had received a veterans readjustment appointment /1/ subject to the completion of a one-year initial probationary/trial period. During this initial trial period, the grievant was separated for unsatisfactory work performance and conduct. A grievance was filed and submitted to arbitration challenging the separation. Before the Arbitrator, the Activity argued on the basis of Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) that the separation of the grievant during his probationary/trial period was similarly precluded from coverage by a grievance procedure negotiated under the Statute. However, the Arbitrator found the grievance to be arbitrable and sustained the grievance with the order that the grievant be returned to his position with backpay to complete the balance of his trial period. As one of its exceptions, the Agency contends that the award is contrary to governing law and regulation. Specifically, the Agency citing Department of Justice, INS essentially argues that a grievance concerning the separation during the one-year probationary/trial period of an employee holding a veterans readjustment appointment is precluded by law and regulation from coverage by a negotiated grievance procedure. The Authority agrees. The Authority has uniformly held on the basis of the rationale and conclusion of the court in DOJ, INS that coverage by a negotiated grievance procedure of a grievance concerning the separation of a probationary employee is precluded by governing law and regulation. E.g., Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 15 FLRA No. 140 (1984). In DOJ, INS, the court held that coverage by a grievance procedure negotiated under the Statute of a grievance concerning the separation of a probationary employee appointed to a competitive service position is precluded by the statutory and regulatory scheme for a probationary period of employment set forth in 5 U.S.C. 3321 and 5 CFR part 315, subpart H. The Authority similarly finds that the statutory and regulatory scheme for veterans readjustment appointments set forth in 38 U.S.C. 2014 and 5 CFR part 307 precludes coverage by a negotiated grievance procedure of a grievance concerning the separation during the initial year of employment of an employee holding a veterans readjustment appointment. In this respect, the Authority finds a close alignment between the initial appointment to a competitive service position and the veterans readjustment appointment. As noted, a veterans readjustment appointment is an excepted appointment to a position otherwise in the competitive service. 5 CFR 307.101(c). An employee holding such an appointment serves subject to satisfactory performance of assigned duties and satisfactory participation in the required training or educational program, 5 CFR 307.105, and an employee who does not meet these conditions "must be removed from his/her position," FPM chapter 307, subchapter 1-7b. An appointee who completes two years of satisfactory performance is automatically converted to a career or career-conditional appointment without serving a probationary period. FPM chapter 307, subchapter 1-8. This close alignment is further illustrated by the decision in Sipes v. U.S., 744 F.2d 1418 (10th Cir. 1984). In Sipes the court noted that the agency had provided the plaintiff, an employee who has held a veterans readjustment appointment, the procedures of 5 CFR 315.804, applicable to the separation of probationers in the competitive service, when it separated the plaintiff during his first year of employment, and the court held that the procedures provided were the only procedures to which he was entitled. Additionally, when Congress recently extended the authority for veterans readjustment appointments in the Veterans' Benefits Improvement Act of 1984, Pub. L. No. 98-543, 98 Stat. 2735, Congress specifically provided such appointees the limited appeal rights provided probationers in 5 CFR 315.806 and reported that "(a)t present, veterans with VRA's have no appeal rights until they have completed 1 year of employment." S. Rep. No. 604, 98th Cong., 2d Sess. 43-44 (1984). For these reasons, the Authority finds that with respect to grievance and arbitration, the statutory and regulatory scheme for veterans readjustment appointments is not materially different from that for a probationary period of employment under 5 U.S.C. 3321 and 5 CFR part 315, subpart H. Consequently, based on the reasoning and conclusions of the court in DOJ, INS with respect to why coverage by a negotiated grievance procedure of a grievance concerning the separation of a probationer is precluded by governing law and regulation, id, at 727-30, the Authority likewise finds that coverage by a negotiated grievance procedure of a grievance concerning the separation during the initial year of employment of an employee holding a veterans readjustment appointment is precluded by governing law and regulation. Thus, in terms of this case, the Authority concludes that the award, by finding the grievance arbitrable and by resolving the grievance on the merits and ordering the grievant reinstated in his probationary/trial period of employment, is deficient as contrary to the statutory and regulatory scheme set forth in 38 U.S.C. 2014 and 5 CFR part 307. Accordingly, the award is set aside. Issued, Washington, D.C., July 25, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ A veterans readjustment appointment is an excepted appointment to a position otherwise in the competitive service of a veteran who served during the Vietnam era and is made under the authority of 38 U.S.C. 2014, as amended. 5 CFR 307.101(c).