19:0297(41)AR - VA Medical Center of Cleveland and AFGE Local 31 -- 1985 FLRAdec AR

 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).