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The decision of the Authority follows:

28 FLRA NO. 72






Case No. 0-AR-1292


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Robert G. Howlett filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background and Arbitrator's Award

The National Treasury Employees Union requested the assistance of the Federal Service Impasses Panel (the Panel) in a bargaining impasse with the Agency. The Panel recommended that the dispute be referred to Mr. Robert G. Howlett, who is also a Member of the Panel, for mediation-arbitration.

Mr. Howlett was authorized by the Panel to mediate with respect to all issues and to render a decision as an arbitrator on any that remained unresolved. During the course of mediation, the parties reached agreement on several issues. However, the dispute persisted as to a number of other issues, which Mr. Howlett resolved through arbitration.

In his award, the Arbitrator directed the parties to include in their collective bargaining agreement a number of  provisions. The Agency excepts to four of the provisions. 1

III. First Exception

A. Disputed Provision

The Arbitrator directed inclusion of the following provision under the agreement article entitled, "Actions for Unacceptable Performance":

Probationary employees shall be covered by this article consistent with applicable law.

B. Contentions

The Agency contends that the disputed provision is inconsistent with law and regulation. Relying on the court's decision in Department of Justice, Immigration and Naturalization Service v. FLRA, 799 F.2d 724 (D.C. Cir. 1983) (DOJ/INS), the Agency argues that law and regulation governing performance-based actions make it clear that neither Congress nor the Office of Personnel Management (OPM) intended that the procedural requirements of 5 U.S.C. 4303 or Part 432 of OPM's regulations were to be applicable when removing a probationary employee because of unacceptable performance.

C. Analysis and Conclusion

We find that the Agency has misconstrued this part of the Arbitrator's award and has failed to establish that it is deficient as alleged. The Arbitrator recognized that the removal of a probationary employee is excluded from coverage of negotiated grievance procedures. He expressly held that under the disputed provision, probationers would be covered only insofar as law allows. We conclude that the provision is not contrary to law because by its terms it is circumscribed by law.

In our view, the award does not provide that probationers may grieve performance-based actions. Further, nothing in this decision should be construed as an explicit or implicit finding that there are any performance-based actions which would be covered by this provision. Rather, this exception must be denied solely because the provision, as written, is not deficient on any grounds set forth in section 7122 of the Statute.

IV. Second Exception

A. Disputed Provision

The Arbitrator directed inclusion of the following provision in the agreement article entitled, "Grievance Procedure":

The grievance procedure established by this Section shall be the exclusive procedure for resolving all grievances except that the procedures do not cover: . . . (9) termination of a probationary employee unless the product of alleged unlawful discrimination. (Only the underlined language is disputed.)

B. Contentions

The Agency contends that the Arbitrator was barred from ordering the disputed language included in the agreement because the Union had filed a negotiability appeal concerning the identical language during the course of the impasse proceeding before the Panel and the case was still pending before the Authority when the Arbitrator rendered his award. Further, relying on the court's decision in DOJ/INS, the Agency argues that termination of a probationary employee is neither grievable nor arbitrable.

C. Analysis and Conclusion

We agree with the Agency that this part of the Arbitrator's award is deficient. First, the Authority has previously ruled that negotiability disputes which arise between an agency and a union under section 7117(c) of the Statute must be resolved by the Authority as required by section 7105(a)(2)(E); and that an interest arbitrator acting pursuant to the direction of the Panel is without authority to resolve such negotiability disputes. Department of the Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio and American Federation of Government Employees, Council of Locals, No. 214, 18 FLRA 710 (1981). 

In cases involving allegations of nonnegotiability made during an interest arbitration proceeding, we will carefully examine the record in the case, including the arbitrator's award, to determine whether the arbitrator made a negotiability ruling. If so, the award will be set aside. However, where the arbitrator has merely applied existing case law in resolving the impasse, we will resolve any exceptions to the award on the merits. The exceptions will be denied if the existing case law was correctly applied. Social Security Administration and National Council of SSA Field Operations Locals (NCSSAFOL), American Federation of Government Employees, AFL - CIO (AFGE), 25 FLRA No. 17 (1987). In cases where the award is set aside because an interest arbitrator improperly asserted jurisdiction over and decided a duty to bargain question, the Authority may require the parties to return to the bargaining table "with a sincere resolve to reach agreement" so that the matter is not left unresolved. Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72, slip op. at 11 (1987).

In this case, we find that the Arbitrator resolved a negotiability dispute between the parties. Therefore, this part of the arbitrator's award is inconsistent with section 7105 (a) (2) (E) of the Statute and must be set aside.

However, no useful purpose would be served by directing the parties to return to the bargaining table because the matter has not been left unresolved. Subsequent to the Arbitrator's award, we issued a decision in the dispute referred to by the Agency, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA No. 90 (Proposal 6), slip op. at 10-12 (1987), petition for review filed sub nom. Nat