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58 FLRA No. 67
OF GOVERNMENT EMPLOYEES,
SOCIAL SECURITY ADMINISTRATION
January 17, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
1. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Thomas M. Phelan filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance alleging that the Agency violated the parties' collective bargaining agreement while terminating a probationary employee. For the reasons that follow, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The Agency hired the grievant as a Claims Authorizer Trainee, subject to the satisfactory completion of a one-year probationary period. On the final day of his probationary period, the Agency terminated the grievant for unacceptable performance. The grievant filed the instant grievance, alleging that the Agency had violated Article 33, Sections 3(E) and (F) of the parties' agreement by not providing him with two weeks notice of his termination or an opportunity to transfer to another position. [n1] The grievance also alleged that the Agency failed to treat the grievant fairly and equitably, in violation of Article 3, Section 2 of the parties' agreement. [n2] During the processing of the grievance, the Union further alleged that the Agency failed to properly counsel the grievant about his performance, in violation of Article 33, Section 3(C) of the parties' agreement. After the parties could not resolve the matter, they submitted it to the Arbitrator.
The Arbitrator first considered whether the grievance was arbitrable. In this regard, the Arbitrator noted that agencies may summarily remove probationary employees. He also indicated that the removal of probationary employees is not subject to arbitral review and that procedural protections for probationary employees cannot be established through collective bargaining. Nonetheless, the Arbitrator noted that some matters concerning probationary periods are subject to negotiation. The Arbitrator then determined that the Union's claims were challenges to the Agency's right to terminate the grievant during his probationary period and thus could not be addressed in arbitration, as argued by the Agency.
The Arbitrator then addressed the merits of the various Union arguments. The Arbitrator first found that if Article 33, Section 3(E) were interpreted as entitling probationary employees to two weeks notice prior to termination, it would create a precondition on the Agency's right to summarily remove a probationary employee, in violation of the Office of Personnel Management's (OPM's) regulations. However, he found that Article 33, Section 3(E) contained only an expression of the Agency's intent to normally give two weeks notice prior to terminating a probationary employee and that the Agency's failure to give that notice, under the circumstances of this case, did not violate the agreement.
The Arbitrator next ruled that the Agency's failure to offer the grievant alternative employment did not violate Article 33, Section 3(F) of the parties' agreement. In this connection, he determined that if the parties' agreement required the Agency to make an alternative job offer prior to terminating a probationary employee, it would create an impermissible precondition on the Agency's right to summarily remove a probationary employee. However, he interpreted Article 33, Section 3(F) to mean that it only requires the Agency to consider placing the employee in an alternative position. While he indicated that even that consideration might constitute an impermissible precondition on the Agency's [ v58 p298 ] right to remove a probationary employee, he found that the Agency did actually consider the grievant for another position. Accordingly, he concluded that the Agency had not violated Article 33, Section 3(F).
The Arbitrator then found that the Agency's failure to offer the employee another position did not violate Article 3, Section 2 of the parties' agreement. The Arbitrator determined that "even assuming" the Union's assertions that a past practice had developed of offering another position to a probationary employee, who was going to be terminated, were correct, that practice would be inconsistent with law and OPM regulations as an improper precondition on the Agency's authority to terminate a probationary employee. Award at 10. Therefore, he found that the failure to follow such a practice did not violate Article 3, Section 2 of the parties' agreement.
Finally, the Arbitrator determined that the Agency did not violate Article 33, Section 3(C) of the parties' agreement. After finding, contrary to the assertions of the Union, that the term "counseling" referred both to formal and informal counseling, the Arbitrator determined that the Agency had, in fact, counseled the grievant throughout his probationary period, as required by Article 33, Section 3(C). Accordingly, he denied the grievance in its entirety, both as a matter of arbitrability and on the merits.
III. Positions of the Parties
A. Union's Exceptions
The Union's exceptions implicitly challenge the Arbitrator's arbitrability determination by its arguments regarding the Arbitrator's refusal to enforce certain contractual provisions. More specifically, the Union claims that precedent regarding the arbitral inability to review probationary employee terminations does not prevent the review of its contract claims here. As a result, the Union asserts that the award is contrary to the Statute. The Union also claims that the Arbitrator violated the Statute by engaging in negotiability determinations rather than interpreting the parties' agreement, noting the Arbitrator's job was "not to determine if the agreed to language makes a precondition [regarding the termination of probationary employees], but to interpret if [the agreement] was followed." Exceptions at 3-4. Regarding the Arbitrator's merits findings that there were no violations of the agreement provisions at issue, the Union also argues that the Arbitrator's findings fail to draw their essence from the parties' agreement.
B. Agency's Opposition
The Agency contends that the Arbitrator determined that the Union was actually seeking review of the Agency's decision to terminate a probationary employee and that the Union's failure to challenge that conclusion indicates its satisfaction with that decision. Additionally, the Agency disputes the Union's assertion that the award fails to draw its essence from Article 33, Section 3(C) of the agreement.
IV. Analysis and Conclusions
The Authority reviews the questions of law raised by the exception and the Arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
The Union challenges the Arbitrator's findings that the grievance was not arbitrable because it concerned the termination of a probationary employee and that the parties' agreement could not provide protections against termination for probationary employees. As correctly noted by the Arbitrator, not only are the merits of a probationary employee removal not subject to review in arbitration, but parties also cannot provide procedural protections for probationary employees through the collective bargaining process. Award at 7 (citing to United States Dep't of Justice, Immigration and Naturalization Serv. v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) and United States Dep't of the Air Force, Nellis Air Force Base, Las Vegas, Nev., 46 FLRA 1323 (1993)), respectively. Therefore, the Union has not established that the Arbitrator erred as a matter of law when he found that the grievance was not arbitrable and that the parties' agreement could not establish procedural protections for probationary employees regarding their termination. As for the precedent cited by the Union, none of those decisions establish that parties may negotiate procedural protections against removal and thus these decisions provide no support for the Union's argument.
Additionally, regarding the Union assertion that the Arbitrator "was hired to interpret [the contract], not decide negotiability," we construe this argument as a claim that the Arbitrator exceeded his authority. An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, [ v58 p299 ] resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army and Air Force Exchange Serv., 51 FLRA 1371, 1378 (1996). In the present circumstances, we note that Authority negotiability determinations address, inter alia, whether bargaining proposals or provisions are "inconsistent with any Federal law or any Government-wide rule or regulation." 5 U.S.C. § 7117(a)(1). Accordingly, it is not improper for an arbitrator, in determining whether a proposed interpretation of an agreement runs afoul of Federal law or Government-wide rule or regulation, to rely on Authority negotiability precedent. Therefore, the Union has not established that the Arbitrator exceeded his authority.
In view of our determination that the Arbitrator's finding that the grievance is not arbitrable is not deficient, we see no need to address the merits of the Union's other exceptions.
The Union's exceptions are denied.
Article 33, Section 3 of the parties' agreement provides, in pertinent part:
. . . .
C. Probationary employees will be entitled to ongoing counseling about their conduct and performance and their standing through completion of their probationary period.
. . . .
E. It is management's intent that, when a probationary employee is to be separated, the employee will ordinarily be given two (2) weeks notice of termination, when practicable, or such notice as the remaining probationary period permits.
F. In cases of impending separation (for cause other than misconduct), the Administration will give consideration to placement of the probationary employee in positions commensurate with his/her demonstrated ability.
Footnote # 1 for 58 FLRA No. 67 - Authority's Decision
Footnote # 2 for 58 FLRA No. 67 - Authority's Decision
All employees shall be treated fairly and equitably in all aspects of personnel management and without regard to political affiliation, race, color, religion, national origin, sexual orientation, marital status, age or disabling condition, and with proper regard and protection of their privacy and constitutional rights.