General Services Administration, Region 2, New York City, New York (Agency) and American Federation of Government Employees, Council 236 (Union)

[ v58 p588 ]

58 FLRA No. 147







June 10, 2003


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Bernard Wray filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator determined that a grievance challenging a probationary employee's separation was arbitrable. For the reasons that follow, we find that the award is deficient because it is contrary to law and regulation. Accordingly, we set aside the award.

II.     Background and Arbitrator's Award

      The grievant, a probationary employee, was presented by the Agency the option of voluntarily resigning or being terminated based on unsatisfactory work performance. The grievant resigned and the Union filed a grievance alleging that the grievant's separation was in violation of Article 16, §§ B and D of the parties' agreement because the grievant's supervisor ignored the requirements of § B and the grievant was not furnished with required documents. [n1]  The Agency denied the grievance, alleging that the matter was excluded from the scope of the grievance procedure under Article 34, § 5G of the parties' agreement because it was not appealable to the Merit Systems Protection Board (MSPB). [n2]  The grievance was unresolved and submitted to arbitration, where the only issue before the Arbitrator was whether the grievance was arbitrable.

      The Arbitrator found that the only two reasons a probationary employee may appeal a separation to the MSPB -- allegations that the separation is based on partisan political reasons or marital status -- are not at issue in the instant case. Nevertheless, the Arbitrator stated that he "failed to find any precedents based on the same or similar facts and circumstances which would justify the Agency's argument that Article 16 would not be binding on both sides." Award at 3. Therefore, the Arbitrator found the grievance arbitrable and remanded the matter to the parties to "conduct a full [g]rievance/[a]rbitration pursuant to Article 34 of the [parties'] [a]greement." Id.

III.     Positions of the Parties

A.     Agency's Exceptions

      Relying on Dep't of Justice, Immigration and Naturalization Serv. v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (DOJ, INS) and Authority case law, the Agency contends that the award is contrary to law and regulation. The Agency asserts that the court in DOJ, INS held that coverage under a negotiated grievance procedure of a grievance concerning the separation of a probationary employee is precluded by law and regulation. The Agency also cites, among other Authority decisions, Dep't of Health and Human Services, SSA, 14 FLRA 164 (1984) (SSA), where the Authority, relying on DOJ, INS, reversed an arbitrator's award that found arbitrable a grievance concerning the termination of a probationary employee for unsatisfactory work performance. According to the Agency, the Authority determined that the award was "contrary to the statutory and regulatory scheme set forth in 5 U.S.C. 3321 and 5 CFR part 315, subpart H." [n3]  Exceptions at 13 (quoting SSA, 14 FLRA at 164-65).

      The Agency further asserts that the award fails to draw its essence from the parties' agreement because separation actions of probationary employees that are [ v58 p589 ] not appealable to the MSPB are not arbitrable under Article 34.

B.     Union's Opposition

      As a threshold matter, the Union asserts that the Agency's exceptions are untimely. On the merits, the Union contends that the Agency did not comply with the requirements of Article 16, §§ B and D of the parties' agreement and that, in such circumstances, an arbitrator can order the probationary period to "beg[in] anew with the proper materials and supervision." Opposition at 3.

IV.     Preliminary Issue

      The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the arbitrator serves the award on the filing party. See 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the United States mail or is delivered in person. See 5 C.F.R. § 2429.27(d). If the award is served by mail, then five days are added to the period for filing exceptions. See 5 C.F.R. § 2429.22.

      The Arbitrator's award was served on the parties by mail on December 17, 2002. [n4]  Considering the 35 days for filing exceptions permitted in these circumstances, the due date was January 21, 2003. As the Agency's exceptions were filed on January 21, 2003, the exceptions were filed timely.

V.     Analysis and Conclusions

      The Authority reviews questions of law and regulation raised by an arbitrator's award and an exception to it de novo. See United States Dep't of Health and Human Services, Centers for Medicare and Medicaid Services, Baltimore, Md., 57 FLRA 704, 706 (2002). In applying a standard of de novo review, the Authority assesses whether