Defense Department Dependents Schools and Overseas Education Association (Authority decision, October 8, 1982)

Final FLRA decision. The Authority resolves exceptions to an arbitral award under 5 U.S.C. § 7122. Judicial review under 5 U.S.C. § 7123(a)(1) generally does not extend to orders involving arbitral awards unless an order involves an unfair labor practice under § 7116. This order does not decide an unfair labor practice.

Plain-English summary

An arbitrator heard a probationary teacher’s challenge to his separation and found the grievance arbitrable but the separation fair and reasonable. The Overseas Education Association argued that the arbitrator had excluded probationers from the agreement and should have found a different reason for separation. The Authority found both objections unsupported by the award and record. It denied the union’s exceptions.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exceptions denied; separation award upheld.
• Key point: The arbitrator applied the agreement to the probationer and resolved the grievance on its merits.

Full text (FLRA public release)

[ v10 p312 ]

10:0312(58)AR

The decision of the Authority follows:

10 FLRA No. 58

DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
Agency

and

OVERSEAS EDUCATION ASSOCIATION
Union

Case No. O-AR-285

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR WALTER N. KAUFMAN FILED BY THE UNION UNDER SECTION 7122(A) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE AGENCY FILED AN
OPPOSITION. /1/

THE DISPUTE IN THIS MATTER CONCERNS THE SEPARATION OF THE GRIEVANT
DURING HIS PROBATIONARY PERIOD. A GRIEVANCE PROTESTING THE SEPARATION
WAS FILED AND ULTIMATELY SUBMITTED TO ARBITRATION.

THE ARBITRATOR FIRST ADDRESSED THE ACTIVITY'S CLAIM THAT THE
GRIEVANCE WAS NOT SUBJECT TO ARBITRATION. IN THIS RESPECT THE
ARBITRATOR NOTED THE UNION'S ARGUMENT THAT PROBATIONARY EMPLOYEES ARE
NOT EXCLUDED FROM COVERAGE OF THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT, AND HE EXPRESSLY CONCLUDED THAT THE PARTIES' AGREEMENT DID
NOT PLAINLY EXCLUDE GRIEVANCES OVER THE SEPARATION OF PROBATIONARY
EMPLOYEES. HE FURTHER CONCLUDED THAT THE ACTIVITY'S COURSE OF CONDUCT
PRECLUDED ANY ASSERTION IN THIS CASE THAT IT WAS THE INTENT OF THE
AGREEMENT TO EXCLUDE SUCH GRIEVANCES. ACCORDINGLY, THE ARBITRATOR
DETERMINED THAT THE GRIEVANCE WAS ARBITRABLE.

AS TO THE GRIEVANT'S SEPARATION, THE ARBITRATOR QUOTED FROM THE
NOTIFICATION TO THE GRIEVANT THAT HE WAS BEING SEPARATED FOR
"(I)NABILITY TO EXERCISE PROFESSIONAL JUDGMENT AND TO FOLLOW ACCEPTABLE
STANDARDS OF CONDUCT IN DEALING WITH STUDENTS." ON THE BASIS OF THE
EVIDENCE IN THIS REGARD, THE ARBITRATOR DETERMINED THAT THE GRIEVANT'S
SEPARATION WAS FAIR AND REASONABLE AND NOT ARBITRARY OR CAPRICIOUS.
THEREFORE, AS HIS AWARD THE ARBITRATOR RULED THAT THE GRIEVANCE WAS
ARBITRABLE, BUT ON THE MERITS HE DENIED THE GRIEVANCE FINDING THAT THE
SEPARATION WAS IN ACCORDANCE WITH APPLICABLE AUTHORITY AND THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT.

IN ITS EXCEPTIONS THE UNION CONTENDS THAT THE AWARD IS DEFICIENT
BECAUSE THE ARBITRATOR ERRONEOUSLY CONCLUDED THAT THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT "RECOGNIZES AND EXCEPTS FROM ITS
APPLICATION EMPLOYEES PERFORMING DURING A PROBATIONARY PERIOD," AND THE
UNION CONTENDS THAT THE AWARD IS DEFICIENT BECAUSE THE ARBITRATOR FAILED
TO CONCLUDE THAT THE GRIEVANT WAS SEPARATED FOR INEFFICIENCY. HOWEVER,
THE UNION'S EXCEPTIONS PROVIDE NO BASIS FOR FINDING THE AWARD DEFICIENT.

AS HAS BEEN NOTED, THE ARBITRATOR EXPRESSLY DETERMINED THAT THE
GRIEVANCE IN THIS CASE WAS ARBITRABLE AND EXPRESSLY DETERMINED THAT THE
GRIEVANT'S SEPARATION WAS IN ACCORDANCE WITH THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT. THUS, THE UNION DOES NOT ESTABLISH IN ITS
EXCEPTION THAT THE ARBITRATOR FAILED TO APPLY THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT TO THE GRIEVANT. LIKEWISE, THE UNION FAILS TO
ESTABLISH THAT THE GRIEVANT'S SEPARATION WAS FOR INEFFICIENCY. TO THE
CONTRARY, THE STATED REASON FOR THE SEPARATION WAS THE GRIEVANT'S
"(I)NABILITY TO EXERCISE PROFESSIONAL JUDGMENT AND TO FOLLOW ACCEPTABLE
STANDARDS OF CONDUCT IN DEALING WITH STUDENTS." ACCORDINGLY, THE UNION'S
EXCEPTIONS ARE DENIED.

ISSUED, WASHINGTON, D.C., OCTOBER 8, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY