SSA New York Region and AFGE Local 3369 (Authority decision, November 18, 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 ruled that an SSA probationary employee could not use the negotiated grievance procedure to challenge her separation because federal personnel guidance barred such grievances. The Authority held that the guidance governed the agency’s separation process and did not itself bar a later contract grievance. Because the arbitrator’s sole basis for finding the grievance nonarbitrable was wrong, it set aside the award.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Union exception granted; nonarbitrability award set aside.
• Key point: Personnel rules for a probationer’s separation did not automatically exclude a negotiated grievance.

Full text (FLRA public release)

[ v10 p496 ]

10:0496(84)AR

The decision of the Authority follows:

10 FLRA No. 84

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 3369, AFL-CIO
Union

and

SOCIAL SECURITY ADMINISTRATION,
NEW YORK REGION
Activity

Case No. O-AR-302

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR BENJAMIN H. WOLF 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.

THE DISPUTE IN THIS MATTER CONCERNS THE SEPARATION OF THE GRIEVANT
DURING HER PROBATIONARY PERIOD. A GRIEVANCE WAS FILED PROTESTING THE
SEPARATION AND THE GRIEVANCE WAS ULTIMATELY SUBMITTED TO ARBITRATION
WITH A THRESHOLD ISSUE OF WHETHER GRIEVANCES OVER THE SEPARATION OF
PROBATIONERS ARE PRECLUDED FROM COVERAGE BY THE NEGOTIATED GRIEVANCE
PROCEDURE OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.

AT THE OUTSET THE ARBITRATOR NOTED THAT THE PARTIES' AGREEMENT HAD
BEEN NEGOTIATED UNDER EXECUTIVE ORDER NO. 11491 (THE ORDER) AND
ACCORDINGLY CONTAINED, AS REQUIRED, THE LANGUAGE OF SECTION 12(A) OF THE
ORDER IN ARTICLE III PROVIDING, AS RELEVANT TO THIS CASE, THAT THE
AGREEMENT WAS GOVERNED BY APPROPRIATE REGULATIONS INCLUDING THE FEDERAL
PERSONNEL MANUAL (FPM). WITH REGARD TO THE QUESTION OF ARBITRABILITY,
THE UNION ESSENTIALLY ARGUED THAT NO LAW OR REGULATION PRECLUDED ALL
GRIEVANCES OVER THE SEPARATION OF PROBATIONERS FROM THE PERMISSIBLE
COVERAGE OF A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE ORDER. THE
ARBITRATOR, HOWEVER, REJECTED THE UNION'S ARGUMENT. HE DETERMINED,
INSTEAD, THAT "THE SPIRIT AND LANGUAGE OF THE FPM" CLEARLY REFUTED THAT
THESE GRIEVANCES WERE ARBITRABLE. THE ARBITRATOR WAS PARTICULARLY
PERSUADED BY THE PROVISION OF FPM CHAPTER 315, SUBCHAPTER 8-4A(3)
STATING THAT THE PROBATIONER IS NOT GIVEN A RIGHT OF REPLY TO THE NOTICE
OF SEPARATION. /1/ EMPHASIZING THIS PROVISION OF THE FPM AND THE FPM
REFERENCE IN SECTION 12(A) OF THE ORDER INCORPORATED IN ARTICLE III OF
THE AGREEMENT, THE ARBITRATOR RULED THAT THE FPM AND, CORRESPONDINGLY,
THE PARTIES' AGREEMENT PRECLUDE GRIEVANCES OVER THE SEPARATION OF
PROBATIONERS. CONSEQUENTLY, AS HIS AWARD THE ARBITRATOR FOUND THE
GRIEVANCE NONARBITRABLE.

AS ITS EXCEPTION TO THE AWARD, THE UNION CONTENDS THAT THE AWARD
FINDING THE GRIEVANCE NONARBITRABLE IS DEFICIENT AND MUST BE SET ASIDE.
IN PARTICULAR, THE UNION MAINTAINS THAT THE FPM DOES NOT PRECLUDE
PROBATIONARY EMPLOYEES FROM GRIEVING THEIR SEPARATION, AND CONSEQUENTLY
THE PARTIES' AGREEMENT LIKEWISE DOES NOT, BY REFERENCE TO THE FPM,
PRECLUDE GRIEVANCES OVER THE SEPARATION OF PROBATIONERS. IN ITS
OPPOSITION THE AGENCY ARGUES THAT THE EXCEPTION SHOULD BE DENIED
BECAUSE, AS FOUND BY THE ARBITRATOR, THE PARTIES' AGREEMENT DOES NOT
PROVIDE FOR GRIEVANCES OVER THE SEPARATION OF PROBATIONARY EMPLOYEES.

THE AUTHORITY FINDS THAT THE AWARD IS DEFICIENT BECAUSE THE GROUNDS
ON WHICH THE ARBITRATOR FOUNDED HIS AWARD DO NOT CONSTITUTE A LEGITIMATE
BASIS ON WHICH TO HAVE DETERMINED THE GRIEVANCE TO BE NONARBITRABLE.
SEE MARINE CORPS LOGISTICS SUPPORT BASE, PACIFIC, BARSTOW, CALIFORNIA
AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1482, 3
FLRA 396(1980). AS NOTED, THE ARBITRATOR FOUND THE GRIEVANCE
NONARBITRABLE ON THE EXPRESS BASIS THAT THE FPM AND, CORRESPONDINGLY,
THE PARTIES' AGREEMENT PRECLUDE ALL GRIEVANCES OVER THE SEPARATION OF
PROBATIONERS. THE AUTHORITY FINDS THAT THIS AWARD IS DEFICIENT BECAUSE
THE FPM DOES NOT PRECLUDE PROBATIONARY EMPLOYEES FROM GRIEVING THEIR
SEPARATION.

CONTRARY TO THE SPECIFIC DETERMINATIONS OF THE ARBITRATOR, THE FPM
DOES NOT OPERATE TO PRECLUDE ALL GRIEVANCES OVER THE SEPARATION OF
PROBATIONERS FROM THE PERMISSIBLE COVERAGE OF A GRIEVANCE PROCEDURE
NEGOTIATED UNDER THE ORDER, AND CONSEQUENTLY THE PARTIES' AGREEMENT
LIKEWISE DOES NOT, BY ITS REFERENCE TO THE FPM, PRECLUDE GRIEVANCES OVER
THE SEPARATION OF PROBATIONERS FROM COVERAGE BY THE PARTIES' NEGOTIATED
GRIEVANCE PROCEDURE. THE FPM PROVISIONS RELIED ON BY THE ARBITRATOR
RELATE SOLELY TO THE STATUTORY AND REGULATORY PERSONNEL PROCESS FOR THE
SEPARATION OF PROBATIONARY EMPLOYEES. IN PARTICULAR, FPM CHAPTER 315,
SUBCHAPTER 8-4A(3), STATING THAT THE PROBATIONER IS NOT GIVEN A RIGHT OF
REPLY TO A SEPARATION NOTICE BASED ON POST-APPOINTMENT PERFORMANCE OR
CONDUCT, WHICH THE ARBITRATOR FOUND PARTICULARLY PERSUASIVE, PERTAINS TO
THE PROCESS IN REACHING A FINAL AGENCY DECISION ON THE SEPARATION
ACTION. COMPARE SUBCHAPTER 8-4A WITH SUBCHAPTER 8-4B (PROVIDING FOR
ADVANCE NOTICE, RIGHT OF REPLY, AND CONSIDERATION OF REPLY BEFORE A
FINAL AGENCY DECISION ON A SEPARATION ACTION INITIATED FOR
PRE-APPOINTMENT CONDUCT). IT DOES NOT PERTAIN TO WHAT PROCEDURES MAY BE
AVAILABLE TO THE PROBATIONER ONCE NOTIFIED OF THE AGENCY'S FINAL
DECISION TO SEPARATE. THUS, THE FPM PROVISIONS RELIED ON BY THE
ARBITRATOR NEITHER CONCERN NOR ADDRESS WHETHER A GRIEVANCE MAY PROPERLY
BE FILED UNDER A NEGOTIATED GRIEVANCE PROCEDURE BY A PROBATIONARY
EMPLOYEE ADVERSELY AFFECTED BY A SEPARATION DECISION. SUCH
DETERMINATIONS MUST, INSTEAD, BE MADE IN ACCORDANCE WITH PROVISIONS
APPLICABLE TO THE PERMISSIBLE COVERAGE OF A NEGOTIATED GRIEVANCE
PROCEDURE. CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 3669,
AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
MINNESOTA, 4 FLRA NO. 53(1980), RECONSIDERATION DENIED APRIL 28, 1982
(IN WHICH EXPRESS DETAILED PROVISIONS OF TITLE 38 OF THE EMPLOYEES WERE
FOUND NOT TO PRECLUDE DISCIPLINARY GRIEVANCES OF SUCH EMPLOYEES
OTHERWISE WITHIN THE PERMISSIBLE COVERAGE OF A NEGOTIATED GRIEVANCE
PROCEDURE).

FOR THESE REASONS, THE ARBITRATOR'S DETERMINATIONS ON WHICH HE
EXPRESSLY BASED HIS AWARD ARE DEFICIENT AND ARE NOT A PROPER BASIS ON
WHICH TO FIND THE GRIEVANCE NONARBITRABLE. CONSEQUENTLY, HIS AWARD IS
SET ASIDE.

ISSUED, WASHINGTON, D.C., NOVEMBER 18, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ AT ALL TIMES RELEVANT TO THIS CASE, THE PROVISIONS OF FPM CHAPTER
315, SUBCHAPTER 8-4 RELATING TO THE SEPARATION OF PROBATIONERS HAVE
REMAINED SUBSTANTIALLY UNCHANGED. IN PARTICULAR, SUBCHAPTER 8-4A(3) HAS
PROVIDED THAT THE PROBATIONER IS NOT GIVEN A RIGHT OF REPLY TO THE
NOTICE OF SEPARATION WHEN THE SEPARATION ACTION, AS IN THIS CASE, IS FOR
UNSATISFACTORY PERFORMANCE OR CONDUCT AFTER APPOINTMENT.