Veterans Administration Medical Center, Franklin Delano Roosevelt Hospital, Montrose, New York (Activity) and Local 1119, American Federation of Government Employees (Union) (Authority decision, March 24, 1982)

Final FLRA decision. The Authority resolved exceptions to an arbitral award. Under 5 U.S.C. § 7123(a)(1), an order involving an arbitral award is generally excluded from judicial review unless it involves an unfair labor practice under 5 U.S.C. § 7116; this decision does not decide one.

Plain-English summary

A Montrose VA hospital asked whether a grievance over a probationary employee’s separation could proceed under its labor agreement. The arbitrator found the grievance arbitrable. The VA argued that the federal labor statute excluded it, but the Authority had rejected that reading in an earlier case. It denied the VA’s exception, leaving the arbitrability ruling in place and the grievance available for further handling.

Decision snapshot

• Authority: 5 U.S.C. § 7121(c)(4), 5 U.S.C. § 7122(a).
• Outcome: The award finding the separation grievance arbitrable was upheld.
• Key point: The statutory exclusion for examination, certification, and appointment did not cover this separation grievance.

Full text (FLRA public release)

[ v08 p236 ]

08:0236(48)AR

The decision of the Authority follows:

8 FLRA No. 48

VETERANS ADMINISTRATION
MEDICAL CENTER, FRANKLIN
DELANO ROOSEVELT HOSPITAL,
MONTROSE, NEW YORK
Activity

and

LOCAL 1119, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES
Union

Case No. O-AR-303

DECISION

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR EDWARD WEISS FILED BY THE AGENCY UNDER SECTION 7122(A) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. SEC. 7122(A)) AND PART 2425 OF THE AUTHORITY RULES AND
REGULATIONS (5 CFR PART 2425).

ACCORDING TO THE ARBITRATOR THE PARTIES SUBMITTED TO ARBITRATION THE
ISSUE OF WHETHER A GRIEVANCE OVER THE SEPARATION OF A PROBATIONARY
EMPLOYEE WAS ARBITRABLE UNDER THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT DATED MARCH 3, 1980. BEFORE THE ARBITRATOR THE ACTIVITY
PRINCIPALLY ARGUED THAT GRIEVANCES PERTAINING TO THE SEPARATION OF A
PROBATIONARY EMPLOYEE ARE EXCLUDED FROM COVERAGE BY A NEGOTIATED
GRIEVANCE PROCEDURE AS A MATTER OF LAW UNDER SECTION 7121(C) OF THE
STATUTE /1/ AND ARE EXCLUDED FROM THE PARTIES' GRIEVANCE PROCEDURE BY
THE NEGOTIATED EXCLUSION FOR GRIEVANCES CONCERNING "(E)XAMINATION,
CERTIFICATION AND APPOINTMENT." FINDING THAT THE AUTHORITY'S DECISION IN
NATIONAL COUNCIL OF FIELD LABOR LOCALS OF THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND UNITED STATES DEPARTMENT OF LABOR, 4
FLRA NO. 51 (1980), FULLY ANSWERED ALL THE ISSUES RAISED BY THE PARTIES,
THE ARBITRATOR REJECTED THE POSITION OF THE ACTIVITY. ON THE BASIS OF
NATIONAL COUNCIL OF FIELD LABOR LOCALS, THE ARBITRATOR DETERMINED THAT
GRIEVANCES PERTAINING TO THE SEPARATION OF A PROBATIONARY EMPLOYEE WERE
NOT EXCLUDED FROM COVERAGE BY A NEGOTIATED GRIEVANCE PROCEDURE BY
SECTION 7121(C)(4), AND HE DETERMINED THAT THE AGREEMENT'S EXCLUSION OF
GRIEVANCES CONCERNING EXAMINATION, CERTIFICATION, AND APPOINTMENT DID
NOT CONSTITUTE A NEGOTIATED EXCLUSION OF GRIEVANCES PERTAINING TO THE
SEPARATION OF PROBATIONARY EMPLOYEES. ACCORDINGLY, AS HIS AWARD, HE
RULED THAT THE GRIEVANCE OF A PROBATIONARY EMPLOYEE PERTAINING TO HIS
SEPARATION WAS ARBITRABLE UNDER THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT.

IN ITS EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS CONTRARY TO
LAW AND REGULATION. IN SUPPORT OF THIS EXCEPTION, HOWEVER, THE AGENCY
HAS ONLY MAINTAINED THAT THE AUTHORITY'S INTERPRETATION OF SECTION
7121(C)(4) OF THE STATUTE IN NATIONAL COUNCIL OF FIELD LABOR LOCALS WAS
LEGALLY INCORRECT AND THAT CONSEQUENTLY THE ARBITRATOR'S AWARD RELYING
ON THAT DECISION IS DEFICIENT. BECAUSE THE AUTHORITY IN NATIONAL
COUNCIL OF FIELD LABOR LOCALS CONSIDERED AND REJECTED THE ARGUMENTS
PRESENTED BY THE AGENCY IN THIS CASE, ITS EXCEPTION, FOR THE REASONS SET
FORTH IN GREATER DETAIL IN THAT DECISION, PROVIDES NO BASIS FOR FINDING
THE AWARD DEFICIENT. ACCORD, CORPS OF ENGINEERS, KANSAS CITY DISTRICT
AND NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29, 8 FLRA NO. 14
(1982). THE AGENCY'S EXCEPTION IS THEREFORE DENIED.

ISSUED, WASHINGTON, D.C., MARCH 24, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ 5 U.S.C. SEC. 7121(C)(4) PROVIDES:

SEC. 7121. GRIEVANCE PROCEDURES

(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE

CONCERNING--

(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT(.)