Veterans Administration National Cemetery, Calverton, New York and American Federation of Government Employees, Local 3692 (Authority decision, November 30, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority setting aside an arbitration award. The order concerns an arbitration award under 5 U.S.C. § 7122. Section 7123(a)(1) generally excludes such orders from judicial review unless they involve an unfair labor practice under § 7118.

Plain-English summary

A probationary employee of the Calverton VA National Cemetery grieved his separation. The arbitrator accepted the grievance as arbitrable but denied it on the merits. The union challenged that award. The Authority held that governing law and regulations excluded a probationary separation grievance from the negotiated grievance procedure. It set aside the entire award because the arbitrator had no authority to decide the grievance, without addressing the union's merits arguments.

Decision snapshot

• Authority: Probationary employment under 5 U.S.C. § 3321 and 5 C.F.R. part 315, subpart H.
• Outcome: Arbitrator's entire award set aside on arbitrability grounds.
• Key point: The arbitrator could not resolve a grievance over a probationary separation under the cited statutory and regulatory scheme.

Full text (FLRA public release)

[ v16 p646 ]

16:0646(94)AR

The decision of the Authority follows:

16 FLRA No. 94

THE VETERANS ADMINISTRATION
NATIONAL CEMETERY,
CALVERTON, NEW YORK
(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3692, EAST
NORTHPORT, NEW YORK
(Union)

Case No. O-AR-546

DECISION

The matter is before the Authority on exceptions to the award of Arbitrator Leonard Isray filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The dispute in this case concerns the separation of the grievant during his probationary period. A grievance was filed and submitted to arbitration contesting the separation. The Arbitrator determined that the matter was arbitrable, but he denied the grievance on the merits.

In its exceptions, the Union essentially contends that the award is contrary to law and the collective bargaining agreement. Because the Authority has determined, for the reasons which follow, that the instant grievance was not arbitrable, it need not address the merits of the Union's exceptions.

In Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3342, 14 FLRA No. 33 (1984), the Authority specifically held on the basis of the rationale and conclusion of the court in Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), the coverage by a negotiated grievance procedure of a grievance concerning the separation of a probationary employee is precluded by governing law and regulation. Thus, in terms of this case, the Authority concludes that the award, by finding the grievance arbitrable and resolving the grievance on the merits, is deficient in its entirety as contrary to the statutory and regulatory scheme set forth in 5 U.S.C. 3321 and 5 CFR part 315, subpart H. See Veterans Administration Medical Center, Kerrville, Texas and American Federation of Government Employees, AFL-CIO, Local 2281, 15 FLRA No. 22 (1984). Accordingly, the award is set aside. Issued, Washington, D.C., November 30, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY