Veterans Administration Medical Center, Kerrville, Texas and American Federation of Government Employees, Local 2281 (Authority decision, June 13, 1984)

Final FLRA decision. The Authority set aside an arbitration award in its entirety under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

AFGE Local 2281 grieved the Kerrville VA Medical Center's separation of an employee during her probationary period. The arbitrator found the grievance arbitrable but denied it on the merits. On the union's exceptions, the Authority held that governing law and regulations barred use of a negotiated grievance procedure to challenge a probationary employee's separation. Because the arbitrator had decided a matter that could not be arbitrated, the Authority set aside the entire award without reaching the union's other arguments.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and probationary employment under § 3321.
• Outcome: Arbitration award set aside in its entirety.
• Key point: A grievance over a probationary employee's separation was outside the negotiated grievance procedure.

Full text (FLRA public release)

[ v15 p123 ]

15:0123(22)AR

The decision of the Authority follows:

15 FLRA No. 22

VETERANS ADMINISTRATION MEDICAL
CENTER, KERRVILLE, TEXAS
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2281
Union

Case No. O-AR-612

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator John A. Bailey 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 her 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 its merits.

As one of its exceptions, the Union contends that the award is contrary to law. Because the Authority has determined, for the reasons which follows, 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), that 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. Accordingly, the award is set aside.

Issued, Washington, D.C., June 13, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY