[ v09 p676 ]
09:0676(78)AR
The decision of the Authority follows:
9 FLRA No. 78
OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C.
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 32
Union
Case No. O-AR-232
DECISION
THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR SEYMOUR STRONGIN FILED BY THE AGENCY 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 UNION FILED AN
OPPOSITION.
THE DISPUTE IN THIS MATTER AROSE WHEN THE GRIEVANT WAS TERMINATED
DURING HIS PROBATIONARY PERIOD. A GRIEVANCE WAS FILED, WHICH THE AGENCY
CLAIMED WAS NOT ARBITRABLE, AND THE GRIEVANCE WAS ULTIMATELY SUBMITTED
TO ARBITRATION.
AT THE OUTSET OF THE ARBITRATION HEARING, THE AGENCY AGAIN CLAIMED
THAT THE GRIEVANCE WAS NOT ARBITRABLE, ARGUING THAT SUCH GRIEVANCES WERE
EXCLUDED FROM COVERAGE UNDER A NEGOTIATED GRIEVANCE PROCEDURE BY
SECTION
7121(C)(4) OF THE STATUTE. /1/ THE AGENCY CONCEDED TO THE ARBITRATOR,
HOWEVER, THAT ITS POSITION WAS CONTRARY TO 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). ON THE BASIS OF NATIONAL COUNCIL OF FIELD LABOR
LOCALS, THE ARBITRATOR REJECTED THE AGENCY'S CONTENTION AND FOUND THE
GRIEVANCE TO BE ARBITRABLE.
ON THE MERITS OF THE GRIEVANCE, THE ARBITRATOR RULED THAT THE AGENCY
HAD THE BURDEN OF JUSTIFYING THE GRIEVANT'S TERMINATION. FINDING THAT
THE GRIEVANT WAS TERMINATED ULTIMATELY FOR "UNSATISFACTORY PRODUCTION,"
THE ARBITRATOR FOUND THE DISPOSITIVE QUESTION BEFORE HIM TO INVOLVE AN
APPRAISAL OF THE GRIEVANT'S PRODUCTION. IN THIS REGARD THE ARBITRATOR
NOTED THAT AT THE ARBITRATION HEARING THE AGENCY SUBMITTED A STATEMENT
BY THE CHIEF OF THE GRIEVANT'S DIVISION PERTAINING TO THE UNSATISFACTORY
PRODUCTION OF THE GRIEVANT, BUT OFFERED NO OTHER EVIDENCE ON THIS ISSUE.
THE ARBITRATOR NOTED THAT IN CONTRAST THE GRIEVANT TESTIFIED THAT THE
FIGURES CONTAINED IN THAT STATEMENT WERE IN ERROR AND HE PRODUCED HIS
LOGBOOK IN WHICH HE HAD ENTERED EACH DAY THE CASES HE SUBMITTED FOR
REVIEW. IN THE OPINION ACCOMPANYING HIS AWARD, THE ARBITRATOR COMMENTED
THAT THE GRIEVANT'S TESTIMONY, HIS LOGBOOK, AND TWO EXHIBITS PREPARED BY
THE UNION, WHICH SHOWED THAT THE GRIEVANT'S PRODUCTION MET AND EXCEEDED
THE AGENCY'S EXPECTATIONS, WERE ALL PART OF THE RECORD. HE FURTHER
NOTED THAT THE AGENCY DID NOT CROSS EXAMINE THE GRIEVANT, DID NOT
PRESENT ANY REBUTTAL TESTIMONY, AND DID NOT REQUEST ANY TIME IN WHICH TO
EXAMINE EITHER THE GRIEVANT'S LOGBOOK OR ITS OWN RECORDS. HE ALSO
STATED THAT IN ITS POST-HEARING BRIEF THE AGENCY TOTALLY IGNORED THE
GRIEVANT'S TESTIMONY AND LOGBOOK AND THE EXHIBITS OF THE UNION.
ACCORDINGLY, THE ARBITRATOR DECIDED AS FOLLOWS:
THE RECORD LEAVES NO ROOM FOR DOUBT THAT THE ACTIVITY'S DECISION TO
TERMINATE THE GRIEVANT
RESTED ON ITS VIEW OF THE GRIEVANT'S ALLEGEDLY UNSATISFACTORY
PRODUCTION. THE EVIDENCE BEFORE
THE ARBITRATOR AS TO THE GRIEVANT'S PRODUCTION, HOWEVER, INDICATES
THAT THE ACTIVITY DID NOT
GIVE HIM PROPER CREDIT FOR THE WORK HE PERFORMED. TO BE SURE, THIS
IS SELF-SERVING EVIDENCE
PRODUCED BY THE GRIEVANT IN THE FORM OF A NOTEBOOK HE ALLEGEDLY KEPT
AT THE TIME OF THE
EVENTS. THE ARBITRATOR, HOWEVER, MUST CHOOSE BETWEEN THAT TANGIBLE
EVIDENCE PRODUCED BEFORE
HIM AND AVAILABLE FOR EXAMINATION BY THE ACTIVITY AND THE
CONCLUSIONAL, SECOND-HAND SUMMARY
PREPARED BY (THE GRIEVANT'S DIVISION CHIEF) BUT NOT SUPPORTED BY THE
PRODUCTION RECORDS OR BY
TESTIMONY. IT IS POSSIBLE, OF COURSE, THAT THE GRIEVANT'S RECORDS
ARE ERRONEOUS. IT IS ALSO
POSSIBLE, AS THE GRIEVANT TESTIFIED HE WAS TOLD WHEN HE CALLED THE
MATTER TO THE ATTENTION OF
HIS SECTION CHIEF, THAT THE ACTIVITY WAS "EXPERIENCING COMPUTER
PROBLEMS." THE ARBITRATOR, IN
ANY EVENT, CAN ONLY DECIDE ON THE EVIDENCE BEFORE HIM, TRUSTING TO
THE ADVERSARIAL SYSTEM TO
SHOW WHICH OF THE CONFLICTING RECORDS IS CORRECT. HERE, WHERE THERE
WAS NO CROSS EXAMINATION
OR OTHER CHALLENGE TO THE GRIEVANT'S DETAILED CONTEMPORARY RECORD,
THE ARBITRATOR MUST ACCEPT
IT AS ACCURATE.
ON THE BASIS OF GRIEVANT'S LOG, HIS PRODUCTION MET ACTIVITY
"EXPECTATIONS" AND INDEED
WARRANTED HIS PROMOTION TO GS-7, THE GRADE ACHIEVED BY THOSE IN HIS
TRAINEE GROUP WHO MET
THOSE TESTS AND WERE UNCONDITIONALLY ASSIGNED AS CLAIMS EXAMINERS.
IT FOLLOWS THAT THE
GRIEVANCE MUST BE SUSTAINED, AND THAT THE GRIEVANT SHOULD BE
REINSTATED. HE SHOULD BE GIVEN
BACKPAY AS A GS-5 FROM THE DATE OF HIS TERMINATION UNTIL THE FIRST
ANNIVERSARY OF HIS
EMPLOYMENT, FROM WHICH POINT ON HE SHOULD BE GIVEN BACKPAY AS A GS-7,
THE GRADE AT WHICH HE
SHOULD NOW BE PLACED.
IN ITS FIRST EXCEPTION THE AGENCY CONTENDS THAT THE ARBITRATOR'S
DETERMINATION THAT THE GRIEVANCE WAS ARBITRABLE IS CONTRARY TO SECTION
7121(C)(4) OF THE STATUTE. HOWEVER, FOR THE REASONS SET FORTH IN
GREATER DETAIL IN NATIONAL COUNCIL OF FIELD LABOR LOCALS, 4 FLRA NO. 51,
AND EXPRESSLY REAFFIRMED IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, 8
FLRA NO. 75(1982) AT 22, THIS EXCEPTION PROVIDES NO BASIS FOR FINDING
THE AWARD DEFICIENT. ACCORD VETERANS ADMINISTRATION MEDICAL CENTER,
FRANKLIN DELANO ROOSEVELT HOSPITAL, MONTROSE, NEW YORK AND LOCAL 1119,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 8 FLRA NO. 48(1982);
CORPS OF ENGINEERS, KANSAS CITY DISTRICT AND NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 29, 8 FLRA NO. 14(1982). THEREFORE, THIS
EXCEPTION IS DENIED.
IN ITS SECOND EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS BASED
ON A NONFACT. SPECIFICALLY, THE AGENCY CONTENDS THAT THE CENTRAL FACT
UNDERLYING THE AWARD IS THE ARBITRATOR'S STATEMENT THAT THE GRIEVANT WAS
TERMINATED FOR UNSATISFACTORY PRODUCTION WHILE IN THE RETIREMENT CLAIMS
DIVISION, WHICH STATEMENT THE AGENCY MAINTAINS IS DEMONSTRABLY FALSE,
MISLEADING, AND A GROSS MISTAKE OF FACT BUT FOR WHICH THE ARBITRATOR
WOULD HAVE REACHED A DIFFERENT RESULT. IN SUPPORT OF THIS EXCEPTION,
THE AGENCY ASSERTS THAT THE GRIEVANT'S TERMINATION WAS NOT "EVEN
PRIMARILY BASED ON HIS PRODUCTION LEVELS WHILE ASSIGNED TO THE
RETIREMENT CLAIMS DIVISION." CITING THE NOTIFICATION TO THE GRIEVANT OF
HIS TERMINATION, THE AGENCY CLAIMS THAT IT IS CLEAR THAT THE TERMINATION
WAS BASED INSTEAD ON DEFICIENCIES IN BOTH THE GRIEVANT'S PERFORMANCE AND
CONDUCT OVER HIS ENTIRE TEN-MONTH PERIOD AS A TRAINEE. WITH RESPECT TO
THE GRIEVANT'S PRODUCTION, THE AGENCY ARGUES THAT THE GRIEVANT'S
TESTIMONY AND EVIDENCE WERE UNCORROBORATED IN THE RECORD AND SUBMITS
THAT HIS FIGURES WERE SHOWN IN A SUBSEQUENT AUDIT TO HAVE BEEN
ERRONEOUS. THE AGENCY ALSO DISPUTES THE ARBITRATOR'S FINDING THAT THERE
WAS NO CREDIBLE EVIDENCE IN THE RECORD TO CHALLENGE THE GRIEVANT'S
ASSERTIONS REGARDING HIS PRODUCTION AND MAINTAINS THAT IT WAS INCUMBENT
ON THE ARBITRATOR TO HAVE CONSIDERED THE AGENCY'S EVIDENCE CHALLENGING
THE GRIEVANT'S UNAUTHENTICATED LOGBOOK.
IN OPPOSITION THE UNION PRINCIPALLY ARGUES THAT THE ARBITRATOR'S
FAILURE TO SPECIFICALLY ADDRESS THE GRIEVANT'S CONDUCT DOES NOT
ESTABLISH THAT THE ARBITRATOR DID NOT CONSIDER THE EVIDENCE PRESENTED AS
TO THE GRIEVANT'S ALLEGED MISCONDUCT. THE UNION MAINTAINS THAT INSTEAD
IT SHOULD ONLY INDICATE THAT THE ARBITRATOR DID NOT VIEW THE GRIEVANT'S
CONDUCT AS JUSTIFYING HIS TERMINATION. THE UNION NOTES THAT THE AGENCY
ONLY MENTIONED THE GRIEVANT'S CONDUCT IN ONE SENTENCE IN ITS
POST-HEARING BRIEF. THE UNION THEREFORE CLAIMS THAT IN THESE
CIRCUMSTANCES THE ARBITRATOR COULD PROPERLY CONSIDER THAT THE GRIEVANT'S
CONDUCT WAS NOT A SERIOUS BASIS FOR HIS TERMINATION.
THIS EXCEPTION FAILS TO PROVIDE A BASIS FOR FINDING THE AWARD
DEFICIENT. AS NOTED, THE ARBITRATOR FIRST RULED THAT THE AGENCY HAD THE
BURDEN OF JUSTIFYING THE GRIEVANT'S TERMINATION. ON THE BASIS OF THE
EVIDENCE PRESENTED, THE ARBITRATOR DETERMINED THAT THE AGENCY'S DECISION
TO TERMINATE THE GRIEVANT HAD ULTIMATELY RESTED ON ITS VIEW THAT HIS
PRODUCTION WAS UNSATISFACTORY AND THAT THEREFORE THE DISPOSITIVE ISSUE
BEFORE HIM INVOLVED AN APPRAISAL OF THE GRIEVANT'S PRODUCTION. THE
AGENCY HAS NOT ESTABLISHED IN WHAT MANNER THIS DETERMINATION IS
"DEMONSTRABLY FALSE." THE EMPHASIS OF THE AGENCY'S EXCEPTION IS THAT THE
GRIEVANT'S TERMINATION WAS INDIVISIBLY BASED ON THE GRIEVANT'S OVERALL
PERFORMANCE AND CONDUCT DURING HIS ENTIRE PROBATIONARY PERIOD AND WAS
NOT PRIMARILY OR ULTIMATELY BASED ON HIS PRODUCTION WHILE ASSIGNED TO
THE RETIREMENT CLAIMS DIVISION. HOWEVER, THE GRIEVANT'S TERMINATION
NOTICE EXPRESSLY ADVISED THAT THE GRIEVANT WAS BEING TERMINATED BECAUSE
OF HIS "FAILURE TO MEET THE PERFORMANCE REQUIREMENTS OF (HIS) POSITION."
MOREOVER, THE PRINCIPAL EXPLANATION PROVIDED WAS AS FOLLOWS:
BASED ON YOUR RECORD DURING THESE FOUR MONTHS (IN THE RETIREMENT
CLAIMS DIVISION), YOU HAVE
NOT ATTAINED THE LEVEL OF KNOWLEDGE NECESSARY TO SUCCESSFULLY CARRY
OUT THE RESPONSIBILITIES
OF A CIVIL SERVICE RETIREMENT CLAIMS EXAMINER.
SPECIFICALLY, DURING YOUR CONDITIONAL REASSIGNMENT, THE NUMBER OF
CLAIMS YOU WERE ABLE TO
PROCESS HAS NOT INCREASED SIGNIFICANTLY, AND YOUR RATE OF ACCURACY
DECREASED. THE NUMBER OF
CASES PER DAY THAT YOU ARE PROCESSING HAS NEVER REACHED THE MINIMUM
LEVEL FOR TRANSFER FROM
THE TRAINING SECTION TO THIS DIVISION.
FURTHERMORE, THE GRIEVANT'S CONDUCT WAS ONLY MENTIONED IN ONE
SENTENCE AS THE LAST EXPLANATION OF HIS TERMINATION AND WAS INTRODUCED
BY "(I)N ADDITION." AS HAS BEEN NOTED BY THE UNION, THE GRIEVANT'S
CONDUCT WAS ALSO ONLY MENTIONED IN ONE SENTENCE OF THE AGENCY'S
POST-HEARING BRIEF. IN SUCH CIRCUMSTANCES, AND WITH THE PARTIES UNABLE
TO AGREE ON A STIPULATION OF THE ISSUES TO BE SUBMITTED TO THE
ARBITRATOR, THE AGENCY HAS NOT SUBSTANTIATED THAT THE ARBITRATOR'S VIEW
OF THIS CASE AS ULTIMATELY RESTING ON WHETHER THE GRIEVANT'S PRODUCTION
JUSTIFIED HIS TERMINATION IS, AS ASSERTED BY THE AGENCY, "DEMONSTRABLY
FALSE, MISLEADING AND A GROSS MISTAKE OF FACT BUT FOR WHICH THE
ARBITRATOR WOULD UNDOUBTEDLY HAVE REACHED A DIFFERENT RESULT."
MOREOVER, WITH RESPECT TO THESE TYPES OF CASES, THE AUTHORITY HAS
EXPRESSLY HELD:
THERE IS NO REQUIREMENT IN LAW OR REGULATION WHICH WOULD REQUIRE AN
ARBITRATOR TO EXPRESSLY
ADDRESS THE SECONDARY CHARGES IN CASES SUCH AS THIS AND, WITH NO SUCH
REQUIREMENT APPARENT
UNDER THE PARTIES' AGREEMENT, IT IS CLEAR THAT THE ARBITRATOR WAS NOT
OBLIGATED TO
SPECIFICALLY DISCUSS THESE CHARGES. THE FACT THAT HIS OPINION
ACCOMPANYING THE AWARD DID NOT
MENTION SUCH CHARGES DOES NOT ESTABLISH THAT HE DID NOT RULE ON THEM.
IMMIGRATION AND NATURALIZATION SERVICE AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, 8 FLRA NO. 53(1982) AT 2. THUS, THE
ARBITRATOR'S EMPHASIS ON THE GRIEVANT'S PRODUCTION DOES NOT ESTABLISH
THAT THE ARBITRATOR DID NOT RULE THAT THE ALLEGED MISCONDUCT FAILED TO
JUSTIFY THE GRIEVANT'S TERMINATION AND DOES NOT THEREFORE ESTABLISH THAT
THE ARBITRATOR ERRONEOUSLY JUDGED THE GRIEVANT'S TERMINATION SOLELY ON
THE BASIS OF THE GRIEVANT'S PRODUCTION DURING HIS FOUR MONTHS IN THE
RETIREMENT CLAIMS DIVISION.
LIKEWISE, THE AGENCY'S ASSERTIONS REGARDING THE ARBITRATOR'S
CONSIDERATION AND EVALUATION OF EVIDENCE AS TO THE GRIEVANT'S PRODUCTION
FAIL TO DEMONSTRATE THAT THE AWARD IS IN ANY MANNER DEFICIENT. IN LIGHT
OF THE DETAILED COMMENTS BY THE ARBITRATOR ON THE EVIDENCE AND TESTIMONY
PRESENTED AND NOT PRESENTED, IT IS CLEAR THAT THESE ASSERTIONS
CONSTITUTE NOTHING MORE THAN AN ATTEMPT BY THE AGENCY TO RELITIGATE THIS
CASE BEFORE THE AUTHORITY. BECAUSE THIS EXCEPTION THEREFORE PROVIDES NO
BASIS FOR FINDING THE AWARD DEFICIENT, THE EXCEPTION IS DENIED.
IN ITS THIRD EXCEPTION THE AGENCY CONTENDS THAT THE AWARD IS
DEFICIENT "TO THE EXTENT THAT (THE ARBITRATOR) DIRECTED THE ACTIVITY TO
PROMOTE THE GRIEVANT TO THE GS-7 LEVEL WITH BACKPAY, EFFECTIVE ON THE
FIRST ANNIVERSARY OF HIS EMPLOYMENT WITH THE AGENCY." IN OPPOSITION THE
UNION ARGUES THAT THE AWARD IS CONSISTENT WITH THE BACK PAY ACT,
ASSERTEDLY BECAUSE OF A PAST PRACTICE REQUIRING AUTOMATIC CAREER LADDER
PROMOTIONS UPON SATISFACTORY PERFORMANCE AS A GS-5 CLAIMS EXAMINER.
THE AUTHORITY FINDS THAT THE ARBITRATOR'S ORDER OF A CAREER LADDER
PROMOTION TO GS-7 WITH BACKPAY RETROACTIVE TO THE FIRST ANNIVERSARY DATE
OF THE GRIEVANT'S EMPLOYMENT WITH THE AGENCY IS DEFICIENT AS CONTRARY TO
THE BACK PAY ACT, 5 U.S.C. 5596, AND MUST BE MODIFIED ACCORDINGLY. THE
BACK PAY ACT MAKES IT CLEAR THAT AN AWARD OF RETROACTIVE PROMOTION AND
BACKPAY IS ONLY AVAILABLE WHEN AN AGGRIEVED EMPLOYEE WOULD HAVE RECEIVED
A PROMOTION IF THE EMPLOYEE HAD NOT SUFFERED AN UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTION. 5 U.S.C. 5596(B)(1)(A)(I) (SUPP. IV
1980); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2811 AND U.S.
GOVERNMENT DISTRICT OFFICE, SOCIAL SECURITY ADMINISTRATION, ST. PAUL,
MINNESOTA, 7 FLRA NO. 97(1982). ACCORDINGLY, IN ORDER FOR A RETROACTIVE
PROMOTION AND BACKPAY TO BE AUTHORIZED UNDER THE ACT, THERE MUST BE A
DETERMINATION NOT ONLY THAT THE EMPLOYEE SUFFERED AN UNJUSTIFIED OR
UNWARRANTED PERSONNEL ACTION, BUT ALSO THAT SUCH UNWARRANTED ACTION
DIRECTLY RESULTED IN THE DENIAL OF A PROMOTION TO THE EMPLOYEE THAT THE
EMPLOYEE OTHERWISE WOULD HAVE RECEIVED. ID. AT 3. IN TERMS OF THIS
CASE, THE ARBITRATOR HAS NOT MADE THE NECESSARY FINDING THAT THE
AGENCY'S UNJUSTIFIED TERMINATION OF THE GRIEVANT DURING HIS PROBATIONARY
PERIOD DIRECTLY RESULTED IN AN IMPROPER DENIAL OF A CAREER LADDER
PROMOTION TO GS-7 THAT THE GRIEVANT OTHERWISE WOULD HAVE RECEIVED. IN
THESE CASES, IT IS NECESSARY TO BE ABLE TO RECONSTRUCT ON THE BASIS OF
THE EVIDENCE AND THE ARBITRATOR'S AWARD THAT THE RESPONSIBLE AGENCY
OFFICIALS WOULD ORIGINALLY HAVE PROMOTED THE AGGRIEVED EMPLOYEE IF THE
UNWARRANTED PERSONNEL ACTION HAD NOT OCCURRED. SEE ID. THE AWARD AND
THE EVIDENCE IN THIS CASE DO NOT ESTABLISH THAT HAD THE GRIEVANT NOT
BEEN TERMINATED, HE WOULD HAVE BEEN PROMOTED.
THE PERSONNEL ACTION IN THIS CASE WAS THE GRIEVANT'S TERMINATION
DURING HIS PROBATIONARY PERIOD. THE ARBITRATOR EXPRESSLY FOUND THAT THE
AGENCY'S APPRAISAL OF THE GRIEVANT AS ESSENTIALLY LACKING IN FITNESS FOR
PERMANENT GOVERNMENT SERVICE AND ITS ACTION TERMINATING HIM WERE
UNJUSTIFIED AND UNWARRANTED. HOWEVER, BECAUSE THE GRIEVANT WAS
TERMINATED DURING HIS PROBATIONARY PERIOD, HE WAS NEVER APPRAISED AS TO
WHETHER HE HAD THE NECESSARY ABILITY TO PERFORM AT THE NEXT HIGHER GRADE
OF HIS CAREER LADDER, WHICH APPRAISAL IS DISTINCT FROM AND UNRELATED TO
THE APPRAISAL OF THE FITNESS AND CAPACITY OF A PROBATIONARY EMPLOYEE.
IN RECONSTRUCTING THIS ACTION, THE UNJUSTIFIED APPRAISAL AND TERMINATION
OF THE GRIEVANT WITH RESPECT TO HIS PRODUCTION DOES NOT AND CANNOT
ESTABLISH THAT A DENIAL OF A CAREER LADDER PROMOTION WOULD ALSO HAVE
BEEN UNJUSTIFIED AND UNWARRANTED. IN THIS REGARD THE GRIEVANT'S
PRODUCTION WAS NEVER APPRAISED IN RELATION TO WHETHER HE SHOULD RECEIVE
A CAREER LADDER PROMOTION, AND, FURTHER, UNDER THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT PRODUCTION IS ONLY ONE ELEMENT IN THE APPRAISAL OF
AN EMPLOYEE FOR A CAREER LADDER PROMOTION. CONSEQUENTLY, THE AWARD AND
DECISION ARE MODIFIED TO ONLY PROVIDE THAT THE GRIEVANT SHOULD BE
REINSTATED AS A GS-5 AND SHOULD BE GIVEN BACKPAY AS A GS-5 FROM THE DATE
OF HIS TERMINATION.
ISSUED, WASHINGTON, D.C., JULY 28, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
LEON B. APPLEWHAITE, MEMBER, CONCURRING:
ALTHOUGH I AM IN AGREEMENT WITH MY FELLOW MEMBERS AS TO THE ULTIMATE
RESOLUTION OF THIS APPEAL, I FEEL IT IS NECESSARY THAT LIMITATIONS BE
PLACED ON THE REASONING SET FORTH THEREIN. THE ARBITRATOR, IN THIS
CASE, HELD THAT THE GRIEVANCE OF THE PROBATIONARY EMPLOYEE WAS
ARBITRABLE AND PROCEEDED TO ADDRESS THE ISSUE OF THE GRIEVANT'S
SEPARATION. INSOFAR AS THE ARBITRATOR'S DETERMINATIONS REGARDING THE
SEPARATION AROSE FROM MANAGEMENT'S MISTAKE AS TO A MATERIAL QUANTITATIVE
FACT AND NOT A DISAGREEMENT WITH A QUALITATIVE DISCRETIONARY
DETERMINATION ON THE PART OF MANAGEMENT, THE AWARD IS NOT VIOLATIVE OF
THE STATUTE.
ISSUED, WASHINGTON, D.C., JULY 28, 1982
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ 5 U.S.C. 7121(C)(4) PROVIDES:
SECTION 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(.)