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57 FLRA No. 41
U. S. Dept. of Agriculture Rural Development Centralized Servicing Center, St. Louis, Missouri and AFGE, Local 3354, 0-AR-3322 (Cohen, Arbitrator) (Decided May 21, 2001)
The Arbitrator determined that a grievance alleging discrimination by the Agency in its initial hiring, placing in grade, paying and promoting of bilingual loan processors was arbitrable. However, the Arbitrator denied the entire grievance on its merits.
The Agency excepted only to the arbitrability determination made by the Arbitrator and requested that the Authority set aside this portion of the award. The Authority found that the Arbitrator's award was deficient to the extent that the Arbitrator determined that claims involving initial appointments to federal service of some of the grievants were substantively arbitrable. Accordingly, the Authority set aside that portion of the award and denied the Agency's claims regarding the arbitrability of the remainder of the grievance. The Authority rejected the Agency's claim based on procedural arbitrability noting that an arbitrator's determination of the procedural arbitrability of a grievance is subject to challenge only on grounds other than those that directly challenge the procedural arbitrability determination.
The Agency also claimed that the arbitrability determination was inconsistent with § 7121(c)(4) since the hiring practices at issue concerned initial appointments into federal service for a number of the grievants. The Authority noted that § 7121(c)(4) expressly excludes from the scope of negotiated grievance procedures any grievance concerning any examination, certification, or appointment. Lastly, the Authority noted that § 7121(c)(4) does not affect the arbitrability of claims regarding the hiring of grievants who were already federal employees when they applied to the Agency.