Corps of Engineers, Kansas City District (Activity) and National Federation of Federal Employees, Local 29 (Union)
[ v08 p86]
The decision of the Authority follows:
8 FLRA NO. 14
CORPS OF ENGINEERS, KANSAS CITY DISTRICT Activity and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union Case No. 0-AR-118
This matter is before the Authority on an exception to the award of Arbitrator Henry M. Grether filed by the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (5 U.S.C. 7122(a)).
According to the Arbitrator, this matter concerns the removal of the grievant from his position as a clerk typist during his probationary period for unacceptable work performance. The grievant filed a grievance protesting his removal and claiming that he was not given a full and fair trial period prior to his separation and that he had been given no reason to believe that his work performance was unsatisfactory. The grievance was ultimately submitted to arbitration with the Arbitrator stating the issues as follows:
(1) Is this grievance grievable/arbitrable under the terms of the Agreement as those terms are affected by controlling law?
(2) Was the grievant given a full and fair trial period prior to his separation?
The Arbitrator determined that the first question to be decided was whether the grievance was grievable and arbitrable. Concluding that grievances over management's decision as to whether to retain a probationary employee had been excluded by law from coverage by a negotiated grievance procedure, the Arbitrator ruled that the grievance was not grievable or arbitrable and that therefore he lacked jurisdiction to decide the merits of the grievance. Specifically, the Arbitrator determined that
the probationary period, including the discretionary decision of whether to continue the probationer's employment beyond that period, comes within the statutory exclusionary language of 5 U.S.C. [ v8 p86 ] 7121(c)(4). 1 This is so because it falls within the meaning of the phrase, "any examination, certification, or appointment." (Footnote added.)
Accordingly, the Arbitrator's award was as follows:
Without deciding the merits, this grievance is denied on the grounds that it is not grievable/arbitrable.