13:0677(109)AR - Labor, Labor-Management Services Administration, Cleveland, OH and National Union of Compliance Officers -- 1984 FLRAdec AR

 13 FLRA No. 109
 
 U.S. DEPARTMENT OF LABOR,
 LABOR-MANAGEMENT SERVICES
 ADMINISTRATION, CLEVELAND, OHIO
 (Agency)
 
 and
 
 NATIONAL UNION OF COMPLIANCE OFFICERS
 (Union)
 
                                            Case No. O-AR-511
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Jonathan Dworkin filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations and part 2425 of the
 Authority's Rules and Regulations.
 
    The dispute in this matter concerned the termination of the
 grievant's employment during her probationary period.  The Arbitrator
 determined that the termination action was arbitrable on its merits
 under the parties' collective bargaining agreement and sustained the
 Union's grievance requesting reinstatement of the grievant.  In its
 exceptions, as supplemented, the Agency in effect contends that the
 award is contrary to law as set forth in the decision of the U.S. Court
 of Appeals for the District of Columbia Circuit in Department of
 Justice, Immigration and Naturalization Service v. Federal Labor
 Relations Authority, 709 F.2d 724 (D.C. Cir. 1983).
 
    Upon careful consideration of the entire record before the Authority,
 including the contentions of the parties, the Authority finds that the
 Arbitrator's award is contrary to law.
 
    In the Immigration and Naturalization Service case, the court held
 that a proposal whereby the termination of probationary employees would
 be grievable under the parties' collective bargaining agreement /1/ was
 inconsistent with law and regulations.  Id. at 730 n.23.  In reversing
 the Authority's determination that the proposal was negotiable, the
 court concluded, at 730:
 
          Congress has long recognized both that federal employees are
       due certain procedural protections and that federal agencies must
       be able to terminate employees for unacceptable work performance
       or conduct.  In accommodating these competing concerns, Congress
       created the concept of the probationary term and authorized
       agencies to terminate employees summarily during this period.  It
       saw summary terminations as essential to an effective and
       efficient service, and it has repeatedly acted to preserve the
       agencies' discretion summarily to remove probationary employees.
       We detect no retreat from this position in the Civil Service
       Reform Act of 1978 or in the OPM regulations that implement the
       congressional mandate.  Accordingly, we find the union proposal to
       be inconsistent with other law, and we reverse FLRA's order that
       INS bargain over the proposal.  (Footnote omitted).
 
    Thus, the court held with respect to termination of probationary
 employees for unacceptable work performance or conduct that the
 discretion of agencies to terminate probationers summarily for such
 reasons was not altered by the passage of the Civil Service Reform Act
 of 1978.  While in this case the grievance concerned the termination of
 a probationer for conditions arising before appointment (5 C.F.R.
 315.805), the Authority nevertheless views the court's considerations in
 the Immigration and Naturalization Service case as applicable here.
 Accordingly, the Authority finds that in enacting the Federal Service
 Labor-Management Relations Statute Congress did not intend grievance and
 arbitration procedures negotiated under the Statute to cover grievances
 concerning the termination of probationary employees such as that at
 issue in this case.  To the extent that previous decisions of the
 Authority are to the contrary, they will no longer be followed.
 Therefore, the Arbitrator's award in the instant case, finding the
 Union's grievance arbitrable, must be set aside as contrary to law.
 
    Accordingly, the award is hereby set aside.
 
    Issued, Washington, D.C., January 16, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY