14:0273(49)AR - Labor, Washington, DC and AFGE Local 12 -- 1984 FLRAdec AR
[ v14 p273 ]
The decision of the Authority follows:
14 FLRA No. 49 UNITED STATES DEPARTMENT OF LABOR, WASHINGTON, D.C. Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 Union Case No. O-AR-648 DECISION This matter is before the Authority on an exception to the award of Arbitrator Mollie Heath Bowers filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. /1/ The dispute in this case concerns the termination of the grievant during his probationary period. A grievance was filed and submitted to arbitration to decide whether the grievance was grievable and arbitrable in light of the decision in United States Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983). The Arbitrator found the matter to be grievable and arbitrable, ruling that the decision in Department of Justice, Immigration and Naturalization Service was not applicable. In its exception the Agency contends on the basis of the decision in Department of Justice, Immigration and Naturalization that the award is contrary to law. The Authority agrees. 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 that coverage under 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, is deficient 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., April 20, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union's opposition was untimely and has not been considered.