14:0307(56)AR - Justice, INS, Western Regional Office, San Pedro, CA and National INS Council, AFGE Local 2805 -- 1984 FLRAdec AR
[ v14 p307 ]
The decision of the Authority follows:
14 FLRA No. 56 U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, WESTERN REGIONAL OFFICE, SAN PEDRO, CALIFORNIA Activity and NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2805, AFL-CIO Union Case No. O-AR-368 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Reginald Alleyne 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. The Union filed an opposition. The dispute in this matter concerns the termination of the grievant during his probationary period for unsatisfactory conduct in using physical force contrary to published agency instructions. A grievance was filed challenging the termination on its merits. The matter was submitted to arbitration on the sole issue of whether the grievance was grievable and arbitrable. As his award, the Arbitrator ruled that the grievance was grievable and arbitrable. As one of its exceptions, the Agency essentially contends that the Arbitrator's award is contrary to 5 U.S.C. 3321 and 5 CFR part 315, subpart H dealing with a probationary period for Federal Government employees. 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 v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), that coverage by 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 grievable and arbitrable the grievance challenging the Activity's decision to terminate the grievant during his probationary period for unsatisfactory conduct, 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. /1/ Accordingly, the award is set aside. Issued, Washington, D.C., April 26, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In view of this decision, it is not necessary for the Authority to address the Agency'