27 FLRA NO. 95

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1409

               Union

          and

DEPARTMENT OF THE ARMY, U.S. ARMY
ADJUTANT GENERAL PUBLICATIONS
CENTER, BALTIMORE, MARYLAND

               Agency

Case No. O-NG-1390

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of one proposal. We find that the proposal is nonnegotiable.

II. Proposal

Exceptions to Negotiated Grievance Procedure

Article 27, Section 27.02(d)(7), Scope

Termination of an employee during the 1-year probationary period, unless the grievance is an allegation of discrimination.

III. Positions of the Parties

The Agency contends that the proposal is nonnegotiable because it is contrary to law, 5 U.S.C. 3321, and regulation, 5 C.F.R. Part 315, Subpart H. In support of its  contention, the Agency cites the Authority's decision involving a similar proposal in National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA No. 90 (1987) (proposal 6), petition for review filed sub non. National Treasury Employees Union v. FLRA, Nos. 87-1166 and 87-1178 (D.C. Cir. April 15, 1987).

In the Union's view, the proposal would permit probationary employees to appeal terminations involving allegations of illegal discrimination through the parties' negotiated grievance procedure. The Union claims that the proposal is consistent with 5 U.S.C. 7121 of the Statute and is therefore negotiable. It further contends that the proposal is not inconsistent with 5 U.S.C. 3321 and 5 C.F.R. 315. More particularly, the Union disagrees with the Authority's decisi