14:0164(33)AR - HHS, SSA and AFGE Local 3342 -- 1984 FLRAdec AR

 14 FLRA No. 33
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL SECURITY
 ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3342
 Union
 
                                            Case No. O-AR-674
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Isabel Marcus 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 dispute in this case concerns the termination of the grievant
 during his probationary period for unsatisfactory work performance.  A
 grievance was filed and submitted to arbitration to decide whether the
 grievance was arbitrable and, if so, whether the grievant's separation
 was proper.  The Arbitrator determined that the grievance was arbitrable
 and that the separation was in violation of the parties' collective
 bargaining agreement.  Accordingly, the Arbitrator reinstated the
 grievant to a probationary position with backpay and benefits.
 
    As one of its exceptions, the Agency contends, on the basis of the
 decision in Department of Justice, Immigration and Naturalization
 Service v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir.
 1983), issued subsequent to the Arbitrator's award herein, that the
 award is contrary to law.  The Authority agrees.
 
    In the Immigration and Naturalization Service case, the court held
 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, both by finding the grievance
 arbitrable and by resolving the grievance on the merits and ordering the
 grievant reinstated with backpay, is deficient in its entirety 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.  /1/
 
    Issued, Washington, D.C., March 30, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See U.S. Department of Labor, Labor-Management Services
 Administration, Cleveland, Ohio and National Union of Compliance
 Officers, 13 FLRA No. 109(1984).