[ v14 p164 ]
The decision of the Authority follows:
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).