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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
                                            Case No. O-AR-648
    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
    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.