14:0307(56)AR - Justice, INS, Western Regional Office, San Pedro, CA and National INS Council, AFGE Local 2805 -- 1984 FLRAdec AR

 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's other exception to the award.