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U.S. Federal Labor Relations Authority

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14:0444(70)AR - SSA and AFGE Local 1164 -- 1984 FLRAdec AR

[ v14 p444 ]
The decision of the Authority follows:

 14 FLRA No. 70
                                            Case No. O-AR-325
    This matter is before the Authority on an exception to the award of
 Arbitrator Peter R. Blum 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 case concerns the termination of the grievant
 during her probationary period for unsatisfactory work performance.  She
 filed a grievance claiming that, in so doing, management had violated
 the parties' collective bargaining agreement and seeking reinstatement
 with backpay for an additional period of probation in order to
 demonstrate satisfactory work performance.
    The Arbitrator first determined that the grievance was grievable and
 arbitrable, rejecting the argument that this matter was not grievable
 and arbitrable because it concerned alleged violations of the agreement
 that were directly connected with the grievant's termination during her
 probationary period.  The Arbitrator further determined that management
 had violated the agreement and as a remedy ordered the grievant
 reinstated and continued her probationary period.
    In its exception the Agency contends that the award is deficient in
 its entirety because it is contrary to law and regulation.  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,
 both by finding the grievance, which was clearly linked to the Agency's
 decision to terminate the grievant during her probationary period for
 unsatisfactory work performance, grievable and arbitrable and by
 resolving the grievance on the merits and ordering the grievant
 reinstated, 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.  /2/ Accordingly, the award is set aside.  
 Issued, Washington, D.C., May 8, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In its opposition, the Union argues that the exceptions must be
 dismissed as premature under the Authority's Rules and Regulations
 because the Arbitrator retained jurisdiction for a period of 60 days.
 However, the retention of jurisdiction to resolve possible problems of
 implementation provides no basis for finding premature the Agency's
 exceptions to the award.
    /2/ At all relevant times in this case, 5 U.S.C. 3321 and 5 CFR part
 315, subpart H have remained substantially unchanged.