[ v14 p444 ]
The decision of the Authority follows:
14 FLRA No. 70 SOCIAL SECURITY ADMINISTRATION Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1164, AFL-CIO Union Case No. O-AR-325 DECISION 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. /1/ 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.