14:0446(71)AR - Justice, Federal Prison System and AFGE, Council of Prison Locals, Local 1494 -- 1984 FLRAdec AR

 14 FLRA No. 71
 
 U.S. DEPARTMENT OF JUSTICE,
 FEDERAL PRISON SYSTEM
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, COUNCIL OF PRISON LOCALS,
 LOCAL 1494
 Union
 
                                            Case No. O-AR-710
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator James C. Duff 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 separation of the grievant
 during her probationary period.  A grievance was filed and submitted to
 arbitration contesting the separation.  The Arbitrator determined that
 the grievance was arbitrable and on the merits he reinstated the
 grievant with backpay and benefits.
 
    In its exception the Agency contends that the award 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, by
 finding the grievance arbitrable and 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.  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