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14:0707(94)AR - SSA, Mid-America Program Service Center and AFGE Local 1336 -- 1984 FLRAdec AR

[ v14 p707 ]
The decision of the Authority follows:

 14 FLRA No. 94
                                            Case No. O-AR-531
    This matter is before the Authority on exceptions to the award of
 Arbitrator William O. Eisler filed by the Union under section 7122(a) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.
    The dispute in this matter concerns the Activity's termination of the
 grievant during her probationary period.  The Arbitrator found that no
 question was raised concerning the arbitrability of the dispute and
 proceeded to consider the merits of the grievance under the parties'
 collective bargaining agreement.  As his award, the Arbitrator ruled
 that the termination was for just cause and not violative of the
 parties' agreement.  Accordingly, the Arbitrator denied the grievance.
 The Union then filed its exceptions contesting various aspects of the
 Arbitrator's opinion and award concerning the merits of the grievance.
 Because the Authority finds that the grievance was not arbitrable, it
 need not address the Union's exceptions on the merits and for the
 reasons set forth below concludes that the award must be set aside.
    Although arbitrability of the instant grievance was not raised as an
 issue, the Authority specifically held in Department of Health and Human
 Services, Social Security Administration and American Federation of
 Government Employees, Local 3342, 14 FLRA No. 33 (1984), 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
 resolving the grievance on the merits, 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., May
 24, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       HENRY B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY