15:0714(140)AR - HHS, SSA and AFGE Local 1923 -- 1984 FLRAdec AR

 15 FLRA No. 140
 
 DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL
 SECURITY ADMINISTRATION
 Agency
 
 and
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 1923, AFL-CIO
 Union
 
                                            Case No. O-AR-342
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Marvin C. Wahl filed by the Union 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 matter concerns the termination of the grievant
 during her probationary period for unsatisfactory conduct.  She filed a
 grievance that was submitted to arbitration claiming that management had
 violated provisions of the parties' collective bargaining agreement
 concerning the conditions under which a probationary employee may be
 terminated and seeking reinstatement with backpay.
 
    The Arbitrator first determined that the grievance was grievable and
 arbitrable.  The Arbitrator rejected the argument that this matter was
 not grievable and arbitrable because the grievance directly concerned
 the grievant's termination during her probationary period.  The
 Arbitrator further determined that management had violated the
 agreement.  As his award he therefore sustained the grievance and
 admonished the Agency to comply in the future with its contractual
 obligations.
 
    In its exception the Union contends that the Arbitrator's award is
 contrary to law.  Because the Authority has determined, for the reasons
 which follow, that the grievance was not arbitrable, it need not address
 the merits of the Union's exception.
 
    In Department of Justice, Immigration and Naturalization Service v.
 Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), the
 court specifically held that coverage under a negotiated grievance
 procedure of a grievance concerning the separation of a probationary
 employee is precluded by the statutory and regulatory scheme for a
 probationary period of employment set forth in 5 U.S.C. 3321 and 5 Cfr
 part 315, subpart H.  The court in addition concluded that whether the
 collective bargaining agreement proposals of the union provided
 probationary employees procedural protections different from those
 provided tenured employees was not the issue.  The court stated that to
 the contrary,
 
          the crucial issue is whether Congress intended to allow any
       shackles whatever to be placed on agency decisions concerning
       termination of probationary employees for unacceptable work
       performance or conduct.  We think that Congress affirmatively
       preserved the agencies' right to discharge summarily a
       probationary employee for unacceptable work performance.
       Furthermore, we think Congress instructed OPM, not FLRA, to
       implement the probationary program and to provide whatever
       procedural protections were necessary for probationary employees.
       709 F.2d at 729 (footnotes omitted).
 
    Based on the rationale and conclusions of the court in Immigration
 and Naturalization Service, the Authority has held that in enacting the
 Statute, Congress did not intend the separation of a probationary
 employee to be subject to grievance and arbitration.  U.S. Department of
 Labor, Labor-Management Services Administration, Cleveland, Ohio and
 National Union of Compliance Officers, 13 FLRA No. 109 (1984).
 Similarly, the Authority finds that in enacting the Statute, Congress
 did not intend that procedural protections for probationary employees be
 established through collective bargaining under the Statute.  As the
 court said, OPM is "to provide whatever procedural protections are
 necessary for probationary employees." Thus, in terms of this case, the
 Authority concludes that the award is deficient in its entirety as
 contrary to law and regulation governing the probationary period of
 employment.  The award is deficient in this respect both by finding the
 grievance concerning the grievant's separation during her probationary
 period to be arbitrable and by resolving the grievance on the merits by
 essentially enforcing provisions of the parties' collective bargaining
 agreement that are not properly subject to collective bargaining.
 Accordingly, the award is set aside.
 
    Issued, Washington, D.C., August 28, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY