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16:0646(94)AR - VA National Cemetery, Calverton, NY and AFGE Local 3692, East Northport, NY -- 1984 FLRAdec AR



[ v16 p646 ]
16:0646(94)AR
The decision of the Authority follows:


 16 FLRA No. 94
 
 THE VETERANS ADMINISTRATION
 NATIONAL CEMETERY,
 CALVERTON, NEW YORK
 (Activity)
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3692, EAST
 NORTHPORT, NEW YORK
 (Union)
 
                                            Case No. O-AR-546
 
                                 DECISION
 
    The matter is before the Authority on exceptions to the award of
 Arbitrator Leonard Isray 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 case concerns the separation of the grievant
 during his probationary period.  A grievance was filed and submitted to
 arbitration contesting the separation.  The Arbitrator determined that
 the matter was arbitrable, but he denied the grievance on the merits.
 
    In its exceptions, the Union essentially contends that the award is
 contrary to law and the collective bargaining agreement.  Because the
 Authority has determined, for the reasons which follow, that the instant
 grievance was not arbitrable, it need not address the merits of the
 Union's exceptions.
 
    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), the 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, 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.  See Veterans Administration Medical Center, Kerrville, Texas and
 American Federation of Government Employees, AFL-CIO, Local 2281, 15
 FLRA No. 22 (1984).  Accordingly, the award is set aside.  Issued,
 Washington, D.C., November 30, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY