Department of Health and Human Services, Social Security Administration and American Federation of Government Employees Local 1923 (Authority decision, August 28, 1984)

Final FLRA decision. The Authority sets aside an arbitration award concerning termination during probation. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

A probationary Social Security Administration employee grieved her termination for unsatisfactory conduct. An arbitrator found the grievance arbitrable, concluded the agency breached its labor agreement, and admonished it to comply in the future. The union challenged the limited remedy. The Authority held that probationary separations could not be covered by the negotiated grievance process under the governing statute and regulations. It set aside the entire award without reaching the union's requested remedy.

Decision snapshot

• Authority: Probationary employment under 5 U.S.C. § 3321; arbitration review under § 7122(a).
• Outcome: Award set aside as contrary to law and regulation.
• Key point: A probationary employee's separation could not be grieved under the negotiated procedure.

Full text (FLRA public release)

[ v15 p714 ]

15:0714(140)AR

The decision of the Authority follows:

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