U.S. Department of Justice, Immigration and Naturalization Service, Western Regional Office and American Federation of Government Employees, Local 2805 (Authority decision, April 26, 1984)

Final FLRA decision. The Authority set aside an arbitration award under 5 U.S.C. § 7122(a). Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

The INS terminated a probationary employee for conduct involving use of physical force contrary to agency instructions. A grievance challenged the termination, and an arbitrator ruled that the grievance could proceed to arbitration. The Authority held that federal law and regulation excluded grievances over probationary separations from the negotiated grievance procedure. It set aside the arbitrator's ruling without deciding the merits of the termination.

Decision snapshot

• Authority: Probationary employment under 5 U.S.C. § 3321 and arbitration review under 5 U.S.C. § 7122(a).
• Outcome: Arbitrator's ruling on grievance arbitrability set aside.
• Key point: The probationary termination grievance could not proceed under the negotiated grievance procedure.

Full text (FLRA public release)

[ v14 p307 ]

14:0307(56)AR

The decision of the Authority follows:

14 FLRA No. 56

U.S. DEPARTMENT OF JUSTICE,
IMMIGRATION AND NATURALIZATION
SERVICE, WESTERN REGIONAL OFFICE,
SAN PEDRO, CALIFORNIA
Activity

and

NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2805, AFL-CIO
Union
Case No. O-AR-368

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Reginald Alleyne 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 Union filed an opposition.

The dispute in this matter concerns the termination of the grievant during his probationary period for unsatisfactory conduct in using physical force contrary to published agency instructions. A grievance was filed challenging the termination on its merits. The matter was submitted to arbitration on the sole issue of whether the grievance was grievable and arbitrable. As his award, the Arbitrator ruled that the grievance was grievable and arbitrable.

As one of its exceptions, the Agency essentially contends that the Arbitrator's award is contrary to 5 U.S.C. 3321 and 5 CFR part 315, subpart H dealing with a probationary period for Federal Government employees. 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 grievable and arbitrable the grievance challenging the Activity's decision to terminate the grievant during his probationary period for unsatisfactory conduct, 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. /1/ Accordingly, the award is set aside. Issued, Washington, D.C., April 26, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ In view of this decision, it is not necessary for the Authority to address the Agency's other exception to the award.