U.S. Department of Labor, Labor-Management Services Administration, Cleveland, Ohio and National Union of Compliance Officers (Authority decision, January 16, 1984)

Final FLRA decision. The Authority set aside an arbitration award concerning a probationary employee's termination. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

The Labor-Management Services Administration terminated an employee during her probationary period. An arbitrator found her grievance arbitrable under the collective bargaining agreement and ordered reinstatement. Relying on a federal appeals court decision about probationary employees, the Authority held that negotiated grievance and arbitration procedures could not cover this termination. It set aside the award as contrary to law and said it would no longer follow its earlier contrary decisions.

Decision snapshot

• Authority: Review of arbitration awards under 5 U.S.C. § 7122(a).
• Outcome: Reinstatement award set aside.
• Key point: The Authority held that a probationary employee's termination could not be challenged through negotiated grievance arbitration.

Full text (FLRA public release)

[ v13 p677 ]

13:0677(109)AR

The decision of the Authority follows:

13 FLRA No. 109

U.S. DEPARTMENT OF LABOR,
LABOR-MANAGEMENT SERVICES
ADMINISTRATION, CLEVELAND, OHIO
(Agency)

and

NATIONAL UNION OF COMPLIANCE OFFICERS
(Union)

Case No. O-AR-511

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Jonathan Dworkin filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations and part 2425 of the Authority's Rules and Regulations.

The dispute in this matter concerned the termination of the grievant's employment during her probationary period. The Arbitrator determined that the termination action was arbitrable on its merits under the parties' collective bargaining agreement and sustained the Union's grievance requesting reinstatement of the grievant. In its exceptions, as supplemented, the Agency in effect contends that the award is contrary to law as set forth in the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983).

Upon careful consideration of the entire record before the Authority, including the contentions of the parties, the Authority finds that the Arbitrator's award is contrary to law.

In the Immigration and Naturalization Service case, the court held that a proposal whereby the termination of probationary employees would be grievable under the parties' collective bargaining agreement /1/ was inconsistent with law and regulations. Id. at 730 n.23. In reversing the Authority's determination that the proposal was negotiable, the court concluded, at 730:

Congress has long recognized both that federal employees are due certain procedural protections and that federal agencies must be able to terminate employees for unacceptable work performance or conduct. In accommodating these competing concerns, Congress created the concept of the probationary term and authorized agencies to terminate employees summarily during this period. It saw summary terminations as essential to an effective and efficient service, and it has repeatedly acted to preserve the agencies' discretion summarily to remove probationary employees. We detect no retreat from this position in the Civil Service Reform Act of 1978 or in the OPM regulations that implement the congressional mandate. Accordingly, we find the union proposal to be inconsistent with other law, and we reverse FLRA's order that INS bargain over the proposal. (Footnote omitted).

Thus, the court held with respect to termination of probationary employees for unacceptable work performance or conduct that the discretion of agencies to terminate probationers summarily for such reasons was not altered by the passage of the Civil Service Reform Act of 1978. While in this case the grievance concerned the termination of a probationer for conditions arising before appointment (5 C.F.R. 315.805), the Authority nevertheless views the court's considerations in the Immigration and Naturalization Service case as applicable here. Accordingly, the Authority finds that in enacting the Federal Service Labor-Management Relations Statute Congress did not intend grievance and arbitration procedures negotiated under the Statute to cover grievances concerning the termination of probationary employees such as that at issue in this case. To the extent that previous decisions of the Authority are to the contrary, they will no longer be followed. Therefore, the Arbitrator's award in the instant case, finding the Union's grievance arbitrable, must be set aside as contrary to law.

Accordingly, the award is hereby set aside.

Issued, Washington, D.C., January 16, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY