Social Security Administration, Mid-America Program Service Center and American Federation of Government Employees, Local 1336 (Authority decision, May 24, 1984)

Final FLRA decision. The Authority set aside an arbitration award concerning a probationary employee's separation 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

An arbitrator upheld the Mid-America Program Service Center's termination of a probationary employee under the parties' collective bargaining agreement. AFGE Local 1336 filed exceptions challenging the award's merits. The Authority found that governing law and regulations barred a negotiated grievance procedure from covering the separation of a probationary employee, even though arbitrability had not been raised before the arbitrator. It set aside the award without reaching the union's merits arguments.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and probationary employment under § 3321.
• Outcome: Arbitration award set aside in its entirety.
• Key point: A probationary employee's separation could not be resolved through the negotiated grievance procedure.

Full text (FLRA public release)

[ v14 p707 ]

14:0707(94)AR

The decision of the Authority follows:

14 FLRA No. 94

SOCIAL SECURITY ADMINISTRATION,
MID-AMERICA PROGRAM SERVICE CENTER
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1336
Union

Case No. O-AR-531

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator William O. Eisler filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

The dispute in this matter concerns the Activity's termination of the grievant during her probationary period. The Arbitrator found that no question was raised concerning the arbitrability of the dispute and proceeded to consider the merits of the grievance under the parties' collective bargaining agreement. As his award, the Arbitrator ruled that the termination was for just cause and not violative of the parties' agreement. Accordingly, the Arbitrator denied the grievance. The Union then filed its exceptions contesting various aspects of the Arbitrator's opinion and award concerning the merits of the grievance. Because the Authority finds that the grievance was not arbitrable, it need not address the Union's exceptions on the merits and for the reasons set forth below concludes that the award must be set aside.

Although arbitrability of the instant grievance was not raised as an issue, the Authority specifically held in Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3342, 14 FLRA No. 33 (1984), 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 resolving the grievance on the merits, 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.

Accordingly, the award is set aside. Issued, Washington, D.C., May 24, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member HENRY B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY