U.S. Department of Labor and American Federation of Government Employees, Local 12 (Authority decision, April 20, 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 Department of Labor terminated a probationary employee. An arbitrator ruled that a grievance over the termination could proceed under the parties' negotiated procedure. The agency challenged that ruling. The Authority held that governing law and regulation excluded grievances concerning probationary separations from the negotiated grievance procedure. It set aside the arbitrator's ruling without deciding the termination's merits.

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 that the grievance was arbitrable set aside.
• Key point: A probationary termination grievance could not proceed under the negotiated grievance procedure.

Full text (FLRA public release)

[ v14 p273 ]

14:0273(49)AR

The decision of the Authority follows:

14 FLRA No. 49

UNITED STATES DEPARTMENT
OF LABOR, WASHINGTON, D.C.
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12
Union

Case No. O-AR-648

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Mollie Heath Bowers 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. /1/

The dispute in this case concerns the termination of the grievant during his probationary period. A grievance was filed and submitted to arbitration to decide whether the grievance was grievable and arbitrable in light of the decision in United States Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983). The Arbitrator found the matter to be grievable and arbitrable, ruling that the decision in Department of Justice, Immigration and Naturalization Service was not applicable.

In its exception the Agency contends on the basis of the decision in Department of Justice, Immigration and Naturalization that the award is contrary to law. 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 that coverage under 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, 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., April 20, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ The Union's opposition was untimely and has not been considered.