Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3342 (Authority decision, March 30, 1984)

Final FLRA decision. The Authority set aside the arbitrator's award in full. 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 Social Security Administration terminated an employee for poor performance during his probationary period. An arbitrator heard the employee's grievance, found the separation improper, and ordered reinstatement with backpay and benefits. The Authority held that the governing probationary employment rules barred this separation grievance from the negotiated grievance procedure. It set aside the award in full, including both the arbitrability ruling and the reinstatement remedy.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a) and probationary employment under § 3321 and 5 C.F.R. part 315, subpart H.
• Outcome: Arbitrator's reinstatement and backpay award set aside in full.
• Key point: The probationary separation grievance could not be resolved through the negotiated grievance procedure.

Full text (FLRA public release)

[ v14 p164 ]

14:0164(33)AR

The decision of the Authority follows:

14 FLRA No. 33

DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL SECURITY
ADMINISTRATION
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3342
Union

Case No. O-AR-674

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator Isabel Marcus 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 dispute in this case concerns the termination of the grievant during his probationary period for unsatisfactory work performance. A grievance was filed and submitted to arbitration to decide whether the grievance was arbitrable and, if so, whether the grievant's separation was proper. The Arbitrator determined that the grievance was arbitrable and that the separation was in violation of the parties' collective bargaining agreement. Accordingly, the Arbitrator reinstated the grievant to a probationary position with backpay and benefits.

As one of its exceptions, the Agency contends, on the basis of the decision in Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), issued subsequent to the Arbitrator's award herein, that the award is contrary to law. The Authority agrees.

In the Immigration and Naturalization Service case, the court held 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, both by finding the grievance arbitrable and by resolving the grievance on the merits and ordering the grievant reinstated with backpay, is deficient in its entirety 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. /1/

Issued, Washington, D.C., March 30, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ See U.S. Department of Labor, Labor-Management Services Administration, Cleveland, Ohio and National Union of Compliance Officers, 13 FLRA No. 109(1984).