U.S. Department of Justice, Federal Prison System and American Federation of Government Employees, Council of Prison Locals, Local 1494 (Authority decision, May 8, 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

An arbitrator found that a grievance over the Federal Prison System's separation of a probationary employee was arbitrable and ordered reinstatement with backpay and benefits. The agency excepted to the award. The Authority held that governing law and regulation excluded probationary separation grievances from negotiated grievance procedures. It set aside the entire award, including the reinstatement and backpay remedy.

Decision snapshot

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

Full text (FLRA public release)

[ v14 p446 ]

14:0446(71)AR

The decision of the Authority follows:

14 FLRA No. 71

U.S. DEPARTMENT OF JUSTICE,
FEDERAL PRISON SYSTEM
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS,
LOCAL 1494
Union

Case No. O-AR-710

DECISION

This matter is before the Authority on an exception to the award of Arbitrator James C. Duff 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 separation of the grievant during her probationary period. A grievance was filed and submitted to arbitration contesting the separation. The Arbitrator determined that the grievance was arbitrable and on the merits he reinstated the grievant with backpay and benefits.

In its exception the Agency contends that the award is contrary to law and regulation. 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 the grievance arbitrable and resolving the grievance on the merits and ordering the grievant reinstated, 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. Issued, Washington, D.C., May 8, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY