American Federation of Government Employees, AFL-CIO, Local 3354 (Union) and U.S. Department of Agriculture, Farmers Home Administration, St. Louis, MO (Activity) 



[ v03 p321 ]
03:0321(50)NG
The decision of the Authority follows:


 3 FLRA No. 50
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3354
 (Union)
 
 and
 
 U.S. DEPARTMENT OF AGRICULTURE
 FARMERS HOME ADMINISTRATION
 ST. LOUIS, MISSOURI
 (Activity)
 
                                            Case No. 0-NG-37
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
    DURING NEGOTIATIONS BETWEEN THE PARTIES ON A GRIEVANCE PROCEDURE AS
 REQUIRED BY SECTION 7121(A) OF THE STATUTE, /1/ THE ACTIVITY DEMANDED
 THAT CERTAIN MATTERS BE SPECIFICALLY EXCLUDED FROM COVERAGE UNDER THE
 GRIEVANCE PROCEDURE.  /2/ IN RESPONSE, THE UNION "PROPOSED TO DELETE
 THIS (EXCLUSIONARY) SENTENCE," THUS PROPOSING, IN SUBSTANCE, A GRIEVANCE
 PROCEDURE FREE OF EXPRESS CONTRACTUAL LIMITATIONS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE UNION PROPOSAL
 IS NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION 7121 OF THE STATUTE
 (NOTE 1, SUPRA) BECAUSE IT FAILS TO EXPRESSLY EXCLUDE FROM COVERAGE OF
 THE GRIEVANCE PROCEDURE MATTERS INVOLVING THE SEPARATION OR TERMINATION
 OF PROBATIONARY AND TEMPORARY EMPLOYEES, WHICH MATTERS ARE CLAIMED BY
 THE AGENCY TO BE OUTSIDE THE APPLICATION OF THE NEGOTIATED GRIEVANCE
 PROCEDURE BY OPERATION OF LAW AND REGULATIONS.
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7121 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10
 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SET ASIDE.  /3/
 
    REASONS:  THE AGENCY CLAIMS IN SUBSTANCE THAT THE UNION'S PROPOSAL
 WOULD RESULT IN THE INCLUSION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE
 OF "MATTERS INVOLVING THE SEPARATION OR TERMINATION OF PROBATIONARY OR
 TEMPORARY EMPLOYEES." IN THE GRIEVANCE PROCEDURES UNDER LAW AND
 REGULATION.  MORE SPECIFICALLY, THE AGENCY PROBATIONARY AND TEMPORARY
 EMPLOYEES ARE NONNEGOTIABLE" UNDER THE STATUTE AND THE FEDERAL PERSONNEL
 MANUAL.  FOR THE REASONS STATED BELOW, THE AGENCY'S CONTENTION THAT THE
 UNION'S PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN CANNOT BE SUSTAINED.
 IN SO HOLDING, THE AUTHORITY FINDS IT UNNECESSARY TO REACH AND THEREFORE
 MAKES NO RULING ON THE AGENCY'S CLAIM THAT THE MATTERS WHICH THE AGENCY
 ASSERTS MUST EXPRESSLY BE EXCLUDED FROM THE GRIEVANCE PROCEDURE ARE, BY
 LAW AND IMPLEMENTING REGULATIONS, N