25:1110(94)NG - NTEU and HHS, Region V, Chicago, IL -- 1987 FLRAdec NG
[ v25 p1110 ]
The decision of the Authority follows:
25 FLRA No. 94 NATIONAL TREASURY EMPLOYEES UNION Union and DEAPRTMENT OF HEALTH AND HUMAN SERVICES, REGION V CHICAGO, ILLINOIS Agency Case No. 0-NG-1241 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of the following Union proposal: Excepted Service Employees The parties agree that the terms and conditions of this agreement, including the grievance procedure article, adverse action article, and arbitration article will apply to excepted service employees. For the reasons discussed below, we find that the proposal is within the duty to bargain. /1/ II. Background Most positions in the Federal civil service are in the competitive service or the excepted service. See 5 U.S.C. Sections 2102 and 2103. /2/ Generally, the competitive service includes positions for which examinations are given. 5 U.S.C. Section 3304. Some positions in the civil service are excepted from the competitive service and are placed in one of three "excepted service" schedules: (1) Schedule A, which includes positions other than those of a confidential or policy-determining character for which it is impractical to hold any examinations; (2) Schedule B, which includes positions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination; and (3) Schedule C, which includes positions of a confidential or policy-determining character. See 5 C.F.R. Part 213. Attorney positions in the civil service are included in Schedule A of the excepted service. 5 C.F.R. Section 213.3102(d). The proposal in this case seeks to include excepted service employees within the coverage of articles of the parties' collective bargaining agreement which apply to all other bargaining unit employees -- Grievance Procedure, Adverse Action, and Actions Based on Unacceptable Performance. That is, under the proposal, the negotiated procedures that are followed when the Agency proposes to take disciplinary action against competitive service unit employees would also apply to excepted service unit employees. According to the Agency, and not disputed by the Union, the proposal would apply to 32 excepted service employees in Schedule A positions in the bargaining unit, most of whom are attorneys. Agency Statement of Position at n.1. III. Positions of the Parties A. The Agency's Position The Agency contends that the proposal is nonnegotiable because "it interferes with areas otherwise provided for by federal law and will create inconsistencies with other statutory provisions." Agency Statement of Position at 2. The Agency, citing section 7106(a)(2) of the Statute, takes the position that "discipline of excepted service employees has been clearly established by Congress to be the sole prerogative of the federal employer and is subject neither to pretermination procedures nor to review at any level outside of the employing agency." Agency Statement of Position at 3. Specifically, the Agency contends that the Civil Service Reform Act of 1978 (CSRA) establishes that excepted service employees are not entitled to the protections accorded to employees in the competitive service. According to the Agency, "it has been . . . understood that in return for ease of entrance into federal jobs, excepted service employees would serve, for most purposes, at the will of their federal employers without a formal discipline process and without administrative or judicial review." Agency Statement of Position at 7. The Agency states that while Congress limited the grounds on which an agency could take adverse actions against competitive service employees and preference eligible excepted service employees and gave those employees certain procedural rights of appeal to the Merit Systems Protection Board (MSPB), it did not provide any separate rights for non-preference eligible employees in the excepted service. /3/ Thus, the Agency concludes, "Congress manifested its intent that federal excepted service employees serve as employees at will with no right of review by any outside source of disciplinary action against them." Agency Statement of Position at 10. The Agency further argues that Congress' refusal in the CRSA to extend protections to non-preference eligible excepted service employees preempts an agency from granting grievance procedure rights to those employees through collective bargaining. The Agency states that although Congress authorized the Office of Personnel Management (OPM) to promulgate regulations granting procedural rights to non-preference eligible employees (see 5 U.S.C. Section 7511(c)), OPM has not done so. The Agency also relies on Department of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), where the court found nonnegotiable a proposal to bring probationary employees within the scope of the parties' negotiated grievance procedure. Finally, the Agency notes that in the 99th Congress legislation was introduced which would establish statutory procedural rights for excepted service employees who have completed two years of service, and argues that the fact that the legislation was introduced demonstrates that "Congress believes that the Congressional scheme embodied in the CSRA does not currently allow grievance and arbitration rights for excepted service employees." Agency Statement of Position at 14. B. The Union's Position The Union contends that the proposal is consistent with the Statute and is within the duty to bargain. The Union asserts that under sections 7121 and 7103 of the Statute, excepted service employees are "employees" and their complaints fall within the broad definition of the term "grievance." The Union notes that while Congress excluded certain employees and subject-matter grievances from coverage under the negotiated grievance procedures which must be included in collective bargaining agreements, it did not exclude excepted service employees or their grievances from coverage under the Statute. The Union goes on to argue that in the absence of a conflicting Federal law or Government-wide regulation, the Agency's duty to negotiate is clear. According to the Union, to overcome the broad agency obligation to bargain over grievance and arbitration procedures under section 7121 of the Statute, an affirmative expression of congressional intent is needed in order to show that another law is in actual conflict with that mandate. Moreover, if two statutes pertain to the same subject matter, both must be given effect if possible. The Union argues that the statutes cited by the Agency do not conflict with section 7121, and in any event nothing "presupposes (that) the statutory exclusion of excepted service employees could not co-exist with the alternate grievance and arbitration procedures made available under the CSRA." Union Response at 8. The Union disputes the Agency's analogy to the probationary employees involved in Department of Justice, noting that Congress affirmatively preserved an agency's right to summarily discharge a probationer but did not do so for excepted service employees. Citing various examples of procedural rights afforded by statute to employees in Schedule A positions, the Union states that Congress clearly intended these employees to be covered by protections in the CSRA. The Union states that its proposal would not undermine the scheme Congress envisioned when it excluded Schedule A employees from appealing certain actions to the MSPB. Finally, the Union argues that Schedule A employees have a constitutional right to due process, and the proposal in this case would give these employees notice and an opportunity to respond to charges against them. IV. Analysis Our analysis begins with the relevant language of the Statute. The Statute sets forth rights and obligations of Federal employees, agencies and labor organizations. As relevant to the proposal in this case, the term "employee" includes individuals employed in an agency, but does not include members of the uniformed services, supervisors or management officials, and certain other individuals. 5 U.S.C. Section 7103(a)(2). An "agency" includes most Executive agencies as well as the Library of Congress and the Government Printing Office. 5 U.S.C. Section 7103(a)(3). Under section 7102 of the Statute, each employee has the right to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under the Statute. 5 U.S.C. Section 7102(2). Under section 7121 of the Statute, collective bargaining agreements must provide procedures for the settlement of "grievances," a term which is broadly defined in section 7103(a)(9) to include complaints by "any employee." See generally American Federation of Government Employees, Locals 225, 1504, and 3723 v. FLRA, 712 F.2d 640 (D.C. Cir. 1983). Parties' collective bargaining agreements may exclude any matter from the application of the grievance procedure, and may not include the five subjects enumerated in section 7121(c). AFGE Locals 225, 1504, and 3723, 712 F.2d at 642. The proposal in this case includes excepted service employees within the coverage of the grievance, adverse action, and arbitration articles of the parties' negotiated agreement. As reflected in the statutory provisions discussed above, Congress did not exclude excepted service employees from the definition of employee in the Statute, although it did exclude other employees. Nor did Congress provide that grievances of excepted service employees could not be covered under negotiated grievance procedures, although it did exempt give other subjects from the scope of the negotiated grievance procedure. Consequently, we find no indication in the language of the Statute that Congress intended to mandate the exclusion of employees from coverage of the negotiated grievance procedure based on their excepted service status. Likewise, nothing in the legislative history of the Statute indicates that Congress intended to exclude excepted service employees from the benefits of negotiated grievance procedures available to other employees. To the contrary, the pertinent history of the Statute emphasizes that the permissible reach of the negotiated grievance procedure was to be broad. As the Conference Report to the Statute stated: All matters that under the provisions of law could be submitted to the grievance procedure shall in fact be within the scope of any grievance procedure negotiated by the parties unless the parties agree as part of the collective bargaining process that certain matters shall not be covered by the grievance procedures. H.R. Conf. Rep. No. 1717, 95th Cong. 2d Sess. 157, reprinted in 1978 U.S. Code Cong. and Admin. News 2860, 2891. This statement of the Conference Committee is consistent with the provisions of the Statute and reinforces our view that Congress did not intend to exclude excepted service employees by virtue of their status from coverage of the negotiated grievance procedures that it required to be part of every collective bargaining agreement under the Statute. The Agency's contention that the proposal in this case is outside the duty to bargain relies primarily on provisions which exclude non-preference eligible excepted service employees from the MSPB appeal rights available to other employees. See 5 U.S.C. Sections 4303(e) and 7511(a)(1). As discussed above, the Agency also relies on the decision in Department of Justice v. FLRA and on the introduction of legislation granting statutory appeal rights to nonpreference eligible excepted service employees. The Agency's contentions do not persuade us that Congress intended to disallow parties from bargaining over the proposal presented in this case. The majority of excepted service positions are so deemed because, due to the nature of the job, it is impractical to examine for the position. See 5 C.F.R. Part 213. Although the methodology of appointment for excepted service employees differs from that for employees in the competitive service, many of their terms and conditions of employment parallel those of their competitive service counterparts, including, for example, such matters as compensation, retirement and performance appraisal. Excepted service employees, whether or not they are preference eligibles, enjoy rights to external appeal that probationary employees do not. See, for example, 5 C.F.R. Section 351.901 (right to appeal reduction in force to MSPB); 5 U.S.C. Section 5335(c) (appeal of denials of periodic step increases). As reflected in the legislative history of the Civil Service Reform Act, Congress preserved an employing agency's virtually unreviewable authority to determine whether to retain probationary employees. /4/ However, Congress recognized a distinction between probationary employees and excepted service employees by extending certain statutory appeal rights to preference eligible excepted service employees, and by granting OPM authority to extend those protections by regulation to other classes of excepted service employees. See 5 U.S.C. Section 7511. Conversely, preference eligible employees in the excepted service who have served less than a year are not extended any greater right of review of adverse personnel actions than their competitive service probationer counterparts. Id. In other contexts Congress and the courts have recognized that excepted service employees enjoy some right of review of personnel actions. For example, Congress extended the coverage of the CSRA's prohibited personnel practices provisions to excepted service employees. 5 U.S.C. Section 2302. Further, in the recent decision in Fausto v. United States, 783 F.2d 1020 (Fed. Cir. 1986), petition for rehearing denied, 791 F.2d 1554 (1986), the court found that a nonpreference eligible excepted service employee could properly assert Tucker Act and Back Pay Act claims for damages before the Claims Court. While reaffirming that the CSRA provided no statutory appeal rights to such employees, the court nonetheless found that the comprehensive remedial scheme of the CSRA did not foreclose the enforcement of rights created under other regulatory and statutory provisions. There is nothing in the record of this case, nor is it otherwise apparent, that Congress specifically intended to exclude excepted service employees from coverage under the various articles of a collective bargaining agreement. /5/ Unlike the situation involving probationary employees, there is nothing that can be construed as an affirmative preservation of a unilateral management prerogative by Congress or as indicating any explicit congressional limitation on the extension of appeal rights to these employees through the collective bargaining process. /6/ Also, there is no indication that by authorizing OPM to extend statutory appeal rights to excepted service employees, Congress intended to exclude them from access to contractual grievance procedures. Finally, we reject the Agency's contention that the introduction of legislation that would grant statutory appeal rights to non-preference eligible excepted service employees demonstrates Congress' intent to preclude coverage under negotiated grievance procedures. The introduction of a bill to grant statutory rights to these employees, some of whom are in units of exclusive recognition and some of whom are not, does not reflect any intent to preclude bargaining under the Statute on the proposal before us. Consequently, we find no inconsistency between this proposal and any law, rule or regulation so as to remove the proposal from the duty to bargain under the Statute. Absent an express affirmative statement by the Congress, we decline to read excepted service employees out of full coverage of the negotiated grievance procedure required by the Statute. /7/ V. Conclusion We find that this proposal is within the duty to bargain under section 7117(a)(1) of the Statute. VI. Order Pursuant to section 2424.10 of the Authority's Rules and Regulations, the Agency must upon request (or as otherwise agreed to by the parties) bargain concerning the Union's Proposal. /8/ Issued, Washington, D.C., February 27, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Because the record in this case is sufficient for us to decide the issue presented, we deny the Union's motion to present oral argument. See 5 C.F.R. Section 2429.6. (2) A third category, not relevant to the proposal in this case, is the Senior Executive Service. See 5 U.S.C. Section 2101a. (3) "Preference eligible" employees generally include certain veterans and relatives. See 5 U.S.C. Section 2108. (4) See S. Rep. No. 969, 95th Cong., 2d Sess. 45, reprinted in 1978 U.S. Code Cong. and Admin. News 2767. See also Department of Justice, 709 F.2d at 730. (5) We note that under the Statute as well as under the predecessor Executive Order program, excepted service employees have been included within at least some parties' negotiated grievance procedures. See, for example, U.S. Soldiers' and Airmen's Home and American Federation of Government Employees, Local 3090, AFL-CIO, 11 FLRA 692 (1983) and National Labor Relations Board Union and the General Counsel of the National Labor Relations Board, 5 FLRC 287 (1977). We also note that under the Statute the Federal Service Impasses Panel has considered, in resolving an impasse, whether bargaining unit attorneys who are not eligible for veterans' preference should be entitled to the same protections under the contract as competitive service employees. The Panel concluded that "attorneys should not be treated differently solely on the basis of their veteran or non-veteran status; they should have access to the grievance and arbitration procedures on the same basis as other members of the bargaining unit." Federal Trade Commission, Boston, Massachusetts and Local 3656, American Federation of Government Employees, AFL-CIO, 79 FSIP 65 (1980), slip op. at 5. (6) In Department of Justice, the court relied on the provisions of 5 U.S.C. Section 3321 establishing that a probationary period shall be served "before an appointment . . . becomes final." Another example of an express limitation of appeal rights may be found in the provisions precluding review of decisions involving excepted service employees who serve in Schedule C positions. See 5 U.S.C. Section 7511(b)(2). (7) In reaching our decision, we did not rely on the arbitration decision in Department of Health and Human Services and National Treasury Employees Union, Chapter 224, FMCS No. 86K/12602 (Arb. Grether, July 28, 1986), submitted by the Union in support of its position after the parties filed their initial submissions. (8) In deciding that the proposal is within the duty to bargain, we make no judgment as to its merits.