27:0869(95)NG AFGE, LOCAL 1409 VS ARMY, ADJUTANT GENERAL PUBLICA -- 1987 FLRAdec NG
[ v27 p869 ]
The decision of the Authority follows:
27 FLRA NO. 95
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1409 Union and DEPARTMENT OF THE ARMY, U.S. ARMY ADJUTANT GENERAL PUBLICATIONS CENTER, BALTIMORE, MARYLAND Agency Case No. O-NG-1390
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of one proposal. We find that the proposal is nonnegotiable.
Exceptions to Negotiated Grievance Procedure
Article 27, Section 27.02(d)(7), Scope
Termination of an employee during the 1-year probationary period, unless the grievance is an allegation of discrimination.
III. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because it is contrary to law, 5 U.S.C. 3321, and regulation, 5 C.F.R. Part 315, Subpart H. In support of its contention, the Agency cites the Authority's decision involving a similar proposal in National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA No. 90 (1987) (proposal 6), petition for review filed sub non. National Treasury Employees Union v. FLRA, Nos. 87-1166 and 87-1178 (D.C. Cir. April 15, 1987).
In the Union's view, the proposal would permit probationary employees to appeal terminations involving allegations of illegal discrimination through the parties' negotiated grievance procedure. The Union claims that the proposal is consistent with 5 U.S.C. 7121 of the Statute and is therefore negotiable. It further contends that the proposal is not inconsistent with 5 U.S.C. 3321 and 5 C.F.R. 315. More particularly, the Union disagrees with the Authority's decision in Food and Nutrition Service, Midwest Region. According to the Union, the Authority's reliance in that case on the court's decision in U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) is misplaced. In the Union's view, the proposal involved here, which is similar to proposal 6 in Food and Nutrition Service, Midwest Region, is distinguishable from the proposal in DOJ, INS.
IV. Analysis and Conclusion
The Union's proposal would subject the termination of probationary employees, where discrimination is alleged, to review under the parties' negotiated grievance procedure. We find that this proposal is to the same effect as proposal 6 in Food and Nutrition Service, Midwest Region. The proposal in that case would have subjected the termination of probationary employees, where discrimination is alleged, to the negotiated grievance procedure. Relying on the rationale and conclusion of the court in DOJ, INS, that coverage by a negotiated procedure of a grievance concerning the separation of a probationary employee is precluded by governing law and regulation, we found the proposal to be nonnegotiable because it was contrary to law and regulation.
As the proposal and arguments raised by the Union in this case are similar to those