30:0502(67)NG - NTEU and Agriculture, Food and Nutrition Service, Mountain Plains Region -- 1987 FLRAdec NG



[ v30 p502 ]
30:0502(67)NG
The decision of the Authority follows:



 30 FLRA NO. 67
 30 FLRA 502

18 DEC 1987


NATIONAL TREASURY EMPLOYEES UNION

                           Union

      and

U.S. DEPARTMENT OF AGRICULTURE,
FOOD AND NUTRITION SERVICE,
MOUNTAIN PLAINS REGION

                           Agency

Case No. 0-NG-1440

DECISION AND ORDER ON NEGOTIABILITY ISSUE

     I. Statement of the Case

     The petition for review in this case comes 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). The dispute concerns the negotiability of
one proposal which the Union presented while the parties were
negotiating a master agreement. The proposal concerns the
termination of probationary employees. We find that the proposal
is not within the duty to bargain because it is inconsistent with
law and regulation.

     II. The Proposal

      1.  An employee's separation from the rolls under
          this Article must be effected before the
          employee has completed his/her probationary
          period.

      2.  When a probationary employee is to be
          separated he/she will be notified in writing
          normally fifteen (15) workdays in advance of
          the termination. The notice will advise the
          employee of the reasons for the termination
          and the effective date of the separation.
          Such notice shall be accompanied by any
          material used to support the separation.

      3.  If the separation is based in whole or in
          part on conditions arising before the


          employee's appointment, the employee will be
          allowed a reasonable time to answer the
          charges, including furnishing affidavits in
          support of the answer. The Agency shall
          consider the answer before reaching a final
          decision.

      4.  A probationary employee whose separation is
          proposed may request the opportunity to
          discuss why he/she believes the termination
          is not justified with a higher level
          supervisor. If a meeting is held, the
          employee may be accompanied by a union
          representative. After considering the
          employee's response, the Employer shall
          advise the affected employee in writing
          whether the decision to terminate has been
          changed.

          (Only the underlined portion is in dispute.)

III. Positions of the Parties

     The Union states that it intends the last sentence to affirm
that the Agency's final conclusion on the employee's termination
will be given to the employee in writing. The Agency contends
that the disputed portion of the proposal is nonnegotiable
because it conflicts with Government-wide rules or
regulations--specifically 5 C.F.R. Chapter 315, Subpart H and
Federal Personnel Manual (FPM) chapter 315.

     IV. Analysis and Conclusions

     Relying on the court's decision in Department of Justice,
Immigration and Naturalization Service v. FLRA,  709 F.2d 724
(D.C. Cir. 1983), the Authority has stated that "OPM (Office of
Personnel Management) is 'to provide whatever procedural
protections are necessary for probationary employees.'"
Department of Health and Human Services, Social Security
Administration and American Federation of Government Employees,
Local 1923, AFL - CIO, 15 FLRA  714 (1984). In that decision the
Authority also stated that "in enacting the Statute, Congress did
not intend that procedural protections for probationary employees
be established through collective bargaining under the Statute."
(Emphasis added.) Id. at 715.

     When an agency terminates a probationary employee based on
deficiencies in performance or conduct after entrance on duty,
OPM regulations require only that the agency notify the
employee, in writing, of the reasons for the termination and the
effective date of the action. Although the notice must include
the agency's conclusions on the inadequacies of the employee's
performance or conduct, the notice need not contain complete and
specific reasons. The employee has no right to reply. FPM chapter
315, subchapter 8-4a.(3). The OPM regulations further provide
that although it is not required, it is good personnel practice
to furnish the probationer with enough factual information to
make the agency's basis for the action clear. The regulations
suggest that one means of accomplishing this result is to have an
appropriate agency official discuss the basis for the agency's
action with the employee. FPM chapter 315, subchapter 8-4a.
(4).

     The undisputed portion of section 4 of the proposal allows a
probationer to request a discussion regarding his/her termination
and to have union representation if a discussion is held. The
last sentence, which is in dispute, would require the Agency,
under certain circumstances, to reconsider its decision to
terminate the probationer and to inform the probationer, in
writing, of the results of that reconsideration. That is, the
Agency would have to determine whether the decision to terminate
has changed as a result of the meeting in order to comply with
the requirements of the provision. Requiring the Agency to
reconsider its decision is a procedural protection which is
beyond those provided in the OPM regulations. We find that the
disputed proposal is inconsistent with law and regulation because
it would create, through collective bargainin