31:0993(78)NG - NTEU and HHS, Region IX, San Francisco, CA -- 1988 FLRAdec NG



[ v31 p993 ]
31:0993(78)NG
The decision of the Authority follows:


  31 FLRA NO. 78

NATIONAL TREASURY EMPLOYEES UNION

                    Union

      and

DEPARTMENT OF HEALTH AND HUMAN SERVICES
REGION IX, SAN FRANCISCO, CALIFORNIA

                    Agency
                                          Case No. 0-NG-1457

              DECISION AND ORDER ON NEGOTIABILITY ISSUES

     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 proposal:

     The parties agree that excepted service employees will be
     covered by this agreement including the grievance, the
     unacceptable performance, adverse action, arbitration and
     probationary/trial employees articles.

     For the reasons discussed below, we find that the proposal
is within the duty to bargain because the proposal is not
inconsistent with the Civil Service Reform Act.

     II. Positions of the Parties

     The Agency contends that the proposal is nonnegotiable
because it is inconsistent with the congressional scheme embodied
in the Civil Service Reform Act (CSRA). The Agency maintains that
the CSRA establishes that non-preference eligible, excepted
service employees are not entitled to the protections accorded
nonprobationary, competitive service employees and preference
eligible, excepted service employees. The Agency argues
that Congress intended that non-preference eligible, excepted
service employees should have no  right of review of disciplinary
actions by any authority outside the employing agency. The Agency
maintains that this congressional intention is reflected by the
exclusion of these employees from provisions granting
nonprobationary, competitive service employees and preference
eligible, excepted service employees protections from adverse
actions. The Agency further maintains that in addition to the
statutory exclusion, the Office of Personnel Management, under
its regulatory authority, has also refused to extend protections
to non-preference eligible, excepted service employees. Thus, the
Agency argues that it is precluded from granting grievance
procedure rights to these employees through collective
bargaining.

     The Agency also relies on Department of Justice v. FLRA, 
709 F.2d 724 (D.C. Cir. 1983), where the court found a proposal
to bring probationary competitive service employees within the
scope of the parties' negotiated grievance procedure to be
nonnegotiable. By separate letter, the Agency has informed the
Authority of the decision of the U.S. Supreme Court in U.S. v.
Fausto, 108 S. Ct. 668 (1988) and suggested that we consider that
decision in this case.

     The Union disputes the Agency's contentions and asserts that
the issues involved in this negotiability appeal are identical to
those resolved by the Authority in National Treasury Employees
Union and Department of Health and Human Services, Region V,
Chicago, Illinois, 25 FLRA  1110 (1987), petition for review
filed sub nom. U.S. Department of Health and Human Services v.
FLRA,  No.  87-1595 (7th Cir. April 13, 1987).

     III. Analysis and conclusions

     In HHS, Region V, we found negotiable a proposal which
included excepted service employees within the coverage of the
parties' negotiated grievance procedure article, adverse action
article, and arbitration article. The proposal in this case is
identical to the proposal in HHS, Region V except for the
addition of coverage by these employees under the
probationary/trial employees article. The provisions of the
probationary/trial employees article are not a part of the record
in this case. However, both parties consider the proposal in this
case to be substantively identical to the proposal in HHS, Region
V and consider the duty-to-bargain issue to be identical to the
issue in HHS, Region V. Union's petition for review and Agency's
statement of position at 2  n.2 and letter of February 9,
1988. In addition, the Union acknowledges that the termination of
probationary employees would not be grievable under the grievance
procedure article. Union's response at 4  n.2 and attachment. We
adopt this view for purposes of our decision, and we find that
this proposal is to the same effect as the proposal in HHS,
Region V. In that case, we considered the same arguments as those
presented here, except for the decision in U.S. v. Fausto, and we
concluded that Congress did not intend to exclude excepted
service employees from coverage of negotiated grievance
procedures.

     In National Treasury Employees Union and Department of the
Treasury and U.S. Customs Service, 31  FLRA  181 (1988)
(provision 4),  we considered the decision of the U.S. Supreme
Court in Fausto in relation to HHS, Region V and the right of
excepted service employees to grieve disciplinary actions under
negotiated grievance procedures. We found that the court's
decision is not dispositive of this issue. Accordingly, we
reaffirmed our decision in HHS, Region V.

     We find nothing in the record in this case which warrants a
different conclusion from that which we reached in HHS, Region V
and U.S. Customs Service. Consequently, for the reasons more
fully set forth in those decisions, we find the proposal in this
case to be within the duty to bargain.

     IV. Order

     The Agency must upon request, or as otherwise agreed to by
the parties, bargain concerning the Union's proposal. */

     Issued, Wa