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

  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 ad