35:1023(112)NG - - AFGE, Council of Marine Corps Locals (C-240) and Navy, Marine Corps - - 1990 FLRAdec NG - - v35 p1023



[ v35 p1023 ]
35:1023(112)NG
The decision of the Authority follows:


35 FLRA No. 112

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF MARINE CORPS LOCALS (C-240)

(Union)

and

DEPARTMENT OF THE NAVY

U.S. MARINE CORPS

(Agency)

0-NG-1580

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 8, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on 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 two proposals. Proposal 1 requires the Agency to provide probationary and temporary employees with 5-workdays' advance notice of terminations which are not based on disciplinary reasons or the expiration of a temporary appointment. Proposal 2 establishes, for purposes of a reduction-in-force (RIF), an activity-wide competitive area for each local activity within the bargaining unit.

For the following reasons, we find that the advance notice requirement in Proposal 1 is (1) nonnegotiable as it pertains to probationary employees because it conflicts with applicable law and regulation, and (2) negotiable as it pertains to temporary employees because it does not conflict with law or regulation. We conclude that Proposal 2 is negotiable because it vitally affects a working condition of unit employees and does not conflict with law or regulation.

II. Proposal 1

Article 34: Probationers, Temporaries

Section 3:

Except for emergency situations, temporary and probationary employees will be given at least 5 workdays notice of termination. This provision does not apply if an employee is being terminated for disciplinary reasons, or if a temporary employee is being terminated at the end of his or her appointment period.

A. Positions of the Parties

The Agency asserts that Proposal 1 would subject the termination of probationary or temporary employees to arbitral review and that such scrutiny by an arbitrator would be inconsistent with law. In support, the Agency cites Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (Department of Justice). The Agency recognizes that Department of Justice involved only probationary employees, but argues that the same principles apply to temporary employees. The Agency also notes that Office of Personnel Management (OPM) regulations provide that term employees, who are appointed for a period of more than 1 year but fewer than 4 years, may be separated without prior notice within the first year of their appointments. See 5 C.F.R. § 316.304.

The Agency also contends that Proposal 1 conflicts with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. The Agency claims that permitting employees to have 5-workdays' notification of a pending separation enables those employees to ignore management's directions with impunity during the 5-workday notice period. In support of this claim, the Agency relies on National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105, 1106-08 (1986) (Provision 1) (Eastern Mapping Agency).

Finally, the Agency argues that Proposal 1 is inconsistent with the requirement in section 7101(b) of the Statute that the Statute be interpreted in a manner which is consistent with the requirement for an effective and efficient Government. The Agency contends that the court in Department of Justice found that summary terminations during a trial or probationary period are essential to an effective and efficient Government. Further, the Agency claims that, in Eastern Mapping Agency, the Authority noted that a required period of employment after notification of termination of employment enabled employees to ignore Agency assignments with impunity during the notice period and, therefore, was inconsistent with effective and efficient operations.

The Union contends that Proposal 1 is consistent with applicable law, rule and regulations. The Union contends further that the proposal "is a procedural matter of notification [and] does not stop the [Agency] from 'acting at all.'" Reply Brief at 2. According to the Union, Proposal 1 allows probationary and temporary employees to seek assistance regarding statutory protections, if warranted.

Insofar as Proposal 1 concerns probationary employees, the Union argues that the Federal Personnel Manual (FPM) is silent on the matter of advance notice for terminating such employees. The Union also claims that the proposed 5-workday notice period "does not create any 'statute of limitations' or other substantive (as opposed to procedural) right which would prejudice a separation action[.]" Reply Brief at 4. That is, the Union contends that failure to give probationers the required notice would have no effect on management's underlying decision to terminate. Rather, according to the Union, the proposal is intended to allow probationary employees to prepare for the loss of employment and to make any appropriate appeal.

To the extent that Proposal 1 applies to temporary employees, the Union asserts that it is consistent with law, rule and regulations. The Union points out that the proposal is intended to cover those persons receiving "temporary limited appointments" (appointments for 1 year or less) under 5 C.F.R. §§ 316.401-402. Reply Brief at 4-5. The Union argues that, unlike employees serving under permanent appointments, there is no probationary period required for employees serving in temporary limited appointments, and, additionally, there is no statutory authorization granting the employer unfettered discretion to terminate employees serving in such appointments. The Union also asserts that the proposal does not extend employment of affected employees beyond the dates established by management for their separation. According to the Union, the Agency is free to summarily dismiss covered employees based on misconduct, emergencies or the natural expiration of an appointment.

The Union made, and then withdrew, an argument that the proposal is an "appropriate arrangement" for adversely affected employees, within the meaning of section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

1. To the Extent that Proposal 1 Applies to Probationary Employees, it Violates Law and Government-wide Regulations

We find that, to the extent that Proposal 1 provides probationary employees with 5-workdays' advance notice of termination, it conflicts with applicable law and Government-wide regulations and is, therefore, nonnegotiable under section 7117(a)(1) of the Statute.

In enacting the Civil Service Reform Act (CSRA), Congress "recognized and approved of the inextricable link between the effective operation of the probationary period and the agency's right to summary termination." Department of Justice, 709 F.2d at 728. In National Treasury Employees Union v. FLRA, 848 F.2d 1273, 1277 (D.C. Cir. 1988) (National Treasury Employees Union), the Court of Appeals for the District of Columbia Circuit reiterated its earlier Department of Justice finding that Congress intended agencies to retain the power to summarily terminate probationary employees and stated that under the CSRA, "a single additional forum available to other federal employees--a negotiated grievance procedure--would remain unavailable to probationers."

Consistent with these decisions, the Authority has stated that the probationary period "is part of the process by which management determines whether a newly-hired employee should be retained permanently. It provides the Agency with an opportunity to make such judgment prior to affording employees procedural protections established under Agency regulations or collective bargaining agreements in the event of termination for unacceptable work performance or conduct." Service Employees' International Union, Local 556, AFL-CIO and Department of the Navy, Marine Corps Exchange, Kaneohe Bay, Hawaii, 26 FLRA 801, 804-05 (1987). Consequently, proposals allowing probationary employees to grieve their terminations are nonnegotiable. Id. See also, Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, AFL-CIO, 15 FLRA 714 (1984). In addition, proposals which do not authorize probationary employees to grieve their terminations, but provide such employees with other procedural protections prior to separation are nonnegotiable. See American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1127-28 (1988) (Provision 7) (NAS, Oceana) (provision requiring that probationers receive written notification of their performance shortcomings and be counseled on how to bring performance up to a fully acceptable level prior to termination held to be nonnegotiable).

We find that Proposal 1 would provide probationary employees with a contractual procedural protection prior to separation. Although the Union disclaims any significant consequences stemming from the Agency's failure to adhere to the proposed 5-workday notice period, this contention is not consistent with the proposal's wording. We note that the notice period is mandatory. Further, the Union has made no claim that noncompliance with the notice period is excluded from the scope of the negotiated grievance procedure.

Under section 7121 of the Statute, negotiated grievance procedures apply to all matters, including claimed breaches of a collective bargaining agreement, which are not expressly excluded from coverage. In the absence of any indication that the proposed advance notice to probationers is expressly excluded from the scope of the negotiated grievance procedures, therefore, failure to provide the required 5-workday notice of termination would be grievable. Because failure to give the prescribed notice would be grievable, the proposal would afford probationary employees procedural protection prior to separation.

The negotiation of procedural protections for probationary employees who are to be terminated is inconsistent with 5 U.S.C. § 3321. See, for example, National Treasury Employees Union, 848 F.2d at 1276 (allowing probationary employees to grieve separations based on unlawful discrimination "would eviscerate Congress's intention that collective bargaining not supplement probationers' existing procedural protections."). Furthermore, such protection conflicts with governing OPM regulations, 5 C.F.R. part 315, subpart H. See NAS, Oceana. Therefore, to the extent that Proposal 1 provides probationary employees with a 5-workday notice period prior to termination, it is nonnegotiable under section 7117(a)(1) of the Statute.

In view of our finding that Proposal 1, as applicable to probationary employees, is outside the duty to bargain because it is inconsistent with law and Government-wide regulations, it is not necessary to address the Agency's additional arguments or the Union's claim that the proposal, as applicable to probationary employees, constitutes a negotiable procedure under section 7106(b)(2) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355, 359 (1988).

2. To the Extent that Proposal 1 Applies to Temporary Employees, it is Negotiable

Proposal 1 also requires management to provide temporary employees with 5-workdays' notice prior to their termination in circumstances not involving emergencies or employee misconduct. For the following reasons we find that the 5-day notice period is consistent with Government-wide regulations and does not interfere with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work or with the obligation under section 7101(b)(1) that the Statute be interpreted in a manner consistent with the requirement of an effective and efficient Government.

a. To the Extent that Proposal 1 Applies to Temporary Employees, it is Consistent with Government-wide Regulations

As noted above, the Agency contends that the proposal, as applied to temporary employees, is nonnegotiable because OPM regulations establish a trial period, similar to a probationary period for career employees, for term employees (employees appointed for a period in excess of 1 year, but for fewer than 4 years). In response to this contention, however, the Union indicates that the proposal is intended to cover only those employees appointed for 1 year or less, designated as "temporary limited employees," under 5 C.F.R. §§ 316.401-402. Because the Union's statement is consistent with the wording of the proposal we adopt the Union's statement that the proposal applies only to temporary limited employees.

According to the FPM, "[t]emporary limited employees do not serve a probationary period." FPM Chapter 316, subchapter 4-2(5). Compare 5 C.F.R. § 316.304, which establishes a 1-year "trial period" for "term employees." Under FPM Chapter 316, subchapter 7-4, temporary limited employees may be terminated for reasons other than the expiration of their terms of appointment. For example, such employees may be separated because of a lack of work or funds. Although subchapter 7-4 provides in such circumstances that no notice of separation is required other than a notification of the personnel action, the subchapter also states that an agency has the discretion to furnish "any amount and type of advance notification which it considers desirable, or which its own regulations require." Thus, as FPM Chapter 316, subchapter 7-4 grants agencies discretion to determine the type and timing of advance notice of terminations of temporary limited employees, we reject the Agency's contention that, insofar as the proposal applies to temporary limited employees, the proposal is inconsistent with OPM regulations.

b. To the Extent that Proposal 1 Applies to Temporary Employees, it Does Not Interfere With Management's Rights to Direct Employees and to Assign Work and it is Not Inconsistent with Efficient and Effective Government Operations

As set forth earlier, the Agency argues that, based on Eastern Mapping Agency, the proposed notice of termination of temporary employees interferes with the Agency's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work and is also inconsistent with the section 7101(b) requirement that the Statute be interpreted in a manner consistent with effective and efficient Government operations. Because we find the Agency's reliance on Eastern Mapping Agency to be misplaced, we reject the Agency's contentions.

In Eastern Mapping Agency, Provision 1 was found to be nonnegotiable because it applied to employees whom management had decided to remove after all avenues of appeal had been followed. The provision sought to retain those employees on duty for an additional 10 days beyond the date established for their terminations. The Authority found that management would have no effective method for holding accountable those employees covered by Provision 1 for a failure or refusal to carry out work assignments during the period of 10 additional workdays. The Authority concluded that because employees covered by Provision 1 could refuse, with impunity, to carry out their work assignments, the provision was inimical to the effective conduct of public business.

In addition, in Eastern Mapping Agency the Authority rejected the union's claim that Provision 1 constituted an appropriate arrangement under section 7106(b)(3) for employees adversely affected by the exercise by management of its right to remove employees. The Authority concluded that, on balance, the significant deleterious effect on management's rights to discipline and remove employees, to direct employees, and to assign work, and on the efficiency and effectiveness of Government operations was disproportionate to the limited benefit employees would receive under the proposed arrangement.

In this case, the requirement to provide 5 workdays' notice of terminations specifically excludes terminations for disciplinary reasons. Thus, the Agency may discipline or terminate an employee before expiration of the 5-workday notice period if the employee does not carry out assigned work. Therefore, unlike the situation in Eastern Mapping Agency, the Agency in this case retains the leverage to assure that assigned work is performed by temporary limited employees. Moreover, as the requirement to provide notice of terminations specifically excludes terminations in emergency situations, the Agency also retains the ability to terminate a temporary limited employee before the expiration of the 5-workday notice period in emergency situations. Consequently, the Agency's section 7106(a)(2)(A) and (B) rights to direct employees and to assign work are not nullified, and the effectiveness and efficiency of operations are not impaired. Accordingly, to the extent that Proposal 1 would require management to notify temporary employees, other than those serving term appointments, in advance of a proposed separation for nondisciplinary or nonemergency reasons, it is within the duty to bargain.

3. Summary

To the extent that Proposal 1 would afford probationary employees a prescribed notice period in advance of their termination, the proposal is nonnegotiable. However, to the extent the proposal would require management to notify temporary employees, other than those serving term appointments, in advance of a proposed separation for nondisciplinary or nonemergency reasons, it is within the duty to bargain.

III. Proposal 2

Article 36: Reduction in Force

Section 3

The competitive area will be activity wide at each local activity.

A. Positions of the Parties

The Agency asserts that Proposal 2 is nonnegotiable because it: (1) directly affects employees outside the bargaining unit; (2) directly determines the conditions of employment of employees in other bargaining units; and (3) does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

The Union contends that the proposal, in prescribing competitive areas, affects a "vital interest" of bargaining unit employees. Reply Brief at 8. Consequently, the Union argues that Proposal 2 is negotiable. According to the Union, any impact on employees outside the unit, particularly managers and supervisors, would be small, indirect and speculative. As to the proposal's impact on other bargaining units, the Union asserts that enlargement of the competitive area, as it has proposed, would be beneficial to employees in any other bargaining unit. The Union denies that the proposal is not an appropriate arrangement, arguing that the expanded competitive area in fact alleviates the adverse effects of management's decision to conduct a reduction-in-force (RIF).

B. Analysis and Conclusions

In American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335, 338 (1988) (Office of Personnel Management), petition for review filed sub nom. Office of Personnel Management v. FLRA, No. 88-1901 (D.C. Cir. Dec. 23, 1988) the Authority established the test to be applied in deciding the negotiability of proposals concerning conditions of employment of bargaining unit employees when the proposals also allegedly affect employees or positions outside the bargaining unit. The Authority found that under the scheme established by sections 7103(a)(12), 7106, 7114, and 7117 of the Statute, a proposal concerning a condition of employment of bargaining unit employees is negotiable if it is consistent with Federal law, Government-wide regulations, and agency regulations supported by a compelling need.

The Authority noted that the term "conditions of employment" is defined in section 7103(a)(14) as follows:

[P]ersonnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters--

(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;

(B) relating to the classification of any position; or

(C) to the extent such matters are specifically provided for by Federal statute[.]

The Authority determined as well that, in circumstances not involving an exclusion from the statutory definition of "conditions of employment," only one factor will be examined in deciding whether a proposal concerns a condition of employment of bargaining unit employees: Whether the proposal vitally affects the working conditions of employees within the bargaining unit. 33 FLRA at 338.

The Authority concluded in Office of Personnel Management that a proposal concerning the conditions of employment of bargaining unit employees, which also affects employees or positions outside the bargaining unit, is negotiable under the Statute if it (1) vitally affects the working conditions of unit employees and (2) is consistent with applicable law and regulations. The Authority additionally stated that the proposal's effect on nonunit employees or positions is not a factor in making the negotiability determination and that prior decisions inconsistent with the described approach would no longer be followed. Id. at 338.

In this case, the Agency makes no claim that Proposal 2 does not concern the working conditions of bargaining unit employees. Rather, the Agency claims that the proposal is nonnegotiable because it affects the conditions of employment of employees outside the bargaining unit including employees in other bargaining units represented by other unions. We note first, that as stated in Office of Personnel Management, the proposal's effect on nonunit employees or positions is not a factor in determining whether the proposal vitally affects the working conditions of bargaining unit employees. Further, we conclude that the fact that some of these nonunit employees may be in bargaining units represented by other unions, as claimed by the Agency, does not affect our analysis of the proposal's effect on bargaining unit employees. See Ford Motor Co. v. NLRB, 441 U.S. 488, 502 n.13 and accompanying text (1979) (definition of a mandatory subject of bargaining does not depend on the number of unions affected).

Thus, in applying the test set out in Office of Personnel Management to Proposal 2, we find that the proposal vitally affects a working condition of employees in the bargaining unit. The definition of the competitive areas contained in the proposal determines the employees with whom unit employees will compete for job retention in the event of a RIF. The proposal, therefore, affects vital interests of bargaining unit employees such as whether those unit employees will remain at their current grades or even continue to be employed in the bargaining unit.

Further, the Agency does not allege that the competitive areas established by the proposal otherwise conflict with law or regulation, nor is any inconsistency apparent to us. Accordingly, we conclude that Proposal 2 is negotiable. See Office of Personnel Management, 33 FLRA at 338-39.

Finally, we note that the Agency also made no claim that the proposal is inconsistent with any management right, nor is any inconsistency apparent to us. Consequently, it is unnecessary to address the Agency's argument that Proposal 2 does not constitute an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute.

IV. Order

The petition for review of Proposal 1, as it relates to probationary employees, is dismissed. The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposal 1, as it relates to temporary employees, and Proposal 2.(*)




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ In finding Proposal 1 in part, and Proposal 2 to be negotia