39:0839(69)NG - - AFGE, Council of Marine Corps Locals, Council 240 and Navy, HQ, Marine Corps, Washington, DC - - 1991 FLRAdec NG - - v39 p839



[ v39 p839 ]
39:0839(69)NG
The decision of the Authority follows:


39 FLRA No. 69

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

COUNCIL OF MARINE CORPS LOCALS

COUNCIL 240

(Union)

and

U.S. DEPARTMENT OF THE NAVY

HEADQUARTERS, U.S. MARINE CORPS

WASHINGTON, D.C.

(Agency)

0-NG-1836

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

February 25, 1991

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 one proposal providing that nothing shall prevent temporary employees from grieving performance actions and actions taken for cause under the parties' negotiated grievance procedure. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position.

For the following reasons, we find that the proposal is inconsistent with law. Accordingly, we conclude that the proposal is nonnegotiable.

II. Proposal

Section 2. Complaints concerning the following matters may not be raised under the negotiated grievances [sic] procedure:

g. the termination of the position of an employee serving under a temporary appointment of one year or less for budgetary reasons or lack of work;

Notwithstanding any other provision in this agreement regarding temporary employees, nothing shall prevent a grievance concerning an action taken for cause or over performance of a temporary employee.

(Only the underscored portion of the proposal is in dispute.)(*)

III. Positions of the Parties

A. The Agency

The Agency notes that the proposal refers to "temporary employees," and states that:

In the absence of a more specific definition of the category of employees who would be covered by this proposal, it is assumed that the proposal refers only to employees serving under temporary limited appointments as defined in 5 CFR Part 316, Subpart D. Thus, this Statement of Position will only address the temporary limited category of employment and not other types of nonpermanent appointments such as TAPER and TERM.

Agency's Statement of Position at 1.

Noting the Union's statement that the intent of the proposal is to allow temporary employees to grieve actions including suspensions of more than 14 days, discharges, and suspensions and removals for poor performance, the Agency argues that the Union "is proposing to provide temporary employees access to the negotiated grievance procedure for those types of actions defined in 5 U.S.C. º 4303 and º 7512." Id. at 1. The Agency notes, however, that the procedural protections in 5 U.S.C. ºº 4303 and 7511 do not apply to employees who have not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less. Id. at 2, citing 5 U.S.C. ºº 4303(f)(2) and 7511(a)(1). Moreover, the Agency asserts that "courts, in interpreting these statutes, have determined that employees serving in a temporary appointment, or series of temporary appointments, limited to one year or less are excluded from the procedural requirements and appeal rights established in these statutes." Id., citing Antolin v. Department of Justice, 895 F.2d 1395 (Fed. Cir. 1989).

The Agency states that probationary employees and nonpreference eligible excepted service (NEES) employees are similarly excluded from coverage under 5 U.S.C. ºº 4303 and 7511 and cites cases in which courts have held that: (1) probationary employees may not grieve terminations or removals through the negotiated grievance procedure; and (2) NEES employees may not use the negotiated grievance procedure to challenge adverse and performance based actions. Id. at 3-6, citing U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) and Department of the Treasury, Office of the Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir. 1989). Further, the Agency notes that the court in Horner v. Lucas, 832 F.2d 596 (Fed. Cir. 1987) (Lucas) held that "the temporary employee was not an 'employee' entitled to all of the procedural protections of the CSRA [Civil Service Reform Act of 1978]." Agency's Statement of Position at 7. Based on the reasoning of those cases, the Agency argues that temporary employees should not be permitted to use the negotiated grievance procedure to challenge adverse and performance-based actions. Id.

The Agency also argues that the proposal interferes with its right to lay off and remove employees under section 7106(a)(2)(A) of the Statute. Id. at 8.

B. The Union

In its petition for review, the Union states that the "intent of the proposal is to allow temporary employees in the bargaining unit to grieve disciplinary and performance actions." Union's Petition for Review at 2. The Union further states that the "term 'disciplinary and performance actions' includes suspensions of more than 14 days (including discharge) and suspensions or removals for poor performance." Id. The Union maintains that "[s]uch actions would be subject to the parties' collective bargaining agreement's provisions for 'just cause' for disciplinary actions, and would only apply to those temporary employees in the bargaining unit." Id. Moreover, the Union notes that the remainder of the proposal is intended to exclude from the parties' agreement grievances by temporary employees over terminations for budgetary reasons or lack of work.

In response to the Agency's statement of position, the Union contends that "the right of temporary employees to grieve disciplinary actions and performance-related actions, including firings, is not precluded [by] law, rule, or regulation" and that, therefore, "the disputed proposal is not inconsistent with law, rule, or regulation[.]" Union's Response at 3. The Union maintains that, contrary to the Agency's characterization of the effect of the proposal, "the [U]nion is not proposing to 'provide temporary employees access to the negotiated grievance procedure for those types of actions defined in 5 U.S.C. º 4303 and º 7512[.]'" Id. at 12.

The Union states that the "proposal uses the phrase 'temporary employee' to mean, aside from those employees of employment of one year or less as excluded by the language of the proposal, an employee who is employed for more than one year, as used in FPM Chapter 315, Subchapter 3, TERM EMPLOYMENT[.]" Id. The Union further states that the proposal: (1) is intended to exclude temporary limited employees; (2) "is specifically designed to address those temporary employees who are appointed to a position whose term is more tha[n] one year but does not exceed four years"; and (3) "refers only to temporary employees who are not in a trial period or 'probationary' status." Id. at 3, 4, 16. The Union argues that, unlike temporary limited employees, the "temporary or term employees [covered by the proposal] may grieve [A]gency actions taken for cause or based on performance through the negotiated procedure." Id. at 5, citing U.S. Small Business Administration and Local 2532 of National Council of Small Business Administration Locals of the American Federation of Government Employees, AFL-CIO, 33 FLRA 28 (1988) (Small Business Administration).

The Union disputes the Agency's assertion that temporary employees are excluded from coverage of 5 U.S.C. ºº 7511 and 4303 in the same manner as probationary and NEES employees. Id. at 6. As to probationary employees, the Union contends that "temporaries cannot be considered similar" to probationary employees because "both permanent and temporary-term employees have probationary periods[.]" Id. at 13. The Union further contends that the court case involving probationary employees cited by the Agency is distinguishable from the proposal in this case because "no Congressional intent is evident indicating that temporary employees appointed to employment of one year or more should be denied collective bargaining rights such as access to the negotiated grievance procedure." Id. at 14.

With respect to NEES employees, the Union contends that the Agency's reliance on cases involving such employees "is misplaced." Id. at 7. In this regard, the Union argues that "[l]ittle, if any, justification exists for categorizing temporary employees as a group similar to the excepted service since the premise for the definition of the categories of employees is dissimilar." Id. at 9. The Union asserts that NEES employees are distinguishable from temporary employees and that "allowing temporary or term employees the usual and ordinary access to the negotiated grievance procedure that any other bargaining unit employee would have would not allow the expanded access to judicial review feared by the court[.]" Id. at 11.

Finally, the Union argues that "the Authority has previously ruled that temporary employees' grievances over terminations and similar matters are properly within the scope of the grievance procedure." Id. at 4. In support of its argument, the Union cites National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 788, 789 (1985) (Kansas City District), in which the Authority held that a proposal concerning the removal of temporary employees was negotiable. According to the Union, Kansas City District "supports the [U]nion's position in the instant case" because "[t]here are no substantive and meaningful distinctions between the instant proposal and the proposal in [Kansas City District] with respect to grieving disciplinary actions against temporary employees." Id. at 15 (footnote omitted).

IV. Analysis and Conclusions

For the following reasons, we find that the proposal is inconsistent with law and, therefore, is nonnegotiable.

The proposal allows temporary employees in the bargaining unit to grieve disciplinary and performance actions. According to the Union's statement of intent, the term "'disciplinary and performance actions' includes suspensions of more than 14 days (including discharge) and suspensions or removals for poor performance." Union's Petition for Review at 2. With a few exceptions not relevant here, sections 7502 and 7512 of title 5, United States Code cover the following adverse actions that may be taken against employees: (1) suspensions; (2) removals; (3) reductions in pay; and (4) furloughs of 30 days or less. Sections 7503 and 7513 describe the procedural protections and appeal rights given to employees if such actions are taken against them. Under sections 7501 and 7511, an "employee" is defined, in part, as "an individual in the competitive service . . . who has completed 1 year of current continuous employment in the same or similar positions under other than a temporary appointment limited to 1 year or less[.]"

Section 4303 of title 5, United States Code covers reductions in grade or removals of employees for unacceptable performance. Section 4303(b)-(e) provides the procedural protections and appeal rights of certain employees having such actions taken against them. Section 4303(f) states the actions and employees to which section 4303 does not apply. Specifically, section 4303(f)(2) states, in part, that section 4303 does not apply to "the reduction in grade or removal of an employee in the competitive service . . . who has not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less[.]"

The Authority recently held that a provision allowing employees serving a second or successive temporary appointment to contest certain adverse actions through the negotiated grievance procedure violated the CSRA. Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA No. 110 (1991) (Provision 4) (Mare Island Naval Shipyard). In Mare Island Naval Shipyard, the Authority found that, consistent with the decision of the U.S. Court of Appeals for the Federal Circuit in Lucas, temporary employees are not afforded the statutory protections and appeal rights of 5 U.S.C. ºº 7511-7513 and, therefore, an arbitrator is without authority to decide the appropriateness of the termination of a temporary employee.

The Authority also stated that prior to the enactment of the Civil Service Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990) (the Amendments), the status of temporary employees was identical to the status of NEES employees. That is, both categories of employees were denied access to procedural protections for actions for unacceptable performance and adverse actions. See 5 U.S.C. ºº 4303(f)(2) and (3) and 7511(a)(1)(A). Moreover, court decisions such as U.S. Department of Health and Human Services v. FLRA, 858 F.2d 1278, 1284 (7th Cir. 1988) found that affording NEES employees access to negotiated grievance procedures to contest adverse actions was inconsistent with applicable law. While the Amendments changed that law and extended to certain NEES employees the same statutory protections and rights provided to employees in the competitive service, they did not extend those protections to temporary employees. Accordingly, as temporary employees are not entitled to the procedural protections of the CSRA and are not covered by the Amendments, the Authority found that a provision including the termination for cause of employees serving under second or successive temporary appointments within the coverage of the parties' negotiated grievance procedure was nonnegotiable. Mare Island Naval Shipyard, 38 FLRA No. 110, slip op. at 19-21.

Mare Island Naval Shipyard was issued during the pendency of this negotiability appeal. The Authority resolves cases based on the law at the time cases are decided. Panama Canal Commission and International Organization of Masters, Mates and Pilots, Marine Division, 39 FLRA No. 19, slip op. at 4 (1991); and U.S. Department of Health and Human Services, Social Security Administration, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 38 FLRA No. 118, slip op. at 5 (1991). Consequently, we will resolve this case in light of our decision in Mare Island Naval Shipyard.

The Union in this case repeatedly stated that it intended the proposal to apply to suspensions, firings, terminations, and actions taken for cause or based on performance. Union's Petition for Review at 2; Union's Response at 3, 4, 5. Therefore, we reject the Union's claim that "the [U]nion is not proposing to 'provide temporary employees access to the negotiated grievance procedure for those types of actions defined in 5 U.S.C. º 4303 and º 7512[.]'" Union's Response at 12.

We also reject the Union's claim that the proposal applies to term employees. Id. at 12. The proposal refers only to "temporary employees" and neither the proposal nor the Union's statement of intent specifies that the phrase "temporary employees" includes term employees. We find that the Union's construction, noted in response to the Agency's statement of position, is inconsistent with the plain wording of the proposal. Where a union's construction is inconsistent with the plain wording of a proposal or provision, we will base our decision on the interpretation of the proposal or provision that is consistent with the plain wording. See National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 35 FLRA 26, 28 (1990).

The proposal seeks to allow temporary employees to contest disciplinary and performance actions through the negotiated grievance procedure. As noted previously, these actions include terminations, suspensions of more than 14 days, and actions taken for cause or based on performance. Because temporary employees, including those employees serving a second or successive temporary appointment, are denied the procedural protections and appeal rights provided in 5 U.S.C. ºº 4303, 7503, and 7513 for such actions, we conclude that a proposal allowing temporary employees to grieve such actions is inconsistent with law. See Mare Island Naval Shipyard. Accordingly, we find that the proposal is nonnegotiable under section 7117(a)(1) of the Statute.

We note the Union's argument that, under Small Business Administration, temporary employees covered by the proposal "may grieve [A]gency actions taken for cause or based on performance through the negotiated procedure." Union's Response at 5. However, we find that the Union's reliance on Small Business Administration to support that argument is misplaced. The dispute in that case concerned whether negotiated procedures for disciplining employees for unacceptable performance applied to the grievant and "[did] not concern whether the parties may negotiate procedures concerning the separation of temporary employees for unacceptable performance." Small Business Administration, 33 FLRA at 39.

We also note the Union's assertion that in Kansas City District, the Authority "ruled that temporary employees' grievances over terminations and similar matters are properly within the scope of the grievance procedure" and that "[t]here are no substantive and meaningful distinctions between the instant proposal and the proposal in [Kansas City District] with respect to grieving disciplinary actions against temporary employees." Union's Response at 4, 15 (footnote omitted). We reject the Union's reliance on Kansas City District, however, because in Mare Island Naval Shipyard, we stated that in light of the holdings in Lucas and the cases involving NEES employees, "we will no longer adhere to the holding in Kansas City District." Mare Island Naval Shipyard, 38 FLRA No. 110, slip op. at 21 n.2. Moreover, in view of the Authority's holding in Mare Island Naval Shipyard, we need not address the Union's arguments distinguishing temporary employees from NEES employees.

Finally, to the extent that the proposal is intended to cover disciplinary actions not covered by 5 U.S.C. ºº 4303, 7501 or 7511, we will not consider whether the proposal is negotiable as applied to such actions because it would require negotiations over matters concerning which the Agency cannot be required to bargain. See Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 818 (D.C. Cir. 1987) (an agency is not obligated to bargain over a proposal which includes, along with matters that are negotiable, matters that the employer cannot lawfully agree to), affirming Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351 (1986).

Having found that the proposal is inconsistent with law, we need not address the Agency's contention that the proposal interferes with its right to lay off and remove employees under section 7106(a)(2)(A) of the Statute.

V. Order

The petition for review is dismissed.




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

*/ The Union states that the portion of the proposal pr