40:0849(67)NG - - NTEU and Dept. of the Treasury, Office of Chief Counsel, IRS - - 1991 FLRAdec NG - - v40 p849
[ v40 p849 ]
The decision of the Authority follows:
40 FLRA No. 67
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
DEPARTMENT OF THE TREASURY
OFFICE OF CHIEF COUNSEL
INTERNAL REVENUE SERVICE
(39 FLRA 27 (1991))
DECISION AND ORDER ON REQUEST FOR RECONSIDERATION
May 10, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is again before the Authority on a Request for Reconsideration filed by the Union under section 2429.17 of the Authority's Rules and Regulations. The Union's request alleges that extraordinary circumstances require the Authority to consider three provisions of the parties' negotiated agreement which were not addressed in 39 FLRA 27, petition for review filed on other matters sub nom. U.S. Department of the Treasury, Office of General Counsel, Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir. Mar. 25, 1991). We grant the Union's request for reconsideration and will decide the negotiability of the three provisions.
For the following reasons, we find that Article 6, concerning approval of employees' requests for outside employment, is negotiable. Section 1 of Article 28, requiring the Agency to inform probationary employees of their progress before the end of the tenth month of their probationary period, is negotiable. The remaining disputed portions of Article 28, establishing procedures governing the termination of probationary employees, are nonnegotiable. The disputed part of Article 29, requiring advance notification to employees that their within-grade increases may be withheld, is negotiable.
II. Request for Reconsideration
A. Article 6
From November 1, 1988, to November 22, 1989, the Federal Labor Relations Authority lacked a quorum of Members and was unable to issue decisions. Because so much time had elapsed, by letter dated January 4, 1990, we requested the parties in this case, and the parties in other pending negotiability matters, to determine whether the negotiability issues contained in the petition for review remained in dispute between the parties. We requested responses by January 19, 1990, and stated that a copy of each party's response "must be served on the other party(s)." Authority's Letter to the Union and the Agency at 2.
The Agency responded by letter dated January 19, 1990, stating that Article 6, with an exception not relevant here, had been resolved in an agreement between the parties concerning the impact and implementation of the Agency's revised Standards of Conduct and General Counsel Directive No. 6. The Agency submitted a copy of the agreement and asserted that "the proposal regarding Article 6 has been settled and is no longer in dispute between the parties." Agency's Letter to the Authority at 2. In the absence of any assertion to the contrary by the Union, we found, in 39 FLRA 27, that Article 6 "was no longer in dispute." Id. at 29.
In its request for reconsideration, the Union asserts, as relevant here, that the Agency's letter of January 19, 1990, "was never served on either of NTEU's designated representatives in this matter . . . ." Request for Reconsideration at 2. The Union also asserts that the local Union chapter "was never served with the January 1990 letter." Union's February 21, 1991, Letter to the Authority. The Union contends that it did not challenge the statements in the Agency's letter because it was not served with a copy of the letter and asserts that "[u]nder such circumstances, our silence can hardly be construed as connoting agreement with the [A]gency's assertions." Request for Reconsideration at 4.
In its request for reconsideration, the Union asserts that it does "not consider the matter pertaining to Article 6 as resolved." Id. The Union argues that the parties "were not attempting to resolve the negotiability matters" concerning Article 6 when they reached the impact and implementation agreement and that there is nothing in that agreement which indicates that the parties have resolved the dispute. Id. (emphasis in original). Further, the Union asserts that because only an exclusive representative may file a negotiability appeal, the exclusive representative is "the only party that may voluntarily withdraw the action before the adjudicative body." Id. at 3 (emphasis in original). Finally, the Union argues that the Authority's "consideration of the [A]gency's January 19, 1990 letter as a motion to dismiss . . . ." was not consistent with section 2424.8 of the Authority's Regulations. Id. at 4.
The Agency points out that its January 19, 1990, letter was in response to the Authority's request. The Agency asserts that "the Authority's rule with respect to additional submissions requested by the Authority, 5 CFR 2424.8, does not require formal service of such a submission on the other parties." Agency's February 20, 1991, Letter to the Authority at 2. Further, the Agency claims that it sent a copy of the letter to the Union's representative and "nowhere in its request for reconsideration does the Union claim it did not receive a copy of the Department's January 19, 1990, letter." Id. The Agency also asserts that even if the Union had no knowledge of the January 19, 1990, letter, the Union did know about the September 21, 1989, agreement and that "a comparison of the language of the agreement with that of the proposals then in dispute clearly shows that the issues raised by the proposals have been resolved by this agreement." Agency's March 5, 1991, Letter to the Authority.
On March 15, 1991, the Authority directed the Agency to file with the Authority by March 29, 1991, proof of service of the January 19, 1990, letter. In response, the Agency submitted a declaration from a former Agency attorney asserting that she "prepared a letter dated January 19, 1990, indicating the Agency's position that certain proposals contained in Article 6 had been resolved." Agency's March 28, 1991, Declaration at 1. The attorney further stated that she "either mailed, by regular mail, or directed one of the secretaries in the Agency's Office of General Counsel . . . to mail, by regular mail, this letter to . . . [the] Assistant Director of Negotiations for the [Union]." Id. at 1-2.
The Authority's Regulations provide that any document filed with the Authority must be served on "all counsel of record or other designated representative(s) of parties[.]" 5 C.F.R. § 2429.27(a). Service must be made by certified mail or in person. 5 C.F.R. § 2429.27(b). A signed and dated statement of service which shows that proper service has been made must be submitted with all documents which are filed with the Authority. 5 C.F.R. § 2429(c). The declaration furnished by the Agency does not meet the Authority's requirements for proof of service. See U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 37 FLRA 877, 879 (1990).
As the Agency has failed to establish that its letter of January 19, 1990, was served on the Union in accordance with our Regulations, our consideration of that letter in 39 FLRA 27 was improper. Accordingly, we conclude that extraordinary circumstances exist, and we grant the Union's request for reconsideration of Article 6. We note that to the extent a dispute exists between the parties concerning the duty to bargain on Article 6, that issue may be raised in other appropriate proceedings, such as unfair labor practice procedures under section 7118 of the Statute. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). See also National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990).
B. Articles 28 and 29
In its request for reconsideration, the Union pointed out that, in 39 FLRA 27, the Authority did not address the negotiability of Articles 28 and 29 of the parties' negotiated agreement. The record indicates that the Union appealed the Agency head's allegation that Articles 28 and 29 were nonnegotiable. Our failure to address those two articles was an oversight. Accordingly, we grant the Union's request for reconsideration as to Articles 28 and 29.
III. Article 6
The Office will approve or disapprove an employee's written request to engage in outside employment as soon as possible but ordinarily not later than fourteen (14) days from receipt of the employee's fully completed request.
A. In making this decision, the Office will utilize solely the standards set forth in the IRS Rules of Conduct (Document 7098), rules 220-229.2, as amended from time to time.
B. In the application and interpretation of the outside employment provisions of the IRS Rules of Conduct, which will be based on the individual facts and circumstances involved, employees may engage in outside employment, with the exception of those activities listed under part 224 (Prohibited Activities), so long as they comply with any applicable procedural rule regarding requesting approval of the outside employment and such outside employment will not:
1. result in a conflict of interest or the appearance of a conflict of interest with official duties and responsibilities; or
2. bring discredit upon or lower public confidence in the Office; or
3. interfere with the efficient performance of duties or availability for duty.
The Office will include a statement of its reasons for disapproving any such request.
Employee grievances concerning the Office's disapproval must be filed within fourteen (14) days of receipt by the employee directly at the last step of the employee grievance procedure, all other intervening steps having been waived. Any such grievance which is not resolved within the time limits set forth for the last step may be appealed to arbitration in accordance with applicable provisions of this Agreement.
A. An attorney who has been granted approval for the outside practice of law will be subject to an annual reporting requirement, the purpose of which is to aid in the prevention of conflicts between such outside [practice] and the tax law enforcement mission of the Office, and to determine whether the nature of such outside practice has changed since the time initial approval was granted.
B. Any revocation of approval resulting from information contained in the annual report will be subject to the provisions of section 3, above, relating to initial disapprovals.
[Only the underlined portions are in dispute.]
A. Positions of the Parties
1. The Agency
The Agency argues that Article 6, Section 2(A) conflicts with an Agency regulation, Treasury's General Counsel Directive No. 6 (GC-6), for which there is a compelling need within the meaning of section 2424.11 of the Authority's Rules and Regulations. Statement of Position at 6. The Agency asserts that there is a compelling need for GC-6 because it is "essential as it precludes a conflict of interest or the appearance of a conflict of interest between a Legal Division attorney's obligations to his or her client, the Department." Id. (emphasis in original). According to the Agency, the Legal Division is one of Treasury's "primary national subdivisions and the Internal Revenue Service is another." Id. The Agency explains that the Legal Division includes attorneys in "all offices and bureaus of the Treasury Department, including the Internal Revenue Service, . . . [and] [t]he Legal Division has its own Directives and personnel policies and procedures." Id. at 7 (emphasis in original). Legal Division attorneys, according to the Agency, report to the Division's General Counsel and work for the entire Treasury Department, "not just the bureau where they are located." Id.
The Agency asserts that "there are [sic] a wide range of economic and financial interests affected by the operations of the Treasury Department." Id. at 8. Consequently, the Agency argues that "there is a high probability that an adverse interest could arise from any outside practice of law or even outside employment by a Treasury attorney." Id. The Agency asserts that Article 6, which utilizes the IRS' Rules of Conduct as a standard, is "far too permissive and ignores the Legal Division's mission which is to provide legal services to the entire Department, not just to one bureau or activity thereof." Id. As an example, the Agency asserts that "[u]nder such a standard, an IRS attorney could provide legal services to a bank, undergoing examination by another of the Department's bureaus, the Office of the Comptroller of the Currency." Id. (footnote omitted). The Agency describes GC-6 as "prohibit[ing] a conflict of interest or the appearance of a conflict of interest with a Treasury attorney's obligations to his or her client, the Department." Id. at 9. Accordingly, the Agency asserts that GC-6 "is essential, as opposed to desirable, to the accomplishment of the mission and the execution of the functions of the Legal Division in a manner which is consistent with the requirements of an effective and efficient government." Id. at 9-10 (footnote omitted).
Additionally, the Agency asserts that the standard in Article 6, Section 2.B.2, conflicts with 5 C.F.R. § 735.201a(f). Id. at 8 n.2. The Agency also points out that Government attorneys are subject to "the Rules of Professional Conduct and Codes of Professional Responsibility adopted by attorney licensing authorities, which are modeled after the American Bar Association (ABA) Model Code of Professional Responsibility (1982) and/or ABA Model Rules of Professional Conduct (1983)." Id. at 8.
The Agency argues further that, to the extent that Article 6 delegates the right to make determinations on employees' requests for outside employment to the Office of Chief Counsel, IRS, it violates management's right to assign work under section 7106(a)(2)(B) of the Statute.
2. The Union
The Union disputes the Agency's compelling need argument by asserting that "the attorneys employed at Chief Counsel are employees of the Internal Revenue Service." Reply Brief at 4. According to the Union, "the bureaus of the Treasury Department have separate counsel entities to provide representation of the bureau." Id. The Union asserts that prior to the negotiations which resulted in this dispute, the IRS allowed its attorneys to engage in outside legal employment under an Office of Chief Counsel manual directive, (30)4(13)0. According to the Union, this directive requires that requests for outside employment meet the requirements of the Department of the Treasury Minimum Standards of Conduct, 31 C.F.R. § 0.735-38. Id. at 5 and Union's Exhibit A. In negotiations, the Union asserts, the parties agreed that the General Counsel directive would not apply to bargaining unit employees.
Additionally, the Union asserts that under Article 6 "[t]he employer is free to deny a request if a conflict is perceived." Id. at 5. The Union also notes that an employee is "not free to practice law until the decision is rendered." Id. In response to the Agency's argument that portions of Article 6 constitute a delegation of authority to the Chief Counsel to act on outside employment, the Union asserts that the decision to grant or deny an outside employment request is made by an employee's Division Director without involvement by the Chief Counsel.
Concerning Section 3 of the provision, the Union asserts that the Agency is "concerned with having to put the reasons for a disapproval in writing, rather than the fact of disapproval." Id. at 6. The Union argues that this requirement is a negotiable procedure under section 7106(b)(2) of the Statute and, therefore, "the Department's disapproval constitutes an inappropriate interference in the parties['] bargaining relationship." Id.
1. The Agency Has Not Established that Article 6 Conflicts with Agency Regulation GC-6
The Agency argues that Article 6 "conflicts with General Counsel Directive No. 6 (GC-6)[.]" Statement of Position at 6. According to the Agency, the standard in Article 6, which "would permit outside employment, including the practice of law, as long as it did not conflict with the IRS' Rules of Conduct and with the 'tax law enforcement mission' of the Office . . . ." is "far too permissive and ignores the Legal Division's mission which is to provide legal services to the entire Department[.]" Id. at 8.
In order to support a compelling need argument, an "agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards set forth in section 2424.11 of its Regulations." American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 880 (l986) (FDIC, Madison). An agency which fails to meet its burden of demonstrating any of these elements will fail to sustain its burden of demonstrating that a compelling need exists for its regulation to bar negotiation on a proposal. See, for example, National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA 254, 259 (1990) (agency failed to establish that conflict exists between a proposal and its regulation); FDIC, Madison, 21 FLRA at 871.
The Agency cited GC-6 as a bar to Article 6. The Agency alleges, in essence, that by permitting outside employment insofar as it is consistent with the IRS Rules of Conduct and the tax law enforcement mission of the Office, Article 6 conflicts with GC-6 because Article 6 would permit outside employment where GC-6 would not permit it. However, the Agency not only has not indicated which portions of the IRS Rules of Conduct conflict with which portions of GC-6, but the Agency has also failed to provide us with a copy of IRS' Rules of Conduct to substantiate its claim.
Consequently, the Agency has failed to meet its burden of demonstrating that a conflict exists between Article 6 and the regulation for which the Agency claims a compelling need. Accordingly, we find that Article 6 is not barred by a regulation for which a compelling need exists within the meaning of section 7117(a)(2) and section 2424.11 of our Rules and Regulations.
2. Section 2 Does Not Conflict with a Government-wide Regulation
The Agency also argues that Article 6, Section 2.B.2. is contrary to 5 C.F.R. § 735.201a(f), a Government-wide regulation. The regulation provides, among other requirements, that agency regulations governing the conduct and responsibilities of employees must proscribe "any action, whether or not specifically prohibited by this subpart, which might result in, or create the appearance of: . . . (f) [a]ffecting adversely the confidence of the public in the integrity of the Government." The Agency argues that the standard in Section 2.B.2., that outside employment must not "bring discredit upon or lower public confidence in the Office . . . ." is "far too permissive[.]" Statement of Position at 8 n.2.
We find that the wording in Section 2.B.2. does not conflict with 5 C.F.R. § 735.201a(f). 5 C.F.R. § 735.201a(f) states that agency regulations must proscribe conduct which might adversely affect the public's confidence in Government. Section 2.B.2. contains similar language, specifically stating that outside employment must not "lower public confidence" in the Office of Chief Counsel. Moreover, we note that Section 2.B.1. of Article 6, authorizes denial of a request for outside employment when such employment will result in a conflict, or apparent conflict, of interest with an employee's official, Governmental duties and responsibilities. Therefore, we reject the Agency's argument that Article 6 is contrary to 5 C.F.R. § 735.201a(f).
We note also the Agency's point that "[o]utside employment for [F]ederal employees is governed by certain criminal conflict of interest statutes, see 18 U.S.C. §§ 201-224, as well as Executive Order 11222, and its implementing regulations, 5 C.F.R. 735.201-737.210." Statement of Position at 7. While Article 6, Section 2, A. of the provision states that in decisions regarding outside employment ". . . the Office will utilize solely the standards set forth in the IRS Rules of Conduct . . . [,]" we do not interpret that statement to mean that such decisions may be made in violation of any provisions of governing criminal conflict of interest statutes, Executive Order 11222, or its implementing regulations.
Finally, we note the Agency's assertion that "attorney conduct which may be permitted under applicable federal law may, nevertheless, be proscribed under the ABA's professional code." Statement of Position at 8. The ABA is a private organization representing attorneys which, among other things, develops "professional standards which serve as models of the regulatory law governing the legal profession." American Bar Association Codes at XI (1990). Although the Agency does not specifically assert that Provision 5 conflicts with the ABA Model Code of Professional Responsibility, or a code developed by a particular jurisdiction, we note that privately developed standards of professional conduct are not Government-wide rules or regulations within the meaning of section 7117(a)(1) of the Statute. Therefore, such codes are not a basis for a finding that a proposal or provision is nonnegotiable. See Veterans Administration, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 34 FLRA 898, 902 (1990) (code of professional responsibility developed by National Academy of Arbitrators is not a law, rule, or regulation within the meaning of section 7122(a) on which exceptions to an arbitration award can be predicated).
3. Section 2 Does Not Directly Interfere with the Agency's Right to Assign Work
The Agency argues that Article 6 is nonnegotiable to the extent that it requires the IRS' Office of Chief Counsel (the Office) to take certain actions concerning requests for outside employment. Article 6, Section 2 provides that the Office will apply the IRS' Rules of Conduct in deciding whether to grant permission for outside employment. Section 3 requires that the Office furnish an employee a statement of its reasons for disapproving an outside employment request. The Agency asserts that these sections violate management's right to assign work under section 7106(a)(2)(B) of the Statute because they prescribe duties that an organization within the Agency must perform.
We disagree with the Agency's assertion that the use of the term "the Office" in Article 6, Sections 2 and 3 constitutes an assignment of work. The Office of Chief Counsel is a party to the collective bargaining agreement in this case. In our view, "the Office," as used in Sections 2 and 3, merely describes that portion of the Agency's organization which encompasses the bargaining unit covered by the disputed provisions. Use of the term "the Office" does not constitute an assignment of work. We note that Sections 2 and 3 do not designate which office or individual within the Office of Chief Counsel will make determinations on outside employment requests or will prepare statements disapproving requests. The Agency remains free to determine who will perform these functions. Therefore, we find that the references to the Office in Sections 2 and 3 do not render these portions of Article 6 nonnegotiable.
4. Section 4 is Negotiable
The Agency asserts that only the underlined portion of Section 4 is in dispute. Statement of Position at 6. The disputed portion provides that an attorney who has been granted approval for the outside practice of law will be subject to an annual reporting requirement. The Agency has not presented any reasons in support of its assertion that this portion of Section 4 is nonnegotiable. Further, it is not otherwise apparent that Section 4 is inconsistent with any law, rule, or regulation. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982); American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service Indian Hospital, Claremont, Oklahoma, 36 FLRA 224, 226 (1990). A party failing to meet its burden acts at its peril. Accordingly, we conclude that Section 4 is within the Agency's duty to bargain.
The Agency has failed to support its assertions that Article 6 conflicts with Agency regulation GC-6, that Section 2 is inconsistent with 5 C.F.R. § 735.201a(f) or conflicts with management's right to assign work under section 7106(a)(2)(B), and that Section 4 is inconsistent with law, rule, or regulation. As the Agency has not established that Article 6 is nonnegotiable, and we are aware of no basis for such a conclusion, we conclude that Article 6 is within the Agency's duty to bargain.
IV. Article 28
The Office will advise probationary employees of their progress before the end of the tenth (10th) month of their probationary period.
When the office determines that a probationary employee is to be terminated, the Office will, if sufficient probationary time remains, give the affected employee fifteen (15) days notice of termination or such notice as the remaining probationary period permits.
The Office will meet with an affected probationary employee upon request and/or accept a written statement relating to the termination, whether or not the employee is on the rolls. If the employee elects both, the written state[ment] must be delivered to the Office on or before the date of the meeting. If the affected employee elects to request a meeting to submit a written statement, the request for meeting or receipt of written statement must be within fifteen (15) days of receipt of notice. If a meeting is held, the employee may be accompanied by two (2) representatives designated by the Union.
The affected employee will be advised by the Office whether the decision to terminate is sustained or rescinded after considering the employee's written statement or oral statement made at the meeting.
A. Positions of the Parties
The Agency contends that the disputed sections of Article 28 are nonnegotiable because they violate applicable law, 5 U.S.C. § 3321, and regulation, 5 C.F.R., Part 315, subpart H, concerning termination of probationary employees. The Agency asserts that the disputed sections would subject terminations of probationary employees to arbitral review and would provide procedural protections for probationary employees beyond those authorized by the Office of Personnel Management (OPM). Based on American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105 (1988) (NAS, Oceana) and U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (INS), the Agency argues that granting probationary employees additional procedural protections is inconsistent with law and regulation.
The Union asserts that the parties reached a "side bar agreement," providing as follows:
The Union acknowledges that, under present statutory and case law, probationary employees who are terminated for unsatisfactory performance or conduct would not be entitled to reinstatement for procedural errors in their termination, or for failure by the Office to provide the procedural protections contained in Article 28, because such errors or failures do not amount to harmful errors as contemplated by the Back Pay Act.
Reply Brief at 25. The Union asserts that the wording of the agreement "makes it clear that the mere failure to follow the procedures identified in this proposal does not entitle a probationary employee to reinstatement." Id.
B. Analysis and Conclusions
In INS, the United States Court of Appeals for the District of Columbia Circuit found that in the Civil Service Reform Act of 1978 (CSRA), "Congress expressly preserved an agency's discretion to remove summarily a probationary employee". 709 F.2d at 725. Therefore, the court noted, the CSRA affords probationary employees only minimal due process. Id. at 729. See also Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 661 (1988). The court further noted in INS, "Congress instructed OPM, not FLRA, to implement the probationary program and to provide whatever procedural protections were necessary for probationary employees." 709 F.2d at 729. Relying on INS, the Authority has determined that procedural protections for probationary employees cannot be established through collective bargaining under the Statute. See, for example, National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA No. 70, slip op. at 5 (1991) (FDIC); NAS, Oceana, 30 FLRA at 1127.
In our view, section 1 of Article 28 does not afford probationary employees procedural protections beyond those established by OPM. Initially, we note that section 1 does not expressly apply to the Agency's termination of probationary employees. Instead, it requires the Agency to advise all probationary employees of their progress prior to the end of the tenth month of their probationary periods. Moreover, nothing in the plain wording of section 1 would require the reinstatement of a separated probationary employee under the parties' grievance procedures in the event that employee had not timely received the notice encompassed by section 1. In fact, the Union concedes, and asserts that the parties have agreed, that "mere failure to follow the procedures identified in this proposal does not entitle a probationary employee to reinstatement." Reply Brief at 25. In these circumstances, there is no basis for concluding that section 1 affords probationary employees any procedural protections in the event that they are terminated.
Furthermore, the progress reports required by section 1 do not conflict with the applicable OPM regulation, Federal Personnel Manual (FPM) Chapter 315, subchapter 8. Specifically, FPM Chapter 315, subchapter 8-3a(5) provides that:
The supervisor of each employee serving a probationary period must, no earlier than the beginning of the 9th month nor later than the end of the 10th month of the period, submit through supervisory channels a signed statement certifying either that the employee's performance, conduct, and general traits of character have been found satisfactory or that they have been found unsatisfactory. Each certification must contain a positive recommendation whether the employee should be retained beyond the probationary period. This requirement must be observed regardless of whether one or more performance ratings may be prepared and submitted during the probationary period.
Considering the requirements of subchapter 8-3a(5), we find nothing in section 1 that imposes any obligations on the Agency beyond those prescribed by OPM. The regulation requires supervisors to recommend either the retention or termination of a probationary employee during the period between the ninth and tenth month of employment, and the regulation does not bar management from furnishing the concerned employee with a copy of the supervisory recommendation. In addition, subchapter 8-3a(5) expressly contemplates the preparation of "one or more performance ratings" during the probationary period. As section 1 of Article 28 only obligates the Agency to provide a probationary employee with a progress report before the end of the tenth month of service, it does not conflict with applicable regulation and does not violate applicable law by affording probationary employees protections in addition to those provided by OPM. Accordingly, section 1 is negotiable.
In our view, sections 2 through 4 of Article 28 afford probationary employees procedural protections beyond those provided by OPM. The OPM regulations at 5 C.F.R. § 315.804 require only that a probationary employee who is being terminated for unsatisfactory performance or conduct be notified in writing as to why he or she is being terminated and the effective date of the action. Under the procedures provided by OPM, the employee has no right of reply. FPM Chapter 315, subchapter 8-4a(3). OPM further provides:
Although it is not required, it is good personnel practice to furnish every separated probationer with enough factual information (as distinguished from conclusions) about his/her performance or conduct to make the agency's basis for the action clear. One way to accomplish this is to have an appropriate supervisory or personnel official discuss the basis for the agency's action with the employee.
FPM Chapter 315, subchapter 8-4a(4).
Sections 2 through 4 require that the Agency undertake certain actions prior to terminating a probationary employee. Those actions include: (1) providing the employee with 15 days' advance notice of a decision to terminate him or her, if there is sufficient time remaining in the probationary period; (2) meeting with the probationary employee and/or accepting a written statement from the employee relating to the termination, regardless of whether the employee is still employed by the Agency; and (3) considering the probationary employee's oral or written statements and advising the employee whether the decision to terminate is sustained or rescinded. In prescribing such requirements, sections 2 through 4 establish procedural protections beyond those provided by OPM. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 1366, 1372 (1991).
For example, the OPM regulations at FPM Chapter 315, subchapter 8-4a(3) require only that a notice of termination be in writing and include certain specified information. Under section 2, the Agency would be obligated to provide the affected employee with 15 days' advance notice, if there were sufficient time remaining in the probationary period to do so. In addition, sections 3 and 4 of Article 28 provide a probationary employee with an opportunity to respond to a termination notice and require Agency consideration of that response. The OPM-established procedures make no provision for a probationary employee to offer a defense or explanation as part of the termination process. In this regard, FPM Chapter 315, subchapter 8-4a(4) requires an agency only to furnish a probationary employee enough factual information to make the basis of the agency's action clear but does not require allowing the employee an opportunity to offer a reply or defense. And, under subchapter 8-4a(3) of FPM Chapter 315, "[t]he employee is not given a right of reply."
In sum, we find that section 1 of Article 28 is negotiable. However, because sections 2 through 4 would establish procedural protections beyond those provided by OPM, those sections are inconsistent with Federal law and Government-wide regulation. Consequently, sections 2 through 4 are nonnegotiable under section 7117(a)(1) of the Statute. See FDIC, slip op. at 6.
V. Article 29, Section 2(B)
When a supervisor's review leads to the conclusion that an employee's work is not of an acceptable level of competence and that a within-grade would be denied, the employee will be provided with the following in writing within a reasonable period of time, but not less than sixty (60) days, before the employee will have completed the required waiting period.
1. notice of the critical element(s) and standard(s) in which the employee's work is not acceptable;
2. advice as to what the employee must do to bring performance up to the acceptable level;
3. a statement that the employee's performance may be determined as being at an unacceptable level unless improvement to an overall acceptable level is shown; and
4. a statement that the employee's within-grade will be withheld unless the employee's work during the entire waiting period is at an acceptable level of competence.
A. Positions of the Parties
The Agency asserts that Article 29, section 2(B) mandates that an employee receive notice, not less than 60 days prior to the end of the waiting period for a within-grade increase, that his/her performance is not of an acceptable level of competence and that a within-grade increase will be withheld. In the Agency's view, "[t]o the extent that this provision would require that an employee who fails to receive the notice be given his/her within-grade increase, it violates Government-wide regulation." Statement of Position at 40. The Agency argues that FPM Chapter 531, subchapter 4-9b provides that the failure to notify an employee 60 days in advance of the waiting period that his or her performance may not be of an acceptable level of competence may not delay the requirement that a determination be made at the end of the waiting period.
The Union asserts that the parties agreed to the following:
The Union acknowledges that under present statutory and case law, employees who are denied within grade increases would not be entitled to automatic receipt of within-grade increases solely because of the failure of the Office to provide them with the sixty (60) day advance notice contemplated in Article 29, because such failures do not amount to harmful errors as contemplated by the Back Pay Act.
Reply Brief at 25-26.
B. Analysis and Conclusions
The dispute over Article 29 centers on the provision's requirement that, no later than 60 days prior to the end of a waiting period, employees be notified by the Agency of its intent to withhold within-grade increases (WGIs). The Agency contends that failure to provide notice within the prescribed time frame would result in some employees receiving their WGIs although performing at less than an acceptable level of competence. As the Agency interprets the provision, it would conflict with FPM Chapter 531, subchapter 4-9b, which requires that an acceptable level of competence determination be made at the end of the waiting period regardless of whether the prescribed 60-day advance notice is timely.
Nothing in the provision, as plainly worded, requires the award of a WGI if the notice of deficient performance is not provided within 60 days of the end of the waiting period. Indeed, the Union denies that failure to comply with the provision's time limit would result in an employee's receiving a WGI without regard to his or her actual level of performance. The Union acknowledges, and asserts that the parties have agreed, that such a result would conflict with "present statutory and case law[.]" Reply Brief at 25. As the Union's statement is not inconsistent with the provision's plain wording, we adopt it for the purposes of this decision. In adopting the Union's statement, we note particularly that the provision is silent concerning the consequences of noncompliance. In addition, the provision parallels the applicable regulation, which also requires notice to an employee "at least 60 days in advance of the date on which he will complete his waiting period," but prescribes no penalty for a failure to deliver the notice in a timely manner. See FPM Chapter 531, subchapter 4-9b.