46:1323(127)AR - - Air Force, Nellis AFB Las Vegas, NV and AFGE Local 1199 - - 1993 FLRAdec AR - - v46 p1323
[ v46 p1323 ]
The decision of the Authority follows:
46 FLRA No. 127
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
NELLIS AIR FORCE BASE
LAS VEGAS, NEVADA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 4, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Thomas H. Vitaich filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Agency did not file an opposition to the Union's exception.
The Arbitrator denied the grievance of a probationary, competitive service employee over her performance rating of unacceptable. We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
In her first performance appraisal of her probationary period, the grievant received a rating of unacceptable. A grievance was filed disputing the rating and requesting that the rating be raised. The grievance was not resolved and was submitted to arbitration, notwithstanding that the grievant was no longer an employee of the Agency.
The Arbitrator first noted that although the grievant was no longer an employee of the Agency, her "[t]ermination [wa]s not at issue, per se, in this case." Award at 5. The Arbitrator determined that management had complied with the parties' collective bargaining agreement and applicable regulations in evaluating the grievant's performance. The Arbitrator also ruled that the Agency did not commit any prohibited personnel practices or discriminate or conspire against the grievant in evaluating her.
To the extent that the Union was requesting that the Arbitrator reevaluate the grievant and raise her performance rating of unacceptable to fully successful, the Arbitrator found that the grievance was not arbitrable. He concluded that he was precluded from substituting his evaluation of the performance of a probationary employee for that of management. He rejected the Union's claims that the collective bargaining agreement authorized him to reevaluate the grievant. He concluded that the provisions of the agreement that had been cited by the Union only applied to nonprobationary employees and that with respect to the reevaluation of probationary employees, the agreement was preempted by law and regulation. In support of his conclusion, the Arbitrator cited the decision of the court in U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (INS) to the effect that management's right to summarily terminate probationers assures that only management can assess a probationer's skills and determine whether those skills satisfy the requirements of continued employment.
Accordingly, as the award, the Arbitrator denied the grievance.
III. Union's Exception
The Union contends that the award is contrary to law. The Union maintains that the Arbitrator found that probationary, competitive service employees are exempted by law from the coverage of a collective bargaining agreement. The Union asserts that it "cannot agree that [the Statute] excludes probationary employees in every instance from the Collective Bargaining Agreement." Exception at 2. The Union also argues that the Arbitrator's finding that the grievance was not arbitrable is inconsistent with the grievant's rights as an employee under section 7102 of the Statute and with section 7121(b)(3) of the Statute, which provides that any grievance shall be subject to binding arbitration. The Union further disputes the Arbitrator's reliance on INS, claiming that the grievance did not relate to an assessment of the grievant's skills.
IV. Analysis and Conclusions
We conclude that the Union fails to establish that the Arbitrator's award is deficient.
We agree with the Union that the Statute does not preclude a probationary, competitive service employee from being covered by a collective bargaining agreement. In National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 762-63 (1992) (Customs Service), we recently reaffirmed that all negotiations over matters concerning the probationary period are not precluded by law and regulation. However, we find that the Union has misconstrued the Arbitrator's award. In our view, the Arbitrator did not rule that in every instance probationers are precluded from coverage of a collective bargaining agreement. Instead, he ruled that to the extent the Union was requesting that he reevaluate the grievant's performance and raise her performance rating to fully successful, the grievance was not arbitrable. Accordingly, the Union's claim provides no basis for finding the award deficient.
Furthermore, we are not persuaded that the Arbitrator's finding that he was precluded from substituting his evaluation of the performance of a probationary employee for that of management is deficient. In INS, the court found that, in the Civil Service Reform Act, Congress expressly preserved an agency's discretion to summarily remove a probationary employee. 709 F.2d at 729. The court further noted that Congress instructed the Office of Personnel Management (OPM) and not the FLRA to implement the probationary program and to provide whatever procedural protections are necessary for probationary employees. Id. Relying on INS, we have ruled that procedural protections for probationary employees cannot be established through collective bargaining under the Statute. For example, National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848 (1991) (FDIC).
In National Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988) (NTEU), the court reiterated its earlier INS ruling that Congress intended agencies to retain the power to summarily terminate probationary employees. The court held that to allow probationary employees to grieve their separations if based on unlawful discrimination "would eviscerate Congress's intention that collective bargaining not supplement probationers' existing procedural protections." 848 F.2d at 1276.
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, 805 (1987). Consequently, the Authority has determined that grievances over the separation of a probationary employee are contrary to law and regulation.
In addition, the Authority has determined that bargaining proposals that would not authorize probationary employees to grieve their separation, but would provide such employees with other procedural protections prior to separation are inconsistent with law and regulation and are not negotiable. For example, FDIC, 39 FLRA at 852 (provision requiring that management inform a probationer in writing of the reasons for separation, provide a meeting, and forward with its recommendation all materials presented by the probationer was found to constitute procedural protections beyond those provided by OPM); American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1128 (1988) (provision requiring that probationers receive written notice of their performance shortcomings and be counseled on how to bring their performance up to a fully acceptable level prior to separation was found to constitute procedural protections beyond those provided by OPM). In Customs Service, we recently found nonnegotiable a provision that would have permitted probationers to comment on their supervisor's statement of whether their performance, conduct, and character have been found satisfactory or unsatisfactory. 46 FLRA at 765. We held that such a provision established procedural protections for probationary employees that exceed those required by OPM in Federal Personnel Manual chapter 315, subchapter 8.
In view of the foregoing, we find that the Arbitrator's award that the grievance was not arbitrable is not contrary to law. Clearly, no probationer has the right under OPM regulations to challenge and obtain review of management's assessment of the performance of the probationer during the probationary period. In our view, for the Arbitrator to have ruled otherwise "would [have] eviscerate[d] Congress's intention that collective bargaining not supplement probationers' existing procedural protections." NTEU, 848 F.2d at 1276. Certainly, the general provisions of the Statute cited by the Union cannot provide otherwise. In INS, the court rejected the Authority's reliance on the definitions of "employee" and "grievance" in section 7103(a) of the Statute, concluding that the issue of whether probationers could grieve their separations "cannot be resolved by mere reference to the broad definitional provisions in the [S]tatute." 709 F.2d at 729 n.22. We similarly conclude that the general provisions of sections 7102 and 7121 of the Statute cannot p