[ v16 p29 ]
16:0029(6)NG
The decision of the Authority follows:
16 FLRA No. 6
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2302
Union
and
DEPARTMENT OF THE ARMY,
ARMY ARMOR CENTER
FORT KNOX, KENTUCKY
Agency
Case No. O-NG-624
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises issues
relating to the negotiability of the following three Union proposals.
/1/
Section 1-- Probationary employees shall be retained on the
basis of adequacy of their performance.
Section 3-- No probationary employee shall be separated on the
basis of conduct which does not adversely affect his performance
or the performance of others, and only after the probationer has
had a full and fair trial.
Section 4-- When the employer determines that a probationary
employee must be separated, the following procedures shall be
observed:
(A) Said employee shall be informed, in writing, at least 30
days in advance with factual information of his inadequacy in
performing his work and how the inadequacies have adversely
affected the efficiency of the Service to make the employer's
basis for the action clear.
(B) When a probationer is separated, the Standard Form 50 shall
include all "the reasons for separation."
(C) The Union, on behalf of a probationer, may advance the
grievance to arbitration under this Agreement. (Only the
underscored portions of Section 4 are in dispute.)
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
Under 5 U.S.C. 3321 the President is authorized to prescribe rules
which provide for a period of probation before an appointment in the
competitive service becomes absolute. The Office of Personnel
Management (OPM) has been delegated the function of prescribing terms
and conditions governing such probationary period. /2/ OPM has in turn
prescribed regulations relating to the probationary period. /3/
The Union states that its intent, insofar as the proposals relate to
the grounds on which probationary employees may be terminated, is merely
to require management to exercise its statutory right in accordance with
law, /4/ specifically 5 U.S.C. 2302(b)(10). /5/ Although this may have
been the Union's intent, this is not the effect of the plain terms of
the proposals.
As already noted regulations set forth in 5 CFR 315, Subpart H
establish the bases for agency decisions on the retention and,
correspondingly, the termination of probationary employees. Among other
things these regulations state that an agency "shall terminate (a
probationer) . . . if he fails to demonstrate his qualifications for
continued employment." (5 CFR 315.803). The regulations also set forth
procedures to be followed if such termination is because "work
performance or conduct during this (probationary) period fails to
demonstrate . . . fitness or . . . qualifications for continued
employment" (5 CFR 315.804) or "for reasons based in whole or in part on
conditions arising before . . . appointment" (5 CFR 315.805). Sections
2, 3 and 4(A) of the proposals, on their face, would establish more
restrictive terms for termination of such employees in that they would
require that terminations be based on matters which are demonstrably
linked to actual performance. Thus, as alleged by the Agency, these
aspects of the proposals conflict with the provisions of 5 CFR 315,
Subpart H. The provisions of that Subpart are codified at title 5 of
the Code of Federal Regulations by the Office of Personnel Management
(OPM). By their terms they apply, generally, to employees serving an
initial appointment to competitive positions and provide common policies
governing service of a probationary period. Therefore 5 CFR 315,
Subpart H, is a Government-wide rule or regulation within the meaning of
section 7117(a)(1) of the Statute. National Treasury Treasury Employees
Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3
FLRA 748, 754 (1980). Since Sections 1, 3 and Subpart (A) of Section 4
conflict with that regulation, they are, for that reason, outside the
duty to bargain. /6/
The Authority further finds that Subpart (B) of Section 4 conflicts
with Federal Personnel Manual Supplement 296-33 (S31-4.d). /7/ This
portion of the proposals would require that, when a probationary
employee is separated from service, the reasons for the separation be
placed on the Standard Form 50 (SF 50). FPM Supplement 296-33 (S31-4.d)
explicitly prohibits placing agency reasons on the SF 50 in
agency-initiated separations involving employees who are serving on
appointments which do not afford employees appeal rights. /8/
Probationary employees fall within the category of employees serving on
appointments which do not afford appeal rights. /9/
OPM's authority to prescribe reporting requirements covering
personnel actions is derived from 5 U.S.C. 2951 which authorizes the
President to prescribe rules governing the reporting of various
personnel actions, including among other separations during probation,
to OPM and the maintenance of records of such actions by OPM. The
President has delegated to OPM the responsibility of prescribing the
procedural and substantive requirements relating to the reports of
personnel actions to be submitted. /10/ The reporting requirements
apply generally to positions in the competitive and excepted service and
are binding on "each agency" (Sec. 7.2, E.O. 10577, as amended). They
are set forth in FPM Chapter 296 and FPM Supplement 296-33. Thus, the
Authority finds that FPM Supplement 296-33 (S31-4.d.) is a
Government-wide rule or regulation. National Federation of Federal
Employees, Local 1497 and Department of the Air Force, Lowry Air Force
Base, Colo., 9 FLRA 151 (1982) (Union Proposal 1). Inasmuch as Subpart
(B) of Section 4 of the proposals conflicts with a Government-wide rule
or regulation it is outside the duty to bargain under section 7117(a)(1)
of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. Issued, Washington, D.C., September 11, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ A fourth proposal which was included in the petition has since
been withdrawn by the Union.
/2/ Section 2.4 of Executive Order No. 10577, as amended, reprinted
in 5 U.S.C. 3301 app., at 186 (Supp. V 1981); Department of Justice,
Immigration and Naturalization Service v. FLRA, 709 F.2d 724, 729 (D.C.
Cir. 1983).
/3/ 5 CFR 315, Subpart H.
/4/ The Authority has found that general provisions requiring
management to exercise its statutory rights under section 7106 in
compliance with law are within the duty to bargain. American Federation
of Government Employees, AFL-CIO, International Council of U.S. Marshals
Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA
No. 113 (1983) (Union Proposal 4) and cases cited at 6-7.
/5/ 5 U.S.C. 2302(b)(10) provides:
Sec. 2302. Prohibited personnel practices
* * * *
(b) Any employee who has authority to take, direct others to take,
recommend, or approve any personnel action, shall not, with respect to
such authority--
* * * *
(10) discriminate for or against any employee or applicant for
employment on the basis of conduct which does not adversely affect
the performance of the employee or applicant or the performance of
others; except that nothing in this paragraph shall prohibit an
agency from taking into account in determining suitability or
fitness any conviction of the employee or applicant for any crime
under the laws of any State, of the District of Columbia, or of
the United States (.)
/6/ In view of this finding, it is unnecessary to address the
Agency's other contentions as to the negotiability of these portions of
the proposals.
/7/ The Agency alleges that this portion of the proposal conflicts
with Federal Personnel Manual Letter 296-89. The relevant provisions
contained therein have since been incorporated in Federal Personnel
Manual Supplement 296-33.
/8/ FPM Supplement 296-33 (S31-4.d.) provides in relevant part:
d. Agency-Initiated Separations of Employees.
(1) Employee Without Appeal Rights.
(a) When an employee who is serving on an appointment that does
not afford him/her appeal rights is separated for conduct and/or
performance reasons (an NOAC 385 or 386 "discharge" action), NO
agency reasons for or comments regarding the action may be placed
on the SF 52, SF 50, SF 7, or in the employee's EPF or OPF.
/9/ The substantive grounds on which probationary employees may
appeal separations are limited to allegations that a separation was
based on partisan political reasons, marital status, race, color,
religion, sex, national origin, physical handicap, or age. Federal
Personnel Manual, Chapter 315 (S8-5). For purposes of Federal Personnel
Manual Supplement 296-33, subchap. 31, the right to challenge an action
through the EEO complaint process or to challenge an action because of
alleged discrimination because of marital status or political
affiliation is not an appeal right. Federal Personnel Manual Supplement
296-33 (S31-4.c.(1)(b)). The EEO complaint process encompasses
allegations of discrimination based on race, color, religion, sex and
national origin (29 CFR 1613.211-1613.236) as well as those of
discrimination based on physical handicap (29 CFR 1613.708-1613.709) and
age (29 CFR 1613.511-1613.521).
/10/ Section 7.2, Exec. Order No. 10577, as amended, reprinted in 5
U.S.C. 3301 app. at 188 (Supp. V 1981).