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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).