[ v20 p788 ]
The decision of the Authority follows:
20 FLRA No. 93 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and U.S. ARMY CORPS OF ENGINEERS KANSAS CITY DISTRICT, KANSAS CITY,MISSOURI Agency Case No. 0-NG-1147 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 presents an issue concerning the negotiability of one Union proposal. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal SECTION 2. SCOPE. This negotiated grievance procedure shall apply to matters of concern and dissatisfaction regarding the interpretation, application, or violation of law, rule, regulation, and/or this Agreement; conditions of employment; relationships with agency supervisors, managers, and/or officials; prohibited personnel practices; disciplinary actions; adverse actions; discrimination complaints; and/or the procedures and evidence used to remove temporary and/or probationary employees. This negotiated grievance procedure shall apply to all matters indicated above whether or not set forth in this Agreement. This negotiated grievance procedure shall not apply to: 1. Violation related to political activities; 2. Retirement, life insurance or health insurance; 3. A suspension or removal for national security reasons; 4. Any examination, certification or appointment; 5. Classification of position which does not result in reduction in pay or grade for the employee; or 6. Any reduction-in-force which does not affect five (5) or more employees simultaneously, which is otherwise appealable to the Merit Systems Protection Board. (Only the underscored portion is in dispute.) Insofar as this proposal concerns the removal of temporary employees, the Agency states in its written allegation of nonnegotiability that "(t)he decision to remove or terminate a temporary employee is a Management right under Section 7106(a)(1) and 7106(a)(2)." The Agency's contention cannot be sustained. In this regard, the Authority has previously determined that a proposal resulting in the inclusion under a negotiated grievance procedure of matters involving, inter alia, the separation or termination of a temporary employee was within the duty to bargain pursuant to section 7121 of the Statute. /1/ American Federation of Government Employees, AFL-CIO, Local 3354 and U.S. Department of Agriculture, Farmers Home Administration, St. Louis, Missouri, 3 FLRA 321 (1980). Furthermore, it is well settled that 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. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to assume this burden acts at its peril. As relevant in the instant case, the Agency provided no argument whatever to indicate in what manner this portion of the proposal would prevent the Agency from acting at all with respect to any of its enumerated management rights. Consequently, the Authority concludes in the circumstances herein that the portion of this proposal concerning the removal of temporary employees is within the duty to bargain. /2/ However, in agreement with the Agency, the Authority concludes that insofar as the proposal effectively would subject matters related to thy removal of probationary employees to review under the parties' negotiated grievance procedure it is inconsistent with governing law and regulation. That is, the Authority held in Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 3342, 14 FLRA 164 (1984), on the basis of the rationale and conclusion of the court in Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724 (D.C. Cir. 1983), that coverage by a negotiated grievance procedure of a grievance concerning the separation of a probationary employee is precluded by the statutory and regulatory scheme set forth in 5 U.S.C. Sec. 3321 and 5 CFR part 315, subpart H. Consequently, based on Department of Health and Human Services and the reasons stated and cases cited therein, that portion of the disputed proposal herein concerning the removal of probationary employees is also outside the duty to bargain under section 7117(a)(1) of the Statute. This conclusion is not altered by the Union's allegation that the proposal is negotiable as a "procedure" or as an "appropriate arrangement" pursuant to sections 7106(b)(2) and (3) of the Statute. /3/ In this regard, it is noted that sections 7106(b)(2) and (3) expressly apply only when management is exercising one of the management rights set out in section 7106. In this case, however, the portion of the proposal concerning the removal of probationary employees is outside the duty to bargain not because it is inconsistent with an enumerated management right but, rather, because it is inconsistent with an applicable law and Government-wide regulation. See, e.g., American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO, Local 1546 v. FLRA, No. 85-1689 (D.C. Cir. October 21, 1985). Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review as to the portion of the proposal concerning probationary employees be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain over the Union proposal to the extent it concerns temporary employees. Issued, Washington, D.C., December 4, 1985 (s)--- Henry B. Frazier III, Acting Chairman (s)--- William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7121 of the statute provides, in pertinent part, as follows: Section 7121. Grievance procedures (a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d) and (e) of this section, the procedures shall be the exclusive procedures for resolving grievances which fall within its coverage. (2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedure which are provided for in the agreement. /2/ In finding this portion of the proposal within the duty to bargain, the Authority, of course, makes no judgment as to its merits. /3/ Sections 7106(b)(2) and (3) of the Statute provide, in pertinent part, as follows: Section 7106. Management rights (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (2) procedures which management officials of the agency will observe in exercising any authority under this section; or (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.