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20:0788(93)NG - NFFE Local 29 and Army Corps of Engineers, Kansas City District, kansas City, MO -- 1985 FLRAdec NG

[ v20 p788 ]
The decision of the Authority follows:

 20 FLRA No. 93
                                            Case No. 0-NG-1147
    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
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 7121 of the statute provides, in pertinent part, as
       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
    /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.