20:0788(93)NG - NFFE Local 29 and Army Corps of Engineers, Kansas City District, kansas City, MO -- 1985 FLRAdec NG
[ v20 p788 ]
20:0788(93)NG
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.