25:1110(94)NG - NTEU and HHS, Region V, Chicago, IL -- 1987 FLRAdec NG

 25 FLRA No. 94
 
 
 NATIONAL TREASURY EMPLOYEES 
 UNION
 Union
 
 and
 
 DEAPRTMENT OF HEALTH 
 AND HUMAN SERVICES, REGION V 
 CHICAGO, ILLINOIS
 Agency
 
                                            Case No. 0-NG-1241
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  It concerns the
 negotiability of the following Union proposal:
 
          Excepted Service Employees
 
          The parties agree that the terms and conditions of this
       agreement, including the grievance procedure article, adverse
       action article, and arbitration article will apply to excepted
       service employees.
 
    For the reasons discussed below, we find that the proposal is within
 the duty to bargain.  /1/
 
                              II.  Background
 
    Most positions in the Federal civil service are in the competitive
 service or the excepted service.  See 5 U.S.C. Sections 2102 and 2103.
 /2/ Generally, the competitive service includes positions for which
 examinations are given.  5 U.S.C. Section 3304.  Some positions in the
 civil service are excepted from the competitive service and are placed
 in one of three "excepted service" schedules:  (1) Schedule A, which
 includes positions other than those of a confidential or
 policy-determining character for which it is impractical to hold any
 examinations;  (2) Schedule B, which includes positions other than those
 of a confidential or policy-determining character for which it is not
 practicable to hold a competitive examination;  and (3) Schedule C,
 which includes positions of a confidential or policy-determining
 character.  See 5 C.F.R. Part 213.  Attorney positions in the civil
 service are included in Schedule A of the excepted service.  5 C.F.R.
 Section 213.3102(d).
 
    The proposal in this case seeks to include excepted service employees
 within the coverage of articles of the parties' collective bargaining
 agreement which apply to all other bargaining unit employees --
 Grievance Procedure, Adverse Action, and Actions Based on Unacceptable
 Performance.  That is, under the proposal, the negotiated procedures
 that are followed when the Agency proposes to take disciplinary action
 against competitive service unit employees would also apply to excepted
 service unit employees.  According to the Agency, and not disputed by
 the Union, the proposal would apply to 32 excepted service employees in
 Schedule A positions in the bargaining unit, most of whom are attorneys.
  Agency Statement of Position at n.1.
 
                      III.  Positions of the Parties
 
                         A.  The Agency's Position
 
    The Agency contends that the proposal is nonnegotiable because "it
 interferes with areas otherwise provided for by federal law and will
 create inconsistencies with other statutory provisions." Agency
 Statement of Position at 2.  The Agency, citing section 7106(a)(2) of
 the Statute, takes the position that "discipline of excepted service
 employees has been clearly established by Congress to be the sole
 prerogative of the federal employer and is subject neither to
 pretermination procedures nor to review at any level outside of the
 employing agency." Agency Statement of Position at 3.
 
    Specifically, the Agency contends that the Civil Service Reform Act
 of 1978 (CSRA) establishes that excepted service employees are not
 entitled to the protections accorded to employees in the competitive
 service.  According to the Agency, "it has been . . . understood that in
 return for ease of entrance into federal jobs, excepted service
 employees would serve, for most purposes, at the will of their federal
 employers without a formal discipline process and without administrative
 or judicial review." Agency Statement of Position at 7.  The Agency
 states that while Congress limited the grounds on which an agency could
 take adverse actions against competitive service employees and
 preference eligible excepted service employees and gave those employees
 certain procedural rights of appeal to the Merit Systems Protection
 Board (MSPB), it did not provide any separate rights for non-preference
 eligible employees in the excepted service.  /3/ Thus, the Agency
 concludes, "Congress manifested its intent that federal excepted service
 employees serve as employees at will with no right of review by any
 outside source of disciplinary action against them." Agency Statement of
 Position at 10.
 
    The Agency further argues that Congress' refusal in the CRSA to
 extend protections to non-preference eligible excepted service employees
 preempts an agency from granting grievance procedure rights to those
 employees through collective bargaining.  The Agency states that
 although Congress authorized the Office of Personnel Management (OPM) to
 promulgate regulations granting procedural rights to non-preference
 eligible employees (see 5 U.S.C. Section 7511(c)), OPM has not done so.
 The Agency also relies on Department of Justice v. FLRA, 709 F.2d 724
 (D.C. Cir. 1983), where the court found nonnegotiable a proposal to
 bring probationary employees within the scope of the parties' negotiated
 grievance procedure.  Finally, the Agency notes that in the 99th
 Congress legislation was introduced which would establish statutory
 procedural rights for excepted service employees who have completed two
 years of service, and argues that the fact that the legislation was
 introduced demonstrates that "Congress believes that the Congressional
 scheme embodied in the CSRA does not currently allow grievance and
 arbitration rights for excepted service employees." Agency Statement of
 Position at 14.
 
                         B.  The Union's Position
 
    The Union contends that the proposal is consistent with the Statute
 and is within the duty to bargain.  The Union asserts that under
 sections 7121 and 7103 of the Statute, excepted service employees are
 "employees" and their complaints fall within the broad definition of the
 term "grievance." The Union notes that while Congress excluded certain
 employees and subject-matter grievances from coverage under the
 negotiated grievance procedures which must be included in collective
 bargaining agreements, it did not exclude excepted service employees or
 their grievances from coverage under the Statute.
 
    The Union goes on to argue that in the absence of a conflicting
 Federal law or Government-wide regulation, the Agency's duty to
 negotiate is clear.  According to the Union, to overcome the broad
 agency obligation to bargain over grievance and arbitration procedures
 under section 7121 of the Statute, an affirmative expression of
 congressional intent is needed in order to show that another law is in
 actual conflict with that mandate.  Moreover, if two statutes pertain to
 the same subject matter, both must be given effect if possible.  The
 Union argues that the statutes cited by the Agency do not conflict with
 section 7121, and in any event nothing "presupposes (that) the statutory
 exclusion of excepted service employees could not co-exist with the
 alternate grievance and arbitration procedures made available under the
 CSRA." Union Response at 8.
 
    The Union disputes the Agency's analogy to the probationary employees
 involved in Department of Justice, noting that Congress affirmatively
 preserved an agency's right to summarily discharge a probationer but did
 not do so for excepted service employees.  Citing various examples of
 procedural rights afforded by statute to employees in Schedule A
 positions, the Union states that Congress clearly intended these
 employees to be covered by protections in the CSRA.  The Union states
 that its proposal would not undermine the scheme Congress envisioned
 when it excluded Schedule A employees from appealing certain actions to
 the MSPB.  Finally, the Union argues that Schedule A employees have a
 constitutional right to due process, and the proposal in this case would
 give these employees notice and an opportunity to respond to charges
 against them.
 
                               IV.  Analysis
 
    Our analysis begins with the relevant language of the Statute.  The
 Statute sets forth rights and obligations of Federal employees, agencies
 and labor organizations.  As relevant to the proposal in this case, the
 term "employee" includes individuals employed in an agency, but does not
 include members of the uniformed services, supervisors or management
 officials, and certain other individuals.  5 U.S.C. Section 7103(a)(2).
 An "agency" includes most Executive agencies as well as the Library of
 Congress and the Government Printing Office.  5 U.S.C. Section
 7103(a)(3).  Under section 7102 of the Statute, each employee has the
 right to engage in collective bargaining with respect to conditions of
 employment through representatives chosen by employees under the
 Statute.  5 U.S.C. Section 7102(2).  Under section 7121 of the Statute,
 collective bargaining agreements must provide procedures for the
 settlement of "grievances," a term which is broadly defined in section
 7103(a)(9) to include complaints by "any employee." See generally
 American Federation of Government Employees, Locals 225, 1504, and 3723
 v. FLRA, 712 F.2d 640 (D.C. Cir. 1983).  Parties' collective bargaining
 agreements may exclude any matter from the application of the grievance
 procedure, and may not include the five subjects enumerated in section
 7121(c).  AFGE Locals 225, 1504, and 3723, 712 F.2d at 642.
 
    The proposal in this case includes excepted service employees within
 the coverage of the grievance, adverse action, and arbitration articles
 of the parties' negotiated agreement.  As reflected in the statutory
 provisions discussed above, Congress did not exclude excepted service
 employees from the definition of employee in the Statute, although it
 did exclude other employees.  Nor did Congress provide that grievances
 of excepted service employees could not be covered under negotiated
 grievance procedures, although it did exempt give other subjects from
 the scope of the negotiated grievance procedure.  Consequently, we find
 no indication in the language of the Statute that Congress intended to
 mandate the exclusion of employees from coverage of the negotiated
 grievance procedure based on their excepted service status.
 
    Likewise, nothing in the legislative history of the Statute indicates
 that Congress intended to exclude excepted service employees from the
 benefits of negotiated grievance procedures available to other
 employees.  To the contrary, the pertinent history of the Statute
 emphasizes that the permissible reach of the negotiated grievance
 procedure was to be broad.  As the Conference Report to the Statute
 stated:
 
          All matters that under the provisions of law could be submitted
       to the grievance procedure shall in fact be within the scope of
       any grievance procedure negotiated by the parties unless the
       parties agree as part of the collective bargaining process that
       certain matters shall not be covered by the grievance procedures.
 
    H.R. Conf. Rep. No. 1717, 95th Cong. 2d Sess. 157, reprinted in 1978
 U.S. Code Cong. and Admin. News 2860, 2891.  This statement of the
 Conference Committee is consistent with the provisions of the Statute
 and reinforces our view that Congress did not intend to exclude excepted
 service employees by virtue of their status from coverage of the
 negotiated grievance procedures that it required to be part of every
 collective bargaining agreement under the Statute.
 
    The Agency's contention that the proposal in this case is outside the
 duty to bargain relies primarily on provisions which exclude
 non-preference eligible excepted service employees from the MSPB appeal
 rights available to other employees.  See 5 U.S.C. Sections 4303(e) and
 7511(a)(1).  As discussed above, the Agency also relies on the decision
 in Department of Justice v. FLRA and on the introduction of legislation
 granting statutory appeal rights to nonpreference eligible excepted
 service employees.  The Agency's contentions do not persuade us that
 Congress intended to disallow parties from bargaining over the proposal
 presented in this case.
 
    The majority of excepted service positions are so deemed because, due
 to the nature of the job, it is impractical to examine for the position.
  See 5 C.F.R. Part 213.  Although the methodology of appointment for
 excepted service employees differs from that for employees in the
 competitive service, many of their terms and conditions of employment
 parallel those of their competitive service counterparts, including, for
 example, such matters as compensation, retirement and performance
 appraisal.  Excepted service employees, whether or not they are
 preference eligibles, enjoy rights to external appeal that probationary
 employees do not.  See, for example, 5 C.F.R. Section 351.901 (right to
 appeal reduction in force to MSPB);  5 U.S.C. Section 5335(c) (appeal of
 denials of periodic step increases).
 
    As reflected in the legislative history of the Civil Service Reform
 Act, Congress preserved an employing agency's virtually unreviewable
 authority to determine whether to retain probationary employees.  /4/
 However, Congress recognized a distinction between probationary
 employees and excepted service employees by extending certain statutory
 appeal rights to preference eligible excepted service employees, and by
 granting OPM authority to extend those protections by regulation to
 other classes of excepted service employees.  See 5 U.S.C. Section 7511.
  Conversely, preference eligible employees in the excepted service who
 have served less than a year are not extended any greater right of
 review of adverse personnel actions than their competitive service
 probationer counterparts.  Id.
 
    In other contexts Congress and the courts have recognized that
 excepted service employees enjoy some right of review of personnel
 actions.  For example, Congress extended the coverage of the CSRA's
 prohibited personnel practices provisions to excepted service employees.
  5 U.S.C. Section 2302.  Further, in the recent decision in Fausto v.
 United States, 783 F.2d 1020 (Fed. Cir. 1986), petition for rehearing
 denied, 791 F.2d 1554 (1986), the court found that a nonpreference
 eligible excepted service employee could properly assert Tucker Act and
 Back Pay Act claims for damages before the Claims Court.  While
 reaffirming that the CSRA provided no statutory appeal rights to such
 employees, the court nonetheless found that the comprehensive remedial
 scheme of the CSRA did not foreclose the enforcement of rights created
 under other regulatory and statutory provisions.
 
    There is nothing in the record of this case, nor is it otherwise
 apparent, that Congress specifically intended to exclude excepted
 service employees from coverage under the various articles of a
 collective bargaining agreement.  /5/ Unlike the situation involving
 probationary employees, there is nothing that can be construed as an
 affirmative preservation of a unilateral management prerogative by
 Congress or as indicating any explicit congressional limitation on the
 extension of appeal rights to these employees through the collective
 bargaining process.  /6/ Also, there is no indication that by
 authorizing OPM to extend statutory appeal rights to excepted service
 employees, Congress intended to exclude them from access to contractual
 grievance procedures.  Finally, we reject the Agency's contention that
 the introduction of legislation that would grant statutory appeal rights
 to non-preference eligible excepted service employees demonstrates
 Congress' intent to preclude coverage under negotiated grievance
 procedures.  The introduction of a bill to grant statutory rights to
 these employees, some of whom are in units of exclusive recognition and
 some of whom are not, does not reflect any intent to preclude bargaining
 under the Statute on the proposal before us.
 
    Consequently, we find no inconsistency between this proposal and any
 law, rule or regulation so as to remove the proposal from the duty to
 bargain under the Statute.  Absent an express affirmative statement by
 the Congress, we decline to read excepted service employees out of full
 coverage of the negotiated grievance procedure required by the Statute.
 /7/
 
                              V.  Conclusion
 
    We find that this proposal is within the duty to bargain under
 section 7117(a)(1) of the Statute.
 
                                VI.  Order
 
    Pursuant to section 2424.10 of the Authority's Rules and Regulations,
 the Agency must upon request (or as otherwise agreed to by the parties)
 bargain concerning the Union's Proposal.  /8/
 
    Issued, Washington, D.C., February 27, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Because the record in this case is sufficient for us to decide
 the issue presented, we deny the Union's motion to present oral
 argument.  See 5 C.F.R. Section 2429.6.
 
    (2) A third category, not relevant to the proposal in this case, is
 the Senior Executive Service.  See 5 U.S.C. Section 2101a.
 
    (3) "Preference eligible" employees generally include certain
 veterans and relatives.  See 5 U.S.C. Section 2108.
 
    (4) See S. Rep. No. 969, 95th Cong., 2d Sess. 45, reprinted in 1978
 U.S. Code Cong. and Admin. News 2767.  See also Department of Justice,
 709 F.2d at 730.
 
    (5) We note that under the Statute as well as under the predecessor
 Executive Order program, excepted service employees have been included
 within at least some parties' negotiated grievance procedures.  See, for
 example, U.S. Soldiers' and Airmen's Home and American Federation of
 Government Employees, Local 3090, AFL-CIO, 11 FLRA 692 (1983) and
 National Labor Relations Board Union and the General Counsel of the
 National Labor Relations Board, 5 FLRC 287 (1977).  We also note that
 under the Statute the Federal Service Impasses Panel has considered, in
 resolving an impasse, whether bargaining unit attorneys who are not
 eligible for veterans' preference should be entitled to the same
 protections under the contract as competitive service employees.  The
 Panel concluded that "attorneys should not be treated differently solely
 on the basis of their veteran or non-veteran status;  they should have
 access to the grievance and arbitration procedures on the same basis as
 other members of the bargaining unit." Federal Trade Commission, Boston,
 Massachusetts and Local 3656, American Federation of Government
 Employees, AFL-CIO, 79 FSIP 65 (1980), slip op. at 5.
 
    (6) In Department of Justice, the court relied on the provisions of 5
 U.S.C. Section 3321 establishing that a probationary period shall be
 served "before an appointment . . . becomes final." Another example of
 an express limitation of appeal rights may be found in the provisions
 precluding review of decisions involving excepted service employees who
 serve in Schedule C positions.  See 5 U.S.C. Section 7511(b)(2).
 
    (7) In reaching our decision, we did not rely on the arbitration
 decision in Department of Health and Human Services and National
 Treasury Employees Union, Chapter 224, FMCS No. 86K/12602 (Arb. Grether,
 July 28, 1986), submitted by the Union in support of its position after
 the parties filed their initial submissions.
 
    (8) In deciding that the proposal is within the duty to bargain, we
 make no judgment as to its merits.