26:0801(95)NG - SEIU, Local 556, and Navy, Marine Corps Exchange, Kaneohe Bay, Hawaii -- 1987 FLRAdec NG

[ v26 p801 ]
The decision of the Authority follows:

 26 FLRA No. 95
                                            Case No. 0-NG-953
                         I.  Statement of the Case
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute).  It raises issues
 concerning one provision of a negotiated agreement disapproved by the
 Agency head under section 7114(c) of the Statute.  The provision
 concerns Nonappropriated Fund (NAF) employees and involves the scope of
 the parties' negotiated grievance procedure.  We find that, insofar as
 the provision relates to probationary employees, it is nonnegotiable.
 However, in this case we also find that when applied to intermittent
 employees who do not serve probationary periods, it is negotiable.  The
 provision states as follows:
          Section 3.  Excluded from processing under this article are
       grievances concerning:
          k.  Removals or discipline during probationary or trial periods
       of probationary, temporary, or intermittent employees.  Any matter
       during the first ninety (90) calendar days of probation provided,
       however;  that this period may be extended up to an additional
       sixty (60) calendar days by mutual agreement of the parties on a
       case by case basis.  All requests for an extension of the ninety
       (90) day period shall be in writing and addressed to the President
       of the Union and include the reasons for the extension and the
       individual involved.  The Union will respond to such requests
       within seven (7) calendar days of receipt of such request.  If no
       response is made within this period, it will be assumed that the
       Union has concurred with the extension.
                       II.  Positions of the Parties
    The Union explains the provision as establishing a period during
 which the Agency may terminate or discipline newly hired employees
 without those employees being able to grieve the action.  It describes
 the provision as relating solely to access to the grievance procedure as
 opposed to limiting the length of the probationary period.  The Union
 acknowledges that, because temporary employees are excluded from the
 bargaining unit, the reference to them in the provision is
    The Agency argues that the proposal is nonnegotiable based on several
 grounds.  /1/ It asserts that:
          (1) Summary termination is an essential element in the
       probationary period which, in turn, is a critical step in deciding
       whether to employ a particular individual.  By limiting summary
       termination during the probationary period, the provision
       interferes with its rights under section 7106(a)(2)(A) and (C) to
       hire employees and to make selections for appointments.
          (2) The provision violates the requirement in section 7101(b)
       that the Statute be interpreted in a manner consistent with the
       requirements of an effective and efficient government.
          (3) The probationary period is the last step in the
       "examination" of an employee before an "appointment" becomes
       final.  Consequently, the provision violates section 7121(c)(4)
       which excludes from negotiated grievance procedures grievances
       concerning examinations and appointments.
          (4) The provision conflicts with Department of Defense and
       Department of the Navy regulations which require employees hired
       for regular full-time and part-time positions within the
       bargaining unit to serve a six-month probationary period.  These
       are agency-wide regulations which meet the compelling need
       criterion in that they are necessary to ensure the maintenance of
       basic merit principles.
    The Agency makes the following additional contentions as to
 intermittent employees:
          (1) They are not subject to a probationary period but are
       subject to summary termination for the duration of their
       employment.  Limiting summary termination to an initial period of
       employment is antithetical to the nature of their "untenured
       appointment" and conflicts with the Agency's rights under section
       7106(a)(2)(A) and (C) to hire and make selections for
          (2) By effectively allowing an arbitrator to change the nature
       of intermittent "appointments" from untenured to tenured, the
       provision conflicts with section 7121(c)(4) of the Statute.
    The Union argues that "hiring" and "selection" are administrative
 acts used to establish an employer-employee relationship and do not
 extend to the concept of a probationary period.  In the alternative,
 however, assuming that summary dismissal is an inherent part of the
 rights to hire and select, the Union claims that the provision does not
 negate those rights.
                              III.  Analysis
                        A.  Probationary Employees
    The provision would limit the Agency's right to summarily terminate a
 probationary employee to the first 90-150 day segment of the six-month
 probationary period.  We find that it would thereby directly interfere
 with management's right to "hire" under section 7106(a)(2)(A).
    In United States Department of Justice, Immigration and
 Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), the court
 reversed the Authority's decision that a proposal allowing probationary
 employees in the competitive service to grieve their terminations was
 negotiable.  The court noted that in enacting the Civil Service Reform
 Act, Congress afforded employees who have completed their probationary
 terms "elaborate procedural protections," and at the same time, left
 essentially unchanged the statutory provision authorizing a probationary
 period in the competitive service.  Id. at 727-28.  The court stated
 that "(t)he substantial protections that Congress made available only to
 tenured employees indicate that Congress recognized and approved of the
 inextricable link between the effective operation of the probationary
 period and the agency's right to summary termination." Id. at 728.  The
 court concluded as follows:
          Congress has long recognized both that federal employees are
       due certain procedural protections and that federal agencies must
       be able to terminate employees for unacceptable work performance
       or conduct.  In accommodating these competing concerns, Congress
       created the concept of the probationary term and authorized
       agencies to terminate employees summarily during this period.  It
       saw summary terminations as essential to an effective and
       efficient service, and it has repeatedly acted to preserve the
       agencies' discretion summarily to remove probationary employees.
    Id. at 730.
    NAF employees are not subject to the statutory and Government-wide
 regulatory provisions which prescribe probationary and trial periods for
 employees in the competitive service, the provisions relied upon by the
 court in Department of Justice.  Rather, probationary or trial periods
 for NAF employees are established by regulation of the agency employing
 them.  In this case, Department of Defense and Agency regulations
 establish a 6-month probationary period for "regular" NAF employees.
    In our view, the probationary period serves the same purpose in NAF
 employment that it does in the competitive service.  It is a trial
 employment period for the purpose of assessing a newly-hired
 individual's conduct, reliability and actual ability to function in a
 position.  It is part of the process by which management determines
 whether a newly-hired employee should be retained permanently.  It
 provides the Agency with an opportunity to make such judgment prior to
 affording employees procedural protections established under Agency
 regulations or collective bargaining agreements in the event of
 termination for unacceptable work performance or conduct.  As in the
 competitive service, the probationary period is inextricably linked, in
 our view, with summary termination.  See Department of Justice, 709 F.2d
 at 728.
    Because a NAF employee serving a probationary period is subject to
 summary termination, we believe that the agency's right to hire the
 employee includes the right to terminate that employee during the
 probationary period.  That is, when an employee is hired for a position
 which includes a probationary period, the hiring process is not complete
 until that employee has completed the probationary period and has
 demonstrated to management's satisfaction the ability to perform in that
 position.  Until that time, the employee is subject to summary
    We find, therefore, that the probationary period, including summary
 termination, constitutes an essential element of an agency's right to
 hire under section 7106(a)(2)(A) of the Statute.
    The provision would directly interfere with the Agency's exercise of
 its right to hire.  It would allow an arbitrator to review an agency
 determination to terminate a probationary employee who because of
 conduct or performance had been deemed by the Agency to be unsuited for
 employment.  The arbitrator could under the provision substitute his/her
 discretion for that of the Agency with respect to the final decision to
 hire a particular individual.  The provision thereby would allow the
 arbitrator to substantively interfere with the Agency's exercise of its
 statutorily reserved discretion.  See American Federation of Government
 Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint
 Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70
 (1981) (Proposal 4) aff'd sub nom. American Federation of Government
 Employees, AFL-CIO, Local 1968 v. Federal Labor Relations Authority, 691
 F.2d 565 (D.C. Cir. 1982), cert. denied sub nom. American Federation of
 Government Employees v. FLRA, 461 U.S. 926 (1983).
    In view of our decision that negotiation of the proposal is
 prohibited under section 7106(a)(2)(A) we find it unnecessary to address
 the Agency's additional claims concerning the negotiability of the
                        B.  Intermittent Employees
    The Agency asserts that one essential feature of intermittent
 employment is that the employees are terminable at the will of the
 Agency for the entire duration of their employment.  Under its
 regulations, the Agency does not require intermittents to serve a
 probationary period.  Further, in its regulations which define the
 various categories of employment for NAF employees, unlimited summary
 termination is not mentioned as a feature of intermittent employment.
 /2/ Under those regulations, it appears that an employee is placed in
 the intermittent category based solely on his weekly work schedule.  /3/
 See Appendix.
    The Agency has failed to support its contention that summary
 termination is an integral aspect of intermittent employment in the
 Agency, and no other basis for reaching such a conclusion is apparent to
 us.  Consequently, its argument that allowing intermittents to grieve
 terminations at any time during the course of their employment is
 antithetical to the nature of their employment is without foundation and
 cannot be sustained.  It follows that the Agency's argument, by
 extension, that insofar as the provision would allow grievances
 regarding the termination of intermittent employees under the negotiated
 procedure it conflicts with sections 7106(a) and 7121(c) of the Statute
 also is unsupported and cannot be sustained.
    Since the Agency has not established a probationary period for
 intermittent employees, our discussion of the right to hire in the
 context of probationary periods is not applicable here.  There is
 nothing in the record to indicate that the Agency could not, consistent
 with its obligations under the Statute, establish such a probationary
 period for intermittents and if it did, the same analysis used in the
 previous section of this decision would apply.
                              IV.  Conclusion
    Insofar as the provision would allow probationary employees to grieve
 terminations, it conflicts with the Agency's right under section
 7106(a)(2)(A) to hire employees.  That aspect of the provision is,
 therefore, nonnegotiable.  Insofar as the provision would allow
 intermittent employees to grieve terminations, the Agency has not
 sustained its contentions that the provision conflicts with the Statute.
  We find that aspect of the provision is within the duty to bargain.
                                 V.  Order
    The Union's petition for review of that portion of the provision
 which concerns terminations of probationary employees is dismissed.  The
 Agency shall rescind its disapproval of that portion of the provision
 which concerns terminations of intermittent employees.
    Issued, Washington, D.C., April 30, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) As a procedural matter, the Union asserts that the Agency's
 statement of position is not properly before the Authority because the
 person who signed it was someone other than the Agency's designated
 representative of record.  This same argument was made and rejected in
 Service Employees' International Union, Local 556, AFL-CIO and
 Department of the Navy, Navy Exchange, Pearl Harbor, Hawaii, 25 FLRA No.
 65 (1987), petition for review filed sub nom. Department of the Navy,
 Navy Exchange, Pearl Harbor v. FLRA, No. 87-7161 (9th Cir. Apr. 17,
 1987).  It is rejected here for the same reasons as expressed in that
    (2) The Agency submitted portions of the Department of Defense
 Personnel Policy Manual for Nonappropriated Fund Instrumentalities (DOD
 1401.1-M) with its statement of position.  Of the portions submitted,
 Chapter II, pages II-1 and II-2, are reproduced as an Appendix to this
    (3) This distinction is consistent with practice in other federal
 employment systems.  The Federal Personnel Manual (FPM) defines
 "intermittent employment" as nonfull-time employment in which employees
 serve under an excepted or competitive service appointment in tenure
 group I or II without a regularly scheduled tour of duty.  Employees
 under temporary or term appointments may also work on an intermittent
 basis.  FPM Chapter 340, subchapter 4.
    (4) In finding this portion of the provision negotiable, we make no
 judgment as to its merits.
                                CHAPTER II
                         EMPLOYMENT AND PLACEM