[ v26 p801 ]
The decision of the Authority follows:
26 FLRA No. 95 SERVICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 556, AFL-CIO Union and DEPARTMENT OF THE NAVY, MARINE CORPS EXCHANGE, KANEOHE BAY, HAWAII Agency Case No. 0-NG-953 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 inappropriate. 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 appointments. (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 termination. 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 proposal. 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. /4/ 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 decision. (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 decision. (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. APPENDIX CHAPTER II EMPLOYMENT AND PLACEMENT A. EMPLOYMENT 1. General Policy. Each DoD Component shall ensure that the recruitment, selection, placement, promotion, termination and other related personnel actions, involving NAFI employees, are in consonance with the Federal Government's commitment to fair employment practices and equal opportunity and treatment for both applicants and employees. 2. Specific Policies a. Categories of Employees. Each DoD Component shall categorize its NAFI employees for purposes of establishing for each employee the status of his or her employment. To accomplish standardization of employee categories among DoD NAF programs the following definitions and interpretations will apply: (1) Regular Employees (a) Regular full-time (RFT) employees are those hired for continuing positions and who have a regularly scheduled workweek of 35 hours or more. (b) Regular part-time (RPT) employees are those hired for continuing positions for a minimum of 20 hours per week but less than 35 hours per week on a regularly scheduled basis. (2) Temporary Employees (a) Temporary full-time employees are those who are employed for 35 hours or more per week for not more than 12 months in a continuing pay status in the same NAFI. When their employment goes beyond this period, the category of employment will be changed to that of RFT employees. (b) Temporary part-time employees are those who are employed for a minimum of 20 hours per week but less than 35 hours per week for not more than 12 months in a continuing pay status in the same NAFI. If employed in a continuing pay status beyond this period, the category of employment will be changed to that of RPT employees. (3) Intermittent Employees (a) Employees who are not on a regularly scheduled workweek and who usually work less than 35 hours a week. Their employment is on a recurring basis, but only when needed. Included in this category are those employees who work less than 20 hours per week on a part-time basis, with or without a regular schedule. (b) Normally intermittent employees are used to cover special events, emergencies, unexpected workloads, vacation relief, and other similar situations. (c) It may be necessary to request an intermittent employee to work on a regular schedule either for more than 35 hours in a workweek, or for 20 hours or more but less than 35 hours in a workweek. In such cases, the category of the employee need not be changed to full-time or part-time. However, if the employee is retained on a regular schedule for more than 90 consecutive calendar days, DoD Components will require a local-level review at the end of the 90 days to determine the reason for working the extra hours. 1 If the employee is working the extra hours because of a temporary need (such as, working in the place of a temporarily absent employee), or is performing an unscheduled type of work (such as, working a special function (a banquet, party, or dining in)), the employee may continue working out of his or her employment category. However, a review shall be made each succeeding 30 days and the reasons shall be recorded in the employee's personnel folder. 2 If the employee is working the extra hours and there is a need to continue the extra hours indefinitely, the employee will be changed to a regular full-time or part-time category. 3 If the employee's work hours are changed to a regular category (a) the change is effective the beginning of the pay period after the 90th day; (b) the employee is concurrently placed in a probationary status with no retroactive pay; and (c) the employee becomes eligible for participation in the appropriate employee benefit programs. (d) Intermittent employees are not eligible for participation in benefit programs including the various types of leave. (e) Intermittent employees are further categorized for pay purposes as 1 Those with a prearranged, regularly scheduled tour of duty. Such employees are eligible for normal step increases in accordance with FPM Supplement 532-2, paragraph S8-5b(1)(a). 2 Those without a prearranged, regularly scheduled tour of duty (on call). Such employees accumulate time-for-step-increases on the basis of the number of days actually worked as specified in FPM Supplement 532-2, paragraph S8-5b(1)(b). (f) All intermittent employees will be officially placed on the payroll of the employing NAFI. (4) Temporary Emergency Employees. Those who are employed for not more than 30 days in the event of an emergency, without regard to normal hiring priorities. One 30-day extension may be authorized by heads of DoD Components.