[ v31 p993 ]
The decision of the Authority follows:
31 FLRA NO. 78 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES REGION IX, SAN FRANCISCO, CALIFORNIA Agency Case No. 0-NG-1457 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 proposal: The parties agree that excepted service employees will be covered by this agreement including the grievance, the unacceptable performance, adverse action, arbitration and probationary/trial employees articles. For the reasons discussed below, we find that the proposal is within the duty to bargain because the proposal is not inconsistent with the Civil Service Reform Act. II. Positions of the Parties The Agency contends that the proposal is nonnegotiable because it is inconsistent with the congressional scheme embodied in the Civil Service Reform Act (CSRA). The Agency maintains that the CSRA establishes that non-preference eligible, excepted service employees are not entitled to the protections accorded nonprobationary, competitive service employees and preference eligible, excepted service employees. The Agency argues that Congress intended that non-preference eligible, excepted service employees should have no right of review of disciplinary actions by any authority outside the employing agency. The Agency maintains that this congressional intention is reflected by the exclusion of these employees from provisions granting nonprobationary, competitive service employees and preference eligible, excepted service employees protections from adverse actions. The Agency further maintains that in addition to the statutory exclusion, the Office of Personnel Management, under its regulatory authority, has also refused to extend protections to non-preference eligible, excepted service employees. Thus, the Agency argues that it is precluded from granting grievance procedure rights to these employees through collective bargaining. The Agency also relies on Department of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), where the court found a proposal to bring probationary competitive service employees within the scope of the parties' negotiated grievance procedure to be nonnegotiable. By separate letter, the Agency has informed the Authority of the decision of the U.S. Supreme Court in U.S. v. Fausto, 108 S. Ct. 668 (1988) and suggested that we consider that decision in this case. The Union disputes the Agency's contentions and asserts that the issues involved in this negotiability appeal are identical to those resolved by the Authority in National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 25 FLRA 1110 (1987), petition for review filed sub nom. U.S. Department of Health and Human Services v. FLRA, No. 87-1595 (7th Cir. April 13, 1987). III. Analysis and conclusions In HHS, Region V, we found negotiable a proposal which included excepted service employees within the coverage of the parties' negotiated grievance procedure article, adverse action article, and arbitration article. The proposal in this case is identical to the proposal in HHS, Region V except for the addition of coverage by these employees under the probationary/trial employees article. The provisions of the probationary/trial employees article are not a part of the record in this case. However, both parties consider the proposal in this case to be substantively identical to the proposal in HHS, Region V and consider the duty-to-bargain issue to be identical to the issue in HHS, Region V. Union's petition for review and Agency's statement of position at 2 n.2 and letter of February 9, 1988. In addition, the Union acknowledges that the termination of probationary employees would not be grievable under the grievance procedure article. Union's response at 4 n.2 and attachment. We adopt this view for purposes of our decision, and we find that this proposal is to the same effect as the proposal in HHS, Region V. In that case, we considered the same arguments as those presented here, except for the decision in U.S. v. Fausto, and we concluded that Congress did not intend to exclude excepted service employees from coverage of negotiated grievance procedures. In National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181 (1988) (provision 4), we considered the decision of the U.S. Supreme Court in Fausto in relation to HHS, Region V and the right of excepted service employees to grieve disciplinary actions under negotiated grievance procedures. We found that the court's decision is not dispositive of this issue. Accordingly, we reaffirmed our decision in HHS, Region V. We find nothing in the record in this case which warrants a different conclusion from that which we reached in HHS, Region V and U.S. Customs Service. Consequently, for the reasons more fully set forth in those decisions, we find the proposal in this case to be within the duty to bargain. IV. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the Union's proposal. */ Issued, Washington, D.C., March 24, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote */ In deciding that the proposal is within the duty to bargain, we make no judgment as to its merits.