[ v31 p1281 ]
The decision of the Authority follows:
31 FLRA NO. 117 31 FLRA 1281 28 APR 1988 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1625 Union and NON-APPROPRIATED FUND INSTRUMENTALITY NAVAL AIR STATION, OCEANA, VIRGINIA Agency Case No. O-NG-1475 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)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute). It concerns the negotiability of two proposals. 1 For the reasons which follow, we find that Proposal 1, which concerns training of employees whose jobs are abolished due to technological changes, is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. We find that Proposal 2, which requires the Agency to give probationary employees counseling and written guidance concerning their performance deficiencies in order to bring their performance to an acceptable level, excessively interferes with management's right to hire employees under section 7106(a)(2)(A) and is outside the duty to bargain. II. Proposal 1 Section 3004. Whenever technological changes cause the abolishment of some jobs and establishment of others, the Employer agrees to utilize the abilities and skills of the displaced employees by training programs designed to qualify these employees for other jobs to the maximum extent practicable. A. Positions of the Parties The Agency contends that the proposal would require it to provide on-the-job training and is to the same effect as Proposal 1, which was found to violate the right to assign work, in International Brotherhood of Electrical Worker AFL - CIO, Local 121 and U.S. Government Printing Office, Washington, D.C., 8 FLRA 188 (1982), and Proposal 47 in Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734 (1987), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87 576 (D.C. Cir. Oct. 14, 1987). The Agency further claims that the proposal is distinguishable from Proposal 3, which was found to be an appropriate arrangement, in American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868 (1986). The Agency contends that the proposal is not an appropriate arrangement because: (1) the impact on employees of losing their jobs through the introduction of new technology is reduced to a "relatively low level" because the Agency, by regulation, uses training and other techniques to provide assistance to these employees; and (2) the Agency would be "totally deprived" of any discretion not to train displaced employees even where other measures such as reassignment would be more efficient and effective. Agency's Statement of Position at 3-4. The Union contends that the proposal is an appropriate arrangement and is similar to Proposal 3 in AFGE Local 3231. It argues, based on the wording of the proposal, that the Agency: (1) retains discretion as to when, where and how much training would be given to employees displaced by technological changes; and (2) is not required to provide training for the employees if they are assigned to perform duties for which they do not need training in order to perform satisfactorily. Union's Response at 4-7. B. Analysis and conclusions Proposal 1 is within the duty to bargain. The proposal conflicts with management's right to assign work under section 7106(a)(2)(B). However, the proposal constitutes an appropriate arrangement under section 7106(b)(3) because, as explained below, it does not excessively interfere with management's right to assign work. The proposal would require the Agency to provide training for employees displaced due to technological change to qualify them for other jobs. Proposals requiring management to provide training during duty hours to enable employees to perform a new speciality or perform in a new position conflict with management's right to assign work. American Federation of Government Employees, AFL - CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1114-16 (1988) (Provision 4); American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868, 872-73 (1986) (Proposal 3). Proposal 1 does not specify whether or not training must be provided during duty hours. Accordingly, under the terms of the proposal, training may be required during duty hours. Thus, Proposal I is the same as Provision 4 in Naval Air Station and to the same effect as Proposal 3 in Social ration. We find, therefore, that Proposal 1 interferes with management's right to assign work. Like Provision 4 in Naval Air Station, however, Proposal 1 is intended to provide protection for employees whose jobs are abolished because of the Agency's introduction of new technology. Union's Response at 3. We, therefore, find that it constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work. 30 FLRA at 1116. The proposal does not excessively interfere with management's right to assign work. Proposal 1 would require training programs to the extent practicable; it would not deprive the Agency of discretion concerning the characteristics of the training. Management could determine the type of training to provide, that is, formal classes or on-the-job training and, further, when such training would be provided. Also, as we noted in Naval Air Station with respect to Provision 4, the proposal does not condition the Agency's right to assign duties or evaluate employees' performance of the duties on the Agency's first having trained the employees. Id. Therefore, we find that on balance, Proposal 1 does not excessively interfere with management's right under section 7106(a)(2)(B) to assign work. Therefore, the proposal is within the duty to bargain. The Agency's argument that the proposal conflicts with section 7101(b), which requires that the provisions of the Statute be interpreted in a manner consistent with the requirement of an effective and efficient Government, also is rejected. The proposal requires training programs only to the extent practicable. The Union states that the intent of the phrase "to the extent possible" (sic) is to allow the Agency to retain discretion "as to when, where, and how such training will be given." Union's Response to Agency's Statement of Position at 6. Moreover, the Union indicates that the intent of the proposal is to provide training under circumstances similar to those in Department of the Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 22 FLRA 15 (1986) (Proposal 4). In that case, the proposal required the Agency to provide training only if the training was necessary for employees to perform their new duties satisfactorily. Nothing in the record indicates that Proposal I is intended to require the Agency to train employees who are reassigned to positions in which they can perform their new duties satisfactorily without training. Rather, consistent with the Union's stated intent, we find that the proposal covers only those circumstances in which the jobs available would require new skills. Accordingly, the proposal would not require training in the event that other measures would be more efficient and effective. The Agency's contention that Proposal 1 is to the same effect as Proposal 47 in Department of Defense Dependents Schools (DODDS) is rejected. As noted in DODDS, the second sentence of Proposal 47 did not give the agency discretion to determine, among other matters, which employees would be trained, the extent or type of training, or the number of employees who would receive training. Unlike Proposal 1, the second sentence of Proposal 47 required training for all affected employees to the extent that the training would qualify them for vacant positions. III. Proposal 2 Section 2302. The termination within probationary status - When an employee demonstrates deficient performance during the probationary period, he/she will be provided counseling of his/her specific shortcomings and what must be done to bring his/her performance up to a fully acceptable level prior to the end of the probationary period. Written guidance relative to the deficient performance will be provided the employee in addition to counseling. A. Positions of the Parties The Agency asserts that the proposal is nonnegotiable because it: (1) interferes with management's right to hire by establishing "procedural requirements which must be met by the Agency before it may terminate a probationary employee," Agency's Statement of Position at 8; (2) subjects the terminations of probationary employees which allegedly violate the procedural requirements to arbitral review; (3) violates section 7101(b) of the Statute because summary terminations of employees during the probationary period are essential to an effective and efficient Government; and (4) violates Agency regulations for which there is a compelling need. The Union asserts that the proposal: (1) provides a procedure which ensures employees the opportunity to correct their performance deficiencies so that they may retain their employment with the Agency; (2) does not provide employees with the right to grieve their terminations; and (3) is an appropriate arrangement for adversely affected employees under section 7106(b)(3). B. Analysis and Conclusions We find that the proposal is outside the duty to bargain. The proposal conflicts with management's right to hire under section 7106(a)(2)(A) and does not constitute an appropriate arrangement under section 7106(b)(3) for employees adversely affected by the exercise of that right. In enacting the Civil Service Reform Act, Congress "recognized and approved of the inextricable link between the effective operation of the probationary period and the agency's right to summary termination." United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724, 72 (D.C. Cir. 1983). Accordingly, proposals which allow probationary employees in the competitive service to grieve their terminations are nonnegotiable. Id.; Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1923, AFL - CIO, 15 FLRA 714 (1984). Likewise, proposals which do not enable probationary employees in the competitive service to grieve terminations but provide other procedural protections prior to termination are nonnegotiable. American Federation of Government Employees, AFL - CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105 (1988) (Provision 7). The unit employees involved in the instant case are employed by a Non-Appropriated Fund (NAF) Instrumentality; they are not in the competitive service. Therefore, they are not covered by the statutory and regulatory framework discussed in the cases cited above. That fact, however, does not lead to a conclusion that Proposal 2 is negotiable. The probationary period serves the same purpose in NAF employment that it does in the competitive service: (The probationary period) 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 . . . with summary termination. Service Employees' International Union, Local 556, AFL - CIO and Department of the Navy, Marine Corps Exchange, Kaneohe Bay, Hawaii, 26 FLRA 801 (1987). Consistent with the purpose of the probationary period, the hiring process is not complete until a probationary employee has served the probationary period and has demonstrated to management's satisfaction the ability to perform in a position. Since the hiring process is not complete until management has decided to retain a new hire on a permanent basis, the right to summarily terminate a probationary employee constitutes an element of management's right to hire under section 7106(a)(2)(A) of the Statute. Id. Therefore, proposals which allow NAF probationary employees to grieve terminations conflict with the right to hire and are nonnegotiable. Id.; see also Service Employees International Union, Local 556, AFL - CIO and Department of the Army, United States Army Support Command, Hawaii, Fort Schafter, Hawaii, 29 FLRA 1553 (1987) (Proposal 4), petition for review filed sub nom. Department of the Army, United States Army Support Command, Hawaii, Fort Schafter, Hawaii v. FLRA. No. 88-7004 (9th Cir. Dec. 31, 1987). Proposal 2 does not provide that probationary NAF employees may grieve their terminations. Rather, like Provision 7 in Naval Air Station, Oceana, Virginia, 30 FLRA 1105, Proposal provides other procedural protections prior to termination. Proposal 2 would require the Agency to provide probationary employees with (1) counseling on specific performance deficiencies, (2) counseling on how to bring performance to the fully acceptable level prior to the end of the probationary period, and (3) written guidance to supplement the counseling. These requirements would apply before a probationary employee could be terminated. Accordingly, Proposal 2 would preclude the Agency from exercising its right to summarily terminate probationary employees. Therefore, the proposal directly interferes with the Agency's right to hire under section 7106(a)(2)(A) of the Statute. The Union's reliance on Department of the Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 22 FLRA 15 (1986) (Proposal6), to support its contention that the proposal is negotiable is misplaced. That case involved the application of performance requirements to employees newly detailed or assigned. It did not involve probationary employees and, therefore, is inapposite. Because Proposal 2 conflicts with management's right to hire under section 7106(a)(2)(A), it is nonnegotiable unless it constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). Assuming that Proposal 2 is intended as an arrangement for employees adversely affected by management's exercise of its right to hire, it is not an appropriate arrangement because it excessively interferes with that right. As noted above, the right to hire includes the right to summarily terminate an employee during the probationary period. Proposal 2 would totally eliminate the Agency's ability to exercise its right to summarily terminate probationary employees by requiring the Agency to provide procedural protections prior to completion of the probationary period. Accordingly, Proposal 2 excessively interferes with the exercise of the Agency's right to hire and does not constitute an appropriate arrangement. In view of our decision that negotiation of the proposal is prohibited under section 7106(a)(2)(A), we find that it is unnecessary to address the Agency's additional contentions concerning the nonnegotiability of the proposal. IV. Order The Union's petition for review is dismissed as to Proposal 2 and "Section 2205," which was withdrawn by the Union. The Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Proposal 1. 2 Issued, Washington, D.C., April 28, 1988. s Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 The Union withdrew its appeal of the Agency's allegation of nonnegotiability for another proposal designated "Section 2205." Accordingly, we will not consider that proposal further. Footnote 2 In that Proposal 1 is within the duty to bargain, we make no judgment as to its merits.