[ v31 p1281 ]
31:1281(117)NG
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.