16:0029(6)NG - AFGE Local 2302 and Army, Army Armor Center, Fort Knox, KY -- 1984 FLRAdec NG

 16 FLRA No. 6
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2302
 Union
 
 and
 
 DEPARTMENT OF THE ARMY,
 ARMY ARMOR CENTER
 FORT KNOX, KENTUCKY
 Agency
 
                                            Case No. O-NG-624
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and raises issues
 relating to the negotiability of the following three Union proposals.
 /1/
 
          Section 1-- Probationary employees shall be retained on the
       basis of adequacy of their performance.
 
          Section 3-- No probationary employee shall be separated on the
       basis of conduct which does not adversely affect his performance
       or the performance of others, and only after the probationer has
       had a full and fair trial.
 
          Section 4-- When the employer determines that a probationary
       employee must be separated, the following procedures shall be
       observed:
 
          (A) Said employee shall be informed, in writing, at least 30
       days in advance with factual information of his inadequacy in
       performing his work and how the inadequacies have adversely
       affected the efficiency of the Service to make the employer's
       basis for the action clear.
 
          (B) When a probationer is separated, the Standard Form 50 shall
       include all "the reasons for separation."
 
          (C) The Union, on behalf of a probationer, may advance the
       grievance to arbitration under this Agreement.  (Only the
       underscored portions of Section 4 are in dispute.)
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 
    Under 5 U.S.C. 3321 the President is authorized to prescribe rules
 which provide for a period of probation before an appointment in the
 competitive service becomes absolute.  The Office of Personnel
 Management (OPM) has been delegated the function of prescribing terms
 and conditions governing such probationary period.  /2/ OPM has in turn
 prescribed regulations relating to the probationary period.  /3/
 
    The Union states that its intent, insofar as the proposals relate to
 the grounds on which probationary employees may be terminated, is merely
 to require management to exercise its statutory right in accordance with
 law, /4/ specifically 5 U.S.C. 2302(b)(10).  /5/ Although this may have
 been the Union's intent, this is not the effect of the plain terms of
 the proposals.
 
    As already noted regulations set forth in 5 CFR 315, Subpart H
 establish the bases for agency decisions on the retention and,
 correspondingly, the termination of probationary employees.  Among other
 things these regulations state that an agency "shall terminate (a
 probationer) . . . if he fails to demonstrate his qualifications for
 continued employment." (5 CFR 315.803).  The regulations also set forth
 procedures to be followed if such termination is because "work
 performance or conduct during this (probationary) period fails to
 demonstrate . . . fitness or . . . qualifications for continued
 employment" (5 CFR 315.804) or "for reasons based in whole or in part on
 conditions arising before . . . appointment" (5 CFR 315.805).  Sections
 2, 3 and 4(A) of the proposals, on their face, would establish more
 restrictive terms for termination of such employees in that they would
 require that terminations be based on matters which are demonstrably
 linked to actual performance.  Thus, as alleged by the Agency, these
 aspects of the proposals conflict with the provisions of 5 CFR 315,
 Subpart H.  The provisions of that Subpart are codified at title 5 of
 the Code of Federal Regulations by the Office of Personnel Management
 (OPM).  By their terms they apply, generally, to employees serving an
 initial appointment to competitive positions and provide common policies
 governing service of a probationary period.  Therefore 5 CFR 315,
 Subpart H, is a Government-wide rule or regulation within the meaning of
 section 7117(a)(1) of the Statute.  National Treasury Treasury Employees
 Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3
 FLRA 748, 754 (1980).  Since Sections 1, 3 and Subpart (A) of Section 4
 conflict with that regulation, they are, for that reason, outside the
 duty to bargain.  /6/
 
    The Authority further finds that Subpart (B) of Section 4 conflicts
 with Federal Personnel Manual Supplement 296-33 (S31-4.d).  /7/ This
 portion of the proposals would require that, when a probationary
 employee is separated from service, the reasons for the separation be
 placed on the Standard Form 50 (SF 50).  FPM Supplement 296-33 (S31-4.d)
 explicitly prohibits placing agency reasons on the SF 50 in
 agency-initiated separations involving employees who are serving on
 appointments which do not afford employees appeal rights.  /8/
 Probationary employees fall within the category of employees serving on
 appointments which do not afford appeal rights.  /9/
 
    OPM's authority to prescribe reporting requirements covering
 personnel actions is derived from 5 U.S.C. 2951 which authorizes the
 President to prescribe rules governing the reporting of various
 personnel actions, including among other separations during probation,
 to OPM and the maintenance of records of such actions by OPM.  The
 President has delegated to OPM the responsibility of prescribing the
 procedural and substantive requirements relating to the reports of
 personnel actions to be submitted.  /10/ The reporting requirements
 apply generally to positions in the competitive and excepted service and
 are binding on "each agency" (Sec. 7.2, E.O. 10577, as amended).  They
 are set forth in FPM Chapter 296 and FPM Supplement 296-33.  Thus, the
 Authority finds that FPM Supplement 296-33 (S31-4.d.) is a
 Government-wide rule or regulation.  National Federation of Federal
 Employees, Local 1497 and Department of the Air Force, Lowry Air Force
 Base, Colo., 9 FLRA 151 (1982) (Union Proposal 1).  Inasmuch as Subpart
 (B) of Section 4 of the proposals conflicts with a Government-wide rule
 or regulation it is outside the duty to bargain under section 7117(a)(1)
 of the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  Issued, Washington, D.C., September 11, 1984
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ A fourth proposal which was included in the petition has since
 been withdrawn by the Union.
 
 
    /2/ Section 2.4 of Executive Order No. 10577, as amended, reprinted
 in 5 U.S.C. 3301 app., at 186 (Supp. V 1981);  Department of Justice,
 Immigration and Naturalization Service v. FLRA, 709 F.2d 724, 729 (D.C.
 Cir. 1983).
 
 
    /3/ 5 CFR 315, Subpart H.
 
 
    /4/ The Authority has found that general provisions requiring
 management to exercise its statutory rights under section 7106 in
 compliance with law are within the duty to bargain.  American Federation
 of Government Employees, AFL-CIO, International Council of U.S. Marshals
 Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA
 No. 113 (1983) (Union Proposal 4) and cases cited at 6-7.
 
 
    /5/ 5 U.S.C. 2302(b)(10) provides:
 
          Sec. 2302.  Prohibited personnel practices
 
                                  * * * *
 
    (b) Any employee who has authority to take, direct others to take,
 recommend, or approve any personnel action, shall not, with respect to
 such authority--
 
                                  * * * *
 
          (10) discriminate for or against any employee or applicant for
       employment on the basis of conduct which does not adversely affect
       the performance of the employee or applicant or the performance of
       others;  except that nothing in this paragraph shall prohibit an
       agency from taking into account in determining suitability or
       fitness any conviction of the employee or applicant for any crime
       under the laws of any State, of the District of Columbia, or of
       the United States (.)
 
 
    /6/ In view of this finding, it is unnecessary to address the
 Agency's other contentions as to the negotiability of these portions of
 the proposals.
 
 
    /7/ The Agency alleges that this portion of the proposal conflicts
 with Federal Personnel Manual Letter 296-89.  The relevant provisions
 contained therein have since been incorporated in Federal Personnel
 Manual Supplement 296-33.
 
 
    /8/ FPM Supplement 296-33 (S31-4.d.) provides in relevant part:
 
    d.  Agency-Initiated Separations of Employees.
 
    (1) Employee Without Appeal Rights.
 
          (a) When an employee who is serving on an appointment that does
       not afford him/her appeal rights is separated for conduct and/or
       performance reasons (an NOAC 385 or 386 "discharge" action), NO
       agency reasons for or comments regarding the action may be placed
       on the SF 52, SF 50, SF 7, or in the employee's EPF or OPF.
 
 
    /9/ The substantive grounds on which probationary employees may
 appeal separations are limited to allegations that a separation was
 based on partisan political reasons, marital status, race, color,
 religion, sex, national origin, physical handicap, or age.  Federal
 Personnel Manual, Chapter 315 (S8-5).  For purposes of Federal Personnel
 Manual Supplement 296-33, subchap. 31, the right to challenge an action
 through the EEO complaint process or to challenge an action because of
 alleged discrimination because of marital status or political
 affiliation is not an appeal right.  Federal Personnel Manual Supplement
 296-33 (S31-4.c.(1)(b)).  The EEO complaint process encompasses
 allegations of discrimination based on race, color, religion, sex and
 national origin (29 CFR 1613.211-1613.236) as well as those of
 discrimination based on physical handicap (29 CFR 1613.708-1613.709) and
 age (29 CFR 1613.511-1613.521).
 
 
    /10/ Section 7.2, Exec. Order No. 10577, as amended, reprinted in 5
 U.S.C. 3301 app. at 188 (Supp. V 1981).