[ v26 p801 ]
26:0801(95)NG
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.