U.S. Dept. of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, AFL-CI

• Decision Date: 10 June 1983
• Docket Number: No. 82-1622,I,AFL-CI,82-1622
• Citation: 709 F.2d 724
• Parties: 113 L.R.R.M. (BNA) 3488, 228 U.S.App.D.C. 285 UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. American Federation of Government Employees,ntervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 724

709 F.2d 724

113 L.R.R.M. (BNA) 3488, 228 U.S.App.D.C. 285

UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent American Federation of Government Employees, AFL-CIO, Intervenor.

No. 82-1622.

United States Court of Appeals District of Columbia Circuit.

Argued March 29, 1983.

Decided June 10, 1983.

Petition for Review of an Order of the Federal Labor Relations authority.

Nicholas S. Zeppos, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and William Kanter, Atty., Dept. of Justice, Washington, D.C., were on brief, for petitioner. Frederick Geilfuss, Atty., Dept. of Justice, Washington, D.C., entered an appearance for petitioner.

William R. Tobey, Atty., Federal Labor Relations Authority, Washington, D.C., for respondent. Steven H. Svartz, Acting Sol., Federal Labor Relations Authority, and Ellen Stern, Atty., Federal Labor Relations Authority, Washington, D.C., were on brief for respondent. Mary Elizabeth Medaglia, Atty., Federal Labor Relations Authority, Washington, D.C., entered an appearance for respondent.

Charles A. Hobbie and James R. Rosa, Washington, D.C., were on brief, for intervenor.

Before WRIGHT and BORK, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

Since the very establishment of the civil service program, Congress has provided ever-increasing procedural protections for government employees who have completed their probationary periods. ¹ Congress has always recognized that written and scholastic tests may not adequately measure the job performance qualifications of prospective federal employees, and has therefore authorized agencies to terminate summarily employees for unsatisfactory work performance or conduct during an initial period of their employment--the probationary term. ² It has, throughout this time, delegated the task of defining and administering the specific probationary term to the President and other officials within the Executive Branch. ³

In passing the Civil Service Reform Act of 1978 (CSRA), ⁴ Congress reaffirmed its unwillingness to provide statutory protections for probationary employees being terminated for unacceptable performance. ⁵ Though it created elaborate procedural protections for employees generally, including a requirement that every collective bargaining agreement between federal agencies and unions contain a negotiated grievance procedure, ⁶ Congress expressly preserved an agency's discretion to remove summarily a probationary employee. In this case we review an order of the Federal Labor Relations Authority (FLRA), respondent, requiring the Immigration and Naturalization Service (INS), petitioner, to bargain over a union ⁷ proposal to bring probationary employees within the mandatory grievance procedures of their collective bargaining agreement. See Decision and Order on Negotiability Issues, 8 FLRA No. 75 (April 6, 1982) (hereinafter FLRA Decision), Appendix (App.) 27a-66a. Because we find the proposal inconsistent with other law, we reverse.

I. BACKGROUND

The factual and procedural history of this appeal is not contested. During contract negotiations between INS and the union, a dispute arose concerning the following union proposal:

Termination of probationary employees shall be grievable on the basis of whether the Service's actions were reasonable and not arbitrary and capricious, notwithstanding any other provision of this Agreement.

FLRA Decision at 20, App. 46a. INS argued that this proposal would interfere with its right to terminate probationary employees summarily and refused to bargain over it. The union believed the proposal to be bargainable subject matter, however, and therefore asked FLRA to resolve the disagreement. ⁸

In its presentation to FLRA, INS urged that the proposal was inconsistent with several provisions in the LMRA and the CSRA. First, it argued that Section 7121(c)(4) of the LMRA--which excludes from any negotiated grievance procedures disputes over "any examination, certification, or appointment"--prohibited bargaining over probationary employees' termination rights. Second, INS contended that the proposal was inconsistent with Sections 3321 and 4303 of the CSRA, which authorize the probationary period and deny probationary employees any statutory appeal rights. Finally, it contended that the proposal conflicted with governing OPM regulations, which deny probationary employees the right to challenge a removal for unacceptable performance, see 5 C.F.R. Secs. 315.805, 315.806 (1983). Underlying each of these arguments was INS' general claim that Congress viewed summary termination of probationary employees as essential to the effective and efficient operation of the service, ⁹ and that the union proposal would undermine the agency's ability early on to discover and terminate unacceptable employees. ¹⁰ FLRA Decision at 28-30, App. 54a-56a.

On April 6, 1982 FLRA concluded that the proposal was a negotiable subject for bargaining. ¹¹ It agreed that the probationary period was a necessary part of the "examining process," but nonetheless reasoned that it was not an "examination" within the meaning of 5 U.S.C. Sec. 7121(c)(4) (Supp. V 1981). FLRA Decision at 26, App. 52a. Moreover, it argued that if Congress had meant to exclude grievances challenging termination of probationary employees from the negotiated grievance procedure, it would have excluded probationary employees from the definitions of "employee" and "grievance" contained in Section 7103(a)(2) and (9). Id. at 27, App. 53a. Further, FLRA noted that Congress, in Section 7121(c)(3), had specifically excluded from the scope of a negotiated grievance procedure a removal based on national security grounds, but had failed similarly to exclude a removal of a probationary employee. Id. at 26, App. 52a. These statutory provisions, along with what FLRA perceived to be congressional silence on the matter, led FLRA to conclude that nothing in the LMRA prohibited negotiations over this proposal.

FLRA likewise concluded that the proposal was not inconsistent with the provision creating the probationary term or with OPM regulations implementing that provision. FLRA reasoned that because an arbitrator evaluating a probationer's termination would apply a less demanding standard of review than that required by statute for review of tenured employees' removal, ¹² and because that burden was on the employee rather than the agency, the proposal maintained some distinction between probationary and nonprobationary employees. Therefore, FLRA believed the proposal was not inconsistent with Section 3321 or the OPM regulations.

INS filed a timely petition for review with this court on April 6, 1982. We accepted jurisdiction pursuant to 5 U.S.C. Sec. 7123(a) (Supp. V 1981).

II. ANALYSIS

The LMRA imposes upon both federal agency management and labor a general obligation to bargain in good faith. 5 U.S.C. Sec. 7117 (Supp. V 1981). It requires the parties to each collective bargaining agreement to negotiate a grievance procedure, including binding arbitration, to settle their disputes. Id. Sec. 7121. LMRA broadly defines the grievances subject to these mandatory grievance procedures, ¹³ but also places specific limits on the matters that may be subject to such procedures. ¹⁴ More generally, it prohibits bargaining over any matters inconsistent with other law. See id. Sec. 7117(a)(1). The Act thus encourages resort to grievance procedures for peaceful resolution of disputes, but preserves for management certain decisions seen as essential to the effective and efficient operation of the service.

The CSRA specifically identifies one such management prerogative--summary termination of probationary employees. ¹⁵ In enacting CSRA Congress left essentially unchanged the provision authorizing a probationary period:

The President may take such action, including the issuance of rules, regulations, and directives, as shall provide * * * for a period of probation--

(1) before an appointment in the competitive service becomes final[.]

5 U.S.C. Sec. 3321 (Supp. V 1981). Congress clearly linked the agency's right to discharge summarily a probationary employee to the probationary period:

The probationary * * * period * * * is an extension of the examining process to determine an employee's ability to actually perform the duties of the position. It is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during this period.

S.Rep. No. 95-969, 95th Cong., 2d Sess. 45 (1978) U.S.Code Cong. & Admin. News 1978, p. 2767 (emphasis added).

To implement CSRA, Congress assigned OPM the task of assisting the President in preparing rules concerning probationary employees. 5 U.S.C. Secs. 1301-1302 (Supp. V 1981). Pursuant to this authority, OPM issued rules defining the probationary term, see 5 C.F.R. Sec. 315.802(a) (1983), and provided for written notice and a brief statement of reasons in the event of a termination for unacceptable performance or conduct, see id. Secs. 315.804, 315.806. ¹⁶ But OPM regulations do not provide for any internal agency review of terminations or for any review by OPM itself.

In stark contrast to the limited protections Congress and OPM afforded probationary employees are the elaborate procedural protections available to those who have completed their probationary terms. Section 4303 provides that a nonprobationary employee who is removed from the job because of unacceptable performance has a right to: 30 days notice of the removal stating the specific reasons therefor, a reasonable time to answer and offer evidence in support of the answer, legal representation, and a written decision which specifies the instances of unacceptable performance. 5 U.S.C. Sec. 4303(b)(1)(A)-(D) (Supp. V 1981)....