709 F.2d 724 | D.C. Cir. | 1983
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
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.
In passing the Civil Service Reform Act of 1978 (CSRA),
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.
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. §§ 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,
On April 6, 1982 FLRA concluded that the proposal was a negotiable subject for bargaining.
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,
INS filed a timely petition for review with this court on April 6, 1982. We accepted jurisdiction pursuant to 5 U.S.C. § 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. § 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. § 7121. LMRA broadly defines the grievances subject to these mandatory grievance procedures,
The CSRA specifically identifies one such management prerogative — summary termination of probationary employees.
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. § 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*289 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. §§ 1301-1302 (Supp. Y 1981). Pursuant to this authority, OPM issued rules defining the probationary term, see 5 C.F.R. § 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. §§ 315.804, 315.806.
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. § 4303(b)(l)(A)-(D) (Supp. V 1981). Furthermore, if the decision is to remove the employee, that employee may seek to set aside the removal by appealing to the Merit Systems Protection Board (MSPB). Id. § 4303(e). MSPB must then set aside the agency’s decision if it is not supported by substantial evidence. Id. § 7701(c)(1)(A).
The union proposal in this case would provide precisely what Congress would not. Under this proposal an agency would no longer have the right to terminate summarily a probationary employee for unacceptable work performance or conduct. Rather, after an agency decides to terminate a probationary employee, that employee could file a grievance challenging the agency’s decision. Since LMRA mandates that all negotiated grievance procedures provide for binding arbitration,
Such a procedure, with its concomitant second-guessing of the agency’s decision, is flatly inconsistent with OPM’s regulations and undermines the scheme Congress envisioned when it excluded probationary em
FLRA recognized the tension between its decision and the OPM regulations. But it reasoned that no real conflict exists because the union proposal gives probationary employees procedural protections different from those of nonprobationary employees regarding termination for unacceptable work performance. FLRA Decision at 27, App. 53a. FLRA argues that under this proposal a probationary employee can prevail only if he or she demonstrates that the removal was “arbitrary and capricious,” whereas under the statute the agency must satisfy either a “substantial evidence” or a “preponderance of the evidence” test to remove a tenured employee, see 5 U.S.C. § 7701(c)(1)(A), (B) (Supp. V 1981). FLRA Decision at 27, App. 53a. Moreover, it notes that under this proposal probationary employees bear the burden of proving wrongful termination, whereas under the statute the burden is on the agency seeking to remove the tenured employee. Id.
But the issue is not whether the proposal-provides different protections. To the contrary, the crucial issue is whether Congress intended to allow any shackles whatever to be placed on agency decisions concerning termination of probationary employees for unacceptable work performance or conduct. We think that Congress affirmatively preserved the agencies’ right to discharge summarily a probationary employee for unacceptable work performance.
FLRA further argues that “the clear intent to deny probationers access to statutory appeals procedures carries no persuasive inference of a similar intent with respect to negotiated grievance and arbitration procedures under the Statute.” FLRA Decision at 27, App. 53a. This argument overlooks the very reason why Congress denied statutory appeal rights to probationers: to preserve the agencies’ discretion to separate a probationer who performs unacceptably. A grievance/arbitration procedure-entails the same type of after-the-fact review and limitation on an agency’s decision as do the
In short, FLRA usurps the authority Congress conferred on OPM when it orders INS to bargain over a subject inconsistent with OPM regulations. Moreover, FLRA undermines the very program that Congress wished to create in doing so. Since LMRA specifically prohibits FLRA from ordering agencies to bargain over subjects inconsistent with other law, see 5 U.S.C. § 7117(a)(1) (Supp. V 1981), we reverse.
III. Conclusion
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. We detect no retreat from this position in the Civil Service Reform Act of 1978 or in the OPM regulations that implement the congressional mandate.
So ordered.
. In 1883 Congress enacted the Pendleton Act to regulate the federal civil service. See 22 Stat. 403 (1883). The. original Pendleton Act included a provision requiring completion of a probationary period before final appointment to the service. 22 Stat. 404, ch. 27, § 2(2), (4) (1883).
In 1966, as part of its general recodification of Title 5 of the United States Code, Congress renumbered the probationary period provision. See 5 U.S.C. § 3321 (1966). It made no pertinent changes in the coverage of the provision.
. See S.Rep. No. 47-576, 47th Cong., 1st Sess. 7-9 (1881); S.Rep. No. 95-969, 95th Cong., 2d Sess. 45 (1978), U.S.Code Cong. & Admin.News 1978, p. 2723.
. See 22 Stat. 403, ch. 27, § 2(1) (1883); 5 U.S.C. § 3321 (1970). Originally, the Civil Service Commission (CSC) had primary responsibility for specifying the conditions of probationary employment. 22 Stat. 403, supra; 5 U.S.C. §§ 1301, 1302 (1970). CSC defined the probationary period to be a year, see 5 C.F.R. § 315.802(a) (1977), and established limited procedural protections for such employees, see id. §§ 315.804, 315.806(a). The responsibility has now been transferred to the Office of Personnel Management (OPM). See 5 U.S.C. §§ 1101, 1201 (Supp. V 1981).
. Pub.L. No. 95-454, 92 Stat. 1111 (1978). As part of its overall reform of the civil service system, Congress also passed the Federal Service Labor-Management Relations Act, 5 U.S.C. § 7101 et seq. (Supp. V 1981) (LMRA).
. See, e.g., 5 U.S.C. §§ 4303, 7511, 7701 (Supp. V 1981).
. 5 U.S.C. § 7121(a)(1) (Supp. V 1981). These grievance procedures must ensure, among other things, that a union has the right to present and process grievances of employees in the bargaining unit, id. § 7121(b)(3)(A), and further that any grievance not satisfactorily settled under the grievance procedure can be subjected to binding arbitration. Id. § 7121(b)(3)(C). However, Congress created specific exceptions to the matters that may be subjected to the grievance procedures. See, e.g., id. §§ 7106(a), 7117, 7121(c).
. The union involved in this case is the American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council.
. 5 U.S.C. § 7105(a)(2)(E) (Supp. V 1981) gives FLRA authority to resolve disputes relating to negotiability.
. The courts have frequently discussed Congress’ recognition of this principle. See, e.g., Jaeger v. Freeman, 410 F.2d 528, 531 (5th Cir. 1969); Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966); Semaan v. Mumford, 335 F.2d 704 (D.C.Cir.1964).
. All parties to this case agree that all employees — probationary or not — alleging certain kinds of invidious discrimination (e.g., race, sex, national origin, etc.) are afforded specific procedural protections. See 5 C.F.R. §§ 315.-805, 315.806 (1983).
. Throughout its decision FLRA relied heavily upon its prior opinion in Nat’l Council of Field Labor Locals of American Federation of Gov’t Employees, AFL-CIO, and U.S. Dep’t of Labor, No. 0-AR-60, 4 FLRA No. 51 (Sept. 30, 1980), App. 19a-26a.
. The proposal provided for the “arbitrary and capricious” standard of review, whereas the statute provides for “substantial evidence” or “preponderance of the evidence” review. See 5 U.S.C. § 7701(c)(1)(A), (B) (Supp. V 1981).
. Section 7103(a)(9) defines “grievance” to include, among other things, “any complaint * * by any employee concerning any matter relating to the employment of the employee” and any complaint “by any labor organization concerning any matter relating to the employment of any employee.” 5 U.S.C. § 7103(a)(9) (Supp. V 1981).
. Section 7121(c) excludes from the coverage of any negotiated grievance procedure:
(1)any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities);
(2) retirement, life insurance, health insurance;
(3) a suspension or removal under section 7532 of this title;
(4) any examination, certification, or appointment; or
(5) the classification of any position which does not result in the reduction in grade or pay of an employee.
5 U.S.C. § 7121(c) (Supp. V 1981).
.Indeed, Congress demonstrated its confidence in the need for a probationary period by amending § 3321 to provide that rules may be adopted to require even supervisors to serve a probationary term. See 5 U.S.C. § 3321(b)(2) (Supp. V 1981).
. These rules and regulations are essentially identical with those that had previously been established by CSC. See generally note 3 supra.
. These statutory procedures mirror the rights that existed prior to the CSRA. See 5 U.S.C. §§ 7501-7512 (1970).
. Prior to the CSRA probationary employees also did not have any hearing or appeal rights. See 5 U.S.C. §§ 7511(1), 7701 (1970).
. 5 U.S.C. § 7121 (Supp. V 1981).
. OPM made this argument in an amicus brief to FLRA, but the argument was rejected.
. FLRA’s attempted reconciliation of the two statutes is not entitled to any deference. Its reconciliation involves interpreting a statutory provision not within its enabling statute — a provision not within its expertise. Hence we need not defer to it. Library of Congress v. FLRA, 699 F.2d 1280, 1286 n. 29 (1983); accord, California Nat’l Guard v. FLRA, 697 F.2d 874 (9th Cir.1983); N.J. Air Nat’l Guard v. FLRA, 677 F.2d 276 (3d Cir.), cert. denied sub nom. AFGE v. N.J. Air Nat’l Guard, -U.S. -, 103 S.Ct. 343, 74 L.Ed.2d 384 (1982).
.Thus we reject FLRA’s assertion that because Congress did not exclude probationary employees from the broad definitions of “employee,” see 5.U.S.C. § 7103(a)(2) (Supp. V 1981), and “grievance,” see id. § 7103(a)(9), it must have intended to permit negotiation over termination of probationary employees. Determination of negotiability issues cannot be resolved by mere reference to the broad definitional provisions in the statute. Section 3321 and the OPM regulations have a long history in our law, see notes 1-3 supra and accompanying text, and we believe Congress would have been much more explicit had it meant to alter the practice embodied in this history.
. Because we find the union proposal inconsistent with 5 U.S.C. § 3321 (Supp. V 1981) and 5 C.F.R. §§ 315.805, 315.806 (1983), we need express no view concerning the consistency of the union proposal with 5 U.S.C. § 7121(c)(4) (Supp. V 1981) or id. § 7106(a) & (b).