Nat’l Treasury Employees Union v. Federal Labor Relations Authority (Lawyers Weekly No. 13-01-1220, 18 pp.) (Wilkinson, J.) No. 12-2574, Dec. 6, 2013; On Petition for Review; 4th Cir.
Holding: The 4th Circuit refuses to order the Internal Revenue Service to bargain with representatives of the National Treasury Employees Union over granting probationary employees the right to use grievance procedures under the parties’ collective bargaining act, and affirms the judgment of the Federal Labor Relations Authority.
NTEU asks this court to reverse the FLRA and find its proposal negotiable. We decline to do so because such a decision would ignore both the statutory and regulatory frameworks that Congress and the executive branch have put in place, create a stark circuit split and overturn nearly 30 years of settled public-employee practice.
NTEU’s argument is simple. Because Congress did not exclude probationary employees from the definitions of “employee” and “grievance” in 5 U.S.C. §§ 7103(a)(2), (a)(9), probationary employees are generally covered by the grievance procedure. And because Congress explicitly excluded some disputes from the procedure – such as those over examinations, certifications or appointments, or removals for national security reasons – but did not explicitly exclude disputes over removals generally, probationary employees should be able to grieve such disputes where the removals are alleged to be in violation of statutory rights or procedures.
This reading of the statute runs counter to the whole statutory and regulatory scheme governing probationary employees.
We hold the NTEU’s proposal was contrary to law and regulation and thus outside the IRS’s statutory duty to negotiate. The NTEU’s petition for review is hereby denied.
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