National Treasury Employees Union v. Federal Labor Relations Authority, No. 12-2574
Decided: December 6, 2013
The Fourth Circuit held that the National Treasury Employees Union (“NTEU”) could not amend its collective bargaining agreement with the Internal Revenue Service (“IRS”) to provide additional grievance procedures that would allow “probationary employees” to challenge removals alleged to be in violation of statutory rights or procedures. The court found that allowing such procedures would violate the statutory and regulatory framework that Congress created to govern its civil service, create an inequitable circuit split, and overturn precedent.
In the federal government’s civil service, new employees go through a one-year “period of probation.” During this “probationary period” employees are subject to summary dismissal if they do not meet the qualifications of the position. While these probationary employees have some protections from dismissal, they are afforded far fewer protections than non-probationary (i.e. tenured) employees. The Office of Personnel Management (“OPM”) has codified the rules for probationary employees. The rules do not affirmatively grant probationary employees the right to grieve removals alleged to be in violation of statutory rights or procedures. Arguing that this grievance procedure was not specifically foreclosed by the OPM rules, NTEU sought to amend its collective bargaining agreement with the IRS to extend probationary employees’ rights to grieve such removals. The IRS refused, arguing that probationary employees may not grieve such removals as a matter of law, and that allowing such a grievance procedure would be in violation of OPM regulations. NETU appealed to the Federal Labor Relations Authority (“FLRA”), which agreed with the IRS. NETU appealed the FLRA’s decision to the Fourth Circuit.
On appeal, the Fourth Circuit agreed with the FLRA and the IRS. First, the court explained that while probationary employees have many statutory and procedural rights guaranteed by law, Congress did not intend that the same remedies be available to probationary and non-probationary employees. In fact, Congress enumerates far more rights afforded to non-probationary employees regarding removal or demotion. Furthermore, the legislative history of federal Civil Service laws emphasize Congress’ intention to afford fewer procedural protections against removal to probationary employees to allow for summary removal procedures. Second, OPM regulations accurately reflect Congress’ intention for the probationary period for new employees “to determine the fitness of the employee.” While OPM regulations afford a number of protections to probationary employees, including notice and the opportunity for an appeal, those protections are lesser than non-probationary employees. The Fourth Circuit concluded that any decision contrary to OPM regulations would “risk unraveling what, by any measure, is a meticulously crafted statutory and regulatory scheme.” Third, other circuits examining the issue reached the same result. The Fourth Circuit decided that declining to follow other circuits would “create confusion and inequity in the federal civil service” by giving employees different procedural rights depending on the circuit where they work. Finally, administrative precedent also counsels in favor of holding that probationary employees are not permitted under law or regulation to grieve removals. Therefore, the Fourth Circuit upheld the FLRA’s decision to deny additional grievance procedures to probationary employees.
– Wesley B. Lambert