                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2574


NATIONAL TREASURY EMPLOYEES UNION,

                Petitioner,

           v.

FEDERAL LABOR RELATIONS AUTHORITY,

                Respondent.



On Petition for Review of an         Order    of   the    Federal   Labor
Relations Authority. (0-NG-3158)


Argued:   October 29, 2013                  Decided:     December 6, 2013


Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.


Petition denied by published opinion. Judge Wilkinson wrote the
opinion, in which Chief Judge Traxler and Judge Floyd joined.


ARGUED: Peyton H.N. Lawrimore, NATIONAL TREASURY EMPLOYEES
UNION, Washington, D.C., for Petitioner. Zachary Robert Henige,
FEDERAL   LABOR  RELATIONS  AUTHORITY,  Washington,  D.C.,  for
Respondent.   ON BRIEF: Gregory O'Duden, General Counsel, Larry
J. Adkins, Deputy General Counsel, NATIONAL TREASURY EMPLOYEES
UNION, Washington, D.C., for Petitioner.       Rosa M. Koppel,
Solicitor, FEDERAL LABOR RELATIONS AUTHORITY, Washington, D.C.,
for Respondent.
WILKINSON, Circuit Judge:

       The    National    Treasury       Employees       Union    (NTEU)     sought   to

amend    its    collective    bargaining         agreement       with   the   Internal

Revenue Service (IRS) to permit probationary employees to use

the     agreement’s      grievance       procedures       to     challenge     removals

alleged to be in violation of statutory rights or procedures.

The IRS refused to negotiate over NTEU’s proposal on the grounds

that    the    proposal   would    grant        probationary      employees     greater

procedural      protections       than    were      authorized      under     law     and

regulation.        NTEU    appealed       to     the   Federal      Labor     Relations

Authority (FLRA), which held for the IRS.                      NTEU now asks us 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 thirty years of settled public-employee practice.



                                           I.

                                           A.

       Most federal agencies, including the IRS, are required by

law to “negotiate in good faith” with public-sector unions “for

the purposes of arriving at a collective bargaining agreement.”

5   U.S.C.     § 7114(a)(4);      see     also     id.    § 7103(a)(3)        (defining

“agency”); id. § 7116(a)(5) (listing the refusal to negotiate in

                                           2
good faith as an unfair labor practice); NRC v. FLRA, 25 F.3d

229, 231 (4th Cir. 1994).                Such agreements must, subject to

certain    limited         exceptions,       contain          “procedures       for     the

settlement of grievances, including questions of arbitrability.”

5 U.S.C. § 7121(a)(1).          A “grievance” encompasses “any complaint

. . . by any employee concerning any matter relating to the

employment    of     the    employee.”          Id.    § 7103(a)(9).          However,    5

U.S.C. § 7117 limits the good-faith-negotiation requirement to

provisions that are “not inconsistent with any Federal law or

any Government-wide rule or regulation.”                      Id. § 7117(a)(1); see

also NRC, 25 F.3d at 231.

     Within the competitive service -- that part of the civil

service    whose     members     are     generally           selected    by    open     and

competitive     examination,      see    5      U.S.C.    §§ 2102(a)(1),         3304(a),

(b) -- federal law distinguishes between probationary and non-

probationary employees.          5 U.S.C. § 3321 permits the President

to set up a “period of probation” for new employees “before an

appointment     in   the    competitive         service       becomes    final.”        Id.

§ 3321(a).

     The Office of Personnel Management (OPM) is tasked with

establishing the rules for the competitive service.                           Id. § 1301.

Pursuant   to    its   authority,        OPM     has     codified       the    rules    for

probationary       employees     at     5       C.F.R.       part    315,     subpart     H

(§§ 315.801-315.806).            The     rules         set     the   length      of     the

                                            3
probationary period at a non-extendable one year from the start

of    employment,    5      C.F.R.    §§ 315.801(a),           315.802(a),      and      grant

probationary employees some protections against removal, such as

notice of a pending removal and limited rights of appeal to the

Merit    Systems     Protection           Board     (MSPB),         id.   §§ 315.804(a),

315.805,      315.806.         The     rules       do    not     affirmatively           grant

probationary employees the right to grieve removals alleged to

be in violation of statutory rights or procedures.

                                            B.

       NTEU   sought     to    amend      its     existing      collective-bargaining

agreement     with   the      IRS    to    permit       probationary       employees        to

grieve removals where “the grievance is confined to enforcing

the    procedures      or     rights      contained       in    a    statute,      and    any

subsequent     arbitration          decision      is    controlled        solely    by    the

requirements of law and government-wide regulation such that the

arbitrator is merely substituting for the federal authority that

would hear the employee’s challenge.”                     NTEU, 67 F.L.R.A. 24, 24

(2012) (emphasis added).

       The IRS refused to negotiate over NTEU’s proposal, arguing

that it was outside § 7117’s duty to negotiate because it was

“contrary to law and regulation.”                       Id.     The IRS argued that,

based on D.C. Circuit and FLRA precedent, probationary employees

may not grieve removals as a matter of law, and that such a



                                             4
procedure would be contrary to the OPM regulations.                                 Id. at 24-

25.

       NTEU appealed to the FLRA, which ruled in favor of the IRS.

The FLRA cited nearly three decades of FLRA precedent holding

that collective-bargaining proposals violate § 3321 and the OPM

regulations to the extent they “grant probationary employees:

(1)     separation-related              procedural        protections          beyond       those

required by statute or OPM regulations; or (2) the ability to

grieve separation disputes.”                    Id. at 26.            Such proposals thus

fall    outside      of     § 7117’s       good-faith-negotiation                  requirement.

Relying upon two decisions by the D.C. Circuit, NTEU v. FLRA,

848 F.2d 1273 (D.C. Cir. 1988), and INS v. FLRA, 709 F.2d 724

(D.C.    Cir.    1983),      the    FLRA        reasoned       that    while       probationary

employees     have     some       rights    to       challenge        removals      in    certain

administrative        and     judicial          forums,    they        are    authorized         to

“receive      only    minimal       due     process       in    connection          with   their

separation,”         which       does     not     include       the        right    to     grieve

removals.       Id. (internal quotation marks omitted).

       NTEU     appeals      the    FLRA’s       decision.            We   must     uphold      the

decision      “unless       it     is    arbitrary,        capricious,         an       abuse    of

discretion, or otherwise not in accordance with law.”                                    NTEU v.

FLRA, 647 F.3d 514, 517 (4th Cir. 2011).                         NTEU contends that we

should    not    defer       to    the     FLRA’s      interpretations             of    the    OPM

regulations.         It argues that the regulations are outside the

                                                 5
FLRA’s    organic      statute    and    regulatory          domain,   and    are   thus

“beyond the [FLRA’s] special area of expertise.”                          Appellant’s

Br. at 9 (citing Shanty Town Assoc. Ltd. P’ship v. EPA, 843 F.2d

782, 790 n.12 (4th Cir. 1988)).                  The FLRA responds that “[d]ue

deference is paid to an FLRA determination of negotiability,”

Appellee’s Br. at 8 (quoting NRC v. FLRA, 895 F.2d 152, 154 (4th

Cir. 1990)), while the FLRA’s interpretations of law outside its

organic statute and implementing regulations should be followed

“to the extent the reasoning is ‘sound,’” id. (quoting Ass’n of

Civilian Technicians, Tex. Lone Star Chapter 100 v. FLRA, 250

F.3d 778, 782 (D.C. Cir. 2001)).                       We need not entertain the

question   of    the    specific     level       of    deference    the   FLRA    should

receive when interpreting the OPM regulations, however, inasmuch

as we conclude that the FLRA’s interpretation of the relevant

law and regulations was correct.



                                         II.

     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, id. § 7121(c)(4), or removals

                                             6
for national-security reasons, id. § 7121(c)(3); see also id.

§ 7532 –- 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.        See Appellant’s Br. at 10-11.

As we explain below, this reading of the statute runs counter to

the whole statutory and regulatory scheme governing probationary

employees.

                                  A.

     Congress has provided for a probationary period since it

created the modern civil-service system with the 1883 Pendleton

Act, 22 Stat. 403, ch. 27 (amended 1978).       See 22 Stat. 404, ch.

27, § 2(4); see also Kato v. Ishihara, 360 F.3d 106, 113 (2d

Cir. 2004); INS v. FLRA, 709 F.2d 724, 725 n.1 (D.C. Cir. 1983).

Congress’s continuing belief in the importance of a probationary

period was reflected in the passage of the Civil Service Reform

Act of 1978 (CSRA), 5 U.S.C. §§ 7101-7135, which both preserved

the probationary period for new employees and expanded it to

cover new appointments to managerial and supervisory positions.

Compare 5 U.S.C. § 3321 (1976) (authorizing the creation of a

“period of probation before an appointment in the competitive

service   becomes   absolute”),   with   5   U.S.C.   § 3321(a)   (1982)

(authorizing the creation of a probationary period for both new



                                   7
employees      and     appointments        to    managerial       and    supervisory

positions).

        As the term “probationary” implies, employees so designated

are on probation and subject to summary dismissal.                      They are, of

course, just as entitled to be free of illegal or discriminatory

treatment      from      their       employers     as    are      non-probationary

employees, and thus NTEU is correct in arguing that its proposal

“is not designed to provide any substantive legal protections to

probationary employees that do not already exist.”                       Appellant’s

Br. at 19.

        This does not mean, however, that Congress intended for the

same     remedies      to    be     available     to    probationary      and   non-

probationary employees.             See NTEU v. FLRA (NTEU II), 848 F.2d

1273, 1276 (D.C. Cir. 1988).               This is reflected in the numerous

ways    that   the     law   treats       probationary      and   non-probationary

employees differently.            For example, probationary employees are

explicitly     excluded      from    the   protections      against     demotion    or

removal for unacceptable performance under 5 U.S.C. § 4303.                        See

5 U.S.C. § 4303(f)(2).            These protections include written notice

thirty     days   in    advance      of    the    adverse    employment      action,

representation “by an attorney or other representative,” and a

final     written      decision.          Id.    § 4303(b)(1).          Probationary

employees are not afforded the full rights that non-probationary

employees have to appeal a removal or demotion for unacceptable

                                            8
performance       to     the    MSPB.      See       id.        § 4303(e).           Similarly,

probationary employees do not possess the protections granted to

non-probationary employees against removals for such reasons “as

will promote the efficiency of the service.”                            Id. § 7513(a); see

also    id.     § 7511(a)(1)(A)(i).                  As     the        D.C.     Circuit       has

recognized,       “The     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.”              INS, 709 F.2d at 728.

       Numerous        other     courts     have          recognized          the    important

distinction between probationary and non-probationary employees

and Congress’s intention to provide fewer protections to the

former.     See, e.g.,         Bante v. MSPB, 966 F.2d 647, 650 (Fed. Cir.

1992) (“The language of the current statute establishes that

Congress      clearly          intends    review          of      the     termination          of

probationary       employees       be    more       limited       than     that      of    other

employees.”); Booher v. USPS, 843 F.2d 943, 945 (6th Cir. 1988)

(“Congress, in enacting 5 U.S.C. § 7511, did not provide federal

remedies for probationary postal workers nor the full panoply of

administrative         remedies     as    in       the    case     of     non-probationary

workers.”); United States v. Connolly, 716 F.2d 882, 886 (Fed.

Cir.    1983)      (noting        that     “Congress            could     have       permitted

probationers      to     challenge       removals         [in    the    Court       of    Federal

                                               9
Claims], but expressly declined to do so”); Budnick v. MSPB, 643

F.2d     278,     279     n.2    (5th        Cir.           Unit        B    1981)          (per       curiam)

(characterizing           the     “distinction                   between          probationary               and

tenured employees” as “sharp”).

       Congress’s intention to grant probationary employees fewer

procedural protections against removal is clearly expressed in

the    legislative       history        of    the       CSRA.               As    the       Senate       report

explains,       “The     probationary          or           trial       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. 95-969, at 45 (1978).                            NTEU argues that, while this

language might support excluding removals for poor performance

from   the      grievance       procedure,          “it          provides         no    evidence          of    a

congressional           intent     to        prevent             probationers                from        filing

grievances       to     protest     removals                in    violation             of       statutorily

conferred       rights.”         Appellant’s            Br.        at       15.        NTEU’s          position

ignores the real-world result of its proposal: through artful

pleading,       employees       faced        with       a    merit-based               dismissal          could

impose     substantial           costs        on        their          employers             by        alleging

insubstantial          statutory        violations                to        access      the        grievance

procedures.        Thus, NTEU’s proposal would “substantially thwart



                                                   10
Congress’s       intention         to     allow      summary       termination             of

probationary employees.”            NTEU II, 848 F.2d at 1275.

                                           B.

      The Office of Personnel Management is the agency charged

with implementing Congress’s intent.                 See 5 U.S.C. § 1301; INS,

709 F.2d at 725 n.3.               Pursuant to its statutory authority to

administer the competitive service, OPM has issued regulations

regarding the probationary period.                 OPM’s regulations faithfully

reflect     Congress’s       intention      for     the    probationary         program.

Granting probationary and non-probationary employees different

procedural       protections         is     necessary       to        accomplish       the

probationary period’s purpose, which the regulations describe:

“to determine the fitness of the employee and . . . terminate

his services during this period if he fails to demonstrate fully

his   qualifications         for      continued      employment.”           5      C.F.R.

§ 315.803(a).

      In order to balance the rights of probationary employees

against     unlawful       removals       with    the     government’s      need       for

flexibility and discretion in removing them, OPM has explicitly

granted probationary employees a number of protections.                               They

are   entitled      to     written      notification      and    explanation          of    a

dismissal     for        unsatisfactory      performance         or     conduct,           id.

§ 315.804(a),       as     well      as   notice     of    a     proposed       removal,

opportunity      for      reply,    and    notice    and    explanation         for    the

                                           11
removal in cases where the removal is based in whole or in part

on conditions arising before the probationer’s employment, id.

§ 315.805.       Probationary employees also have limited rights of

appeal    to     the   MSPB:     they       may     challenge      removals        based    on

partisan        political      reasons        or        marital      status;        improper

procedures;       or     other        forms        of     discrimination,          if      such

discrimination is accompanied by terminations based on partisan

politics, marital status, or improper procedure.                         Id. § 315.806.

     Two features stand out from this review of OPM regulations

regarding probationary employees.                       First, the regulations are

extensive, encompassing a wide range of disputes and remedial

procedures.       They give probationary employees both fair notice

of removal and the right to appeal those removals in certain

circumstances.            Second,          they      sharply       limit      probationary

employees’      rights    to    challenge          removals.       In   doing      so,     they

preserve a meaningful distinction between probationary and non-

probationary       employees         in    accordance       with     the     language      and

purpose    of    the   statutory          scheme.        The    structure     of    the     OPM

regulations       indicates      that        any        additional      protections         not

explicitly provided for -- such as those in NTEU’s proposal --

would    conflict      with    the    regulations         and    thus   be    outside       the

IRS’s bargaining obligations.

     NTEU      correctly      observes       that       probationary       employees      have

remedial options beyond those granted by OPM.                            See Appellant’s

                                              12
Br. at 16-17.        Indeed, in some contexts their avenues for relief

are much the same as those afforded non-federal employees.                            They

may   file    charges    of    unfair    labor     practices         with    the    FLRA’s

general      counsel,    see    5    U.S.C.      § 7118(a)(1),         and    may    file

complaints      of      discrimination          with     the     Equal       Employment

Opportunity Commission and ultimately in federal court, see 42

U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407.                     The availability of

these remedies, however, does not imply the permissibility of

other remedies, among which is NTEU’s proposed expansion of the

grievance     procedure. *      In     sum,     Congress       has   clearly       granted

certain remedies to all employees, including probationary ones.

By    contrast,      Congress       refrained     from     granting         probationary

employees the right to grieve removals in violation of statutory

rights or procedures, thereby giving OPM, which prescribes the

rules for the competitive service, the discretion whether or not

to grant such a right.                If we were to step in and declare

proposals to grieve such allegations negotiable, when neither


      *
       NTEU cites the Supreme Court’s recognition of a “liberal
federal policy favoring arbitration agreements” to support its
position.      Appellant’s  Br.   at  24   (quoting  Gilmer   v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991)); see also
id. at 24-25 (citing pro-arbitration language in 14 Penn Plaza
LLC v. Pyett, 556 U.S. 247 (2009)). But that general principle,
articulated in a case between private parties under a different
statute and having nothing to do with the unique employment
status of federal probationary employees, can hardly require a
federal agency to negotiate over a proposal that, as here, would
clearly violate law and regulation.


                                          13
Congress nor OPM has done so, we would risk unraveling what, by

any measure, is a meticulously crafted statutory and regulatory

scheme.



                                        III.

     We are not the first court to arrive at this outcome.                     The

District of Columbia Circuit addressed this issue in a pair of

cases more than twenty-five years ago.                    It came to the same

result we arrive at today, and we find no reason to quarrel with

or depart from its conclusions.

     The    D.C.    Circuit     first     addressed      the    availability    of

grievance    procedures       for   probationary         employees   challenging

removals in INS v. FLRA, 709 F.2d 724 (D.C. Cir. 1983).                   In that

case, the INS labor union proposed that probationary employees

be able to grieve all removals on the basis of whether they were

“reasonable and not arbitrary and capricious.”                  INS, 709 F.2d at

726 (internal quotation marks omitted).               The FLRA had ruled that

permitting probationary employees to grieve terminations would

not violate the statutory scheme, and thus that INS was required

to negotiate over the proposal.               In reversing the FLRA, the D.C.

Circuit    emphasized   Congress’s       intent     to    provide    probationary

employees    with    fewer     protections        against      removal   and   the

incompatibility of the union’s proposal with that goal.                   See id.

at 728-29.     As have we, it quoted from the Senate report in

                                         14
concluding that Congress did not intend to impede the ability of

managers to summarily dismiss probationary employees.                        See id.

at 727-28.

      The court revisited the issue five years later, in NTEU v.

FLRA (NTEU II), 848 F.2d 1273 (D.C. Cir 1988).                       In that case,

NTEU had proposed a provision, very similar to the one at issue

here, allowing probationary employees to grieve removals that

were “the product of unlawful discrimination.”                       NTEU II, 848

F.2d at 1274 (emphasis and internal quotation marks omitted).

The   D.C.     Circuit   again     rejected     the    proposed      expansion    of

probationary employees’ grievance rights.                  It held, as it had in

INS, that Congress’s failure to exclude probationary employees

from the definitions of “employee” and “grievance” in 5 U.S.C.

§ 7103(a) did not imply that probationary employees could grieve

removals alleged to be discriminatory.                     Instead, it read the

relevant     sections        against   the      background      of     “Congress’s

expressed intent for the probationary period,” which included

“agencies’ right to fire probationers with minimal procedural

obstacles.”     Id. at 1276.

      While accepting INS, NTEU argues that NTEU II was wrongly

decided.     It bases its criticism of NTEU II in large part on the

claim   that    the   NTEU    II   court    failed    to    consider   the    Senate

report language that underlay the INS decision.                        NTEU argues

that this language was limited to removals for poor performance

                                           15
rather than those alleged to be in violation of statutory rights

or procedures.         See Appellant’s Br. at 15.                But, as we have

already explained, see ante at 10, this argument ignores the

reality      that    permitting     probationary          employees       to     grieve

removals based on a mere allegation of violation of statutory

rights or procedures would eviscerate the entire purpose of the

probationary program.

       We    agree   fully   with    the       approach    and       outcome    of    the

aforementioned opinions, as have several of our sister circuits.

See Yates v. Dep't of the Air Force, 115 F. App'x 57, 58-59

(Fed. Cir. 2004) (per curiam) (quoting INS approvingly); HHS v.

FLRA, 858 F.2d 1278, 1284-85 (7th Cir. 1988) (citing INS and

NTEU    II    approvingly).         But     even    were       our    judgment       more

ambivalent,      there    would   be      costs    in   this     area     to    holding

differently and creating a circuit split.                  To give probationary

employees different procedural rights depending on the circuit

in which they live or work would create confusion and inequity

in     the   federal     civil    service.          See    5     U.S.C.        § 7123(a)

(permitting appeals of FLRA orders in the circuit “in which the

person resides or transacts business”).                 Nothing in law commands

such disregard of practicality, and the practical drawbacks of

petitioner’s position are substantial.




                                          16
                                            IV.

      Finally, the issue of administrative precedent counsels in

favor of upholding the FLRA.                  NTEU would have us upset nearly

thirty     years      of    FLRA      decisions     holding         that       probationary

employees are not permitted under law or regulation to grieve

removals.          See,    e.g.,    NFFE,   Local      29,    20    F.L.R.A.      788,     790

(1985);    SSA,      14    F.L.R.A.    164,    164-65        (1984).       The    FLRA     has

reasserted         this    holding     numerous        times       since       those    early

decisions.         See, e.g., NTEU Chapter 103, 66 F.L.R.A. 416, 418

(2011); NTEU, 45 F.L.R.A. 696, 718 (1992).

      The uniform course of court and agency decisions has made

it clear for decades that probationary employees cannot grieve

separation         disputes,     including       those    alleging         violations      of

statutory      rights       or     procedures.           Both      Congress       and     OPM

understand this and have taken no action over these many years

to   change    this       reality.      There     is     value     in    having        settled

practice    remain        settled     practice,     especially          when    the     bodies

that have every right to change it have made no move to do so.



                                            V.

      For the foregoing reasons, we hold that NTEU’s proposal was

contrary      to    law    and     regulation     and    thus      outside       the     IRS’s




                                            17
statutory duty to negotiate.   The NTEU’s petition for review is

hereby denied.

                                                 PETITION DENIED




                               18
