[ v02 p153 ]
02:0153(16)NG
The decision of the Authority follows:
2 FLRA No. 16
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1999
(Union)
and
ARMY-AIR FORCE EXCHANGE SERVICE,
DIX-MCGUIRE EXCHANGE,
FORT DIX, NEW JERSEY
(Activity)
Case No. 0-NG-20
DECISION ON NEGOTIABILITY ISSUES
UNION PROPOSAL I
ARTICLE 7, SECTION 12
IN THE EVENT OF A DISCIPLINARY SUSPENSION OR REMOVAL, THE GRIEVANT
WILL EXHAUST THE REVIEW
PROVISIONS CONTAINED IN THIS AGREEMENT BEFORE THE SUSPENSION OR
REMOVAL IS EFFECTUATED, AND
THE EMPLOYEE WILL REMAIN IN A PAY STATUS UNTIL A FINAL DETERMINATION
IS RENDERED. /2/
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL ESTABLISHES A NEGOTIABLE
PROCEDURE, UNDER SECTION 7106(B)(2), WHICH MANAGEMENT OFFICIALS WILL
OBSERVE IN EXERCISING THE AUTHORITY TO SUSPEND OR REMOVE EMPLOYEES UNDER
SECTION 7106(A)(2)(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE). /2/
OPINION
CONCLUSION: THE UNION'S PROPOSAL ESTABLISHES A NEGOTIABLE PROCEDURE
UNDER SECTION 7106(B)(2) OF THE STATUTE. ACCORDINGLY, PURSUANT TO
SECTION 2424.8 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED.REG.
44740 ET SEQ.(1979)), THE AGENCY'S ALLEGATION THAT THE UNION'S PROPOSAL
IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE. /3/
REASONS: THE UNION'S PROPOSAL PROVIDES, ESSENTIALLY, THAT AN
EMPLOYEE THE AGENCY HAS DECIDED TO DISCIPLINE BY SUSPENSION OR REMOVAL
MAY NOT ACTUALLY BE SUSPENDED OR REMOVED PENDING COMPLETION OF THE
CONTRACTUAL GRIEVANCE PROCEDURE, INCLUDING ARBITRATION. THE AGENCY'S
BASIC POSITION IS THAT THE UNION'S PROPOSAL IS NONNEGOTIABLE BECAUSE THE
PROCEDURE IT CREATES WOULD UNREASONABLY DELAY THE EXERCISE OF THE
AGENCY'S AUTHORITY UNDER SECTION 7106(A)(2)(A) OF THE STATUTE TO SUSPEND
AND REMOVE EMPLOYEES. THE AGENCY'S POSITION, HOWEVER, IS WITHOUT
SUPPORT IN THE LEGISLATIVE HISTORY OF THE STATUTE.
SECTION 7106 OF THE STATUTE SPECIFIES, IN SUBSECTION (A), VARIOUS
RIGHTS RESERVED TO AGENCY MANAGEMENT. SECTION 7106(B)(2), HOWEVER,
PROVIDES THAT THE ENUMERATION OF THE SPECIFIED MANAGEMENT RIGHTS IN
SUBSECTION (A) DOES NOT PRECLUDE THE NEGOTIATION OF PROCEDURES WHICH
MANAGEMENT WILL OBSERVE IN EXERCISING THOSE RIGHTS. THE LEGISLATIVE
HISTORY OF THE STATUTE, AS IT PERTAINS TO SUBSECTION (B)(2), REVEALS,
FIRST TO ALL, THAT THE COMMITTEE ON CONFERENCE, IN ADOPTING THE BILL
WHICH SUBSEQUENTLY WAS ENACTED BY CONGRESS AND SIGNED INTO LAW BY THE
PRESIDENT, SPECIFICALLY REJECTED A PROVISION OF THE SENATE BILL (S.
2640) WHICH PROVIDED THAT NEGOTIATION ON PROCEDURES SHOULD NOT
"UNREASONABLY DELAY" SO AS TO "NEGATE" THE EXERCISE OF MANAGEMENT'S
RESERVED RIGHTS. /4/ THE CONCLUSION IS JUSTIFIED, THEREFORE, THAT
CONGRESS DID NOT INTEND SUBSECTION (B)(2) TO PRECLUDE NEGOTIATION ON A
PROPOSAL MERELY BECAUSE IT MAY IMPOSE ON MANAGEMENT A REQUIREMENT WHICH
WOULD DELAY IMPLEMENTATION OF A PARTICULAR ACTION INVOLVING THE EXERCISE
OF A SPECIFIED MANAGEMENT RIGHT. RATHER, AS THE CONFERENCE REPORT
INDICATES, SUBSECTION (B)(2) IS INTENDED TO AUTHORIZE AN EXCLUSIVE
REPRESENTATIVE TO NEGOTIATE FULLY ON PROCEDURES, EXCEPT TO EXTENT THAT
SUCH NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM ACTING AT ALL.
/5/ THAT IS, INSOFAR AS IT IS CONSISTENT WITH THE RIGHT OF MANAGEMENT
ULTIMATELY TO ACT, CONGRESS INTENDED THE PARTIES TO WORK OUT THEIR
DIFFERENCES WITH REGARD TO PROCEDURES IN NEGOTIATIONS. /6/
SINCE CONGRESS HAS CLEARLY REJECTED THE GROUNDS FOR NONNEGOTIABILITY
ASSERTED BY THE AGENCY, IT ONLY REMAINS TO BE DETERMINED WHETHER THE
PROPOSAL AT ISSUE HEREIN CONTRAVENES THE LIMITATIONS CONGRESS DID PLACE
ON THE NEGOTIATION OF PROCEDURES UNDER SECTION 7106(B)(2). THAT IS, THE
BASIC ISSUE IS WHETHER A PROCEDURAL REQUIREMENT THAT THE AGENCY HOLD IN
ABEYANCE IMPLEMENTATION OF THE SUSPENSION OR REMOVAL OF AN EMPLOYEE
UNTIL THAT EMPLOYEE EXHAUSTS THE NEGOTIATED GRIEVANCE AND ARBITRATION
PROCEDURES WOULD PREVENT THE AGENCY FROM EXERCISING AT ALL ITS STATUTORY
RIGHT TO SUSPEND OR REMOVE EMPLOYEES. CLEARLY IT WOULD NOT: THE
PROCEDURAL REQUIREMENT ESTABLISHED BY THE PROPOSAL RELATES ONLY TO WHEN
THE SUSPENSION OR REMOVAL MAY BE EFFECTUATED, NOT TO WHETHER THE AGENCY
ULTIMATELY WILL BE ABLE TO IMPLEMENT THOSE ACTIONS. IN THIS RESPECT,
THE ONLY FORESEEABLE EFFECT OF THIS PROCEDURAL REQUIREMENT UPON THE
EXERCISE OF THE STATUTORY MANAGEMENT RIGHTS INVOLVED IS THE POSSIBILITY
OF DELAY AND, AS INDICATED ABOVE, CONGRESS REJECTED THE STANDARD OF
"UNREASONABLE DELAY" AS THE SOLE BASIS FOR EXCLUDING PROPOSED PROCEDURES
FROM NEGOTIATIONS. THEREFORE, THE FACT THAT THE PROPOSAL AT ISSUE
HEREIN, UNLIKE THAT IN NATIONAL TREASURY EMPLOYEES UNION, CHAPTERS 103
AND 111 AND U.S. CUSTOMS SERVICE, REGION VII, CASE NO. O-NG-16, DECIDED
IN CONJUNCTION WITH THE INSTANT CASE, CONTAINS NO TIME LIMITS GOVERNING
THE VARIOUS ASPECTS OF THE ARBITRATION PROCESS CONSTITUTES NO IMPEDIMENT
UNDER THE STATUTE TO A FINDING THAT THE PROPOSAL IS NEGOTIABLE. FIRST
OF ALL, THE ABSENCE OF SUCH TIME LIMITS IN THE INSTANT PROPOSAL DOES NOT
IN AND OF ITSELF JUSTIFY THE CONCLUSION THAT COMPLIANCE WITH THE
PROPOSAL WOULD PREVENT THE AGENCY FROM EFFECTUATING A SUSPENSION OR
REMOVAL ACTION. MOREOVER, THE AGENCY HAS NOT SHOWN THAT UNDER THE
PARTICULAR CIRCUMSTANCES PRESENT IN THE BARGAINING UNIT INVOLVED IN THIS
CASE, COMPLIANCE WITH THE DISPUTED PROPOSAL WOULD MAKE IT IMPOSSIBLE FOR
THE AGENCY TO IMPLEMENT SUCH DISCIPLINARY ACTIONS. FOR THESE REASONS,
THEREFORE, THE PROCEDURAL REQUIREMENT IN QUESTION IS WITHIN THE DUTY TO
BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
THIS RESULT IS CONSISTENT WITH AND IMPLEMENTS THE INTENT OF CONGRESS
AS TO THE SIGNIFICANCE OF THE PROVISIONS OF TITLE VII WITH RESPECT TO
THE CIVIL SERVICE REFORM ACT AS A WHOLE. CONGRESS ENACTED THE CIVIL
SERVICE REFORM ACT IN ORDER TO PROVIDE INCREASED MANAGEMENT AUTHORITY,
AMONG OTHER THINGS, TO HIRE AND TO DISCIPLINE EMPLOYEES. /7/ HOWEVER,
CONGRESS ALSO RECOGNIZED THE NEED TO PROVIDE PROTECTIONS FOR EMPLOYEES
TO BALANCE THIS INCREASED MANAGEMENT PREROGATIVE. THE GRIEVANCE AND
ARBITRATION PROVISIONS OF TITLE VII, AS WELL AS THE PROVISION PERMITTING
AGENCIES AND LABOR ORGANIZATIONS TO NEGOTIATE FULLY ON PROCEDURES, ARE
AMONG THE MEANS CONGRESS UTILIZED TO PROVIDE SUCH PROTECTION FOR
EMPLOYEES. BY ITS DECISION HEREIN THE AUTHORITY GIVES FULL EFFECT TO
THIS CONGRESSIONAL INTENT.
ON THE OTHER HAND, OF COURSE, THIS DECISION DOES NOT REPRESENT A
JUDGMENT AS TO THE DESIRABILITY OF THE DISPUTED ASPECT OF THE PROPOSAL
AS A MATTER OF SOUND LABOR RELATIONS PRACTICE. /9/ SIMILARLY, IT DOES
NOT REQUIRE THE AGENCY TO AGREE TO THE PROPOSAL. IT DOES MEAN, HOWEVER,
THAT AN AGENCY MUST ACHIEVE THROUGH NEGOTIATIONS THE PROCEDURAL
CERTAINTY AND ASSURANCE IT DETERMINES THAT IT NEEDS.
IN PARTICULAR, WITH RESPECT TO THE PROCEDURES GOVERNING THE EXERCISE
OF STATUTORY MANAGEMENT RIGHTS, THE STATUTE, IN SECTION 7106(B)(2),
GIVES THE PARTIES LATITUDE TO NEGOTIATE THE PROVISIONS EACH DEEMS
NECESSARY. THAT IS THE CLEAR IMPORT OF THE RELEVANT PORTION OF THE
CONFERENCE COMMITTEE REPORT PREVIOUSLY ADVERTED TO WHICH STATES THAT
LABOR ORGANIZATIONS SHOULD NOT BE PREVENTED UNDER SECTION 7106(B)(2)
FROM NEGOTIATING FULLY ON PROCEDURES. /10/ THE RESULT HEREIN GIVES
EXPRESSION TO THE INTENT OF CONGRESS, AS SET FORTH IN THE RELEVANT
LEGISLATIVE HISTORY OF THE STATUTE, THAT THE PARTIES NOT BE PREVENTED
FROM EXPLORING IN NEGOTIATIONS A WIDE RANGE OF POSSIBLE PROCEDURAL
ARRANGEMENTS AND FROM REACHING AGREEMENT ON THOSE WHICH ARE MUTUALLY
SATISFACTORY.
UNION PROPOSAL II
ARTICLE 13, SECTION 2
THE PHRASE "OTHER RELATED DUTIES AS ASSIGNED," AS USED IN JOB
DESCRIPTIONS, MEANS DUTIES
RELATED TO THE BASIC JOB. THIS PHRASE WILL NOT BE USED TO REGULARLY
ASSIGN WORK TO AN
EMPLOYEE WHICH IS NOT REASONABLY RELATED TO HIS BASIC JOB
DESCRIPTION.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL WOULD VIOLATE SECTION
7106(A)(2)(B) OF THE STATUTE. /11/
OPINION
CONCLUSION: THE SUBJECT PROPOSAL DOES NOT CONFLICT WITH SECTION
7106(B)(2)(B) OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.8
OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED. REG. 44740 ET
SEQ.(1979)), THE AGENCY'S ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT
WITHIN THE DUTY TO BARGAIN IS SET ASIDE. /12/
REASONS: THE UNION'S PROPOSAL WOULD PREVENT THE AGENCY FROM USING
THE TERM "OTHER RELATED DUTIES AS ASSIGNED" IN AN EMPLOYEE'S POSITION
DESCRIPTION TO ASSIGN THE EMPLOYEE, ON A REGULAR BASIS, DUTIES WHICH ARE
NOT REASONABLY RELATED TO HIS OR HER POSITION DESCRIPTION. THE AGENCY
ALLEGES THAT THIS PROPOSAL WOULD AFFECT ITS AUTHORITY TO ASSIGN WORK IN
VIOLATION OF THE STATUTE. HOWEVER, IT WOULD APPEAR, BOTH FROM THE
LANGUAGE OF THE PROPOSAL AND THE UNION'S INTENT AS STATED IN THE RECORD,
THAT THE AGENCY HAS MISUNDERSTOOD THE EFFECT OF THE PROPOSAL. THAT IS,
THE PLAIN LANGUAGE OF THE UNION'S PROPOSAL CONCERNS AGENCY MANAGEMENT'S
USE OF EMPLOYEE POSITION DESCRIPTIONS IN CONNECTION WITH THE ASSIGNMENT
OF WORK, NOT, AS THE AGENCY ARGUES, THE ASSIGNMENT OF WORK ITSELF.
UNDER FEDERAL PERSONNEL REGULATIONS, A POSITION DESCRIPTION IS A
WRITTEN STATEMENT OF THE DUTIES AND RESPONSIBILITIES ASSIGNED TO A
POSITION. IT IS THE OFFICIAL RECORD OF, AMONG OTHER THINGS, THE WORK
THAT IS TO BE PERFORMED BY THE INCUMBENT OF THE POSITION, THE LEVEL OF
SUPERVISION REQUIRED, AND THE QUALIFICATIONS NEEDED TO PERFORM THE WORK.
/13/ FROM THE STANDPOINT OF THE EMPLOYEE, THE POSITION DESCRIPTION
DEFINES THE KINDS AND THE RANGE OF DUTIES HE OR SHE MAY EXPECT TO
PERFORM DURING THE TIME HE OR SHE REMAINS IN THE POSITION. IN THE
ACTUAL JOB SITUATION, HOWEVER, AN EMPLOYEE MIGHT NEVER BE ASSIGNED THE
FULL RANGE OF WORK COMPRISED WITHIN THE POSITION DESCRIPTION. THAT IS,
THE POSITION DESCRIPTION MERELY DESCRIBES WORK WHICH IT IS EXPECTED
WOULD BE ASSIGNED, BUT IS NOT ITSELF AN ASSIGNMENT OF WORK.
IN ADDITION, THE POSITION DESCRIPTION IS THE BASIS OF THE
CLASSIFICATION AND PAY SYSTEMS FOR FEDERAL EMPLOYEES. /14/ THE VALIDITY
OF THE CLASSIFICATION OF AN EMPLOYEE'S POSITION, AND, DERIVATIVELY, OF
AN EMPLOYEE'S RATE OF PAY, IS THUS DEPENDENT ON THE ACCURACY OF AN
EMPLOYEE'S POSITION DESCRIPTION. /15/ CHANGES IN THE KINDS AND THE
LEVEL OF RESPONSIBILITY OF THE DUTIES ASSIGNED AN EMPLOYEE MAY
NECESSITATE CHANGES IN THE POSITION DESCRIPTION AND, CORRELATIVELY,
DEPENDING ON THE CIRCUMSTANCES, CHANGES IN THE CLASSIFICATION AND THE
RATE OF PAY OF THE POSITION. /16/
IT IS IN THIS CONTEXT THAT THE INTENT OF THE UNION'S PROPOSAL MUST BE
UNDERSTOOD. BOTH THE LANGUAGE OF THE PROPOSAL AND THE RECORD IN THIS
CASE SUPPORT THE CONCLUSION, BRIEFLY STATED, THAT THE SUBJECT PROPOSAL
IS DESIGNED TO INSURE THE ACCURACY OF EMPLOYEE POSITION DESCRIPTIONS.
THAT IS, THE INTENDED EFFECT OF THE PROPOSAL IS TO PREVENT THE AGENCY
FROM EXPANDING THE WORK REGULARLY REQUIRED OF THE INCUMBENT OF A
POSITION BY ASSIGNING WORK WHICH IS NOT REASONABLY RELATED TO THE DUTIES
SPELLED OUT IN THE POSITION DESCRIPTION UNDER THE GUISE OF THE GENERAL
PHRASE "OTHER RELATED DUTIES AS ASSIGNED." THIS DOES NOT MEAN, HOWEVER,
THAT THE PROPOSAL WOULD FORECLOSE THE AGENCY FROM ADDING SUCH UNRELATED
DUTIES TO A POSITION. NOTHING IN THE LANGUAGE OF THE PROPOSAL OR THE
RECORD INDICATES THAT IT IS INTENDED TO SHIELD THE EMPLOYEE FROM BEING
ASSIGNED ADDITIONAL "UNRELATED" DUTIES, I.E., DUTIES WHICH ARE NOT
WITHIN THOSE DESCRIBED IN HIS OR HER EXISTING POSITION DESCRIPTION AND
WHICH ARE NOT RELATED TO THOSE WHICH ARE SO DESCRIBED. RATHER, AS A
CONSEQUENCE OF THIS PROPOSAL, IF THE AGENCY DECIDED TO ADD UNRELATED
DUTIES, TO BE PERFORMED REGULARLY, TO A POSITION, IT WOULD NEED TO
CHANGE THE POSITION DESCRIPTION IN ORDER TO DO SO. THE PROPOSAL WOULD
IN NO WAY PRECLUDE THE AGENCY FROM INCLUDING ADDITIONAL, THOUGH
UNRELATED, DUTIES IN THE POSITION DESCRIPTION. THUS, IN THE
CIRCUMSTANCES OF THIS CASE, THE RIGHT OF THE AGENCY TO ASSIGN WORK
REMAINS UNAFFECTED, WHILE THE EMPLOYEE IS ASSURED THAT HIS OR HER
POSITION DESCRIPTION ACCURATELY REFLECTS THE WORK ASSIGNED TO THE
POSITION.
AS INDICATED AT THE OUTSET, THEREFORE, THE AGENCY HAS MISUNDERSTOOD
THE INTENDED EFFECT OF THE UNION'S PROPOSAL. THE SUBJECT MATTER OF THAT
PROPOSAL IS NOT THE ASSIGNMENT OF WORK, AS ALLEGED BY THE AGENCY, BUT
THE APPLICATION OF THE PHRASE "OTHER RELATED DUTIES AS ASSIGNED" WHEN
USED IN A POSITION DESCRIPTION. THE AGENCY HAS FAILED TO SUPPORT ITS
ALLEGATION THAT SUCH A PROPOSAL IS NONNEGOTIABLE UNDER SECTION 7106.
ACCORDINGLY, THE AGENCY'S ALLEGATION IS HEREBY SET ASIDE.
ISSUED, WASHINGTON, D.C., NOVEMBER 29, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY /17/
ATTACHMENT:
APPENDIX
APPENDIX
GRIEVANCE PROCEDURE
SECTION 1. THE PURPOSE OF THIS ARTICLE IS TO PROVIDE FOR A MUTUALLY
ACCEPTABLE METHOD FOR THE PROMPT AND EQUITABLE SETTLEMENT OF GRIEVANCES.
SECTION 2. A GRIEVANCE IS DEFINED AS ANY DISPUTE OR COMPLAINT
BETWEEN THE EMPLOYER AND THE UNION, OR THE EMPLOYER AND AN EMPLOYEE OR
EMPLOYEES OF THE BARGAINING UNIT PERTAINING TO THE FOLLOWING:
A. ANY MATTER INVOLVING THE INTERPRETATION, APPLICATION OR VIOLATION
OF THIS AGREEMENT,
AND
B. ANY MATTER INVOLVING WORKING CONDITIONS IN THE BARGAINING UNIT,
PROVIDED THAT THE
GRIEVANCE IS NOT OVER MATTERS EXCLUDED FROM NEGOTIATIONS BY SECTIONS
11(B) AND 12(B) OF
EXECUTIVE ORDER 11491, AS AMENDED, OR EXCLUDED FROM GRIEVABILITY BY
THE TERMS OF AAFES
REGULATIONS.
SECTION 3. NOTWITHSTANDING THE PROVISIONS OF SECTION 2, ABOVE,
MATTERS FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTS ARE NOT GRIEVABLE
UNDER THIS ARTICLE.
SECTION 4. THIS NEGOTIATED PROCEDURE WILL BE THE EXCLUSIVE PROCEDURE
AVAILABLE FOR RESOLVING GRIEVANCES PERTAINING TO MATTERS COVERED IN
SECTION 2 OF THIS ARTICLE. ANY EMPLOYEE OR GROUP OF EMPLOYEES MAY
PRESENT GRIEVANCES TO THE EMPLOYER UNDER THIS PROCEDURE WITHOUT UNION
INTERVENTION, PROVIDED THE ADJUSTMENT IS NOT INCONSISTENT WITH THE TERMS
OF THIS AGREEMENT AND THE UNION HAS BEEN GIVEN THE OPPORTUNITY TO BE
PRESENT AT THE ADJUSTMENT.
SECTION 5. IF THE EMPLOYER ALLEGES THAT A MATTER IS NOT GRIEVABLE OR
ARBITRABLE, THIS ALLEGATION WILL BE MADE KNOWN TO THE UNION WITHIN THE
TIME LIMITS PROVIDED FOR THE GENERAL MANAGER TO PROVIDE THE FINAL
WRITTEN ANSWER IN STEP 3, SECTION 10 OF THIS ARTICLE.
SECTION 6. ALL DISPUTES AS TO WHETHER OR NOT A MATTER IS GRIEVABLE
OR ARBITRABLE BECAUSE A STATUTORY APPEALS PROCEDURE MAY EXIST WILL BE
REFERRED TO THE ASSISTANT SECRETARY OF LABOR FOR LABOR-MANAGEMENT
RELATIONS FOR RESOLUTION. ANY OTHER DISPUTE ON GRIEVABILITY OR
ARBITRABILITY WILL BE REFERRED TO ARBITRATION AS A THRESHOLD ISSUE IN
THE RELATED GRIEVANCE.
SECTION 7. MOST GRIEVANCES ARISE FROM MISUNDERSTANDINGS OR DISPUTES
WHICH CAN BE SETTLED PROMPTLY AND SATISFACTORILY ON AN INFORMAL BASIS AT
THE IMMEDIATE SUPERVISORY LEVEL. THE EMPLOYER AND THE UNION AGREE THAT
EVERY EFFORT WILL BE MADE BY MANAGEMENT AND THE AGGRIEVED PARTY TO
SETTLE GRIEVANCES AT THE LOWEST POSSIBLE LEVEL. INASMUCH AS
DISSATISFACTIONS AND DISAGREEMENTS ARISE OCCASIONALLY AMONG PEOPLE IN
ANY WORK SITUATION, THE FILING OF A GRIEVANCE SHALL NOT BE CONSTRUED AS
REFLECTING UNFAVORABLY ON AN EMPLOYEE'S GOOD STANDING, HIS PERFORMANCE,
OR HIS LOYALTY OR DESIRABILITY TO THE ORGANIZATION. NECESSARY TIME
DURING WORKING HOURS WILL BE ALLOWED FOR AN EMPLOYEE AND HIS UNION
REPRESENTATIVE TO INVESTIGATE, DISCUSS, AND PRESENT GRIEVANCES.
SECTION 8, STEP 1. THE GRIEVANCE SHALL FIRST BE TAKEN UP ORALLY BY
THE CONCERNED EMPLOYEE AND THE STEWARD, IF DESIRED, WITH THE APPROPRIATE
SUPERVISOR IN AN ATTEMPT TO SETTLE THE MATTER. GRIEVANCES MUST BE
PRESENTED WITHIN 21 CALENDAR DAYS FROM THE DATE THE EMPLOYEE OR UNION
BECAME AWARE OF THE GRIEVANCE.
SECTION 9, STEP 2. IF THE MATTER IS NOT SATISFACTORILY SETTLED
FOLLOWING THE INITIAL DISCUSSION, THE EMPLOYEE MAY, WITHIN 5 WORKING
DAYS, SUBMIT THE MATTER IN WRITING TO THE ACTIVITY MANAGER. THE
ACTIVITY MANAGER WILL MEET WITH THE STEWARD AND THE AGGRIEVED EMPLOYEE
WITHIN 5 WORKING DAYS AFTER RECEIPT OF THE GRIEVANCE. THE ACTIVITY
MANAGER SHALL GIVE THE EMPLOYEE AND THE UNION HIS WRITTEN ANSWER WITHIN
5 WORKING DAYS AFTER THE MEETING.
SECTION 10, STEP 3. IF THE GRIEVANCE IS NOT SETTLED AT THE ACTIVITY
LEVEL, THE EMPLOYEE MAY, WITHIN 7 WORKING DAYS, FORWARD THE GRIEVANCE TO
THE GENERAL MANAGER FOR FURTHER CONSIDERATION. THE GENERAL MANAGER WILL
REVIEW THE GRIEVANCE, CONSULT WITH THE ACTIVITY MANAGER, EMPLOYEE AND
UNION REPRESENTATIVE, AND GIVE THE EMPLOYEE AND THE UNION HIS WRITTEN
ANSWER WITHIN 10 WORKING DAYS AFTER RECEIPT OF THE GRIEVANCE. THIS WILL
BE SPECIFIED AS THE FINAL WRITTEN ANSWER.
SECTION 11, STEP 4. IF THE GRIEVANCE IS NOT SATISFACTORILY SETTLED,
THE UNION OR THE EMPLOYER MAY REFER THE MATTER TO ARBITRATION. ALL TIME
LIMITS IN THIS ARTICLE MAY BE EXTENDED BY MUTUAL CONSENT. FAILURE OF
THE EMPLOYER TO OBSERVE THE TIME LIMITS SHALL ENTITLE THE UNION TO
ADVANCE THE GRIEVANCE TO THE NEXT STEP.
SECTION 12. GRIEVANCES ON MATTERS SPECIFIED IN SECTION 2, WHICH
IMPACT ON MORE THAN THE EMPLOYEE MAY BE SUBMITTED IN WRITING BY THE
UNION DIRECTLY TO THE GENERAL MANAGER OR HIS DESIGNATED REPRESENTATIVE.
THE GENERAL MANAGER OR HIS REPRESENTATIVE, AND THE UNION REPRESENTATIVE
WILL MEET WITHIN 5 WORKING DAYS AFTER RECEIPT OF THE GRIEVANCE TO
DISCUSS THE GRIEVANCE. THE GENERAL MANAGER SHALL GIVE THE UNION HIS
WRITTEN ANSWER WITHIN 10 WORKING DAYS AFTER THE MEETING. IF THE
GRIEVANCE IS NOT SETTLED BY THIS METHOD, THE UNION MAY REFER THE MATTER
TO ARBITRATION. NOTHING HEREIN WILL PRECLUDE EITHER PARTY FROM
ATTEMPTING TO SETTLE SUCH GRIEVANCES INFORMALLY AT THE APPROPRIATE
LEVEL.
/1/ THE REVIEW PROVISIONS REFERRED TO IN THIS PROPOSAL ARE SET FORTH
IN AN APPENDIX TO THIS DECISION.
/2/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
7106 (92 STAT. 1198) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
(A) TO HIRE, ASSIGN, DIRECT, LAYOFF, AND RETAIN EMPLOYEES IN THE
AGENCY, OR TO SUSPEND,
REMOVE, REDUCE IN GRADE OR PAY, OR TAKE OTHER DISCIPLINARY ACTION
AGAINST SUCH EMPLOYEES . . .
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION . . .
/3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.
/4/ SECTION 7218 OF THE SENATE BILL PROVIDED AS FOLLOWS:
SEC. 7218. BASIC PROVISIONS OF AGREEMENTS
. . . .
(B) NOTHING IN SUBSECTION (A) OF THIS SECTION SHALL PRECLUDE THE
PARTIES FROM NEGOTIATING--
(1) PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN EXERCISING ITS
AUTHORITY TO DECIDE OR ACT
IN MATTERS RESERVED UNDER SUCH SUBSECTION; OR
(2) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
IMPACT OF MANAGEMENT'S
EXERCISING ITS AUTHORITY TO DECIDE OR ACT IN MATTERS RESERVED UNDER
SUCH SUBSECTION, EXCEPT
THAT SUCH NEGOTIATIONS SHALL NOT UNREASONABLY DELAY THE EXERCISE BY
MANAGEMENT OF ITS
AUTHORITY TO DECIDE OR ACT, AND SUCH PROCEDURES AND ARRANGEMENTS
SHALL BE CONSISTENT WITH THE
PROVISIONS OF ANY LAW OR REGULATION DESCRIBED IN 7215(C) OF THIS
TITLE, AND SHALL NOT HAVE THE
EFFECT OF NEGATING THE AUTHORITY RESERVED UNDER SUBSECTION (A).
/5/ THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON CONFERENCE
STATED, IN THE CONFERENCE REPORT ACCOMPANYING THE BILL WHICH WAS ENACTED
AND SIGNED INTO LAW, AS FOLLOWS:
3. SENATE SECTION 7218(B) PROVIDES THAT NEGOTIATIONS ON PROCEDURES
GOVERNING THE EXERCISE
OF AUTHORITY RESERVED TO MANAGEMENT SHALL NOT UNREASONABLY DELAY THE
EXERCISE BY MANAGEMENT OF
ITS AUTHORITY TO ACT ON SUCH MATTERS. ANY NEGOTIATIONS ON PROCEDURES
GOVERNING MATTERS
OTHERWISE RESERVED TO AGENCY DISCRETION BY SUBSECTION (A) MAY NOT
HAVE THE EFFECT OF ACTUALLY
NEGATING THE AUTHORITY AS RESERVED TO THE AGENCY BY SUBSECTION (A).
THERE ARE NO COMPARABLE
HOUSE PROVISIONS.
THE CONFERENCE REPORT DELETES THESE PROVISIONS. HOWEVER, THE
CONFEREES WISH TO EMPHASIZE
THAT NEGOTIATIONS ON SUCH PROCEDURES SHOULD NOT BE CONDUCTED IN A WAY
THAT PREVENTS THE AGENCY
FROM ACTING AT ALL, OR IN A WAY THAT PREVENTS THE EXCLUSIVE
REPRESENTATIVE FROM NEGOTIATING
FULLY ON PROCEDURES. . . .
S. REP. NO. 95-1272, 95TH CONG., 2ND SESS. 158(19789 SEE ALSO THE
STATEMENT OF CONGRESSMAN FORD OF MICHIGAN ON THE HOUSE FLOOR DURING
DEBATE ON THE "UDALL SUBSTITUTE. 124 CONG. REC. H9650 (DAILY ED. SEPT.
13, 1978).
/6/ CF. THE FOLLOWING STATEMENT OF CONGRESSMAN FORD OF MICHIGAN WITH
RESPECT TO SECTION 7106 OF THE STATUTE:
A PRINCIPAL GOAL IN REVISING THE MANAGEMENT RIGHTS CLAUSE IS TO
CHANGE THE CURRENT
SITUATION AND, WHEREVER POSSIBLE, ENCOURAGE BOTH PARTIES TO WORK OUT
THEIR DIFFERENCES IN
NEGOTIATION.
124 CONG. REC. H9649 (DAILY ED. SEPT. 13, 1978).
/7/ THE SENATE COMMITTEE REPORT ACCOMPANYING S. 2640 STATED THE
FOLLOWING:
ONE OF THE CENTRAL TASKS OF THE CIVIL SERVICE REFORM BILL IS SIMPLE
TO EXPRESS BUT
DIFFICULT TO ACHIEVE: ALLOW CIVIL SERVANTS TO BE ABLE TO BE HIRED
AND FIRED MORE EASILY, BUT
FOR THE RIGHT REASONS. THIS BALANCED BILL SHOULD HELP TO ACCOMPLISH
THAT OBJECTIVE. IT IS AN
IMPORTANT STEP TOWARD MAKING THE GOVERNMENT MORE EFFICIENT AND MORE
ACCOUNTABLE TO THE
AMERICAN PEOPLE.
S. REP. NO. 95-989, 95TH CONG., 2D SESS. 4(1978). SEE ALSO H.R.
REP. NO. 95-1403, 95TH CONG., 2D SESS. 2-4(1978).
/8/ IN INTRODUCING THE AMENDMENT (THE "UDALL SUBSTITUTE") WHICH
BECAME THE FINAL HOUSE VERSION OF TITLE VII AND WHICH, AS RELEVANT
HEREIN, WAS ENACTED AND SIGNED INTO LAW, CONGRESSMAN UDALL STATED AS
FOLLOWS:
THE FEDERAL EMPLOYEE UNIONS . . . GAIN IN MY SUBSTITUTE SOME
GUARANTEES ABOUT PROCEDURES
THAT MANAGEMENT MUST FOLLOW. THEY GET TO ARBITRATE SOME THINGS THAT
NOW GO THROUGH A
TORTUROUS APPEAL PROCESS-- THINGS INVOLVING VARIOUS LABOR GRIEVANCES.
IT WOULD BE A MISTAKE TO VIEW THIS TITLE VII OR MY SUBSTITUTE AS SOME
KIND OF A LABOR BILL
THAT IS ATTACHED TO AN UNRELATED BILL DEALING WITH MANAGEMENT
PREROGATIVES IN THE FEDERAL
SERVICE. THIS IS HOW I VIEW WHAT WE ARE TRYING TO DO HERE: IT MOVES
TO MEET SOME OF THE
LEGITIMATE CONCERNS OF THE FEDERAL EMPLOYEE UNIONS AS AN INTEGRAL
PART OF WHAT IS BASICALLY A
BILL TO GIVE MANAGEMENT THE POWER TO MANAGE AND THE FLEXIBILITY THAT
IT NEEDS.
BUT I SAY THIS IN TWO RESPECTS. ONE, IT GIVES SOME BALANCE. WE ARE
SAYING TO THE FEDERAL
EMPLOYEES THAT WE ARE GOING TO GIVE MANAGEMENT SOME BROAD NEW RIGHTS
HERE IN THIS LEGISLATION,
WE ARE GOING TO ENABLE THEM TO MOVE. AND EMPLOYEE ORGANIZATIONS ARE
SAYING, IN TURN, THAT
THEY ARE ENTITLED TO HAVE A MORE INDEPENDENT, SECURE POSITION FROM
WHICH TO DEAL WITH
MANAGEMENT AS IT OPERATES UNDER THIS NEW FREEDOM IN THE BILL.
SECOND, THE ARBITRATION PROVISION I VIEW AS MUCH OF A GAIN FOR
MANAGEMENT AS FOR
LABOR. THE FEDERAL MANAGERS NOW, INSTEAD OF HAVING TO GO THROUGH
DIFFICULT, COMPLEX APPEAL
PROCEDURES, WILL BE ABLE TO SUBMIT THEM TO ARBITRATION, AND THIS IS A
GAIN FOR MANAGEMENT.
124 CONG.REC. H9633 (DAILY ED. SEPT. 13, 1978). CONGRESSMAN FORD OF
MICHIGAN, A PROPONENT OF THE "UDALL SUBSTITUTE," ALSO STATED AS FOLLOWS:
I SHOULD SAY THAT I HAVE TRIED TO BE SUPPORTIVE OF THE EFFORTS OF THE
ADMINISTRATION
BECAUSE I THINK THAT THE PURPOSES STATED BY THE PRESIDENT, WHEN HE
SENT THE LEGISLATION TO US,
ARE PURPOSES WE CAN ALL AGREE WITH. BUT, AS I STATED BEFORE, IN
ATTEMPTING TO GIVE THE
EXECUTIVE BRANCH GREATER FLEXIBILITY AND GREATER POWER IN TERMS OF
THEIR ABILITY TO MANAGE THE
FEDERAL WORK FORCE WE HAVE IN FACT, IF WE DID NOTHING MORE THAN THAT,
CHANGED THE BALANCE THAT
HAS ESTABLISHED ITSELF OVER A PERIOD OF TIME BETWEEN THE EMPLOYEES'
INDIVIDUAL RIGHTS AND
THEIR COLLECTIVE RIGHTS, VIS-A-VIS THE POWERS AND PREROGATIVE OF
MANAGEMENT.
FOR THIS REASON, WHILE CONSIDERING THE INCREASED POWERS FOR
MANAGEMENT, WE ALWAYS HAD IN
MIND THAT WE WOULD PUT TOGETHER A TOTALITY HERE, A TOTAL PACKAGE THAT
WE HOPED-- AND OBVIOUSLY
WE HAD GREAT DISAGREEMENT DURING THE MONTHS THAT WE HAVE CONSIDERED
THIS, ON JUST WHAT THE
FINAL PRODUCT SHOULD LOOK LIKE-- THAT WE HOPED WOULD REPRESENT A FAIR
PACKAGE OF BALANCED
AUTHORITY FOR MANAGEMENT, BALANCED WITH A FAIR PROTECTION FOR AT
LEAST THE EXISTING RIGHTS THE
EMPLOYEES HAVE.
124 CONG.REC. H9646 (DAILY ED. SEPT. 13, 1978).
/9/ WITH REGARD TO THE SUBJECT MATTER OF THE PROPOSAL AT ISSUE
HEREIN, WE NOTE, FOR EXAMPLE, THAT THE COMMON PRACTICE IN THE PRIVATE
SECTOR IS FOR MANAGEMENT TO IMPLEMENT THE DISCIPLINARY ACTION, SUBJECT
TO REVERSAL, OR MODIFICATION, OF THAT DECISION DURING THE GRIEVANCE OR
ARBITRATION PROCEDURE AND RESTORATION TO THE DISCIPLINED EMPLOYEE OF
LOST PAY AND BENEFITS.
/10/ SEE NOTE 5, SUPRA.
/11/ SECTION 7106 OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF AN AGENCY--
. . . .
(2) IN ACCORDANCE WITH APPLICABLE LAWS--
. . . .
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE CONDUCTED
. . . .
/12/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.
/13/ SEE ESPECIALLY FEDERAL PERSONNEL MANUAL, CHAP. 312, SUBCHAPS.
2-3, 3-2.
/14/ SEE FEDERAL PERSONNEL MANUAL, CHAP. 511, SUBCHAPS. 3 AND 4.
/15/ FEDERAL PERSONNEL MANUAL, CHAP. 312, SUBCHAP. 3-2; CHAP. 511,
SUBCHAP. 3-4.
/16/ SEE, IN PARTICULAR, FEDERAL PERSONNEL MANUAL, CHAP. 511,
SUBCHAP. 3-7.
/17/ MEMBER LEON B. APPLEWHAITE DID NOT PARTICIPATE IN THE PRESENT
CASE, WHICH HAD BEEN PROCESSED PRIOR TO HIS CONFIRMATION BY THE UNITED
STATES SENATE AS A MEMBER OF THE AUTHORITY.