[ v09 p857 ]
09:0857(115)CA
The decision of the Authority follows:
9 FLRA No. 115
DEPARTMENT OF THE AIR FORCE,
MCCHORD AIR FORCE BASE,
MCCHORD AIR FORCE BASE, WASHINGTON
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1501, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT
Intervenor
Case No. 9-CA-445
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED. EXCEPTIONS WERE FILED BY THE GENERAL
COUNSEL AND THE CHARGING PARTY (THE UNION), AND AN OPPOSITION TO THE
EXCEPTIONS WAS FILED BY THE RESPONDENT. /1/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS BASED ON THE REASONS
SET FORTH IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT, 9 FLRA NO.
92(1982), WHEREIN WE HELD THAT THE SCOPE OF THE GRIEVANCE PROCEDURE IS A
MANDATORY SUBJECT FOR BARGAINING AND, IF IMPASSE IS REACHED, IS SUBJECT
TO IMPASSE RESOLUTION PROCEDURES. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-445 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
JERRY M. BRASEL, ESQUIRE
FOR THE RESPONDENT
NANCY E. PRITIKIN, ESQUIRE
FOR THE GENERAL COUNSEL
STAN STANDIFER
FOR THE CHARGING PARTY
LEO M. REID
FOR THE INTERVENOR
BEFORE: GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
CASE NO. 9-CA-445
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE REGIONAL DIRECTOR,
REGION 9, FEDERAL LABOR RELATIONS AUTHORITY, SAN FRANCISCO, CALIFORNIA,
AGAINST THE DEPARTMENT OF THE AIR FORCE, MCCHORD AIR FORCE BASE, MCCHORD
AIR FORCE BASE, WASHINGTON (RESPONDENT), BASED ON A CHARGED FILED BY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1501, AFL-CIO
(CHARGING PARTY OR UNION).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE BY REFUSING, OR ON
ABOUT OCTOBER 4, 1979 AND MARCH 11, 1980, TO INCORPORATE A FULL SCOPE
GRIEVANCE PROCEDURE AS PART OF THE COLLECTIVE BARGAINING AGREEMENT
AND/OR TO IMPLEMENT SAID GRIEVANCE PROCEDURE.
A HEARING WAS HELD IN THIS MATTER IN SEATTLE, WASHINGTON. /3/ THE
RESPONDENT, GENERAL COUNSEL, FLRA, CHARGING PARTY, AND INTERVENOR WERE
REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
EVIDENCE EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING
BRIEFS.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. THE CHARGING PARTY, AT ALL TIMES MATERIAL HEREIN, HAS BEEN
CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT OF ALL
ELIGIBLE PROFESSIONAL AND NONPROFESSIONAL DEPARTMENT OF THE AIR FORCE
EMPLOYEES AT MCCHORD AIR FORCE BASE.
2. ON SEPTEMBER 12, 1979, RESPONDENT AND THE UNION /4/ SIGNED A
MEMORANDUM OF UNDERSTANDING TO ESTABLISH PROCEDURES TO BE FOLLOWED IN
RENEGOTIATING THEIR COLLECTIVE BARGAINING AGREEMENT. SECTIONS I AND J
PROVIDED AS FOLLOWS:
I. PROPOSAL SUBMISSION AND DISPOSITION:
(1) IT IS AGREED THAT THE PARTIES WILL EXCHANGE PROPOSALS ON 10
SEPTEMBER 1979 AND THAT
NEGOTIATIONS WILL COMMENCE AT 0900 HOURS ON 1 OCTOBER 1979.
ADDITIONAL PROPOSALS MAY NOT BE
SUBMITTED BY EITHER PARTY EXCEPT UPON MUTUAL AGREEMENT. DISCUSSION
OF INTENT OF UNION'S
PROPOSAL WILL PRECEDE ANY OTHER ACTION.
(2) PROPOSALS WILL BE REVIEWED BY THE NEGOTIATING TEAMS IN THE ORDER
PRESENTED IN AN
ATTEMPT TO REACH AGREEMENT. SHOULD AGREEMENT NOT BE REACHED ON AN
ARTICLE OR PORTION THEREOF,
IT WILL BE TABLED UNTIL ALL OTHER PROPOSALS ARE REVIEWED.
(3) THE PARTIES WILL ATTEMPT TO RESOLVE THE TABLED ITEMS IN THE ORDER
IN WHICH THEY WERE
TABLED. SHOULD AGREEMENT NOT BE REACHED ON A TABLED ITEM, AND IT IS
MUTUALLY AGREED THAT
FURTHER NEGOTIATIONS WOULD BE FUTILE, THE ITEM WILL BE IMPASSED AND
THE FOLLOWING SUBSECTION
(4) WILL APPLY.
(4) AFTER ALL EFFORTS HAVE BEEN EXHAUSTED AND AGREEMENT CANNOT BE
REACHED ON ALL ISSUES,
THE PARTIES AGREE TO REQUEST THE ASSISTANCE OF THE FEDERAL MEDIATION
AND CONCILIATION SERVICE
(FMCS). THE PARTIES AGREE THAT THE FMCS WILL NOT BE REQUESTED UNTIL
ALL TABLED ITEMS HAVE
BEEN DISCUSSED AND AGREEMENT CANNOT BE REACHED.
J. IMPASSES:
IF AN AGREEMENT CANNOT BE REACHED AFTER ASSISTANCE OF THE FEDERAL
MEDIATOR, THE ISSUE WILL
BE IMPASSED AND SUBMITTED TO THE FEDERAL SERVICE IMPASSES PANEL IN
ACCORDANCE WITH GOVERNING
DIRECTIVE. (JOINT EX. 2; TR. 22, 29).
3. THE PARTIES SUBMITTED THEIR RESPECTIVE WRITTEN PROPOSALS
REGARDING THE SCOPE OF THE GRIEVANCE PROCEDURE, AMONG OTHER MATTERS,
PRIOR TO THE BEGINNING OF NEGOTIATION. THE UNION'S INITIAL PROPOSAL
CONCERNING THE SCOPE OF THE GRIEVANCE PROCEDURE CONTAINED THE EXCLUSIONS
SET FORTH IN THE STATUTE AND THE ADDITIONAL EXCLUSIONS OF REDUCTIONS
IN-FORCE AND EQUAL EMPLOYMENT OPPORTUNITY. (JOINT EX. 4; TR. 13).
RESPONDENT'S INITIAL PROPOSAL WAS TO RETAIN THE EXCLUSIONS SET FORTH IN
THE PREVIOUS AGREEMENT. (JOINT EX. 1, 3; TR. 13, 30).
4. NEGOTIATIONS BEGAN OCTOBER 1, 1979. (TR. 12, 22). WILLIAM
SCOTT, RESPONDENT'S LABOR RELATIONS OFFICER AND A MEMBER OF RESPONDENT'S
TEAM, AND STAN STANDIFER, A UNION NATIONAL REPRESENTATIVE AND CHIEF
SPOKESMAN FOR THE OCTOBER SESSIONS, HAD BEEN INVOLVED IN FOUR OTHER
CONTRACT NEGOTIATIONS. (TR. 22, 29). EACH PARTY READ THROUGH AND
EXPLAINED THE INTENT OF ITS RESPECTIVE PROPOSALS. (TR. 13, 29, 55).
THE PARTIES REACHED EARLY AGREEMENT ON THE PROCEDURES FOR PROCESSING
GRIEVANCES, AGREEING TO RETAIN THE PROCESSING PROCEDURES CONTAINED IN
THE PREVIOUS AGREEMENT. (TR. 29-30). WITH REGARD TO THE SCOPE OF THE
GRIEVANCE PROCEDURE, GENERALLY, THE UNION STATED THAT THE STATUTE
MANDATED A BROAD SCOPE GRIEVANCE PROCEDURE AND, ABSENT THE TWO PARTIES
AGREEING ON LIMITING THE SCOPE DURING PERMISSIVE NEGOTIATIONS CONCERNING
THE SCOPE, THE UNION WOULD ASK FOR A BROAD SCOPE AND FILE AN UNFAIR
LABOR PRACTICE TO RESOLVE THE ISSUE. (TR. 15-16, 30-31, 55).
5. DURING THE NEXT FEW SESSIONS, BETWEEN OCTOBER 1 AND 4, 1979, THE
PARTIES' POSITIONS ON SCOPE OF THE GRIEVANCE PROCEDURE WERE DISCUSSED AT
VARIOUS TIMES. THE UNION CAUCUSED TO DISCUSS THE PROPOSALS. (TR. 14,
49). AT ONE POINT, THE UNION MODIFIED ITS INITIAL PROPOSAL TO INCLUDE
TWO OF THE EXCLUSIONS PROPOSED BY RESPONDENT RELATING TO PROBATIONARY
EMPLOYEES AND TEMPORARY PROMOTIONS. (TR. 16). SINCE THERE WAS NO
AGREEMENT, THE UNION LATER WITHDREW ITS MODIFIED PROPOSAL, WITHOUT
EXPLANATION, AND AGAIN REQUESTED A BROAD SCOPE GRIEVANCE PROCEDURE.
(TR. 16, 30). RESPONDENT ADHERED TO ITS ORIGINAL POSITION AND CLAIMED
THAT THE STATUTE PROVIDED FOR FURTHER NEGOTIATIONS AS TO EXCLUSIONS.
(TR. 55-56).
6. WHEN IT BECAME CLEAR THAT THE PARTIES WERE IN DISPUTE OVER THE
SCOPE OF THE GRIEVANCE PROCEDURE AND THAT NO AGREEMENT WOULD BE REACHED
AT THAT TIME, THE PARTIES VERBALLY AGREED TO DELAY FURTHER NEGOTIATIONS
DISCUSSION CONCERNING THE SCOPE. (TR. 18, 32, 56, 58, 61, 64).
7. RESPONDENT'S NEGOTIATORS, WILLIAM SCOTT AND LINDA CARTER,
TESTIFIED THAT FURTHER NEGOTIATIONS WERE TO BE DELAYED UNTIL ALL OTHER
MATTERS HAD BEEN COMPLETED AND AGREED UPON. (TR. 32, 56, 58). ONE OF
THE UNION'S NEGOTIATORS, STAN STANDIFER, TESTIFIED THAT "OTHER ARTICLES
IN THE AGREEMENT . . . WOULD HAVE SOME BEARING ON IT. WE AGREED THAT,
IF THERE WERE A POSSIBILITY THAT THE POSITION WOULD CHANGE, THAT WE
WOULD HOLD THE GRIEVANCE PROCEDURE AS THE LAST ITEM OF DISCUSSION ON THE
TABLE" (TR. 18), "PER THE GROUND RULES . . . WE WOULD COMPLETE ALL THE
WORK AT THE TABLE SO THAT WE COULD PRESENT THAT TO A FEDERAL MEDIATOR."
(TR. 61). ANOTHER OF THE UNION'S NEGOTIATORS, CHARLES COLLINS,
TESTIFIED THAT HIS UNDERSTANDING OF THE AGREEMENT TO DELAY NEGOTIATIONS
ON THE SCOPE OF THE GRIEVANCE PROCEDURE WAS "THAT WE WOULD COME BACK AND
WORK ON THE GRIEVANCE PROCEDURE AFTER ALL THE OTHER ARTICLES HAD BEEN
COMPLETED, HAD BEEN FINISHED" (TR. 64), "THAT WE WOULD FINISH UP THE
REST OF THE WORK THAT WAS AT THE TABLE BEFORE WE DID TRY TO RESOLVE THE
GRIEVANCE PROCEDURE." (TR. 68).
8. THE PARTIES, BY MUTUAL AGREEMENT, CALLED IN A MEDIATOR FROM THE
FEDERAL MEDIATION AND CONCILIATION SERVICE TO ASSIST THEM IN RESOLVING A
NUMBER OF CONTRACTUAL ISSUES IN DISPUTE, INCLUDING THE MERIT PROMOTION
PLAN. (TR. 17-18, 51-52). THE PARTIES ADVISED THE MEDIATOR OF THEIR
RESPECTIVE POSITIONS CONCERNING THE SCOPE OF THE GRIEVANCE PROCEDURE.
THE MEDIATOR WAS ADVISED THAT THE PARTIES HAD A PROBLEM WITH
INTERPRETATION OF THE LAW. (TR. 17, 53, 66). IT WAS UNDERSTOOD THAT
THERE WOULD BE NO MEDIATION OF THE SCOPE OF THE GRIEVANCE PROCEDURE.
(TR. 53, 66). THE UNION ADVISED THE MEDIATOR THAT IF IT WERE TALKING
ABOUT A BROAD SCOPE, AND THE PARTIES WERE UNABLE TO AGREE ON
LIMITATIONS, THAT WOULD CONSTITUTE AN UNFAIR LABOR PRACTICE AND THE
MEDIATOR WOULD HAVE NO JURISDICTION OVER SUCH AN ISSUE. (TR. 17).
9. SOMETIME PRIOR TO MARCH 11, 1980, MR. STANDIFER STEPPED DOWN AS
CHIEF SPOKESMAN FOR THE UNION NEGOTIATING TEAM. HE WAS REPLACED BY
CHARLES COLLINS, CHAPTER PRESIDENT. (TR. 19, 63). MR. STANDIFER
SUBSEQUENTLY RETURNED TO ONE MEDIATION SESSION. AT THIS TIME, AGREEMENT
HAD BEEN REACHED ON ALL ITEMS ON THE TABLE EXCEPT FOR THE MERIT
PROMOTION ARTICLE. (TR. 68). MR. STANDIFER STATED THAT, UNLESS
MANAGEMENT HAD CHANGED ITS POSITION ON THE SCOPE OF THE GRIEVANCE
PROCEDURE, THE UNION WAS AGAIN ASKING FOR A BROAD SCOPE PROCEDURE AND
WOULD FILE AN UNFAIR LABOR PRACTICE CHARGE. RESPONDENT DID NOT OBJECT
TO THIS STATEMENT OR CHANGE ITS POSITION. (TR. 20, 25, 68).
10. ON MARCH 11, 1980, THE PARTIES HELD THEIR LAST MEETING WITH THE
MEDIATOR CONCERNING THE MERIT PROMOTION ARTICLE. (TR. 33). THE PARTIES
WERE AT IMPASSE OVER THE MERIT PROMOTION ARTICLE, AND IT WAS NOT UNTIL
OCTOBER 1980 THAT SOME RESOLUTION OF THAT IMPASSED ARTICLE WAS REACHED.
(TR. 39). THE SERVICES OF THE FEDERAL SERVICE IMPASSES PANEL WERE NOT
REQUESTED. (TR. 33).
11. SUBSEQUENT TO THE FINAL NEGOTIATING SESSION BEFORE THE MEDIATOR,
INSOFAR AS THE MERIT PROMOTION ARTICLE WAS CONCERNED, MR. CLYDE "SKIP"
HOOVER WAS THE CHAIRMAN OF THE UNION'S NEGOTIATING TEAM. (TR. 22, 54).
ONCE THE MERIT PROMOTION ARTICLE WAS SETTLED, RESPONDENT, BY MR. SCOTT,
SENT A LETTER TO MR. HOOVER OF THE UNION, DATED OCTOBER 30, 1980,
INDICATING THAT, PURSUANT TO THEIR PREVIOUS AGREEMENT, IT WAS
RESPONDENT'S DESIRE TO RETURN TO THE BARGAINING TABLE TO NEGOTIATE OVER
THE SCOPE OF THE GRIEVANCE PROCEDURE, SINCE ALL OTHER MATTERS HAD BEEN
SETTLED. (RESPONDENT EX. 3). IN A SUBSEQUENT ORAL CONVERSATION WITH
MR. SCOTT, MR. HOOVER INITIATED A CONVERSATION "REGARDING GETTING BACK
TO THE BARGAINING TABLE AS WE AGREED TO." MR. HOOVER INDICATED THAT AS
SOON AS MR. COLLINS AND MR. BUGG RETURNED FROM OUT OF TOWN, THE UNION
WOULD SEE ABOUT GETTING BACK TO THE TABLE AND NEGOTIATING THE GRIEVANCE
PROCEDURE. (TR. 35-36).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1),
(5) AND (8) OF THE STATUTE BY REFUSING TO INCORPORATE A FULL SCOPE
GRIEVANCE PROCEDURE AS PART OF THE COLLECTIVE BARGAINING AGREEMENT
AND/OR TO IMPLEMENT SAID GRIEVANCE PROCEDURE AS REQUESTED BY THE UNION
PURSUANT TO SECTION 7121 OF THE STATUTE ON OR ABOUT OCTOBER 4, 1979 AND
MARCH 11, 1980. THE GENERAL COUNSEL ASSERTS THAT THE UNION CONSIDERED
AND BARGAINED IN GOOD FAITH WITH REGARD TO RESPONDENT'S PROPOSALS TO
EXCLUDE CERTAIN MATTERS FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE
PROCEDURE AND THAT RESPONDENT'S CONDUCT IN REFUSING TO AGREE TO A FULL
SCOPE GRIEVANCE PROCEDURE IN OCTOBER 1979 AND MARCH 1980 VIOLATED THE
STATUTE.
THE UNION ASSERTS THAT IT WAS UNDER NO DUTY TO BARGAIN ON THE SCOPE
SINCE A REDUCED SCOPE IS A PERMISSIVE SUBJECT OF BARGAINING FOR THE
UNION UNDER THE STATUTE; HOWEVER, ASSUMING SUCH A DUTY, IT CLAIMS THAT
DUTY WAS SATISFIED IN THIS CASE. THE UNION'S ASSERTION THAT IT WAS
UNDER NO DUTY TO BARGAIN ON THE SCOPE OF THE GRIEVANCE PROCEDURE MUST BE
REJECTED FOR THE REASONS SET FORTH BY ADMINISTRATIVE LAW JUDGE ELI NASH,
JR. IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL
LOCAL 3723, AFL-CIO, ET AL, CASE NO. 8-CO-4 (JANUARY 9, 1981).
THE GENERAL COUNSEL'S POSITION THAT THE STATUTE MANDATES THE UNION'S
ENTITLEMENT TO THE FULL SCOPE PERMISSIBLE BY LAW ONCE IT FULFILLED ITS
OBLIGATION TO BARGAIN OVER RESPONDENT'S REQUESTED EXCLUSIONS AND FAILURE
BY THE PARTIES TO AGREE ON THE SCOPE WILL NOT RESULT IN IMPASSE, CANNOT
BE ACCEPTED. THE LANGUAGE OF THE STATUTE, ITS LEGISLATIVE HISTORY /5/
AND PRECEDENT AUTHORITY DECISIONS AND INTERPRETATIONS TO DATE DO NOT, IN
MY OPINION, COMPEL THIS VIEW.
SECTION 7121 OF THE STATUTE CONCERNS THE SCOPE OF THE GRIEVANCE
PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES. /6/ THE GRIEVANCE
PROCEDURE IS A MANDATORY SUBJECT OF BARGAINING WITHIN THIS STRICTURE.
AS STATED WITH RESPECT TO SECTION 7121 IN THE CONFERENCE REPORT
ACCOMPANYING THE FINAL VERSION OF THE BILL WHICH WAS SUBSEQUENTLY
ENACTED AND SIGNED INTO LAW:
ALL MATTERS THAT UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED TO
THE GRIEVANCE PROCEDURES
SHALL IN FACT BE WITHIN THE SCOPE OF ANY GRIEVANCE PROCEDURE
NEGOTIATED BY THE PARTIES UNLESS
THE PARTIES AGREE AS PART OF THE COLLECTIVE BARGAINING PROCESS THAT
CERTAIN MATTERS SHALL NOT
BE COVERED BY THE GRIEVANCE PROCEDURES. JOINT EXPLANATORY STATEMENT
OF THE COMMITTEE ON
CONFERENCE, H. R. REP. NO. 1717, 95TH CONG., 2D SESS. 157, REPRINTED
IN (1978) U.S. CODE
CONG. & AD. NEWS 2860, 2891.
AS THE AUTHORITY STATED IN ITS INTERPRETATION AND GUIDANCE, CASE NO.
O-PS-2, 2 FLRA NO. 32(1979):
(G)RIEVANCE PROCEDURES NEGOTIATED BY THE PARTIES UNDER SECTION 7121
OF THE STATUTE COVER
ALL MATTERS WHICH MIGHT LAWFULLY BE SUBMITTED TO THOSE PROCEDURES,
UNLESS THE PARTIES IN THEIR
NEGOTIATIONS MUTUALLY AGREE THAT PARTICULAR MATTERS SHALL BE EXCLUDED
FROM THE NEGOTIATED
GRIEVANCE PROCEDURE AS PROVIDED IN SECTION 7121(A)(2) OF THE STATUTE.
AND, AS STATED IN FOOTNOTE 6 OF THE DECISION:
CONTRARY TO THE POSITION OF SEVERAL RESPONDING ORGANIZATIONS, MERE
OBJECTION BY A PARTY TO
THE CONTINUATION OF EXISTING NEGOTIATED GRIEVANCE PROCEDURES WOULD
NOT, PER SE, EXTEND THE
SCOPE OF THE EXISTING PROCEDURES, SINCE SECTION 7121 CONCERNS THE
SCOPE OF GRIEVANCE
PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES.
AND AS THE AUTHORITY SUMMARIZED IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3669, AND VETERANS ADMINISTRATION MEDICAL
CENTER, MINNEAPOLIS, MINNESOTA, CASE NO. O-NG-32, 3 FLRA NO. 48 (MAY 30,
1980):
IN SUM, CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A
NEGOTIATED GRIEVANCE
PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH "UNDER THE PROVISIONS OF
LAW" COULD BE COVERED
UNLESS THE PARTIES AGREE THROUGH THE COLLECTIVE BARGAINING PROCESS TO
A PROCEDURE HAVING A
NARROWER COVERAGE.
THE "COLLECTIVE BARGAINING PROCESS," REFERRED TO IN THE CONFERENCE
REPORT AND BY THE AUTHORITY, MEANS THAT PROCESS PROVIDED BY THE STATUTE
FOR COLLECTIVE BARGAINING. IT INCLUDES "COLLECTIVE BARGAINING" AS
DEFINED IN SECTION 7103(A)(12) AS FOLLOWS:
(12) 'COLLECTIVE BARGAINING' MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
DOCUMENT INCORPORATING ANY
COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
TO IN THIS PARAGRAPH DOES
NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
CONCESSION.
AS NOTED "THE OBLIGATION REFERRED TO IN THIS PARAGRAPH DOES NOT
COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A CONCESSION." THE
"COLLECTIVE BARGAINING PROCESS" ALSO INCLUDES THE SERVICES OF THE
AUTHORITY TO RESOLVE NEGOTIABILITY QUESTIONS AT THE REQUEST OF THE
EXCLUSIVE REPRESENTATIVE, PURSUANT TO SECTION 7117 OF THE STATUTE, AND
THE SERVICES OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE AND THE
FEDERAL SERVICE IMPASES PANEL TO AGENCIES AND EXCLUSIVE REPRESENTATIVES
TO RESOLVE NEGOTIATION IMPASSES PURSUANT TO SECTION 7119 OF THE STATUTE.
THE FEDERAL SERVICE IMPASSES PANEL HAS BEEN GIVEN BROAD AUTHORITY TO
RESOLVE NEGOTIATION IMPASSES. UNDER SECTION 7119(C)(5)(A) OF THE
STATUTE, THE PANEL CAN RECOMMEND PROCEDURES FOR RESOLVING AN IMPASSE OR
ASSIST THE PARTIES THROUGH ANY METHOD IT DEEMS APPROPRIATE. IF A
SETTLEMENT IS NOT ACHIEVED IN THIS MANNER IT HAS THE POWER TO "TAKE
WHATEVER ACTION IS NECESSARY AND NOT INCONSISTENT WITH THIS CHAPTER TO
RESOLVE THE IMPASSE," 5 U.S.C. 7119(C)(5)(B)(III). SEE 5 C.F.R. PART
2470(1980). THE PANEL HAS EXERCISED SUCH POWER IN THE PAST TO REQUIRE
THAT THE PARTIES EXCLUDE, OR NOT EXCLUDE, MATTERS FROM THE APPLICATION
OF THEIR GRIEVANCE PROCEDURE. SEE LOUISIANA ARMY AND AIR NATIONAL
GUARD, JACKSON BARRACKS, NEW ORLEANS, LOUISIANA AND LOCALS 1707, 1708,
AND 1737, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, CASE NO. 79 FSIP 51
AND 79 FSIP 81 (APRIL 22, 1980); VETERANS ADMINISTRATION MEDICAL
CENTER, IRON MOUNTAIN, MICHIGAN AND LOCAL 2280, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 80 FSIP 41 (AUGUST 27, 1980);
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, WASHINGTON, D.C. AND EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION COUNCIL 816, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 80 FSIP 38 (JANUARY 26, 1981).
IN MY VIEW, SUCH ACTION IS CONSISTENT WITH SEC. 7121(A)(2) WHICH
PROVIDES THAT, "ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY
MATTER FROM THE APPLICATION OF THE GRIEVANCE PROCEDURE WHICH ARE
PROVIDED FOR IN THE AGREEMENT."
EVEN ASSUMING THAT THE GENERAL COUNSEL'S LEGAL POSITION IS CORRECT, A
PREPONDERANCE OF THE EVIDENCE DOES NOT DEMONSTRATE THAT RESPONDENT'S
REFUSAL TO INCORPORATE A FULL SCOPE GRIEVANCE PROCEDURE AS PART OF THE
COLLECTIVE BARGAINING AGREEMENT ON OCTOBER 4, 1979 AND ON MARCH 11,
1980, VIOLATED THE STATUTE AS ALLEGED.
BASED ON THE ENTIRE RECORD, INCLUDING THE TESTIMONY OF RESPONDENT'S
NEGOTIATORS AND UNION NEGOTIATOR, CHARLES COLLINS, I CONCLUDE THAT GOOD
FAITH BARGAINING CONCERNING THE SCOPE OF THE GRIEVANCE PROCEDURE HAD NOT
BEEN COMPLETED AT THE TIMES ALLEGED DUE TO THE EXISTENCE OF THE PARTIES'
AGREEMENT TO DELAY FURTHER NEGOTIATIONS UNTIL WORK ON ALL OTHER ARTICLES
HAD BEEN COMPLETED AND AGREED UPON. AS OF LATE OCTOBER 1979, A NUMBER
OF OTHER ARTICLES WERE IN DISPUTE, AND, AS OF MARCH 11, 1980, THE MERIT
PROMOTION ARTICLE STILL REMAINED TO BE RESOLVED. IT WAS NOT UNTIL
OCTOBER 1980 THAT WORK ON ALL THE OTHER ARTICLES WAS FINISHED, AT WHICH
TIME RESPONDENT OFFERED TO RETURN TO THE BARGAINING TABLE TO NEGOTIATE
OVER THE SCOPE OF THE GRIEVANCE PROCEDURE.
BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED
THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-445 BE, AND
IT HEREBY IS, DISMISSED.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 29, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE INTERVENOR SUBMITTED A LETTER REGISTERING ITS SUPPORT FOR THE
JUDGE'S DECISION AND ENCLOSED A COPY OF A BRIEF WHICH IT HAD FILED IN A
CASE INVOLVING A SIMILAR ISSUE (CASE NO. 46). THE GENERAL COUNSEL FILED
A MOTION TO STRIKE THIS SUBMISSION CONTENDING THAT INASMUCH AS IT DID
NOT PURPORT TO CONSTITUTE EITHER EXCEPTIONS, CROSS-EXCEPTIONS, OR AN
OPPOSITION TO EXCEPTIONS, THERE WAS NO PROVISION FOR SUCH SUBMISSION IN
THE AUTHORITY'S RULES AND REGULATIONS. IN RENDERING OUR DECISION
HEREIN, THE INTERVENOR'S SUBMISSION HAS NOT BEEN CONSIDERED.
/2/ ACCORDINGLY, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE
JUDGE'S ALTERNATIVE BASIS FOR HIS DISPOSITION AT PAGE 10 OF HIS
DECISION.
/3/ THE TRANSCRIPT AND RECORD IS HEREBY CORRECTED AS REQUESTED IN THE
GENERAL COUNSEL'S UNOPPOSED MOTIONS TO CORRECT TRANSCRIPT AND TO STRIKE
EXHIBITS ERRONEOUSLY INCLUDED IN THE RECORD. IN ADDITION, THE
TRANSCRIPT IS CORRECTED AT PAGE 41, LINES 14 AND 16 TO SHOW THAT
RESPONDENT'S EX. 3 WAS RECEIVED IN EVIDENCE.
/4/ HEREINAFTER THE TERM "PARTIES" WILL REFER ONLY TO RESPONDENT AND
THE UNION, THE PARTIES ENGAGED IN THE COLLECTIVE BARGAINING NEGOTIATIONS
IN ISSUE.
/5/ THE POST ENACTMENT STATEMENTS OF REPRESENTATIVE WILLIAM FORD, 124
CONG.REC. H 13609 (DAILY ED., OCTOBER 14, 1978) DO NOT CONSTITUTE
EVIDENCE OF CONGRESSIONAL INTENT. OFFICE OF PROGRAM OPERATIONS, FIELD
OPERATION, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 5 FLRA
NO. 45(1981).
/6/ SECTION 7121 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7121. GRIEVANCE PROCEDURES
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (3) OF THIS
SECTION, THE PROCEDURES
SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
WITHIN ITS COVERAGE.
(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE
GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
* * * *
(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE
CONCERNING--
(1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
TITLE (RELATING TO
PROHIBITED POLITICAL ACTIVITIES);
(2) RETIREMENT, LIFE INSURANCE, OR 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.