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11 FLRA NO. 90

HARRY S. TRUMAN MEMORIAL VETERANS
HOSPITAL COLUMBIA, MISSOURI

     Respondent

     and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3399

     Charging Party

Case No. 7-CA-983

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the stipulations of facts, accompanying exhibits, and the parties' contentions, the Authority finds:

The amended complaint alleges in substance that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) when it refused to consider a grievance filed by a probationary employee under the negotiated grievance procedure, contending that the matter involved (i.e the probationary employee's termination) was not grievable.

The Respondent and the Charging Party (the Union) were parties to a collective bargaining agreement dated November 6, 1980. During the negotiations which led to that agreement, the Respondent on numerous occasions had taken the position that its interpretation of the matters excluded from coverage of negotiated grievance procedures by section 7121(c)(4) of the Statute 1 encompassed matters relating to [ v11 p516 ] probationary and trial period employees. On each such occasion, the Union stated that it desired the broadest scope grievance procedure possible and did not accept the Respondent's proposal to exclude from the grievance machinery matters relating to probationary and trial period employees. Ultimately the parties reached agreement on the language of a provision for a negotiated grievance procedure. This language was incorporated in their contract. 2 However, the parties reached this [ v11 p517 ] agreement without further discussing whether probationary and trial period employees were covered thereby, and the parties in subsequent correspondence indicated that their respective positions, as previously expressed in negotiations, had remained unchanged.

On December 19, 1980, a trial period employee was terminated from employment by the Respondent. The employee grieved his termination under the negotiated grievance procedure. By memorandum dated January 5, 1981, the Respondent rejected the grievance on the basis that the matter was not grievable under the language of the negotiated grievance procedure. On January 29, 1981, the Union filed its unfair labor practice charge.

The General Counsel contends that the Respondent's conduct constituted a clear and patent breach of the parties' negotiated agreement as well as a refusal to abide by the terms of section 7121 of the Statute. With respect to the first contention, the Authority notes that the parties' negotiated grievance procedure specifically provides that "disputes of grievability or arbitrability shall be referred to an arbitrator...," 3 and it is not alleged that the Respondent has refused to proceed to arbitration. Thus, the Authority concludes that this single instance of Respondent's disputing the grievability of a [ v11 p518 ] grievance, in the circumstances of this case, did not constitute a rejection of the collective bargaining agreement in violation of section 7116(a)(1) and (5). See U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA No. 47 (1982). 4

The General Counsel also argues that section 7121, as previously interpreted by the Authority, 5 mandates that, absent the parties' mutual agreement on certain exclusions all matters which may lawfully be submitted to the negotiated grievance procedure shall be covered thereunder. Moreover, relying on National Council of Field Labor Locals Counsels contends that grievances regarding terminations of probationary and trial period employees do not come within the meaning of section 7121(c)(4) of the Statute and, hence, such matters are not perforce excluded from coverage under negotiated grievance procedures.

In Vermont Air National Guard, Burlington, Vermont, 9 FLRA No. 92 (1982), the Authority held that the scope of the negotiated grievance procedure is a mandatory subject for bargaining. Accordingly, and noting that the parties took opposing positions during contract negotiations and thereafter as to the meaning to be attached to the contractual language setting forth the scope of the negotiated grievance procedure, and that Article XVIII of the contract is not clear on its face in this regard, the Authority views the dispute herein as one involving contract interpretation. Thus, the appropriate avenue for resolution of the dispute is through the parties' mutually agreed upon contractual grievance and arbitration procedures rather than through the unfair labor practice procedures set forth in section 7118 of the Statute and Part 2423 of the Authority's Rules and Regulations. Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA 512 (1980); Food Safety and Quality Service, U.S. Department of Agriculture, Washington, D.C., 7 FLRA No. 103 (1982); Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71 (1982).

In view of the foregoing, the Authority finds that the Respondent's actions in declaring the trial period employee's grievance concerning his termination from employment to be not grievable under the terms of the parties' negotiated grievance procedure did not violate section 7116(a)(1), (5) and (8) of the Statute. [ v11 p519 ]

ORDER

IT IS ORDERED that the complaint in Case no. 7-CA-983 be, and it hereby is, dismissed.

Issued, Washington, D.C., March 9, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v11 p520 ]

FOOTNOTES

Footnote 1 Section 7121(c)(4) excludes from coverage under any negotiated grievance procedure, a grievance concerning "any examination, certification, or appointment."

Footnote 2 Article XVIII of the parties' contract provided in relevant part: ARTICLE XVIII. GRIEVANCE PROCEDURE Section 1. The purpose of this article is to provide a mutually acceptable method for prompt and equitable settlement of grievances. Section 2. A grievance means any complaint: (1) by an employee concerning any matter relating to the employment of the employees; (2) by the Union concerning any matter relating to the employment of an employee; or (3) by an employee, the Union, or the Employer concerning-- (a) the effect or interpretation or a claim of breach of a collective bargaining agreement; (b) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. (4) This procedure does not include the following: (a) any claimed violation relating to prohibited political activities; or (b) retirement, life insurance, or health insurance; or (c) a suspension or removal for National Security reasons; or (d) any examination, certification or appointment; or (e) the classification of any position which does not result in the reduction-in-grade or pay of an employee. Section 3. This Negotiated procedure shall be the exclusive procedure available to the Union and the employees in the bargaining unit for resolving such grievances except as provided in Section 4 of this article. Section 4. In the event either party should declare a grievance non-grievable or non-arbitrable, the original grievance shall be considered amended to include the issue. The Employer and the Union agree to raise any question of arbitrability or grievability of a grievance prior to the expiration of the time limit for the written answer in step 3 of this procedure. All disputes of grievability or arbitrability shall be referred to an arbitrator as a threshold issue in the related grievance.

Footnote 3 This provision is in accord with the requirement of section 7121 of the Statute which requires that "any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability." See Department of Labor, Employment Standards Administration/Wage and Hour Division, Washington, D.C., 10 FLRA No. 60 (1982); American Federation of Government Employees, AFL-CIO, Local 3669 and Veterans Administration Medical Center, Minneapolis, Minnesota, 3 FLRA 311 (1980).

Footnote 4 Cf. Department of Labor, Employee Standards Administration/Wage and Hour Division, wherein an agency's actions in refusing to participate in an arbitration proceeding, based on its contention that the matter involved was not arbitrable, were found to violate the Statute.

Footnote 5 The General Counsel cites the Authority's Interpretation and Guidance, 2 FLRA 273 (1979)

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