30:0656(81)NG - NTEU and Treasury, Office of Chief Counsel -- 1987 FLRAdec NG

 30 FLRA NO. 81
 30 FLRA 656

  30 DEC 1987

NATIONAL TREASURY EMPLOYEES UNION

     Union

     and

DEPARTMENT OF TREASURY
OFFICE OF CHIEF COUNSEL

     Agency

Case No. 0-NG-1447

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute). The case
presents issues concerning the negotiability of two provisions of
a contract which were agreed to locally by the parties but
disapproved during review of the agreement by the Agency head
pursuant to section 7114 (c) of the Statute. The provisions would
permit non-preference eligible excepted service employees to
appeal adverse actions under the parties' negotiated grievance
procedure. We find that both provisions are within the duty to
bargain.

     II. Background

     The disputed provisions in this case--Article 5, Employee
Grievance Procedure and Article 6, Arbitration--were disapproved
by the Agency head "to the extent these articles apply the
grievance procedure and arbitration to those personnel actions
involving excepted service employees and probationary employees,
where pursuant to 5 U.S.C. 4303 and 5 U.S.C. 7511, such employees
have no  right of appeal to the Merit Systems Protection Board."
See Memorandum of August 10, 1987, attached to the Union's
Petition for Review. Articles 5 and 6, which are set forth in the
Appendix to this decision, are intended to provide excepted
service employees with certain appeal rights under the collective
bargaining agreement. See Union Petition for Review at 2;
Agency Statement of Position at 2. Nothing in the record
indicates that the disputed provisions apply to probationary
employees. Our decision addresses only the provisions'
application to excepted service employees.

     III. Positions of the Parties

     The Agency contends that providing excepted service
employees with access to grievance procedures is inconsistent
with Federal law and Government-wide regulations. The Agency
acknowledges that in National Treasury Employees Union and
Department of Health and Human Services, Region V, Chicago,
Illinois, 25 FLRA  1110 (1987), petition for review filed sub
nom. United States Department of Health and Human Services v.
FLRA,  No.  87-1595 (7th Cir. April 13, 1987), the Authority
found negotiable a provision which would permit excepted service
employees to be included within negotiated grievance and
arbitration procedures. The Agency requests that we reconsider
that decision, and contends that Congress preempted agencies from
granting through labor negotiations grievance procedure rights to
non-veteran employees in the excepted service.

     The Union also notes the Authority's decision in NTEU and
HHS, 25 FLRA  1110, and states that the Authority held in that
case that the grant of adverse action protections to excepted
service employees was consistent with Congressional intent and
within the duty to bargain. According to the Union, the Agency
has not presented any new arguments which the Authority did not
decide in the HHS case. The Union contends that its proposal is
consistent with the Congressional scheme enacted in the Civil
Service Reform Act and is within the duty to bargain.

     IV. Discussion

     Articles 5 and 6 involve grievance and arbitration
procedures which would permit excepted service employees to
grieve adverse actions taken against them. As noted by the
parties, the articles are to the same effect as the proposal at
issue in NTEU and HHS. In that case, the Authority found
negotiable a proposal which would include excepted service
employees within the coverage of the grievance, adverse action,
and arbitration articles of the parties' negotiated agreement.
The Authority considered the same arguments as those presented in
this case, and found that Congress did not intend to exclude
excepted service employees from coverage of negotiated grievance
procedures. Nothing in the record in this case warrants a
contrary conclusion as to Articles 5 and 6.

     Consequently, for the reasons more fully set forth in
Department of Health and Human Services, we find that Article 5
and Article 6 are within the duty to bargain.

     V. Order

     The Agency must rescind its disapproval of Article 5 and
Article 6. 1

     Issued, Washington, D.C.,December 30,  1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 


APPENDIX

ARTICLE 5 EMPLOYEE GRIEVANCE PROCEDURE

     Section 1: Objectives and Purposes

     A. The Employer and the Union recognize and endorse the
importance of bringing to light and adjusting problems promptly
and; whenever possible, informally. For purposes of this
Agreement, adjusting problems informally contemplates adjustments
arrived at between an employee and a manager; an employee, a
manager and a Union representative; or a manager and a Union
representative.

     B. The purpose of this article is to provide an orderly
method for the processing and disposition of grievances brought
by employees or by the Union on behalf of employees. This article
does not apply to the filing of institutional grievances
concerning the effect or interpretation, or a claim of breach of
the provisions of this Agreement relating to the rights and
benefits accruing to the Union as the exclusive representative of
bargaining unit employees.

     C. The Union agrees to submit virtually all contract-related
matters to the negotiated grievance procedure for final
disposition and to use sparingly unfair labor practice procedures
concerning contract-related issues which may occur in the
day-to-day administration of this Agreement.

     D. 1. Employees who believe they have been illegally
discriminated against on the basis of race, color, religion, sex,
national origin, age or handicapping condition have the right to
raise the matter under the statutory procedure or the negotiated
grievance procedure of this Agreement, but not both. Employees
shall be deemed to have exercised their right of choice at such
time as they timely file a formal written EEO complaint or file a
timely grievance under this procedure.

     2. When the employee elects to raise the matter under this
negotiated grievance procedure, the grievant shall specify the
specific nature of the discrimination (e.g. race, religion), the
facts upon which the allegation is based, and the name of the
alleged discriminating official. 

     Section 2: Definitions

     The following definitions apply to the terms used in this
article:

     a. the term "Employer" means the National Office within the
Office of Chief Counsel, Internal Revenue Service;

     b. the term "Union" means National Treasury Employees Union
(NTEU) and/or local chapter 251 of NTEU;

     c. the term "employee" means any member of the bargaining
unit;

     d. the term "grievance" means any complaint:

     1. by an employee concerning any matter relating to the
employment of the employee;

     2. by the Union concerning any matter relating to the
employment of any employee; or,

     3. by an employee or the Union concerning (i) the effect or
interpretation, or a claim of a breach of a collective bargaining
agreement or (ii) any claimed violation, misinterpretation, or
misapplication of any law, rule or regulation affecting
conditions of employment.

     e. The term "grievance" does not mean a complaint pursuant
to 5 USC 7121(c) concerning:

     1. a claimed violation of subchapter II of chapter 73 of
title 5 (relating to prohibited political activities);

     2. retirement, life insurance, or health insurance;

     3. a suspension or removal pursuant to 5 USC 7532, dealing
with national security;

     4. an examination, certification, or appointment, or,

     5. the classification of any position which does not result
in the reduction in grade or pay of any employee.

     f. The term "days" means calendar days.

     Section 3: Grievance Procedure--General

     A. This procedure will be the exclusive procedure available
for the processing and disposition of grievances, except when the
employee has a statutory right of choice, i.e., adverse actions,
actions taken for unacceptable performance, or EEO complaints.

     B. Grievances under this procedure may be initiated by the
employees, the Union, or jointly.

     C. Where an employee has initiated a grievance and does not
elect to be represented by the Union, the Union will have a right
to be present at all discussions between the employee and the
Employer concerning the grievance. The Employer will resolve all
grievances presented under such circumstances consistent with the
terms and conditions of this Agreement. In addition, the steward
appointed to represent the organizational segment of the grieving
employee will be timely provided with a copy of the Employer's
decision resolving the grievance.

     D. Employees will have the right to be accompanied,
represented, and advised by the authorized representative of the
Union as set forth in the steps enumerated below. Union stewards
who grieve on their own behalf may select the steward of their
choice.

     Mass Grievances

     E. In the event that two or more employees have designated
the Union to serve as their representative on one or more
grievances involving substantially the same facts and the same
issue (mass grievance), or the Union has filed one or more
grievances on behalf of two or more employees involving
substantially the same facts and the same issue (mass grievance),
the following numbers of grievants may attend:

     1. three (3) grievants if the grievance involves more than
one (1) but less than twenty (20) employees; and,

     2. four (4) grievants if the grievance involves twenty (20)
or more employees.

     For a mass grievance, there will be one (1) meeting per work
unit at Step 1, and only one (1) meeting at succeeding steps, and
the numbers described above will control how many may attend.

     F. Steps

     Step 1:

     The Grievance Form (Appendix A) must be filed with the
employee's immediate supervisor or manager. A grievance will not
be accepted unless filed within twenty-one (21) days after the
incident which gave rise to the grievance or within twenty-one
(21) days after the grievant became aware of the matter. The
grievance will provide information concerning the nature of the
grievance and a detailed statement of the specific remedy sought.
The grievance will specify the article and section of the
Agreement, provision of the statute or regulation or other
conditions of employment allegedly violated. The parties may then
request a meeting or agree that no  meeting be held. If either
party requests a meeting, it must take place within seven (7)
days of the filing of the Grievance Form. The meeting will be
with the immediate supervisor or designee and any other
management representative the Employer deems necessary, and the
grievant and/or the grievant's steward. A decision will be given
to the aggrieved within fourteen (14) days following the filing
of the written grievance.

     Step 2:

     A grievant may appeal the decision in Step 1. The appeal
must be in writing and filed with the Division Director (or the
appropriate Deputy Associate Chief Counsel in the case of
International) within seven (7) days of receiving the decision in
Step 1. The parties may request a meeting or agree that no 
meeting be held. If either party requests a meeting, it must take
place within seven (7) days of the appeal. The meeting will be
with the person with whom the appeal was filed or designee and
any other management representatives the Employer deems
necessary, and the grievant and/or the grievant's union steward
and/or the Chief Steward. A written decision will be given to the
grievant within twenty-one (21) days of the filing of the appeal.

     Step 3:

     A grievant may appeal the decision in Step 2. The appeal
must be in writing and filed with the appropriate Associate Chief
Counsel (or Deputy Chief Counsel (Management and Operations) in
the case of the Operational Division) within fourteen (14) days
of receipt of the decision. The parties may request a meeting or
agree that no  meeting be held. If either party requests a
meeting, it must take place within seven (7) days of the appeal.
The meeting will be with the Associate Chief Counsel (or Deputy
Chief Counsel (Management and Operations) in the case of the
Operations Division) or designee and any other management
representatives the Employer deems necessary and any or all of
the following: the grievant, the grievant's union steward, the
Chief Steward, the Chapter President or a national representative
(if the offices of Chapter President and Chief Steward are held
by one individual, this does not authorize an additional union
steward at the meeting). The written decision will be given to
the grievant within twenty-one (21) days of the appeal. This
decision, at the option of the Employer, may be provided by
certified mail, return receipt requested, or by hand delivery to
the chapter president with a copy to the grievant.

     Section 4: Right to and Notice of Arbitration

     The Union may invoke arbitration. The Union, within
twenty-one (21) days of receipt of the decision at Step 3, must
notify the final decision maker and Director, Operations
Division, of the appeal by certified mail, return receipt
requested, or by hand delivery. Pending grievances involving the
same issues must be assigned to the same arbitrator.

     Section 5: Miscellaneous

     A. The parties may agree in writing to waive any step of
this article.

     B. The parties may agree to extend time limits delineated in
this article.

     C. Time periods set forth in this article will begin the day
after the receipt by the Employer of a grievance or appeal and
the day after the receipt by the Union of a decision to the
grievance or appeal. If the 1st day of  any time period
falls on a Saturday, Sunday or legal holiday in the District of
Columbia, such time period will expire as of the close of
business of the next business day.

     D. Responses to grievances shall be served on the
appropriate steward and the grievant. Time periods set forth in
this article shall be computed from the day after the receipt of
a grievance or appeal by the Employer and the day after the
receipt of a response by the Union.

     E. When replying in writing, the Employer will render a
substantive response to each issue raised by the Union. Failure
to issue a substantive response shall cause no  adverse
consequences to the Employer.

     F. Grievance meetings will be scheduled at a time agreeable
to the parties, during the grievant's normal tour of duty.

     G. Failure by the grievant or the Union to prosecute the
grievance or appeal (including the meeting of time deadlines) at
any step of the article will nullify the grievance. Failure by
the Employer to meet any of the time deadlines of the article
respecting responses will permit the grievant or the Union to
move to the next level of grievance or appeal.

     H. The parties may not withhold evidence during the
resolution of a grievance. Newly-discovered evidence may be
introduced at any step of the proceeding prior to arbitration.

     I. Unless agreed to by the parties, new issues may not be
raised by either party unless they have been raised at Step 1 of
the grievance procedure.

     J. If the Employer raises an issue of grievability or
arbitrability, the grievance will be amended to include a
resolution of this issue in the processing of the grievance.

     K. No  grievances resolved below the level of Associate
Chief Counsel will be precedential. Grievances resolved by the
Associate Chief Counsel or above will be precedential unless the
parties agree otherwise.

ARTICLE 6 ARBITRATION

     Section 1

     Matters not settled in the grievance procedure or that are
otherwise appealable to arbitration will be arbitrated pursuant
to the terms of this article.

     Section 2

     This arbitration procedure will be supported by a permanent
panel of arbitrators.

     Section 3

     A. The Employer and the Union shall mutually select a panel
of permanent arbitrators to decide all arbitration cases. Four
individuals with federal sector (including equal employment
opportunity) arbitration experience will be selected. If the
parties cannot reach agreement as to the composition of the
panel, each party will nominate five arbitrators and then each
party shall strike three, thus leaving four arbitrators.

     B. Either party may strike an arbitrator upon giving thirty
(30)  calendar days notice. In replacing arbitrators or otherwise
filling vacancies, the parties will request three names from the
Federal Mediation and Conciliation service (FMCS) for each
vacancy. Each party may add two names to the list for each
vacancy. They will then alternately strike names from each list
until the requisite number of names remain to fill the vacancies.
First strike will be determined by a flip of the coin.

     C. Upon notification of striking, no  additional cases will
be assigned to that arbitrator. If an arbitrator has been
assigned a case when a party has striken him or her, the
arbitrator shall retain full jurisdiction over that case to
include conducting a hearing and rendering a decision. 

     Section 4

     A. Arbitration will be invoked in accordance with the time
deadlines (twenty-one (21) calendar days) specified elsewhere in
this Agreement.

     B. When invoking arbitration, the Union will serve a copy of
the invocation on the Chief, Human Resources Branch.

     C. Pending grievances involving the same issues must be
assigned to the same arbitrator.

     Section 5

     A. The parties will each pay one half of the regular fees
and expenses including travel expenses of the arbitrator hearing
a case.

     B. Arbitration hearings will be held on the Employer's
premises, or at any site mutually agreed to by the parties.

     C. The grievant, the grievant's representative, and all
bargaining unit employees who are called as witnesses will be
excused from duty to the extent necessary to participate in the
arbitration proceedings without loss of pay or charge to annual
leave.

     D. The arbitrator will determine which of the witnesses
called by a party may testify at the hearing, based upon a
determination that such testimony is irrelevant or unduly
repetitious.

     E. Except in emergency situations, the arbitrator will not
have the authority to keep the record open in order to hear
testimony of additional witnesses. Each party has the
responsibility and obligation to produce its witnesses on the day
of the hearing. For purposes of this article, "emergency" has the
same definition it has in 5 USC 7106.

     F. The arbitrator shall have the authority to make all
arbitrability and/or grievability determinations. The arbitrator
shall make grievability and/or arbitrability determinations
before addressing the merits of the original grievance.

     G. If the Employer declares a grievance nonarbitrable or
nongrievable, the original grievance shall be considered amended
to include the issue of nongrievability. 

     H. The arbitrator's decision shall be final, binding, and
precedential, and the arbitrator shall possess the authority to
make an aggrieved employee whole to the extent such remedy is not
limited by law or the collective bargaining agreement, including
the authority to award back pay, reinstatement, retroactive
promotion where appropriate, and to issue an order to expunge the
record of all references to a disciplinary, adverse, or
unacceptable performance action, if appropriate.

     I. Upon selection of the arbitrator in a particular case,
the respective representatives for the parties will communicate
with the arbitrator and each other in order to select a mutually
agreeable date for the arbitration hearing. Such selection will
be completed within fourteen (14) calendar days of invocation.
The parties will schedule the hearing to be conducted as soon as
practicable, but no  later than ninety (90) calendar days after
selection of the arbitrator. Scheduling of a hearing is not
tantamount to a waiver of any rights. Once that date has been
established, any party that unilaterally requests that an
arbitration hearing be postponed, delayed, and/or cancelled for
whatever reason, which results in any fees being charged by the
arbitrator and/or court reporter, shall pay any and all fees.

     J. In any grievance where the parties mutually agree to
postpone, delay, and/or cancel an arbitration hearing, the
parties will equally share the cost of any fees being charged by
the arbitrator and/or court reporter. Where one party has no 
objection to the request of the other party for postponement,
delay, or cancellation of the arbitration hearing, it will not
absolve the requesting party from the paying of all the fees
being charged.

     K. In any grievance where the parties settle the matter
before an arbitration hearing and there are fees being charged
due to the cancellation of the hearing, both parties will equally
share the cost of any fees being charged.

     L. The strict rules of evidence are not applicable and the
hearing shall be informal.

     M. The parties have the right to present and cross examine
witnesses, issue opening and closing statements, and submit
posthearing briefs. 
     N. The arbitrator may exclude testimony or evidence which is
determined to be irrelevant or unduly repetitious.

     O. Testimony shall be under oath or affirmation.

     P. The Employer and the Union agree that the jurisdiction
and authority of the chosen arbitrator and opinions expressed
will be confined exclusively to the interpretation of the express
provision or provisions of this Agreement at issue between the
parties. The arbitrator will have no  authority to add to,
subtract from, alter, amend, or modify any provision of this
Agreement, or impose on either the Employer or the Union any
limitation or obligation not specifically provided for under the
terms of this Agreement. The parties reserve the right to take
exceptions to any award to the Federal Labor Relations Authority.
Any award may not include the assessment of expenses against
either party other than as agreed to in this Agreement.

     Q. The arbitrator shall have the obligation of assuring that
all necessary facts and considerations are brought before him or
her by the representatives of the parties. This may include
drawing an appropriate inference when either party fails to
present facts or witnesses that the arbitrator deems necessary
and relevant. However, nothing in this article entitles either
party to discovery.

     R. The Employer will make bargaining unit employees
available as witnesses when requested by the union. If the
Employer determines it is not administratively practicable to
comply with the Union's request, and the arbitrator determines
the employee's testimony is relevant, then the hearing may be
postponed. However, the Union may agree to submit an affidavit in
place of the direct testimony of the employee.

     S. Bargaining history may not be used in an arbitration
hearing unless the party wishing to use it has notified the other
in writing at least thirty (30)  calendar days before the hearing
of its intent to use such testimony and/or affidavits. For
purposes of this Agreement, the term "bargaining history" means
solely the discussions of the provisions of this Agreement
between the National Office of the Office of Chief Counsel, IRS,
and NTEU Chapter 251. 

     T. Unless otherwise agreed, there will be a verbatim
transcript of the hearing. A copy of the transcript will be
provided to each party promptly after the conclusion of the
hearing.

     U. Arbitrators will be paid their normal fees, as provided
by law.

     Section 6

     Where one party refuses to attend an arbitration, the
arbitrator shall hold the hearing. The first issue to be
addressed shall be the question of whether the case is properly
before the arbitrator. If the case is proper, the grievance will
be heard on the merits. Copies of any transcripts, briefs, and
decision will be served on the other party. The party going
forward will notify the other party of its intent, listing the
date and location of the hearing.

     Section 7

     In any case where an arbitrator modifies an award pursuant
to a request for reconsideration by the Office of Personnel
Management, the parties will share equally the additional fees of
such reconsideration. In cases where the Office of Personnel
Management does not finally prevail, the Employer will assume
full responsibility for the additional fees of the arbitrator.



FOOTNOTES

     Footnote 1 In finding that Article 5 and Article 6 are
within the   duty to bargain, we make no  judgment as to their
merits.