[ v25 p895 ]
25:0895(73)NG
The decision of the Authority follows:
25 FLRA No. 73
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL NO. 4, AFL-CIO-CLC
Union
and
DEPARTMENT OF THE NAVY
PORTSMOUTH NAVAL SHIPYARD
Agency
Case No. O-NG-1019
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 concerns the
negotiability of a proposal regarding the Portsmouth Naval Shipyard's
regulation, NAVSHIPYD PTSMH Instruction 12770.1H, and the effect on that
regulation of the Department of the Navy's (Agency's) revised
regulation, Navy Civilian Personnel Instruction (CPI) 771. The Agency's
revised regulation prohibits bargaining unit employees' use of the
agency administrative grievance procedure for matters not covered by the
parties' negotiated grievance procedure. The proposal would require the
Shipyard to agree to follow the express language of the Shipyard's
regulation, which permits bargaining unit employees' use of the agency
administrative grievance procedure, rather than the Agency's regulation
which prohibits such use. We find that the proposal is within the duty
to bargain.
II. Background and Positions of the Parties
The Union contends that nothing in the Shipyard's regulation can be
read to prohibit bargaining unit employees from using the agency
administrative grievance procedure, and that paragraphs 6 and 7 of the
regulation specifically permit unit employees to use the agency
grievance procedure for matters not covered by their negotiated
procedure. /1/ The Union argues that, absent a showing of a compelling
need for the Agency's regulation, any reliance by the Shipyard on the
Agency's regulation to prohibit unit employees' use of the agency
grievance procedure for matters not covered by the negotiated procedure
is contrary to the Statute. Further, the Union contends that the
Shipyard has not shown or argued that a compelling need exists for
applying the prohibition contained in the Agency's regulation.
The Shipyard, in its reply to the Union's request to bargain, stated
that in its view the Agency's modification of its regulation, excluding
from coverage under the administrative procedure, individuals in a
bargaining unit who are covered by a negotiated agreement, "is mandatory
in application." The Agency, in response to the Union's petition for
review, first alleged several procedural deficiencies in the Union's
petition. Subsequently, the Union submitted to the Authority
documentation to cure these deficiencies, including its election to
proceed first with a related unfair labor practice case which it had
earlier filed. The Agency also alleges that the proposal is not
sufficiently specific and delimited.
After we issued our decision in the related unfair labor practice
case, Portsmouth Naval Shipyard and Department of the Navy (Washington,
D.C.), 23 FLRA No. 68 (1986), petition for review filed sub nom.
Department of the Navy v. FLRA, No. 86-2046 (1st Cir. Nov. 25, 1986),
both parties filed further responses in this case. /2/ The Union
repeated its earlier argument that the proposal is within the duty to
bargain because bargaining unit employees cannot lawfully be prohibited
from using the agency grievance procedure for matters not covered by the
negotiated grievance procedure.
In its supplemental statement of Dec. 19, 1986, the Agency
acknowledges that the Union cured several procedural deficiencies.
However, the Agency argues that the Authority should dismiss the
petition because the Union's request for an allegation of
nonnegotiability was not properly served. On the merits, the Agency
argues that the proposal (1) does not concern a condition of employment
of bargaining unit employees, and (2) is inconsistent with section 7121
of the Statute. The Agency also requests that we reconsider our
conclusion in Portsmouth Naval Shipyard in this proceeding. In sum, it
argues that the proposal is outside the duty to bargain because the only
procedure available to bargaining unit employees is the negotiated
procedure provided for by section 7121 of the Statute. The Agency
contends the proposal therefore does not concern a condition of
employment, as defined by section 7103(a)(14)(C) of the Statute, which
excludes matters specifically provided for by Federal statute.
According to the Agency, the decision whether to extend coverage of the
agency grievance procedure to bargaining unit employees is a matter
within management's discretion, as provided by Office of Personnel
Management (OPM) regulations, 5 C.F.R. Sections 771.201 et seq., and is
outside the duty to bargain.
III. Analysis
A. The Procedural Issues
We find no merit in the Agency's contention that we should dismiss
the petition for lack of proper service of the Union's written request
for a declaration of nonnegotiability. The record shows that the
Union's request was properly served. We also find no merit in the
contention that the proposal is not sufficiently specific and delimited.
The proposal sought to have the agency administrative grievance
procedure apply to bargaining unit employees for those matters not
covered by the parties' negotiated grievance procedure. The Shipyard
understood what the Union was proposing. See the Agency's Supplemental
Statement of Position at 2 (The Union "seeks to negotiate a proposal
that bargaining unit employees may grieve through the agency's
administrative grievance procedure matters excluded from the grievance
procedure negotiated by the parties and incorporated into their
collective bargaining agreement.").
B. The Substantive Issue
In Portsmouth Naval Shipyard, we had before us the same regulations
involved in this petition for review. We found that the Respondents in
that case, the Navy and the Shipyard, violated section 7116(a)(1) and
(2) of the Statute by maintaining a regulation which precludes employees
who are members of a bargaining unit and are covered by a collective
bargaining agreement from using the Respondents' administrative
grievance procedure to raise matters not covered by the negotiated
grievance procedure. We ordered the Respondents to cease and desist
from maintaining and enforcing the regulation.
The Agency's arguments in this negotiability proceeding are similar
to its arguments in the unfair labor practice proceeding in Portsmouth
Naval Shipyard. The Agency's primary argument, as set forth in its
supplemental statement of position, is as follows: (1) t he duty to
bargain extends to proposals affecting unit employees' conditions of
employment; (2) conditions of employment, as defined in section
7103(a)(14)(C), do not include matters specifically provided for by
Federal statute; (3) the proposal in this case involves procedures for
the resolution of grievances of unit employees, which is a matter
specifically provided for in section 7121 of the Statute; and (4) since
section 7121 is a Federal statute, the Agency has no duty to bargain by
operation of section 7103(a)(14)(C). We find this argument unpersuasive
for the following reasons.
It is undisputed that the proposal seeks to establish a contractual
requirement that the Shipyard extend coverage of the agency
administrative grievance procedure to unit employees. The proposal
seeks coverage only for those matters not covered by the negotiated
grievance procedure of the parties' collective bargaining agreement.
Section 7121(a)(1) of the Statute states that collective bargaining
agreements shall provide procedures for the settlement of grievances,
except those excluded by section 7121(c) or by the parties' agreement
(see section 7121(a)(2)), and that as relevant here, the negotiated
procedure "shall be the exclusive procedure( ) for resolving grievances
which fall within its coverage." See generally, American Federation of
Government Employees, Locals 225, 1504, and 3723 v. FLRA, 712 F.2d 640
(D.C. Cir. 1983). Therefore, Congress intended to require unit
employees covered by a collective bargaining agreement to use the
negotiated procedure to grieve matters covered by that procedure. This
proposition is not in dispute.
However, the Agency construes section 7121(a)(1) as reflecting a
further Congressional intent; namely, that Congress specifically
intended to preclude bargaining unit employees covered by a contract
from using an agency administrative grievance procedure for those
matters not covered by the parties' negotiated grievance procedure. We
find no such Congressional intent. As we stated in Portsmouth Naval
Shipyard (slip op. at 6), section 7121(a)(1) "does not prohibit
employees from using the agency grievance procedure to raise issues
outside the scope of the negotiated grievance procedure." In our view,
section 7121(a)(1) does not address, let alone "specifically provide
for," the only matter here at issue: whether coverage of the agency
administrative grievance procedure can extend to unit employees for
matters outside the scope of the parties' negotiated grievance
procedure. Therefore, we reject the Agency's argument that the proposal
does not pertain to conditions of employment because it concerns a
matter "specifically provided for by Federal statute" within the meaning
of section 7103(a)(14)(C). Compare American Federation of Government
Employees, Council of Federal Grain Inspection Locals v. FLRA, 653 F.2d
669 (D.C. Cir. 1981), aff'g American Federation of Government Employees,
AFL-CIO, Council of Federal Grain Inspection Locals and United States
Department of Agriculture, Federal Grain Inspection Service, Washington,
D.C., 3 FLRA 530 (1980).
We also reject the Agency's "technical" argument (Supplemental
Statement of Position at 8) that the proposal is inconsistent with
section 7121 because it concerns an agency grievance procedure which
does not include binding arbitration, and section 7121 requires
grievance procedures to include a provision for binding arbitration.
Section 7121's requirements apply to the contents of negotiated
grievance procedures, not those of agency administrative grievance
procedures. Specifically, section 7121(b)(3) states that "(a)ny
negotiated grievance procedure . . . shall . . . provide that any
grievance not satisfactorily settled under the negotiated grievance
procedure shall be subject to binding arbitration which may be invoked
by either the exclusive representative or the agency." Thus, the
proposal is not inconsistent with section 7121 of the Statute.
Moreover, we note that the Union does not seek to negotiate over the
content of the agency administrative grievance procedure, but only over
its coverage.
Finally, we reject the Agency's argument that the proposal is
inconsistent with 5 C.F.R. Section 771.204 and is therefore outside the
duty to bargain. Under section 7117(a)(1) of the Statute, a proposal is
within the duty to bargain to the extent that it is "not inconsistent
with" a Government-wide rule or regulation. The proposal in this case
is not inconsistent with 5 C.F.R. Section 771.204. That regulation does
not prohibit extension of coverage of the agency administrative
grievance procedure to unit employees for matters outside the scope of
the negotiated grievance procedure. Rather, it provides that "(a)n
agency may extend the coverage of this part (Part 771 -- Agency
Administrative Grievance System) to bargaining unit employees consistent
with the provisions of 5 U.S.C. 7121, or to applicants for employment
with the agency." 5 C.F.R. Section 771.204(b).
IV. Conclusion
Accordingly, we find that the Union's proposal is within the duty to
bargain. We also find that the Agency's contentions present no basis for
reconsideration of our conclusion in Portsmouth Naval Shipyard.
V. Order
The Shipyard must upon request, or as otherwise agreed to by the
parties, bargain on the Union's proposal. /3/
Issued, Washington, D.C., February 26, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Appendix to this decision sets forth paragraphs 6 and 7 of
the Shipyard's regulation, which contain the "express language that the
Union seeks to negotiate (.)" Union's Petition For Review at 1.
(2) In view of the chronology of events in these cases, we have
accepted and considered all submissions of both parties in this case.
See 5 C.F.R. Section 2424.8. Because the record is sufficient for us to
decide the issue presented, we deny the Union's request to file a
further response.
(3) In finding this proposal to be within the duty to bargain, we
make no judgment as to its merits.
APPENDIX
6. Relationship to Negotiated Grievance Procedures. This
instruction does not impact upon a grievance system established through
negotiated agreements between the Portsmouth Naval Shipyard and Shipyard
labor organizations having exclusive recognition.
7. Employee Coverage. The Department of the Navy Grievance
Procedure covers all current US civilian employees of the Portsmouth
Naval Shipyard and former employees of the Shipyard for whom a remedy
can be provided except the following:
a. Employees having access to a negotiated grievance procedure,
which procedure includes matters covered by this instruction.
b. A noncitizen appointed under Civil Service Rule VIII.
c. An alien appointed under Section 1471(5) of Title 22, United
States Code.
d. A nonappropriated fund employee defined in Section 2105(c) of
Title 5 or Section 4202(5) of Title 38, United States Code.
e. A physician, dentist, or nurse appointed under Chapter 73 of
Title 38, United States Code.
f. An applicant for employment.
g. Civilian Marine employees of the Military Sealift Command.