[ v02 p274 ]
02:0274(32)PS
The decision of the Authority follows:
2 FLRA No. 32
Case No. 0-PS-2
INTERPRETATION AND GUIDANCE
INTRODUCTION
AS PREVIOUSLY ANNOUNCED, /1/ THE AUTHORITY DETERMINED, IN CONFORMITY
WITH ITS RULES AND THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (92 STAT. 1191), THAT AN INTERPRETATION OF THE STATUTE WAS
WARRANTED ON THE FOLLOWING QUESTION:
WHAT IS THE PROPER INTERPRETATION AND APPLICATION OF SECTION 7121 OF
THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1211) AS IT RELATES TO
THE IMPACT OF THIS SECTION
OF THE STATUTE ON THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES IN
EXISTING AGREEMENTS? IN
ADDRESSING THEMSELVES TO THIS QUESTION OF SCOPE, INTERESTED PERSONS
ARE ALSO INVITED TO
CONSIDER THE IMPACT, IF ANY, OF SECTION 7135(A)(1) OF THE STATUTE (92
STAT. 1215) ON SUCH
INTERPRETATION AND APPLICATION.
THE AUTHORITY INVITED INTERESTED PERSONS TO EXPRESS THEIR VIEWS IN
WRITING WITH RESPECT TO THE MATTER INVOLVED. THE RESPONSES SUBMITTED TO
THE AUTHORITY /2/ WERE DETAILED AND HELPFUL AND HAVE BEEN CAREFULLY
CONSIDERED. IN VIEW OF THE THOROUGHNESS AND EXTENT OF THESE
SUBMISSIONS, THE AUTHORITY HAS DETERMINED THAT NO USEFUL PURPOSE WOULD
BE SERVED BY PROVIDING FOR AN ORAL HEARING.
BACKGROUND
PRIOR TO THE STATUTE, THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES
WAS GOVERNED BY SECTION 13 OF EXECUTIVE ORDER 11491, AS AMENDED, WHICH
PROVIDED IN RELEVANT PART AS FOLLOWS:
SEC. 13. GRIEVANCE AND ARBITRATION PROCEDURES.
(A) AN AGREEMENT BETWEEN AN AGENCY AND A LABOR ORGANIZATION SHALL
PROVIDE A PROCEDURE,
APPLICABLE ONLY TO THE UNIT, FOR THE CONSIDERATION OF GRIEVANCES.
THE COVERAGE AND SCOPE OF
THE PROCEDURE SHALL BE NEGOTIATED BY THE PARTIES TO THE AGREEMENT
WITH THE EXCEPTION THAT IT
MAY NOT COVER MATTERS FOR WHICH A STATUTORY APPEAL PROCEDURE EXISTS
AND SO LONG AS IT DOES NOT
OTHERWISE CONFLICT WITH STATUTE OR THIS ORDER. . . .
ON OCTOBER 13, 1978, THE STATUTE WAS ADOPTED, EFFECTIVE JANUARY 11,
1979.
SECTION 7121 OF THE STATUTE, RELATING TO THE SETTLEMENT OF
GRIEVANCES, /3/ PROVIDES IN RELEVANT 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. . . . (T)HE 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.
IN ADDITION, CERTAIN "SAVINGS PROVISIONS" WERE ENACTED AS INTEGRAL
PARTS OF THE STATUTE. THE SAVINGS PROVISIONS RELEVANT HERE, SECTION
7135(A) AND (B), READ AS FOLLOWS:
SEC. 7135. CONTINUATION OF EXISTING LAWS, RECOGNITIONS, AGREEMENTS,
AND PROCEDURES
(A) NOTHING CONTAINED IN THIS (STATUTE) SHALL PRECLUDE--
(1) THE RENEWAL OR CONTINUATION OF AN EXCLUSIVE RECOGNITION,
CERTIFICATION OF AN EXCLUSIVE
REPRESENTATIVE, OR A LAWFUL AGREEMENT BETWEEN AN AGENCY AND AN
EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, WHICH IS ENTERED INTO BEFORE THE EFFECTIVE DATE OF THIS
(STATUTE); . . .
(B) POLICIES, REGULATIONS, AND PROCEDURES ESTABLISHED UNDER AND
DECISIONS ISSUED UNDER
EXECUTIVE ORDERS 11491, 11616, 11636, 11787, AND 11838, OR UNDER ANY
OTHER EXECUTIVE ORDER, AS
IN EFFECT UNTIL REVISED OR REVOKED BY THE PRESIDENT, OR UNLESS
SUPERSEDED BY SPECIFIC
PROVISIONS OF THIS (STATUTE) OR BY REGULATIONS OR DECISIONS ISSUED
PURSUANT TO THIS (STATUTE).
AFTER THE EFFECTIVE DATE OF THE STATUTE, IT APPEARS FROM THE RECORD
THAT AGENCIES IN SOME INSTANCES HAVE REFUSED UNION REQUESTS TO
RENEGOTIATE THE SCOPE OF THEIR EXISTING NEGOTIATED GRIEVANCE PROCEDURES.
THE AGENCIES BASE SUCH REFUSALS TO RENEGOTIATE ON THE ABOVE-QUOTED
SAVINGS PROVISIONS IN SECTION 7135 OF THE STATUTE.
WE SHALL CONSIDER WHETHER RENEGOTIATION OF THE SCOPE OF GRIEVANCE
PROCEDURES IN EXISTING AGREEMENTS MAY BE PROPERLY REFUSED ON THE BASIS
OF EITHER SECTION 7135(A)(1) OR (B) OF THE STATUTE AS CLAIMED BY THE
AGENCIES. FOR CONVENIENCE OF DISCUSSION, WE WILL CONSIDER THE IMPACT OF
THESE STATUTORY PROVISIONS IN REVERSE ORDER.
IMPACT OF SECTION 7135(B) ON RENEGOTIATION OF SCOPE OF EXISTING
NEGOTIATED GRIEVANCE PROCEDURES
AS NOTED ABOVE, SECTION 7135(B) OF THE STATUTE PROVIDES THAT POLICIES
ESTABLISHED UNDER THE ORDER SHALL REMAIN IN FULL FORCE AND EFFECT UNLESS
SUPERSEDED BY SPECIFIC PROVISIONS OF THE STATUTE. IT IS CLEAR THAT THE
PROVISIONS OF SECTION 7121 OF THE STATUTE, AS THEY RELATE TO THE SCOPE
OF GRIEVANCE PROCEDURES IN COLLECTIVE BARGAINING AGREEMENTS, DIFFER
MATERIALLY FROM AND THEREBY "SUPERSEDE" THE POLICIES OF SECTION 13 OF
THE ORDER.
FIRST, IN CONTRAST TO SECTION 13 OF THE ORDER, WHICH EXCLUDED FROM
COVERAGE UNDER NEGOTIATED GRIEVANCE PROCEDURES ALL MATTERS FOR
STATUTORY
APPEAL PROCEDURES EXISTED, SECTION 7121 OF THE STATUTE INCLUDES SUCH
MATTERS WITHIN THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURES, ABSENT
AGREEMENT TO THE CONTRARY, AND EXCEPT FOR CERTAIN SPECIFIC EXCLUSIONS
ENUMERATED IN SECTION 7121(C) ITSELF. SECOND, WHILE THE SCOPE OF
GRIEVANCE PROCEDURES NEGOTIATED UNDER SECTION 13 OF THE ORDER WAS
DEPENDENT ON THE PARTIES' MUTUAL AGREEMENT AS TO THOSE MATTERS WHICH
WOULD BE COVERED, /4/ GRIEVANCE 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 PROCEDURES AS PROVIDED IN SECTION
7121(A)(2) OF THE STATUTE. IN THIS CONNECTION, THE HOUSE-SENATE
CONFERENCE COMMITTEE REPORTED WITH RESPECT TO SECTION 7121 AS FOLLOWS:
/5/
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.
THUS, IT IS CLEAR THAT THE POLICIES OF SECTION 13 OF THE ORDER
REGARDING THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES HAVE BEEN
SUPERSEDED BY SPECIFIC PROVISIONS OF SECTION 7121 OF THE STATUTE, AND
THEREFORE, PURSUANT TO SECTION 7135(B) OF THE STATUTE, THOSE POLICIES OF
THE ORDER ARE NO LONGER IN EFFECT.
IMPACT OF SECTION 7135(A)(1) ON RENEGOTIATION OF SCOPE OF GRIEVANCE
PROCEDURES IN EXISTING AGREEMENTS
AS SET FORTH PREVIOUSLY, SECTION 7135(A)(1) OF THE STATUTE PROVIDES
THAT NOTHING IN THE STATUTE SHALL PRECLUDE THE RENEWAL OR CONTINUATION
OF A LAWFUL AGREEMENT ENTERED INTO BEFORE THE EFFECTIVE DATE OF THE
STATUTE. PLAINLY, WHERE BOTH PARTIES TO AN EXISTING AGREEMENT
CONTAINING GRIEVANCE PROCEDURES NEGOTIATED UNDER SECTION 13 OF THE ORDER
WISH TO MAINTAIN THOSE NEGOTIATED GRIEVANCE PROCEDURES, THE LITERAL
LANGUAGE OF SECTION 7135(A)(1) OF THE STATUTE DOES NOT PREVENT THE
PARTIES FROM RENEWING OR CONTINUING THE TERMS OF THAT AGREEMENT IF THEY
SO DESIRE.
HOWEVER, WHERE EITHER PARTY TO AN EXISTING AGREEMENT OBJECTS TO THE
CONTINUATION OF PROVISIONS IN THAT AGREEMENT ESTABLISHING THE SCOPE OF
THE NEGOTIATED GRIEVANCE PROCEDURES, SUCH OBJECTION REQUIRES THE PARTIES
TO COMPLY WITH THE MANDATE OF SECTION 7121 OF THE STATUTE. THAT IS, THE
PARTIES WOULD THEN BE REQUIRED TO RENEGOTIATE THE SCOPE OF THEIR
NEGOTIATED GRIEVANCE PROCEDURES AND, IN CONFORMITY WITH SECTION 7121(A),
THE GRIEVANCE PROCEDURES SO RENEGOTIATED WOULD COVER ALL MATTERS WHICH
MIGHT LAWFULLY BE SUBMITTED TO THOSE PROCEDURES, EXCEPT FOR PARTICULAR
MATTERS MUTUALLY AGREED BY THE PARTIES TO BE EXCLUDED. /6/
PENDING SUCH RENEGOTIATION, THE CURRENT AGREEMENT WOULD OF COURSE
CONTINUE IN EFFECT AND GRIEVANCES WOULD CONTINUE TO BE PROCESSED BY THE
PARTIES AS PROVIDED FOR IN THAT AGREEMENT. /7/
CONCLUSION
IN SUMMARY, IT IS THE AUTHORITY'S INTERPRETATION AND GUIDANCE THAT:
1. SECTION 7121 OF THE STATUTE, UNDER WHICH THE SCOPE OF NEGOTIATED
GRIEVANCE PROCEDURES
SHALL COVER ALL MATTERS WHICH MIGHT LAWFULLY BE SUBMITTED TO THOSE
PROCEDURES EXCEPT FOR
PARTICULAR MATTERS MUTUALLY AGREED BY THE PARTIES TO BE EXCLUDED,
DOES NOT APPLY IN SITUATIONS
WHERE THE PARTIES TO AN EXISTING AGREEMENT CONTAINING GRIEVANCE
PROCEDURES NEGOTIATED UNDER
SECTION 13 OF THE ORDER WISH TO MAINTAIN THOSE NEGOTIATED GRIEVANCE
PROCEDURES.
2. HOWEVER, WHERE EITHER PARTY TO AN EXISTING NEGOTIATED AGREEMENT
OBJECTS TO THE RENEWAL
OR CONTINUATION OF THE EXISTING NEGOTIATED GRIEVANCE PROCEDURES,
SECTION 7121 OF THE STATUTE
REQUIRES THAT THE PARTIES RENEGOTIATE THE SCOPE OF THEIR GRIEVANCE
PROCEDURES IN COMPLIANCE
WITH THE PROVISIONS OF THAT SECTION. UNDER SECTION 7121, THE
GRIEVANCE PROCEDURES SO
RENEGOTIATED WOULD COVER ALL MATTERS WHICH MIGHT LAWFULLY BE
SUBMITTED TO THE NEGOTIATED
GRIEVANCE PROCEDURES, EXCEPT THOSE MATTERS EXPRESSLY EXCLUDED BY
AGREEMENT OF THE
PARTIES. PENDING SUCH RENEGOTIATION, THE CURRENT AGREEMENT MUST
REMAIN IN EFFECT.
ISSUED, WASHINGTON, D.C., DECEMBER 19, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ FEDERAL LABOR RELATIONS AUTHORITY, NOTICE RELATING TO THE SCOPE
OF THE NEGOTIATED GRIEVANCE PROCEDURES IN EXISTING AGREEMENTS, 44 F.R.
28102 (MAY 14, 1979). THIS NOTICE WAS ISSUED IN RESPONSE TO A REQUEST
FOR A MAJOR POLICY DETERMINATION FROM THE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES.
/2/ IN ADDITION TO THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
THE FOLLOWING LABOR ORGANIZATIONS, AGENCIES, AND INDIVIDUALS SUBMITTED
THEIR VIEWS TO THE AUTHORITY: AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO; NATIONAL FEDERATION OF FEDERAL EMPLOYEES; NATIONAL
TREASURY EMPLOYEES UNION; PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION; ACTION; FEDERAL HOME LOAN BANK BOARD; GEORGIA NATIONAL
GUARD; DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; DEPARTMENT OF THE
INTERIOR; INTERNAL REVENUE SERVICE; OFFICE OF PERSONNEL MANAGEMENT;
SENATOR ORRIN G. HATCH; AND MR. STEPHEN B. PACETTI.
/3/ "GRIEVANCE" IS DEFINED BY SECTION 7103(A)(9) OF THE STATUTE AS
FOLLOWS:
7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS (STATUTE)--
. . . .
(9) "GRIEVANCE" MEANS ANY COMPLAINT--
(A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
OF THE EMPLOYEE;
(B) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
EMPLOYMENT OF ANY
EMPLOYEE; OR
(C) BY ANY EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--
(I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
COLLECTIVE BARGAINING
AGREEMENT; OR
(II) ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
ANY LAW, RULE, OR
REGULATION AFFECTING CONDITIONS OF EMPLOYMENT(.)
/4/ SEE, E.G., BUREAU OF PRISONS AND FEDERAL PRISON INDUSTRIES, INC.,
WASHINGTON, DC AND COUNCIL OF PRISON LOCALS, AFGE, 73 FSIP 27, 3 FLRC
352 (FLRC NO. 74A-24, JUNE 10, 1975, REPORT NO. 74).
/5/ 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.
/6/ 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.
/7/ APART FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURES,
SECTION 7121 OF THE STATUTE MANDATES THAT SUCH PROCEDURES SHALL PROVIDE
FOR BINDING ARBITRATION OF ANY GRIEVANCES NOT SATISFACTORILY SETTLED
UNDER THOSE PROCEDURES. UNDER SECTION 13 OF EXECUTIVE ORDER 11491, AS
AMENDED, IT WAS MANDATORY TO INCLUDE BINDING ARBITRATION AS PART OF A
NEGOTIATED GRIEVANCE PROCEDURE. THUS IT IS CLEAR THAT THE POLICIES OF
SECTION 13 OF THE ORDER REGARDING ARBITRATION HAVE BEEN SUPERSEDED BY
SPECIFIC PROVISIONS OF SECTION 7121 OF THE STATUTE, AND THEREFORE,
PURSUANT TO SECTION 7135(B) OF THE STATUTE THOSE POLICIES OF THE ORDER
ARE NO LONGER IN EFFECT. OF COURSE, WHERE THE PARTIES TO AN AGREEMENT
ENTERED INTO BEFORE THE EFFECTIVE DATE OF THE STATUTE HAVE NOT PROVIDED
FOR BINDING ARBITRATION AS PART OF THE GRIEVANCE PROCEDURE, THEY MAY
JOINTLY AGREE TO RENEW OR CONTINUE THE TERMS OF THAT AGREEMENT UNDER THE
PROVISIONS OF SECTION 7135(A)(1) OF THE STATUTE. HOWEVER, WHERE A LABOR
ORGANIZATION OR AN AGENCY OBJECTS TO THE CONTINUATION OF A NEGOTIATED
GRIEVANCE PROCEDURE INSOFAR AS IT HAS NO PROVISION FOR BINDING
ARBITRATION, THEN SUCH OBJECTION WOULD PREVENT THE CONTINUATION OF THAT
PARTICULAR PROVISION UNDER SECTION 7135(A)(1) OF THE STATUTE AND SECTION
7121 WOULD APPLY. IN SUCH A CASE, THEN, THE NEGOTIATED GRIEVANCE
PROCEDURE SHALL PROVIDE FOR BINDING ARBITRATION OF GRIEVANCES NOT
SATISFACTORILY SETTLED UNDER THE NEGOTIATED PROCEDURE. SEE,
INTERPRETATION AND GUIDANCE, FLRA NO. O-PS-1, REPORT NO. 1 (APRIL 19,
1979). SIMILARLY, TO THE EXTENT THAT SECTION 13 OF THE ORDER PROVIDED
THAT QUESTIONS OF ARBITRABILITY MAY, OR IN CERTAIN CASES MUST, BE
SUBMITTED TO THE ASSISTANT SECRETARY OF LABOR, SUCH POLICIES HAVE BEEN
SPECIFICALLY SUPERSEDED BY THE STATUTE. WHERE COLLECTIVE BARGAINING
AGREEMENTS CONTAIN PROVISIONS CONFERRING JURISDICTION UPON THE ASSISTANT
SECRETARY TO RESOLVE PROVISIONS CONFERRING JURISDICTION UPON THE
ASSISTANT SECRETARY TO RESOLVE QUESTIONS OF ARBITRABILITY, SUCH
PROVISIONS HAVE BEEN RENDERED VOID BY THE STATUTE. THEREFORE,
NEGOTIATED GRIEVANCE PROCEDURES MAY NOT CONFER JURISDICTION UPON THE
ASSISTANT SECRETARY OR THE FEDERAL LABOR RELATIONS AUTHORITY TO RESOLVE
SUCH QUESTIONS. SECTION 7121 MANDATES THAT EACH COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF ARBITRABILITY AND UNLESS THE PARTIES, CONSISTENT
WITH LAW, MUTUALLY AGREE OTHERWISE, SUCH PROCEDURES MUST BE READ AS
PROVIDING THAT ALL QUESTIONS OF ARBITRABILITY NOT OTHERWISE RESOLVED
SHALL BE SUBMITTED TO ARBITRATION.