22:0574(62)NG - AFGE Local 1799 and Army, Aberdeen Proving Ground, MD -- 1986 FLRAdec NG
[ v22 p574 ]
22:0574(62)NG
The decision of the Authority follows:
22 FLRA No. 62
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1799
Union
and
DEPARTMENT OF THE ARMY,
ABERDEEN PROVING GROUND,
MARYLAND
Agency
Case No. 0-NG-988
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) and concerns the
negotiability of the underlined portions of two provisions of a
negotiated agreement which were disapproved by the Agency head pursuant
to section 7114(c) of the Statute. /1/
II. Union Provision 1
Section 17.07. The employee may contest the merits or
procedures used in effecting a non-disciplinary adverse action of
separation for cause by using the appeal procedures specified in
AR-230-2 or by using the grievance procedures contained in Article
18, but not both. An employee shall be deemed to have exercised
this option for one of the procedures described above at such time
as he timely files under either procedure whichever comes first.
A. Positions of the Parties
The Agency asserts that Union Provision 1 is nonnegotiable because it
is inconsistent with section 7121(a)(1) of the Statute. The Union
argues that the provision is consistent with section 7121(e)(1) of the
Statute.
B. Analysis
The two sections of the Statute relied upon by the parties, namely,
section 7121(a)(1) and section 7121(e)(1), provide in relevant part, as
follows:
Section 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 or
arbitrability. Except as provided in subsections (d) and (e) of
this section, the procedures shall be the exclusive procedures for
resolving grievances which fall within its coverage.
. . . . .
(e)(1) Matters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated
grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures of
section 7701 of this title or under the negotiated procedure, but
not both. Similar matters which arise under other personnel
systems applicable to employees covered by this chapter may, in
the discretion of the aggrieved employee, be raised either under
the appellate procedures, if any, applicable to those matters, or
under the negotiated grievance procedure, but not both. . . .
Section 7121(a) establishes that, except for those limited matters
set out in section 7121(d) and (e), the negotiated grievance procedure
shall be the exclusive procedure for resolving all matters which fall
within its coverage. /2/ The limited exceptions to the exclusivity
requirement, which are set out in section 7121(e)(1), permit employees
covered by title 5 the option of challenging certain actions, including
performance based non-disciplinary separations, through their negotiated
grievance procedure or to the Merit Systems Protections Board (MSPB)
through the appellate procedures of 5 U.S.C. Section 7701. Section
7121(e)(1) also permits employees not covered by title 5 to challenge
similar actions through their negotiated grievance procedure or through
the applicable "appellate procedures" which may exist under their
non-title 5 personnel system.
The record in this case indicates that the employees referred to in
the provision are non-appropriated fund (NAF) employees. These NAF
employees are not covered by 5 U.S.C. Section 4303 relating to
performance based adverse actions and thus, cannot appeal a
non-disciplinary separation for cause to MSPB under 5 U.S.C. Section
7701. See 5 U.S.C. Section 2105(c). In addition, according to the
parties, NAF employees do not have access to any other statutory appeals
procedure in which to contest such non-disciplinary separations for
cause. Rather, the Agency has created, by regulation, an internal
administrative appeals system in which such matters may be contested.
Further, the record indicates that the Agency regulation specifically
excludes from coverage of the administrative appeals system any matter
that is also covered by a negotiated grievance procedure. Provision 1
simply would grant NAF employees the option to appeal non-disciplinary
separations for cause through either the negotiated grievance procedure
or through the administrative procedures contained in the Agency
regulation.
Thus, the question presented by the disputed portion of Provision 1
concerns whether the Agency's internal administrative appeals system is
an "appellate procedure" within the meaning of section 7121(e)(1) of the
Statute.
Although the term appellate procedure is not expressly defined in the
Statute, the legislative history of section 7121 supports a conclusion
that Congress intended that term to include "any applicable appeals
procedure established by or pursuant to law." H. REP. NO. 1403, 95th
Cong., 2d Sess. 55 (1978). See also S. REP. NO. 969, 95th Cong., 2d
Sess. 109-110 (1978).
The Union in this case does not provide any support for its claim
that the Agency's internal administrative appeals system constitutes an
appellate procedure within the meaning of section 7121(e)(1).
Specifically, there is nothing in the record to indicate that the
Agency's internal administrative appeals system was established by or
pursuant to law. Thus, the Agency's internal appeals system is not an
"appellate procedure" within the meaning of section 7121(e)(1) of the
Statute. As a result, challenges to performance based separations for
cause of NAF employees are required by section 7121(a)(1) of the Statute
to be processed exclusively through the negotiated grievance procedure
which covers such matters.
C. Conclusion
Consequently, by attempting to provide NAF employees with an option
to contest performance based separations for cause through either the
Agency's internal regulatory appeals procedure or through the negotiated
grievance procedure which covers such matters, the disputed portion of
Union Provision 1 is inconsistent with the mandate of section 7121(a)
(1). Therefore, Provision 1 is outside the duty to bargain under
section 7117(a)(1) of the Statute.
III. Provision 2
Section 26.07. The parties agree that fair and equitable
consideration shall be afforded unit employees in respect to
training which will improve their on-the-job performance. In this
connection, the selection of candidates for such training shall be
made from interested qualified employees in the area concerned.
A. Positions of the Parties
The Agency contends that because this provision would require
management to restrict its assignment of certain training to certain
specified employees, it directly interferes with management's right,
under section 7106(a)(2)(B) of the Statute, to assign work. The Union
argues that the undisputed first sentence read in conjunction with the
disputed second sentence, does not interfere with management's right to
assign work. Further, the Union asserts that, under applicable
Authority precedent, this proposal is within the duty to bargain because
it contains general non-quantitative language which provides, at most, a
procedure or an arrangement by which a management right is exercised.
B. Analysis
In our opinion, if this proposal were revised to more precisely
implement the Union's stated intent of providing bargaining unit
employees with fair and equitable consideration in selection for
performance improving training assignments, it would be within the duty
to bargain. See Association of Civilian Technicians, New York State
Council and State of New York, Division of Military and Naval Affairs,
Albany, New York, 11 FLRA 475 (1983) (Union Proposal 1). However, the
Union's stated intent is at odds with the plain meaning of the entire
proposal. Specifically, the first sentence, which is not in dispute,
merely provides that bargaining unit employees will be provided with
fair and equitable consideration for training assignments. The second
sentence, on the other hand, expressly provides that selections for such
training assignments "shall be made" from "interested qualified"
employees, in other words from qualified volunteers. Since there is
nothing in the record which persuades us that the disputed second
sentence was intended to merely establish a nondispositive preference
for qualified volunteers, we conclude that this sentence simply would
preclude the Agency, for example, from assigning training to a
non-volunteer.
It is well settled that an express limitation on an agency's
discretion to pick the particular employee to whom specified training
will be assigned violates the agency's right to assign work under
section 7106(a)(2)(B) of the Statute. See National Association of Air
Traffic Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA 588 (1981) (Union Proposals I through III).
Thus, the disputed second sentence would substantively interfere with
management's right and does not constitute a negotiable procedure within
the meaning of section 7106(b)(2) of the Statute. See American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
enforced sub nom. Department of Defense v. Federal Labor Relations
Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, 455 U.S. 945 (1982).
We turn now to the question of whether the disputed second sentence
constitutes an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute. Here, we may assume that the disputed
sentence was intended to ameliorate an adverse effect perceived by a
qualified volunteer for a performance improving training assignment who
was not selected because the training was assigned to a non-volunteer
instead. In this circumstance, however, the proposed amelioration would
totally preclude the Agency from assigning the training to the
non-volunteer notwithstanding any determination on the part of the
Agency that such non-volunteer would benefit from the performance
improving training. Such a proposed amelioration, which totally
abrogates the exercise of a management right, clearly does not
constitute an appropriate arrangement within the meaning of section
7106(b)(3). See American Federation of Government Employees, Local 2782
v. Federal Labor Relations Authority, 702 F.2d 1183, 1188 (D.C. Cir.
1983), reversing and remanding American Federation of Government
Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the
Census, Washington, D.C., 7 FLRA 91 (1981).
C. Conclusion
Based on the foregoing analysis, the disputed sentence violates
management's right, under section 7106(a)(2)(B), to assign work and does
not constitute a negotiable procedure under section 7106(b)(2) or an
appropriate arrangement under section 7106(b)(3) of the Statute.
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed.
Issued, Washington, D.C., July 15, 1986.
/s/ Jerry L. Calhoun Chairman
/s/ Henry B. Frazier, III Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Agency withdrew its allegation of nonnegotiability with
regard to two additional provisions included in the Union's appeal.
Consequently, the appeal as to those matters is moot and the petition
for review as it relates to those two provisions is dismissed.
(2) While section 7121(a) also refers to matters set out in section
7121(d), such matters relate to discrimination complaints and are not
relevant in the instant case.