[ v09 p744 ]
09:0744(93)CA
The decision of the Authority follows:
9 FLRA No. 93
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL 3723,
AFL-CIO
Respondent
and
UNITED STATES DEPARTMENT OF
THE NAVY, FLEET COMBAT TRAINING
CENTER, PACIFIC, SAN DIEGO,
CALIFORNIA
Charging Party
Case No. 8-CO-4
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS. THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S
DECISION, AND THE GENERAL COUNSEL FILED A BRIEF IN RESPONSE THERETO.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS. THUS, IN AGREEMENT
WITH THE JUDGE, AND FURTHER FOR THE REASONS SET FORTH IN VERMONT AIR
NATIONAL GUARD, BURLINGTON, VERMONT, 9 FLRA NO. 92 (1982), THE AUTHORITY
FINDS THAT THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE IS WITHIN THE
DUTY TO BARGAIN UNDER THE STATUTE, AND THAT THE RESPONDENT VIOLATED
SECTION 7116(B)(5) /1/ BY SUMMARILY REFUSING TO BARGAIN BASED ON THE
ERRONEOUS ASSUMPTION THAT IT WAS NOT REQUIRED TO DO SO.
ORDER
PURSUANT TO SECTION 7118 OF THE STATUTE AND SECTION 2423.29 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE AUTHORITY HEREBY ORDERS THAT THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL
3723, AFL-CIO, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO NEGOTIATE CONCERNING THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN ITS COLLECTIVE
BARGAINING AGREEMENT WITH U.S. DEPARTMENT OF THE NAVY, FLEET COMBAT
TRAINING CENTER, PACIFIC.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, NEGOTIATE WITH U.S. DEPARTMENT OF THE NAVY, FLEET
COMBAT TRAINING CENTER, PACIFIC, CONCERNING THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE TO BE INCLUDED IN THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT.
(B) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
AND AT ALL OTHER PLACES WHERE NOTICES TO ITS MEMBERS AND EMPLOYEES OF
THE U.S. DEPARTMENT OF THE NAVY, FLEET COMBAT TRAINING CENTER, PACIFIC,
ARE CUSTOMARILY POSTED, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY AN AUTHORIZED REPRESENTATIVE AND
SHALL BE POSTED AND MAINTAINED BY SUCH REPRESENTATIVE FOR 60 CONSECUTIVE
DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
NOTICES TO MEMBERS AND EMPLOYEES ARE CUSTOMARILY POSTED. REASONABLE
STEPS SHALL BE TAKEN TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE COMMANDING OFFICER,
U.S. DEPARTMENT OF THE NAVY, FLEET COMBAT TRAINING CENTER, PACIFIC, SAN
DIEGO, CALIFORNIA.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR FOR REGION VIII, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND EMPLOYEES PURSUANT TO A DECISION
AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND
IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF
TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR MEMBERS
AND EMPLOYEES OF THE U.S. DEPARTMENT OF THE NAVY, FLEET
COMBAT TRAINING CENTER, PACIFIC, THAT:
WE WILL NOT FAIL OR REFUSE TO NEGOTIATE CONCERNING THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN OUR COLLECTIVE
0ARGAINING AGREEMENT WITH U.S. DEPARTMENT OF THE NAVY, FLEET COMBAT
TRAINING CENTER, PACIFIC.
WE WILL, UPON REQUEST, NEGOTIATE WITH U.S. DEPARTMENT OF THE NAVY,
FLEET COMBAT TRAINING CENTER, PACIFIC, CONCERNING THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT.
(LABOR ORGANIZATION)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION VIII, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 350 FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS
ANGELES, CALIFORNIA 90071, AND WHOSE TELEPHONE NUMBER IS: (213)
688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JOSEPH SWERDZEWSKI, ESQ.
FOR THE GENERAL COUNSEL
STUART A. KIRSCH, ESQ.
FOR THE RESPONDENT
MR. RICHARD A. SCHULTZ
FOR THE CHARGING PARTY
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
CASE NO.: 8-CO-4
DECISION
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE SECTION 7101,
ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
VOL. 45, NO. 2, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET
SEQ.
PURSUANT TO A CHARGE FILED ON MAY 7, 1979, BY U.S. DEPARTMENT OF THE
NAVY, FLEET COMBAT TRAINING CENTER, PACIFIC, SAN DIEGO, CALIFORNIA
(HEREINAFTER CALLED THE ACTIVITY), A COMPLAINT AND NOTICE OF HEARING
ISSUED ON FEBRUARY 5, 1980 ALLEGING THAT AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL, LOCAL 3723, AFL-CIO
(HEREINAFTER CALLED RESPONDENT) REFUSED TO BARGAIN COLLECTIVELY IN GOOD
FAITH WITH THE ACTIVITY BY REFUSING TO BARGAIN COLLECTIVELY CONCERNING
THE ACTIVITY'S PROPOSALS RELATING TO THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE.
A HEARING WAS HELD ON JULY 25, 1980 IN SAN DIEGO, CALIFORNIA. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
HEREIN. ALL PARTIES SUBMITTED BRIEFS WHICH HAD BEEN DULY CONSIDERED.
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
CONCLUSIONS AND RECOMMENDATION.
FINDINGS OF FACT
1. RESPONDENT IS NOW, AND HAS BEEN AT ALL TIMES MATERIAL HEREIN, THE
EXCLUSIVE REPRESENTATIVE IN A GENERAL SCHEDULE AND WAGE GRADE
NON-PROFESSIONAL UNIT OF EMPLOYEES AT THE ACTIVITY.
2. SINCE LATE NOVEMBER 1978, AND AT ALL TIMES THEREAFTER, RESPONDENT
AND THE ACTIVITY HAVE BEEN ENGAGED IN COLLECTIVE BARGAINING FOR THE
EMPLOYEES IN THE ABOVE DESCRIBED APPROPRIATE UNIT CONCERNING AN INITIAL
COLLECTIVE-BARGAINING AGREEMENT.
3. AT THE INITIAL NEGOTIATION SESSION, IN JANUARY 1979, LT.
COMMANDER W.S. ROBERTS, THE CHIEF NEGOTIATOR FOR THE ACTIVITY, ASKED
SEVERAL QUESTIONS CONCERNING THE RESPONDENT'S GRIEVANCE PROPOSAL.
PRIMARILY, THE DISCUSSION CONCERNED RESPONDENT'S DESIRE TO HAVE SEPARATE
APPEALS I.E. ADVERSE ACTION APPEAL PROCEDURE AND A GRIEVANCE PROCEDURE.
ALSO, RESPONDENT'S PROPOSAL CONTAINING A GRIEVANCE PROCEDURE TO END AT
THE DEPARTMENT HEAD LEVEL WITH NO STEPS THROUGH THE COMMANDING OFFICER
WAS DISCUSSED.
4. IN LATE FEBRUARY, 1979 THE PARTIES AGAIN MET. ACCORDING TO LT.
COMMANDER ROBERTS, IT WAS CLEAR AT THE OUTSET THAT RESPONDENT DESIRED,
"STRICTLY THE DEFINITION THAT IS IN THE STATUTE", WHILE MANAGEMENT
SOUGHT SOME MENTION OF SCOPE IN THE DEFINITION AREA. MANAGEMENT TOOK
THE POSITION, THAT IT HAD TO HAVE THE EXCLUSIONS REFERRED TO IN THE
DEFINITION OR HAVE THE EXCLUSIONS IN THE BODY OF THE GRIEVANCE PROCEDURE
ARTICLE; BUT IN ONE PLACE OR THE OTHER. /2/ THE PARTIES AGREED TO
DEFER THE ISSUE TO THE FORMAL DISCUSSIONS OF THE GRIEVANCE PROCEDURE BY
ADDING A SECTION TO THE DEFINITION, WHICH STATED THAT EXCLUSIONS WOULD
BE LISTED ON THE GRIEVANCE PROCEDURE ARTICLE.
5. ON OR ABOUT MARCH 1, 1979 MANAGEMENT SUBMITTED ITS REVISED
PROPOSAL, CONTAINING A BASIC DIFFERENCE THAT OFFERED A REDEFINITION OF
THE INFORMAL STEP, OR INFORMAL HANDLING OF A GRIEVANCE, AND WHEN A
COMPLAINT BECAME A GRIEVANCE. ABOUT MARCH 3, 1979 THE PARTIES SIGNED
OFF ON THE DEFINITION OF A GRIEVANCE.
6. THE PARTIES APPARENTLY DEFERRED DISCUSSION OF THE GRIEVANCE
PROCEDURE UNTIL MAY 1, 1979. AT THIS MEETING, LT. COMMANDER ROBERTS,
PROVIDED RESPONDENT WITH A REVISED EXCLUSION LIST OF ITEMS TO BE
EXCLUDED FROM THE SCOPE OF THE GRIEVANCE PROCEDURE. ACCORDING TO
COMMANDER ROBERTS, THIS LIST CONSISTED OF THE ORIGINAL LIST WITH THE
ADDITION OF THOSE EXCLUSIONS CALLED FOR IN THE CIVIL SERVICE REFORM ACT.
THE LIST ALSO INCLUDED THE OPTIONAL APPEAL AND GRIEVANCE OPTION CALLED
FOR IN THE STATUTE.
7. AFTER COMMANDER ROBERTS HAD EXPLAINED THE DIFFERENCE BETWEEN
MANAGEMENT'S ORIGINAL PROPOSAL AND THE NEW PROPOSAL, RESPONDENT'S CHIEF
NEGOTIATOR, MR. LEO MOLINA, STATED THAT THE UNION WOULD NOT DISCUSS ANY
EXCLUSIONS BEYOND THOSE QUOTED IN THE CIVIL SERVICE REFORM ACT. ROBERTS
TESTIFIED THAT HE THEN ASKED MOLINA, WHY THE UNION WOULD NOT DISCUSS THE
EXCLUSIONS. MOLINA, ACCORDING TO ROBERTS, THEN READ A LETTER WHICH
STATED A POLICY THAT CONTRACTS SHOULD NOT HAVE A RESTRICTED SCOPE OF THE
GRIEVANCE PROCEDURE BEYOND THOSE IN THE STATUTE. IN RESPONSE TO A
QUESTION FROM A MEMBER OF THE MANAGEMENT NEGOTIATION TEAM, MOLINA
REPLIED THAT THE LETTER FROM WHICH HE WAS READING WAS FROM THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES EXECUTIVE COMMITTEE DIRECTING HIM TO
STAND BY THE POSITION. MOLINA STATED THAT HE WOULD NOT DISCUSS THE
PROPOSAL AT THAT TIME.
8. FOLLOWING A MANAGEMENT TEAM CAUCUS MOLINA WAS PRESENTED WITH A
LETTER REQUESTING RESPONDENT'S POSITION ON THE NEGOTIABILITY OF THE
EXCLUSIONS. MOLINA RESPONDED BY READING FROM THE CONGRESSIONAL RECORD
PORTIONS OF CONGRESSMAN FORD'S SUBMISSION STATING THAT THE STATEMENT
ESTABLISHED CONGRESSIONAL INTENT, AND THAT THE UNION HAD UNILATERAL
AUTHORITY, WHETHER OR NOT TO NEGOTIATE ON THE SCOPE OF THE GRIEVANCE
PROCEDURE. ROBERTS TOOK THE POSITION THAT THIS WAS NOT A UNILATERAL
DETERMINATION WHICH COULD BE MADE BY THE RESPONDENT, THAT PERMISSIVE
AREAS OF BARGAINING HAD BEEN SET OUT AND THAT IF CONGRESS HAD INTENDED
UNILATERAL DETERMINATION BY UNIONS, IT COULD HAVE ALSO SPELLED IT OUT
DIRECTLY.
9. MOLINA QUESTIONED WHETHER THE ACTIVITY WANTED TO GO TO IMPASSE ON
THE MATTER. HE STATED THAT HE WOULD DISCUSS THE MANAGEMENT PROPOSAL BUT
WOULD NOT NEGOTIATE IT. MOLINA SAID THAT THE EXCLUSIONS WERE NOT
NEGOTIABLE UNLESS THE UNION CHOSE TO NEGOTIATE. NO FURTHER DISCUSSION
OF ANY OF THE SPECIFIC EXCLUSIONS TOOK PLACE. ACCORDING TO ROBERTS,
MOLINA CONCLUDED THE MEETING BY STATING THAT RESPONDENT DID NOT WANT TO
DISCUSS THE EXCLUSIONS AT ALL.
10. ON MAY 3, 1979 THE PARTIES MET WITH A FEDERAL MEDIATOR.
ALLEGEDLY, BOTH PARTIES REITERATED THEIR PREVIOUS POSITIONS ON THE
NEGOTIABILITY OF THE SCOPE OF THE GRIEVANCE PROCEDURE. RESPONDENT
WANTED TO KNOW WHY THE ACTIVITY WANTED AN EXCLUSION DEALING WITH
TEMPORARY PROMOTIONS. UPON RECEIVING THE ACTIVITY'S REASONS FOR THE
EXCLUSION, MOLINA REPLIED THAT IT WAS RESPONDENT'S OPTION ON WHETHER TO
NEGOTIATE AND THAT RESPONDENT DID NOT WANT TO BE RESTRICTED. THE
ACTIVITY THEN REQUESTED TO NEGOTIATE DIFFERENT ARTICLES IN THE CONTRACT
BUT, RESPONDENT DECLINED, STATING THERE WAS TOO MUCH INTERRELATION
BETWEEN THE GRIEVANCE ARTICLE AND OTHER ARTICLES. AS AN EXAMPLE, MOLINA
CITED THE SAFETY ARTICLE, RAISING THE FACT THAT THE ACTIVITY HAD
REQUESTED AN EXCLUSION ON REPORTS OF UNSAFE AND UNHEALTHY WORKING
CONDITIONS. AFTER EXPLAINING ITS REASONS, THE DISCUSSION BASICALLY
ENDED.
11. A SUBSEQUENT MEETING WAS CALLED BY THE MEDIATOR ON MAY 8, 1979.
THE DISCUSSION AT THIS MEETING CONCERNING THE TWO EXCLUSIONS DISCUSSED
ON MAY 3, 1979 WAS ABOUT THE SAME.
12. BY LETTER DATED MAY 11, 1979, THE ACTIVITY EXPLAINED ITS
UNDERSTANDING OF THE RESPONDENT'S POSITION ON THE NEGOTIABILITY OF THE
EXCLUSION AS FOLLOWS:
THAT ADDITIONAL EXCLUSIONS TO THE GRIEVANCE PROCEDURE OVER AND ABOVE
THOSE SPECIFIED IN THE
CIVIL SERVICE REFORM ACT OF 1979, WERE NOT NEGOTIABLE UNLESS THE
UNION CHOSE TO NEGOTIATE THEM
AND THAT MANAGEMENT HAS NO SAY AS TO WHETHER OR NOT ANY SUCH
ADDITIONAL EXCLUSIONS WERE
NEGOTIABLE.
AND, REQUESTED TO RESUME NEGOTIATIONS. RESPONDENT RESPONDED BY
LETTER DATED JUNE 26, 1979, WHICH, IN SUBSTANCE, DECLINED TO BARGAIN ON
A REDUCED SCOPE OF THE GRIEVANCE PROCEDURE. SINCE MAY 8, 1979, THE
PARTIES HAVE NEITHER DISCUSSED NOR NEGOTIATED THE SPECIFIC EXCLUSIONS
FROM THE GRIEVANCE PROCEDURE.
DISCUSSION AND CONCLUSIONS
SECTION 7121 OF THE STATUTE STATES THAT "ANY COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES
INCLUDING QUESTIONS OF ARBITRABILITY." IN SEVERAL RECENT CASES, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547, AFL-CIO, AND VETERANS
ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50; AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669, AND VETERANS
ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA NO. 48,
THE AUTHORITY HAS CONSIDERED THE LEGISLATIVE HISTORY AND LANGUAGE OF
SEC. 7121 AND STATED:
IN SUM, CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A
NEGOTIATED GRIEVANCE
PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH "UNDER THE PROVISION OF
LAW" COULD BE COVERED
UNLESS THE PARTIES AGREED THROUGH THE COLLECTIVE BARGAINING PROCESS
TO A PROCEDURE HAVING A
NARROWER COVERAGE. CONGRESS CLEARLY DID NOT, HOWEVER, MANDATE THAT,
TO FALL WITHIN THE DUTY
TO BARGAIN, EACH PROPOSED GRIEVANCE PROCEDURE MUST ENUMERATE ALL OR
SOME OF THE MATTERS WHICH
"UNDER THE PROVISIONS OF LAW" COULD NOT BE SO COVERED. SUCH A
REQUIREMENT WOULD BE REDUNDANT
AND WITHOUT LEGAL SIGNIFICANCE SINCE, AS INDICATED, SECTION 7121, AS
EXPLAINED BY THE
COMMITTEE ON CONFERENCE, ALREADY PROVIDES THAT NEGOTIATED GRIEVANCE
PROCEDURES COVER, AT A
MAXIMUM, MATTERS WHICH UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED
TO THE PROCEDURES.
IN THE MINNEAPOLIS CASE THE AUTHORITY ALSO STATED THAT:
THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION 7121(A) OF THE
STATUTE, VIEWED AS AN
ENTIRETY, DO NOT INDICATE THAT CONGRESS INTENDED TO REQUIRE THE
PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT SPECIFICALLY AND EXPRESSLY TO SET FORTH ALL OR
ANY OF THOSE MATTERS
WHICH, UNDER PROVISIONS OF LAW, COULD NOT PROPERLY BE COVERED BY
THEIR NEGOTIATED GRIEVANCE
PROCEDURE. RATHER, IN THIS REGARD, SECTION 7121(A) OF THE STATUTE .
. . PROVIDES THAT A
COLLECTIVE BARGAINING AGREEMENT MUST CONTAIN A GRIEVANCE PROCEDURE
WHICH SHALL BE THE
EXCLUSIVE METHOD OF RESOLVING GRIEVANCES FALLING WITHIN ITS COVERAGE,
WITH THE PROVISO THAT
THE PARTIES "MAY EXCLUDE ANY MATTER FROM THE APPLICATION OF THE
PROCEDURE . . . "
THE ABOVE CASES CLEARLY INDICATE THAT ACTIVE NEGOTIATIONS CONCERNING
GRIEVANCE PROCEDURES TO BE CONTAINED IN COLLECTIVE BARGAINING AGREEMENTS
WAS ANTICIPATED UNDER SECTION 7121.
FURTHER THE AUTHORITY IN INTERPRETATION AND GUIDANCE, FLRA NO.
O-PS-1, 2 FLRA 32 (DECEMBER 19, 1979) AFTER REVIEWING THE LEGISLATIVE
HISTORY OF THE STATUTE STATED:
(G)RIEVANCE 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: /3/
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.
THE AUTHORITY ADDED IN FOOTNOTE 6 OF THE INTERPRETATION AND GUIDANCE
THAT:
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.
MY READING OF THE ABOVE IS THAT THE AUTHORITY CLEARLY INTENDED THAT
PARTIES NEGOTIATE THE GRIEVANCE PROCEDURE IN EXISTING CONTRACTS. THIS
RATIONALE WOULD APPEAR TO BE MORE APPLICABLE IN NEW CONTRACT SITUATIONS.
SEC. 7121 REQUIRES A GRIEVANCE PROCEDURES IN AGREEMENTS AND UNDER THE
CITED RECENT CASES THE PARTIES MUST AGREE THROUGH THE COLLECTIVE
BARGAINING PROCESS TO A NARROWER COVERAGE. THESE CASES LEAVE NO DOUBT
THAT THE PARTIES ARE REQUIRED TO NEGOTIATE.
RESPONDENT ARGUES THAT THE INTERPRETATION AND GUIDANCE IS CONSISTENT
WITH ITS POSITION THAT A RESTRICTED SCOPE IS A PERMISSIVE SUBJECT OF
BARGAINING. I DISAGREE WITH RESPONDENT THAT THE INTERPRETATION AND
GUIDANCE SUPPORTS SUCH A POSITION. THE ISSUE IN THIS MATTER IS WHETHER
OR NOT THE PARTIES HAVE AN OBLIGATION TO NEGOTIATE IN GOOD-FAITH
CONCERNING THE SCOPE OF THE GRIEVANCE PROCEDURE IN AN INITIAL AGREEMENT.
LEGISLATIVE HISTORY, THE INTERPRETATION AND GUIDANCE AND CASE LAW
INDICATE THAT THE SCOPE OF THE GRIEVANCE PROCEDURE MUST BE NEGOTIATED
ALTHOUGH THE PARTIES NEED NOT AGREE TO A REDUCED OR RESTRICTED SCOPE.
THEREFORE, IT IS FOUND THAT THE LANGUAGE OF 7121(A) OF THE STATUTE AS
WELL AS THE AUTHORITY'S INTERPRETATION AND GUIDANCE DICTATES THAT THE
PARTIES AT LEAST ACCEPT AND IN GOOD-FAITH DISCUSS THE SCOPE OF THE
GRIEVANCE PROCEDURE. SUCH DISCUSSIONS ARE TANTAMENT TO NEGOTIATIONS.
RESPONDENT THEREFORE ACTED AT ITS PERIL WHEN IT SUMMARILY REFUSED TO
NEGOTIATE BASED ON AN ERRONEOUS ASSUMPTION THAT THE SUBJECT MATTER WAS
PERMISSIBLE AND THAT IT WAS NOT REQUIRED BY THE STATUTE TO NEGOTIATE.
I ALSO AGREE WITH THE ACTIVITY THAT RESPONDENT CANNOT RELY ON THE
POST ENACTMENT STATEMENTS OF REPRESENTATIVE WILLIAM FORD, 124 CONG.REC.
H 13609 (DAILY ED. OCT. 14, 1978) REGARDING HIS INTERPRETATION OF SEC.
7121(A)(2), AS FOLLOWS:
THE LABOR ORGANIZATION IS REQUIRED TO MEET A DUTY OF FAIR
REPRESENTATION OF ALL EMPLOYEES,
EVEN IF NOT DUES-PAYING MEMBERS, WHO USE THE NEGOTIATED GRIEVANCE
PROCEDURE. THE COSTS
INVOLVED IN THE PROCEDURE, WHICH MAY INVOLVE ARBITRATION, ARE HIGH.
ALTHOUGH THE BASIC HOUSE
APPROACH OF STATING IN THE STATUTE THE SCOPE OF THE PROCEDURE WAS
FOLLOWED, THE CONFEREES ALSO
ADOPTED A PROVISION AIMED SOLELY AT ALLOWING THE EXCLUSIVE
REPRESENTATIVE, AT ITS OPTION, TO
PROPOSE AND AGREE TO A REDUCED COVERAGE FOR THE NEGOTIATED GRIEVANCE
PROCEDURE-- PERHAPS FOR
FINANCIAL REASONS. OF COURSE, THE UNION MAY ALSO NEGOTIATE CHANGES
IN THE APPEALS PROCEDURE
TO THE EXTENT THAT THE AGENCY HAS THE AUTHORITY TO REVISE THAT
PROCEDURE, INSTEAD OF REPLACING
THE APPEALS WITH A NEGOTIATED PROCEDURE.
WE CAN ANALOGIZE THIS SITUATION TO MANAGEMENT'S "PERMISSIBLE" AREAS
OF BARGAINING UNDER
SECTION 7106(B)(1), EXCEPT THAT PERMITTING THE REDUCTION IN THE SCOPE
OF THE GRIEVANCE
PROCEDURE WAS INCLUDED IN THE CONFERENCE REPORT AS A MEANS TO INSURE
UNION FLEXIBILITY. THAT
IS, THE UNION IS FREE TO INSIST TO IMPASSE ON THE NARROWED SCOPE IF
THE AGENCY DOES NOT
AGREE. AN AGENCY, HOWEVER, MAY NOT INSIST TO IMPASSE THAT THE UNION
AGREE TO A REDUCED SCOPE
OF GRIEVANCES UNDER THE NEGOTIATED PROCEDURE. THE UNIONS DO NOT HAVE
TO NEGOTIATE IN THOSE
STATUTORY APPEALS THAT WILL BE REPLACED BY A GRIEVANCE AND
ARBITRATION PROCEDURE, THEY MAY
NEGOTIATE OUT CERTAIN OR ALL OF THESE APPEALS. (EMPHASIS SUPPLIED)
124 CONG.REC. H 13609
(DAILY ED. OCT 14, 1978).
FURTHERMORE, THESE REMARKS, ARE NOT CONCLUSIVE OR BINDING, AND ARE
NOT PERSUASIVE AS TO CONGRESSIONAL INTENT BUT INDICATE ONLY THE
INDIVIDUAL CONGRESSMAN'S VIEW THAT THE SCOPE OF THE GRIEVANCE PROCEDURE
IS NOT NEGOTIABLE.
NOR CAN RESPONDENT RELY ON THE LANGUAGE OF N.L.R.B. V. WOOSTER
DIVISION OF BORG WARNER 356 U.S. 343(1958) TO ESTABLISH THAT THE SCOPE
OF THE GRIEVANCE PROCEDURE IS A PERMISSIBLE SUBJECT OF BARGAINING.
UNLIKE THE INSTANT MATTER THAT CASE INVOLVED SUBJECTS UNDER SECTION 8(D)
OF THE NLRA WHICH WERE NOT TERMS AND CONDITIONS OF EMPLOYMENT AND
THEREFORE NON-MANDATORY SUBJECTS OF BARGAINING ABOUT WHICH THERE WAS NO
OBLIGATION TO AGREE.
THE ACTIVITY'S CONTENTION IN ITS BRIEF THAT NO PERMISSIBLE SUBJECTS
FOR UNIONS EXIST WITHIN THE FEDERAL SECTOR, MUST ALSO BE REJECTED. THE
AUTHORITY RECENTLY FOUND SUCH A PERMISSIBLE SUBJECT DID INDEED EXIST.
SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 4 FLRA
NO. 39(1980). HOWEVER, BASED ON THE INSTANT RECORD, IT IS FOUND THAT
THE SCOPE OF THE GRIEVANCE PROCEDURE IS NOT SUCH A PERMISSIBLE SUBJECT,
BUT IS A TERM AND CONDITION OF EMPLOYMENT WITHIN THE MEANING OF SECTION
7103(A)(12) OF THE STATUTE /4/ AND IS THEREFORE A MANDATORY SUBJECT OF
BARGAINING. IN THIS REGARD, IT IS NOTED THAT GRIEVANCES /5/ RELATE TO
EMPLOYMENT OF AN EMPLOYEE AND IS ENCOMPASSED WITHIN THE TERM OF
CONDITIONS OF EMPLOYMENT REQUIRING GOOD-FAITH NEGOTIATIONS UNDER SECTION
7103(A)(12). UNQUESTIONABLY REFUSAL TO NEGOTIATE A MANDATORY SUBJECT OF
BARGAINING IS VIOLATIVE OF THE STATUTE.
I ALSO REJECT THE AGENCY'S CONTENTION THAT RESPONDENT'S
REPRESENTATIVE WAS ENGAGED IN LESS THAN GOOD FAITH BARGAINING. SUCH A
REPRESENTATIVE, IN MY VIEW, IS ENTITLED TO, AS MR. MOLINA DID, USE ANY
TOOLS AVAILABLE TO GUIDE HIM IN CARRYING OUT BARGAINING
RESPONSIBILITIES.
BASED ON THE FOREGOING, RESPONDENT'S CONDUCT IN THIS MATTER IS FOUND
TO CONSTITUTE LACK OF GOOD FAITH NEGOTIATION IN VIOLATION OF SECTION
7116(B)(5) OF THE STATUTE. THEREFORE, IT IS RECOMMENDED THAT THE
AUTHORITY ADOPT THE FOLLOWING ORDER.
HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTION
7116(B)(5) OF THE STATUTE, I RECOMMEND THE AUTHORITY ISSUE THE
FOLLOWING:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION 2423.29 OF THE FINAL
RULES AND REGULATIONS, IT IS HEREBY ORDERED THAT AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723; AFL-CIO SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING TO CONSULT OR NEGOTIATE WITH U.S. DEPARTMENT OF THE
NAVY, FLEET COMBAT
TRAINING CENTER, PACIFIC, CONCERNING THE SCOPE OF THE GRIEVANCE
PROCEDURE IN AN INITIAL
CONTRACT.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND
NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE:
(A) BARGAIN UPON REQUEST WITH U.S. DEPARTMENT OF THE NAVY, FLEET
COMBAT TRAINING CENTER,
PACIFIC CONCERNING THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE IN
THE INITIAL CONTRACT.
(B) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES
AND ALL OTHER PLACES
WHERE NOTICES TO MEMBERS AND EMPLOYEES OF THE DEPARTMENT OF THE NAVY,
FLEET COMBAT TRAINING
CENTER, PACIFIC, ARE CUSTOMARILY POSTED, COPIES OF THE ATTACHED
NOTICE MARKED
"APPENDIX". COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL
DIRECTOR FOR REGION 8,
AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED
BY IT IMMEDIATELY UPON
RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE
STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR FOR REGION 8, IN WRITING, WITHIN
DAYS FROM THE DATE OF
THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 9, 1981
WASHINGTON, D.C.
APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND
ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN
ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT REFUSE TO CONSULT OR NEGOTIATE CONCERNING THE SCOPE OF
THE GRIEVANCE PROCEDURE IN AN INITIAL CONTRACT WITH U.S. DEPARTMENT OF
THE NAVY, FLEET COMMAND TRAINING CENTER, PACIFIC.
WE WILL UPON REQUEST, BARGAIN IN GOOD FAITH CONCERNING THE SCOPE OF
THE GRIEVANCE PROCEDURE IN INITIAL CONTRACT NEGOTIATIONS WITH U.S.
DEPARTMENT OF THE NAVY, FLEET TRAINING CENTER, PACIFIC.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
350 FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS ANGELES,
CALIFORNIA 90071.
--------------- FOOTNOTES$ ---------------
/1/ SEC. 7116. UNFAIR LABOR PRACTICES
* * * *
(B) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR A LABOR
ORGANIZATION--
* * * *
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH AN AGENCY AS
REQUIRED BY THIS
CHAPTER(.)
/2/ SECTION 7121(C) OF THE STATUTE SPECIFICALLY EXCLUDES FROM THE
COVERAGE OF NEGOTIATED GRIEVANCE PROCEDURES THE FOLLOWING:
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.
/3/ 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.
/4/ 7103(A)(12) READS AS FOLLOWS:
'COLLECTIVE BARGAINING' MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
DOCUMENT INCORPORATING ANY
COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
TO IN THIS PARAGRAPH DOES
NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
CONCESSION.
/5/ 7103(A)(9) READS IN PERTINENT PART:
"'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