[ v18 p282 ]
18:0282(35)CA
The decision of the Authority follows:
18 FLRA No. 35
NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION AND GODDARD SPACE
FLIGHT CENTER
Respondents
and
GODDARD ENGINEERS, SCIENTISTS AND
TECHNICIANS ASSOCIATION
Charging Party
Case No. 3-CA-20509
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondents had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision with supporting
brief, and Respondent Goddard Space Flight Center (Goddard) filed an
opposition to the General Counsel's exceptions; Respondent National
Aeronautics and Space Administration (NASA) filed cross-exceptions and
an opposition to the General Counsel's exceptions; and the Office of
Personnel Management (OPM), as amicus curiae, /1/ filed an opposition,
and memorandum in support of opposition, to exceptions of the General
Counsel.
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 and conclusions, and recommendation that the complaint
must be dismissed, for the reasons set forth below.
As more fully set forth in the attached Judge's Decision, the
essential facts giving rise to the complaint are as follows: Goddard
Engineers, Scientists and Technicians Association (the Union) was
certified on February 25, 1981, as the exclusive representative of a
unit of all professional engineers and scientists at the Goddard Space
Flight Center, Greenbelt, Maryland. At all material times, the Union
continued to be the certified exclusive representative of these
employees. However, there was no collective bargaining agreement
covering employees in the above-described unit. Some time in 1980, OPM
revised its regulations pertaining to agency grievance procedures (5
C.F.R. Part 771). Pursuant to such revisions, NASA revised its
grievance procedure, incorporated the revision in a new handbook, and
sent advance copies to its installations which were available for all
employees on June 22, 1981. Although NASA instructed its field
installations that the revised procedures were applicable to Agency
grievances filed after June 15, 1981, all installations had the
authority to delay implementation of Agency-wide regulations pending
completion of all bargaining obligations established under the Statute.
In December 1981, the handbooks containing the revised Agency grievance
procedure were inadvertently distributed by a mail service contractor to
all employees at Goddard, despite the fact that Goddard did not issue
any implementing instructions for the revised procedure.
When the Union inquired about the applicability and distribution of
the revised Agency grievance procedure, Goddard informed the Union that:
(1) the distribution of the handbooks was accomplished by the Goddard
mail service contractor without the authorization or knowledge of any
Goddard official; (2) no grievances had been filed by any Goddard
employee since June 15, 1981; and (3) Goddard had no authority to
negotiate the substance of the revision, but would negotiate the impact
and procedures for implementation of the revised Agency grievance
procedure. The Union responded that it would deal with its concerns
about any grievance procedure applicable to members of the bargaining
unit during negotiations for a collective bargaining agreement.
Thereafter, on March 16, 1982, the Union and Goddard commenced
bargaining, but as of the date of the hearing herein no final agreement
had been reached, although the parties initialed-off on a
grievance/arbitration procedure clause in the proposed collective
bargaining agreement.
In finding that Goddard had not violated section 7116(a)(1) and (5)
of the Statute as alleged in the complaint, the Judge determined that
changes in an agency grievance procedure do not involve conditions of
employment which are negotiable under the Statute. Without passing upon
the Judge's determination in this regard, the Authority concludes that
the complaint against both NASA and Goddard should be dismissed, for the
following reasons.
With regard to NASA, the record establishes that no collective
bargaining relationship existed at the agency level between NASA and the
Union inasmuch as the level of exclusive recognition is for a unit of
professional employees at Goddard. Accordingly, NASA had no obligation
to notify and bargain with the Union before promulgating directives
concerning revisions to its Agency grievance procedure. See Department
of the Army and Department of Defense, 15 FLRA No. 142 (1984); Defense
Contract Administration Services Region, Boston, Massachusetts, 15 FLRA
No. 143 (1984). Further, the record supports the Judge's finding that
NASA did not prevent Goddard from fulfilling whatever bargaining
obligation might have existed with respect to the changes in question.
Accordingly, the complaint must be dismissed as to Respondent NASA. /2/
Harry Diamond Laboratories and Department of the Army and Department of
Defense, 15 FLRA No. 43 (1984).
With regard to Respondent Goddard, the Authority notes that copies of
the revised grievance procedure were inadvertently distributed to
Goddard employees by a mail service contractor without the knowledge of
or authorization by Goddard's Labor Relations Officer and therefore
without notice to the Union. Upon learning of the revised Agency
grievance procedure, the Union asked Goddard about the applicability and
distribution thereof but never specifically asked for negotiations.
Indeed, in response to Goddard's contention that the substance of such
revisions would not be negotiable under the Statute, the Union stated
that it would deal with its concerns about any grievance procedure
applicable to unit members during negotiations for a collective
bargaining agreement. As noted above, the Union and Goddard
subsequently reached agreement with respect to a grievance procedure
applicable to unit employees. Under these circumstances, the Authority
concludes that the Union never specifically requested negotiations
concerning revisions in the Agency grievance procedure and, even if a
general request arguably had been made, the Union immediately thereafter
clearly and unmistakably withdrew it. Accordingly, the complaint
alleging that Goddard had failed and refused to notify and bargain with
the Union concerning revisions in the Agency grievance procedure must be
dismissed. See Internal Revenue Service (District, Region, National
Office Unit), 14 FLRA 698, 700 (1984); United States Department of
Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas,
8 FLRA 623, 624 (1982).
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20509 be, and it
hereby is, dismissed.
Issued, Washington, D.C., May 24, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE
FLIGHT
CENTER, Respondents
and
GODDARD ENGINEERS, SCIENTISTS AND TECHNICIANS
ASSOCIATION, Charging Party
OFFICE OF PERSONNEL MANAGEMENT, Amicus Curiae /3/
Case No. 3-CA-20509
Richard L.Dunn, Esquire
For the National Aeronautics and Space Administration
Lawrence F. Watson, Esquire
For Goddard Space Flight Center
Donna DiTullio, Esquire
For the General Counsel
Mr. Frederick G. Schamann
George C. Lacy, Esquire
For the Charging Party
Eugene N. Scallan, Esquire
For the Office of Personnel Management
Before: LOUIS SCALZO, Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter called "the Statute),
and the Rules and Regulations issued thereunder.
The complaint alleges that on or about June 15, 1981, the National
Aeronautics and Space Administration (NASA), revised its agency
grievance procedure and sent it to Goddard Space Flight Center (GSFC or
Goddard) /4/ for distribution to GSFC employees; that on or about June
15, 1981, GSFC implemented the revised agency grievance procedure
received from NASA; and that GSFC did not notify the Goddard Engineers,
Scientists and Technicians Association (Charging Party or Union) of the
revised agency grievance procedure until December of 1981. Based on the
foregoing it was alleged that NASA violated Sections 7116(a)(1) and (5)
of the Statute by preventing GSFC from fulfilling its obligation to
bargain with the Union prior to implementation of the revised agency
grievance procedure; and that GSFC violated Sections 7116(a)(1) and (5)
of the Statute by implementing the revised agency grievance procedure
without first providing the Union with adequate notice, and an
opportunity to negotiate the substance of the revision, procedures which
management would observe, and appropriate arrangements for employees
adversely affected.
Counsel representing NASA, GSFC, and the Office of Personnel
Management (OPM) argue that the Statute imposes no obligation to bargain
concerning an agency grievance procedure. Counsel representing NASA and
GSFC contend further that, under the circumstances presented, any
existing statutory obligation to bargain was in fact fulfilled by NASA
and GSFC. Lastly, NASA argues that it was not properly joined as a
party to the proceeding.
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard. Based upon the entire record
herein, /5/ including the stipulation of facts, stipulated exhibits, and
briefs filed by the parties, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
The following stipulations of fact, entered into the record as a
portion of Jt. Exh. 1, are accepted as true:
1. The charge herein was filed by the Union on April 14, 1982 (Jt.
Exh. 1(a)) and a copy thereof was served on Respondent Goddard, by
certified mail, on April 16, 1982 (Jt. Exh. 2). Receipt of the charge
is herein acknowledged by Respondent Goddard.
2. The charge herein was not served upon Respondent NASA. Neither
Mr. Grant, Director, Personnel Programs Division, nor any authorized
person at NASA Headquarters, was served a copy of the charge in this
case. Neither he, nor any authorized person at NASA Headquarters, was
contacted or given an opportunity to present the views of Respondent
NASA during pendency of this matter prior to the issuance of the
Complaint and Notice of Hearing.
3. The Regional Director of the Third Region, Federal Labor
Relations Authority (herein called the Authority) by decision dated June
30, 1982, declined to issue a complaint in this matter (Jt. Exh. 3).
4. By letter dated July 29, 1982, the Union appealed the Regional
Director's determination (Jt. Exh. 4). By letter dated November 29,
1982 the Assistant General Counsel for Appeals of the Authority,
remanded the case to the Regional Director for issuance of a complaint
(Jt. Exh. 5).
5. Upon the aforementioned charge, the Acting General Counsel of the
Authority, on behalf of the Authority, by the Regional Director of the
Third Region, issued a Complaint and Notice of Hearing dated January 20,
1983. True copies were served by certified mail upon Respondent NASA,
Respondent Goddard, and the Union (Jt. Exh. 6). Receipt of the
complaint is hereby acknowledged by Respondent NASA. Subsequently,
Respondents NASA and Goddard served Answers upon the Union and the
General Counsel of the Authority (Jt. Exhs. 7 and 8).
6. At all times material herein, the Union is, and has been, a labor
organization within the meaning of Section 7103(a)(4) of the Statute.
7. (a) At all times material herein, Respondent NASA is, and has
been, an agency within the meaning of Section 7103(a)(3) of the Statute.
7. (b) At all times material herein, Respondent Goddard is, and has
been, an activity under NASA within the meaning of Section 2421.4 of the
Rules and Regulations of the Authority.
8. At all times material herein, Mr. Carl E. Grant has held the
position of Director, Personnel Programs Division and has been and is
now a supervisor or management official within the meaning of Section
7103(a)(10) and (11) of the Statute and an agent of Respondent NASA at
its Washington, D.C. location. Mr. Grant reports to the NASA Associate
Administrator for Management who in turn reports directly to the
Administrator and Deputy Administrator of NASA. The objective of Mr.
Grant's position is to provide for planning, direction and evaluation of
the Agency Personnel Management Program. In his position he has
responsibility and authority, to develop, administer and evaluate
agency-wide personnel management policies, programs, and practices in
various areas, including labor-management relations and employee
relations. His office prescribes and publishes policies, procedures,
and regulations on personnel management and related matters subject to
applicable laws, regulations, and conditions or limitations prescribed
by higher authority.
9. GSFC is a NASA field installation. The Director, GSFC, the
highest official assigned there, reports to the NASA Associate
Administrator for Space Science and Applications, who in turn reports
directly to the Administrator and Deputy Administrator of NASA. The
Director, GSFC, is authorized to, and is responsible for, providing
executive leadership and overall direction and management of GSFC and
its assigned programs and activities.
10. Mr. John Ferguson is the Labor Relations Officer for Respondent
Goddard at its Greenbelt, Maryland facility, and as such is a supervisor
or management official within the meaning of Section 7103(a)(10) and
(11) of the Statute. Mr. Ferguson has occupied this position since
October 18, 1981, at GSFC. As labor relations officer, Mr. Ferguson
operates under controlling policies and directives of higher
authorities. In the area of personnel management, NASA labor relations
officers are subject to policies established by Mr. Grant's office. Mr.
Grant's position does not authorize him to direct or administer the
operational personnel functions and activities at GSFC. John Ferguson
goes not work for him or any of his subordinates, nor is he subject to
their supervision or control.
11. At all times material herein, Respondent GSFC has recognized the
Union as the exclusive collective bargaining representative for
employees in the following unit appropriate for collective bargaining:
Included: All professional engineers and scientists classified
in NASA Class Code 200 and Code 700 employed by NASA, GSFC,
Greenbelt, Maryland.
Excluded: All non-professional employees; management
officials; supervisors, employees described in 5 U.S.C.
7112(b)(2), (3), (4), (6) and (7); and temporary employees with
appointments of less than 180 days.
The Union was certified as the exclusive representative for the
above-described unit on February 25, 1981.
12. In 1980, OPM issued a revised Part 771 of its regulations
relating to agency administrative grievance procedure. 5 C.F.R.Part
771. The OPM directive required federal agencies including NASA to
develop an agency grievance procedure consistent with specified
criteria. An agency grievance procedure is subject to OPM review for
conformance with Part 711. The OPM directive required that the agency
grievance procedure be published and that copies be made available to
employees.
13. Mr. Grant directed that a grievance system conforming with Part
771 of OPM regulations be prepared. After a lengthy drafting, review
and coordination process, a final version of the agency grievance
procedure was completed. This document, NASA Handbook (NHB) 3771.2B,
NASA Grievance System (Jt. Exh. 9), was submitted to the printers. The
preface to NHB 3771.2B contained a statement that all grievances
initiated on or after June 15, 1981, would be subject to its provisions
and that its effective date was June 15, 1981. In fact, NHB 3771.2B was
still in printing on June 15, 1981. On June 22, 1982, Mr. Grant
transmitted by mail an advance copy of NHB 3771.2B to Personnel Officers
and Employee Relations Officers at the various NASA field centers,
including Respondent Goddard. At the same time he transmitted an
advance copy of the new Federal Personnel Manual, Chapter 771. The
preface of NHB 3771.2B stated that it should be used in conjunction with
5 C.F.R.Part 771 and FPM Chapter 771. FPM Chapter 771 was officially
issued by OPM pursuant to FPM letter 771-9, dated July 1, 1981. The
finalized copy of NHB 3771.2B was sent to Respondent Goddard from the
printers in the latter part of July 1981.
14. The revised agency grievance procedure described above in
paragraph 13 cancelled the previous agency grievance procedure dated
April 9, 1975 (Jt. Exh. 10).
15. The revised agency grievance procedure described in paragraph 13
above, allowed activities, including Respondent Goddard to issue their
own instruction for implementation of the procedure.
16. Respondent Goddard has not issued any implementing instructions
for the revised grievance procedure.
17. NASA regulations (NMI 3711.10A) (Jt. Exh. 11), provide that each
NASA installation (including Respondent Goddard) has the authority to
administer its labor relations program. This includes the authority of
such institutions, including Goddard, to delay implementation of
NASA-wide regulations where necessary to comply with bargaining
obligations of Title VII, Civil Service Reform Act.
18. NHB 3771.2B, in Section 102, (Jt. Exh. 9), entitled
"Responsibility for Implementation," places responsibility on field
Center Personnel Directors "for coordinating and administering the NASA
Grievance System and for providing necessary information to employees,
supervisors and other management officials." Furthermore, the preface
notes that installations may issue implementing instructions. As a
practical matter, the earliest date a field center could have
implemented the changed provisions of the grievance system would have
been some date after June 22, 1981, when the advance copies of both NHB
3771.2B and FPM Chapter 771 were sent to field center personnel
officers. Field centers are authorized to delay implementation of
agency-wide directives to fulfill their obligation to bargain, if any.
19. NHB 3771.2B (Jt. Exh. 9) did not contain detailed guidance for
fact finders. This was contained in NASA FPM supplement dated July 10,
1981 (Jt. Exh. 12).
20. Neither in NHB 3771.2B (Jt. Exh. 9) or elsewhere did Mr. Grant
require that copies of NHB 3771.2B be distributed to employees. NHB
3771.2B requires that copies be distributed at branch level at all NASA
organizations and be made available to employees. The decision to
distribute, and the timing of a distribution of copies of the handbook
to individual employees is a matter not covered by NHB 3771.2B. A
sufficient number of copies were printed for all employees, but the
Headquarters requirement was to make them available, not necessarily to
distribute them to each individual.
21. Neither in NHB 3771.2B (Jt. Exh. 9) nor elsewhere did Mr. Grant
issue any direction concerning how NHB 3771.2B would be implemented with
regard to labor organizations or collective bargaining where a field
center and an exclusive bargaining representative had no negotiated
grievance procedure. The only such guidance to field centers was
contained in FPM Chapter 771, which is issued upon the authority of OPM.
NASA has no control over OPM.
22. (a) During the latter part of December 1981 all employees of
Respondent Goddard received through the internal GSFC mail system, a
copy of the revised agency grievance procedure described in paragraph
13.
22. (b) Respondent Goddard did not notify the Union prior to
distributing the revised agency grievance procedure in December 1981.
23. On a date uncertain after December 23, 1981, Mr. Frederick G.
Schamann, President of the Union, contacted Mr. John Ferguson, Labor
Relations Officer for Respondent Goddard to inquire about the
applicability and distribution of the revised agency grievance
procedure.
24. In subsequent conversations between Messrs. Schamann and
Ferguson (dates uncertain), the following took place:
(a) Mr. Ferguson notified Mr. Schamann that the NASA Grievance System
Employee Handbook (Jt. Exh. 9) was distributed to all Goddard employees
by a Goddard mail service contractor without Mr. Ferguson's knowledge
during the latter part of December 1981.
(b) Mr. Ferguson stated that only impact and procedures for
implementation of the revised agency grievance procedure would be
negotiable under Title VII of the Civil Service Reform Act prior to
implementation of the procedure; that the substance of the agency
grievance procedure would not be negotiable; and that the authority to
negotiate such substance did not exist.
(c) Mr. Ferguson notified Mr. Schamann that no grievances had been
filed or processed since the June 15, 1981 revision date of the agency
grievance procedure.
(d) Mr. Ferguson requested that Mr. Schamann submit any Union
proposals on the revised agency grievance procedure to Mr. Ferguson.
(e) Mr. Schamann stated that the Union would deal with its concerns
about any grievance procedure applicable to unit members during
negotiations for a collective bargaining agreement.
(f) The Union has not submitted proposals on a revised agency
grievance procedure.
25. Prior to the discussion between Messrs. Ferguson and Schamann
described in paragraph 23 above, Mr. Schamann informed Mr. Ferguson that
the Union was drafting proposals for submission to Respondent Goddard
with a request to bargain for a collective bargaining agreement between
the Union and Respondent Goddard.
26. By letter dated February 23, 1982, co-signed by Mr. Richard
Persons and Mr. George D. Mistretta of the Union, a demand was made upon
Respondent Goddard to bargain over a collective bargaining agreement
(Jt. Exh. 13). collective bargaining agreement (Jt. Exh. 13).
27. On March 16, 1982, the Union submitted its proposals for
bargaining to Respondent Goddard, and included in Article 16, a proposal
entitled "Grievance Procedure."
28. During April 1982 Respondent Goddard and the Union began
negotiations over their first basic collective bargaining agreement. No
final agreement has been reached to date.
29. On September 1, 1982, the Union and Respondent Goddard
initialled Article 16, as agreed upon by both parties in the collective
bargaining process. To date, Respondent Goddard and the Union do not
have a negotiated grievance procedure in effect.
30. On January 30, 1983 the first grievance was filed by a
bargaining unit member under the revised agency grievance procedure. On
February 10, 1983, Respondent Goddard issued its final decision denying
the grievance.
31. By entering into this Stipulation and by being referred to
herein as "Respondent" NASA, Respondent NASA does not concede that it
has been properly joined as a party to this proceeding.
Discussion and Conclusions
A threshold question posed for resolution relates to the issue of
whether NASA was properly joined as a party to this proceeding. The
complaint identified NASA as a "Respondent" and as an "agency" within
the meaning of Section 7103(a)(3) of the Statute. GSFC is also
identified in the complaint as a "Respondent," and as an "activity"
within the meaning of Section 2421.4 of the Rules and Regulations, 5
C.F.R. 2421.4. Both NASA and GSFC are linked to alleged unfair labor
practices through factual representations based on administrative action
allegedly taken by NASA and GSFC in connection with issuance of the
revised agency grievance procedure. In fact, counsel representing NASA
acknowledged at the hearing that NASA could be found guilty of an unfair
labor practice in this proceeding if it was shown that NASA interfered
with the bargaining relationship which existed between the Union and
GSFC (Tr. 14).
It is well settled that higher agency management may, on an agency
theory, be held accountable for the actions of lower level managers even
in cases where the higher agency level is not specifically identified as
a Respondent. Department of Health and Human Services, Social Security
Administration, Office of Program Operations and Field Operations,
Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981).
Similarly, higher agency management may be found culpable in an unfair
labor practice proceeding if higher agency management is found to have
participated in, or to have been responsible for, mandating
administrative action deemed to be violative of Section 7116(a) of the
Statute. Department of the Interior, Water and Power Resources Service,
Grand Coulee Project, Grand Coulee, Washington, and Office of the
Secretary, Department of the Interior, Washington, D.C., 9 FLRA No. 46,
9 FLRA 385 (1982); Department of the Treasury, Internal Revenue
Service, Detroit, Michigan, 9 FLRA No. 54, 9 FLRA 441 (1982);
Department of Health and Human Services, Social Security Administration,
Region VI, and Department of Health and Human Services, Social Security
Administration, Galveston Texas District, 10 FLRA No. 9, 10 FLRA 26
(1982); Departments of the Army and the Air Force National Guard
Bureau, and Montana Air National Guard, 10 FLRA No. 96, 10 FLRA 553
(1982).
In this case the complaint provided NASA with notice of NASA's
alleged involvement. The parties stipulated that copies of the
complaint were served on NASA and GSFC as Respondents. Accordingly, it
is concluded that NASA's contention that it was improperly joined as a
Respondent is without merit. /6/
The record disclosed that 5 C.F.R.Part 771, entitled "Agency
Administrative Grievance System" formed the basis for NASA's revision
and reissuance of the NASA agency grievance procedure. /7/ These
provisions are reiterated and amplified in Federal Personnel Manual
Chapter 771, Subchapters 1, 2, and 3. Part 771 sets forth the
requirement that each agency falling within the purview of Part 771,
establish an agency administrative grievance procedure. The provisions
of Part 771 were applicable to NASA (Stipulation 12, Jt. Exh. 1; 5
C.F.R. 771.203). Section 771.204(a) of Title 5 mandates that agency
grievance procedure established under Part 771 "shall cover all
nonbargaining unit employees" of agencies covered by Part 771. Section
771.204(b) provides that covered agencies "may extend the coverage of
(Part 771) to bargaining unit employees consistent with the provisions
of 5 U.S.C. 7121 . . . ." /8/ Section 771.205 generally describes
matters which must be covered by Part 771 agency grievance procedures,
and Section 771.206(c) outlines numerous matters which must be excluded.
Section 771.301 requires covered agencies to "establish and administer
an agency grievance system in accordance with criteria in Sec. 771.302 .
. . ." Criteria set forth in Section 771.302 is provided to "govern the
establishment and administration of an agency grievance system . . . ."
Specific obligations imposed on grievants using the system are reflected
in Section 771.303. Section 771.304 provides for oversight review of
agency grievance procedures by OPM, and for appropriate corrective
action. This Section reflects the following language:
The Office of Personnel Management shall review from time to
time each agency administrative grievance system developed under
this part to determine whether the administrative grievance system
meets the requirements of this part. The Office shall require
corrective action to bring a system which fails to meet the
requirements into conformity.
Agency grievance systems are not designed to displace negotiated
grievance procedures. Following the negotiation and effectuation of a
negotiated grievance procedure, it becomes, by reason of the provisions
of Section 7121(a)(1) of the Statute, the exclusive procedure for
resolving bargaining unit grievances which fall within its coverage.
The scope of the duty to bargain under Section 7117(a)(1) of the
Statute /9/ extends to conditions of employment, i.e., personnel
policies, practices and matters affecting working conditions of
employees in a unit of exclusive recognition unless the matters proposed
for bargaining are inconsistent with Federal law or Government-wide rule
and regulation. National Treasury Employees Union, and Department of
the Treasury, Bureau of Public Debt, 3 FLRA No. 119, 3 FLRA 769 (1980);
National Treasury Employees Union and NTEU Chapter 70, and Department of
the Treasury, Internal Revenue Service, Atlanta, Georgia, 8 FLRA No. 8,
8 FLRA No. 37 (1982); National Federation of Federal Employees, Local
1497, and Department of the Air Force, Lowry Air Force Base, Colorado, 9
FLRA No. 20, 9 FLRA 151 (1982); International Brotherhood of Electrical
Workers, Local 280, AFL-CIO-CLC, and Department of the Army, U.S. Corps
of Engineers, Nashville, Tennessee, 10 FLRA No. 43, 10 FLRA No. 222
(1982).
It is clear that 5 C.F.R.Part 771, and correlative provisions in FPM
Chapter 771, may be classified as Government-wide rules and regulations
within the meaning of Section 7117(a)(1) of the Statute and relevant
Authority decisions. National Treasury Employees Union, and Department
of the Treasury, Bureau of Public Debt, supra; Professional Air Traffic
Controllers Organization, AFL-CIO, and Department of Transportation,
Federal Aviation Administration, 4 FLRA No. 36 (1980); National
Federation of Federal Employees, Local 1497, and Department of the Air
Force, Lowry Air Force Base, Colorado, supra; International Brotherhood
of Electrical Workers, Local 280, AFL-CIO-CLC, and Department of the
Army, U.S. Corps of Engineers, Nashville, Tennessee, supra. Here, the
complaint is based upon an alleged failure "to provide the Union with
adequate notice and an opportunity to negotiate the substance and impact
and procedures for implementation of (NASA's) . . . revised (agency)
grievance procedure . . . ." The imposition of such a requirement would
necessarily be inconsistent with the provisions of 5 C.F.R.Part 771, and
FPM Chapter 771. That is, the position of the General Counsel would, if
sustained, operate to utilize the collective bargaining process for the
purpose of developing agency grievance procedures, instead of the
methodology provided in Government-wide rules and regulations
promulgated specifically for this purpose. In this context it is noted
that the imposition of a bargaining obligation would not be at all
consistent with FPM Chapter 771, Subchapter 2-5b(1), which mandates that
"bargaining unit employees have the same rights as non-bargaining unit
employees until the agency and the exclusive representative negotiate a
grievance procedure pursuant to 5 U.S.C. 7121."
Imposing a bargaining requirement in this case would be an intrusion
into administrative procedures relating to non-bargaining unit
employees, and would frustrate the purpose and scheme underlying 5
C.F.R.Part 771, and FPM Chapter 771. Any change in agency grievance
procedure generated through bargaining would necessarily alter the
rights of non-bargaining unit employees as well. As noted, FPM 771,
Subchapter 2-5b(1) specifically requires that bargaining unit employees
have the same rights as non-bargaining unit employees until
establishment of a negotiated grievance procedure. The extension of
bargaining to this factual situation would effectively eliminate agency
grievance procedures of the type envisioned by Government-wide rules and
regulations, and would substitute a negotiated "agency" grievance
procedure in place thereof. /10/
In summary, the bargaining obligation which the complaint seeks to
impose is inconsistent with the regulatory pattern reflected in 5
C.F.R.Part 771, and FPM Chapter 771. Since the provisions of Section
7117(a)(1) of the Statute do not operate to require bargaining in these
circumstances, the complaint should be dismissed in its entirety.
Apart from the foregoing, other case law authority points to the
absence of a legal basis for the complaint. In American Federation of
Government Employees, AFL-CIO, Local 2782, 6 FLRA No. 56, 6 FLRA 314
(1981); and National Federation of Federal Employees, Local 15, 9 FLRA
No. 56, 9 FLRA 478 (1982), the Authority held that OPM and agency
regulations may limit the scope of agency grievance procedures. These
authorities distinguish agency grievance procedures from negotiated
grievance procedures fashioned under the provisions of Section 7121 of
the Statute. In the latter case, a negotiated grievance procedure
extends to all matters which, under the provisions of law, would be
covered unless the parties agree to narrower coverage through collective
bargaining. It follows from these two cases that changes in agency
grievance procedure may be made without bargaining.
The distinction in the two grievance systems was also recognized
under the Executive Order. In Office of Economic Opportunity, Region V,
Chicago, Illinois, A/SLMR No. 334, 3 A/SLMR 668 (1973), the Assistant
Secretary held that the failure of an agency to process a grievance
through an agency grievance procedure does not give rise to an unfair
labor practice in the absence of discriminatory motivation. /11/ The
Assistant Secretary noted:
On the other hand, where, as here, the grievance procedure
which allegedly has been violated by the agency involved, is a
procedure established by the agency itself rather than through the
process of bilateral negotiations, I find that different
considerations apply. Thus, an agency grievance procedure does
not result from any rights accorded to individual employees or to
labor organizations under the Order. Moreover, such a procedure
is applicable to all employees of an agency not covered by a
negotiated grievance procedure, regardless of whether or not they
are included in exclusively recognized bargaining units. Under
these circumstances, I find that, even assuming that an agency
improperly fails to apply the provisions of its own grievance
procedure, such a failure, standing alone, cannot be said to
interfere with rights assured under the Order and thereby be
violative of Section 19(a)(1). (Footnote omitted.)
Based on the foregoing, and noting the Administrative Law
Judge's finding, which I adopt, that the evidence does not
establish that the Respondent's conduct herein was motivated by
anti-union considerations, I find that the Respondent's failure to
process the Complainants' grievances under the former's grievance
procedure did not constitute a violation of Section 19(a)(1) of
the Order.
In light of the conclusions outlined, it is necessary to address
other issues raised by the parties. /12/
It is recommended that the Authority issue the following Order
pursuant to 5 C.F.R. 2423.29.
ORDER
IT IS HEREBY ORDERED, that the complaint in Case No. 3-CA-20509, be,
and it hereby is, dismissed.
Louis Scalzo
Administrative Law Judge
Dated: July 15, 1983
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ OPM was granted permission to participate in this proceeding as
amicus curiae pursuant to section 2429.9 of the Authority's Rules and
Regulations.
/2/ In so concluding, it is necessary to pass upon the Judge's
findings with regard to whether NASA was properly joined as a Respondent
herein.
/3/ Pursuant to Sections 2423.19(q), 2423.19(t), and 2429.9 of the
Rules and Regulations, 5 C.F.R. 2423.19(q), 2423.19(t), and 2429.9, the
Office of Personnel Management was granted permission to participate in
this proceeding as amicus curiae.
/4/ Although NASA and GSFC were identified in the complaint as a
single Respondent, it is quite clear from the allegations of the
complaint and the opening statement made by counsel representing the
General Counsel, that conduct allegedly pursued separately by NASA and
GSFC, comprises the basis of the complaint. The role alleged to have
been played by each was recognized in a prehearing determination that
NASA was properly named as a Respondent in the complaint (G.C. Exh.
1(k)). NASA and GSFC filed separate answers and post-hearing briefs.
They were separately represented at the hearing, and were otherwise
treated as separate Respondents by opposing counsel. Accordingly, they
will be referred to herein as individual Respondents.
/5/ Under the authority provided in Section 2423.19(r) of the Rules
and Regulations, 5 C.F.R. 2423.19(r), the following corrections are made
in the hearing transcript: Cover Page-- change "4-CA-20279" to
"3-CA-20509"; Page 2, line 23-- add "Respondent Exhibit 1-Affidavit,
15, 20"; Page 3, line 7-- change "3-CA-25059" to "3-CA-20509."
/6/ Counsel representing NASA also asserted that NASA was not clearly
identified as a Respondent in the charge, and endeavors to derive
benefit from the fact that the charge initiating this proceeding was
served only on GSFC; and further that NASA was not provided with an
opportunity to respond to the charge. However, a charge is not a
pleading and does not require the specificity of a pleading. It merely
serves to initiate an investigation to determine whether a complaint
should be filed. Defense Logistics Agency, 5 FLRA No.21 (1981);
Department of the Interior, U.S. Geological Survey, Conservation
Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA No. 65, 9
FLRA 543 (1982). Allegations may be included in a complaint even though
not included in the charge as long as such bear a relationship to the
charge and are closely related to events providing the basis for the
charge. NLRB v. Kohler Company, 220 F.2d 3 (7th Cir. 1955); Texas
Industries Inc. v. NLRB, 336 F.2d 128 (5th Cir. 1964); Bureau of Land
Management, Richfield District Office, Case No. 7-CA-247 (OALJ-81-086).
Here the complaint was served in accordance with Authority rules and
regulations, and was otherwise issued in accordance therewith. Facets
of the complaint which pertain to NASA's alleged involvement are very
closely related to allegations set forth in the charge with respect to
the activities of GSFC, a NASA field installation. Thus allegations
pertaining to NASA were properly included in the complaint, and NASA was
appropriately identified as a Respondent.
/7/ 5 C.F.R. Secs. 771.201-771.304 (1980).
/8/ Federal Personnel Manual, Chapter 771, Subchapter 2-5b(1)
provides in pertinent part:
However, bargaining unit employees have the same rights as
non-bargaining unit employees until the agency and the exclusive
representative negotiate a grievance procedure pursuant to 5
U.S.C. 7121, and the negotiated procedure becomes operative.
/9/ Section 7117(a)(1) of the Statute provides:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/10/ It may also be argued that this result is specifically
prohibited by Section 7114(a)(5)(B) of the Statute. This Section
provides in part:
(5) The rights of an exclusive representative under the
provisions of this subsection shall not be construed to preclude
an employee from--
. . . .
(B) exercising grievance . . . rights established by law, rule,
or regulation . . . .
If a bargaining obligation exists in this case, then NASA employees
would in effect be precluded from "exercising grievance . . . rights
established by . . . regulation . . . ." This could result in the denial
of employee rights provided by Section 7114(a)(5)(B), and to unfair
labor practices based upon denial of employee rights accorded by the
Statute.
/11/ The Assistant Secretary's holding was affirmed by the Federal
Labor Relations Council in FLRC No. 74A-3 (1984), 2 FLRC 119. See also
United States Navy, Naval Air Station, (North Island), San Diego,
California, A/SLMR No. 422, 4 A/SLMR 527 (1974); National Labor
Relations Board, Region 17, and National Labor Relations Board, A/SLMR
No. 670, 6 A/SLMR 325 (1976), affirmed FLRC No. 76A-93 (1976), 4 FLRC
658; Department of the Treasury, Internal Revenue Service, Brookhaven
Service Center, A/SLMR No. 859, 7 A/SLMR 532 (1977), remanded on other
grounds FLRC 77A-40 and 77A-92 (1978), 6 FLRC 310.
/12/ However, it is noted that counsel representing General Counsel
placed heavy reliance upon the Authority's decision in Department of the
Treasury, Internal Revenue Service, Detroit, Michigan, 9 FLRA No. 54, 9
FLRA 437 (1982). It is clear that the factual picture presented in the
cited case is distinguishable from that posed herein.