[ v23 p475 ]
23:0475(68)CA
The decision of the Authority follows:
23 FLRA No. 68
PORTSMOUTH NAVAL SHIPYARD AND
DEPARTMENT OF THE NAVY
(WASHINGTON, D.C.)
Respondents
and
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 4, AFL-CIO-CLC
Charging Party
Case No. 1-CA-30290
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the General
Counsel. The complaint alleged that the refusal by the Respondents
Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.),
hereafter also referred to separately as Respondent Shipyard and
Respondent Navy, to permit a bargaining unit employee access to its
agency grievance procedure because the employee was covered by a
collective bargaining agreement and represented by a Union constituted a
violation of section 7116(a)(1) and (2) of the Statute. The complaint
further alleged that Respondent Shipyard committed a separate
independent violation of section 7116(a)(1) of the Statute when its
agent informed a unit employee that he could not utilize the Agency
grievance procedure since he belonged to a unit covered by a collective
bargaining agreement.
II. Facts
An employee of the Respondents in a unit represented by the Charging
Party applied for a job outside that unit. When the applicant received
a notice that he was ineligible for the position, he sought to grieve
this rating through the parties' negotiated grievance procedure. The
grievance was rejected by Respondent Shipyard on the ground that the
negotiated grievance procedure permitted appeal of a rating only for a
position within his own bargaining unit. Therefore, he was informed
that he could not grieve a rating in conjunction with an application for
a position outside his unit under the negotiated procedure. The
employee next filed a grievance under the Agency grievance procedure.
/1/ Respondent Shipyard denied this grievance solely on the ground that
Respondent Navy's Civilian Personnel Instruction (CPI) denied access to
the Agency grievance procedure to a bargaining unit employee covered by
a negotiated agreement. Respondent Shipyard informed the employee that,
because of his "status," there was no formal procedure available to him
for appealing or grieving his rating.
III. Administrative Law Judge's Decision
The Judge concluded that the complaint should be dismissed since the
parties' negotiated grievance procedure arguably could have covered the
employee's grievance, and the issue sought to be raised by the General
Counsel was essentially one of contract interpretation unsuitable for
resolution as an unfair labor practice.
The Judge further found that nothing in the Statute requires matters
excluded from a negotiated grievance procedure to be subject to the
agency grievance procedure, and the Office of Personnel Management's
(OPM) regulations governing agency grievance procedures /2/ grant an
agency discretion in deciding whether or not it will extend coverage of
its administrative grievance procedure to bargaining unit employees.
The Judge found that Congress envisioned a dual procedure in section
7121 of the Statute, a negotiated grievance procedure for unit employees
and an agency grievance procedure for nonunit employees. The Judge
concluded, therefore, that even if the parties' contract did not cover
the grievance, the Respondents' refusal to accept the unit employee's
administrative grievance based solely on the employee's status as a
member of a bargaining unit which had a collective bargaining agreement
was consistent with the statutory scheme and was not violative of the
Statute.
IV. Positions of the Parties
The General Counsel contends in his exceptions that the Judge erred
in concluding that the case involved differing and arguable
interpretations of the collective bargaining agreement, since the
parties stipulated that the employee's grievance was not covered by the
parties' negotiated grievance procedure. The General Counsel also
argues that as the Agency grievance procedure is a mechanism for
resolving employee disputes which arise in the workplace, to the extent
such disputes are not within the coverage of the negotiated grievance
procedure, access to an agency procedure is a working condition of unit
employees. The General Counsel maintains, therefore, that the
Respondents' policy of denying access to its administrative grievance
procedure solely on the basis of the employee's status as a member of a
bargaining unit, without consideration of the scope of the negotiated
grievance procedure, violates section 7116(a)(1) and (2) of the Statute.
The Respondents filed a Memorandum in Opposition to the General
Counsel's exceptions which supported the Judge's Decision. /3/
V. Analysis
A. Threshold Questions
The Respondents asserted, both at the hearing and in their brief to
the Judge, that the complaint was barred by the provisions of section
7116(d) of the Statute, and that it was also time-barred by section
7118(a)(4) of the Statute. The Judge did not address these issues in
his Decision, and Respondents did not thereafter file an exception with
regard to the Judge's failure to do so. As these matters were properly
presented to the Judge by motion and argument, and raise questions
regarding the Authority's jurisdiction, they will be addressed. /4/
1. Section 7116(d) of the Statute /5/
The Union filed an institutional grievance on July 15, 1982. That
grievance sought to contest the Agency's interpretation of the
negotiated grievance procedure and its administrative grievance
procedure which resulted in the creation of a "no man's land" with
respect to a unit employee's ability to grieve merit promotion actions
in connection with applications for positions outside the bargaining
unit. The Union's grievance did not raise the issue sought to be
addressed by this case, specifically, whether Respondents' conduct
constituted interference and discrimination with regard to employee
terms and conditions of employment in derogation of section 7102 and
section 7116(a)(1) and (2) of the Statute. The complaint in this case
is not barred by the provisions of section 7116(d) of the Statute since
the issues raised by the complaint differ from those raised by the
earlier grievance. /6/
2. Section 7118(a)(4) of the Statute /7/
We conclude that the complaint is not time-barred by the operation of
section 7118(a)(4)(A) of the Statute. The maintenance and continued
enforcement of a rule barring unit employees from access to the agency's
grievance procedure, not merely the application of that rule to the
grievant, is the violation charged in the complaint. The violation
alleged is a continuing one and not time-barred by the provisions of
section 7118(a)(4)(A) of the Statute since Respondents continued to
maintain the rule within the six months preceding the filing of the
unfair labor practice charge. /8/
B. The Unfair Labor Practice Allegations
1. Contract Interpretation
The Judge erred in recommending the dismissal of the complaint based
on his conclusion that the negotiated grievance procedure arguably could
have covered the employee's grievance. The parties stipulated
otherwise, stating that the employee's grievance was not covered by the
parties' negotiated grievance procedure. We do not find that there is
any issue regarding grievability/arbitrability in this case where there
is no dispute between the parties.
2. Access to the Administrative Grievance Procedure
The Authority concludes that it is a violation of section 7116(a)(1)
and (2) of the Statute to deny employees access to an administrative
grievance procedure because they are represented by a union in an
appropriate unit and covered by a collective bargaining agreement. The
agency's administrative grievance procedure is a condition of employment
as it is a personnel matter or practice established by rule or
regulation for resolving disputes affecting employee working conditions.
/9/ Section 7116(a)(1) and (2) of the Statute clearly prohibits
discrimination between unit and nonunit employees with respect to
conditions of employment based solely on bargaining unit status. There
is no indication in the Statute or its legislative history that Congress
intended for there to be any exceptions to this prohibition other than
those which derive from the Statute itself. While section 7121(a)(1) of
the Statute provides, with certain exceptions, that the grievance
procedures of a collective bargaining agreement are to be the exclusive
procedures for resolving grievances which fall within its coverage, it
does not prohibit employees from using the agency grievance procedure to
raise issues outside the scope of the negotiated grievance procedure.
Thus, while the Statute does not mandate the scope of an administrative
grievance procedure, once such a grievance procedure is established,
unit employees may not be denied access to it solely on the basis of
their status as members of a unit covered by a collective bargaining
agreement. We thus find that Respondents' policy of discriminating
between represented and unrepresented employees regarding access to the
Agency grievance procedure is prohibited by the Statute.
The Authority rejects the Respondent's contention that 5 C.F.R.
Section 771.204 issued by OPM permits the Agency to discriminate among
its employees. OPM's regulations permit agencies to extend the coverage
of the agency grievance procedure to bargaining unit employees to the
extent consistent with the provisions of section 7121 of the Statute.
That is, to the extent such matters do not fall within the coverage of
the negotiated grievance procedure, they may be contested through
administrative procedures. Nothing in the regulation permits
Respondents to deny access to unit employees for matters which are not
covered by the negotiated procedure.
The complaint also alleged, and the Authority finds, that Respondent
Shipyard independently violated section 7116(a)(1) of the Statute when
it informed an employee that since he was represented by the Union and
covered by a collective bargaining agreement, he could not utilize the
Agency's administrative grievance procedure. The standard by which to
determine interference, restraint or coercion within the meaning of
section 7116(a)(1) of the Statute is whether, under the circumstances,
the employer's conduct may reasonably tend to coerce or intimidate the
employee, or, in the case of a statement, whether the employee could
reasonably have drawn a coercive inference from the statement. See
Department of the Treasury, United States Customs Service, Region IV,
Miami, Florida, 19 FLRA No. 114 (1985). See also Federal Mediation and
Conciliation Service, 9 FLRA 199, 208 (1982); Department of the
Treasury, Internal Revenue Service, Louisville District, 11 FLRA 290,
297 (1983). The Respondent Shipyard's statements would reasonably be
expected to cause a unit employee to conclude that he was being denied
access to the agency grievance procedure, a privilege available to
nonunit employees, solely because his exclusive representative
successfully negotiated a collective bargaining agreement. We find that
the statement would discourage the exercise of an employee's protected
right to engage in collective bargaining in violation of section
7116(a)(1) of the Statute.
C. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
made by the Judge at the hearing, finds that no prejudicial error was
committed, and affirms those rulings. The Authority has considered the
Judge's Decision and the entire record, including the parties'
contentions, and adopts the Judge's findings and conclusions only to the
extent consistent with this decision.
The Authority concludes that both Respondents violated section
7116(a)(2) of the Statute by discouraging membership in a labor
organization by discrimination in connection with conditions of
employment. This statutory violation is based on Respondents'
maintenance of a rule or regulation which excludes employees who are
members of a bargaining unit and covered by a collective bargaining
agreement from utilizing the Respondents' administrative grievance
procedure regarding matters not covered by the grievance/arbitration
procedure in their existing collective bargaining agreement. The
Authority further finds that, by such acts, the Respondents committed
independent violations of section 7116(a)(1) of the Statute. The
Authority also concludes that Respondent Portsmouth Naval Shipyard
separately violated section 7116(a)(1) of the Statute by interfering
with, restraining, or coercing employees in the exercise of rights
guaranteed in section 7102 of the Statute when it informed a unit
employee that, because he was covered by a collective bargaining
agreement, he could not utilize the Respondent's grievance procedure to
grieve the merit rating he had received when he applied for a position
outside his bargaining unit.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that:
A. Respondents Portsmouth Naval Shipyard and Department of the Navy
(Washington, D.C.) shall:
1. Cease and desist from:
(a) Discouraging membership in and activity on behalf of the
International Federation of Professional and Technical Engineers, Local
4, AFL-CIO-CLC, the exclusive representative of a unit of the Shipyard's
employees, or any other labor organization, by maintaining a rule which
prohibits their bargaining unit employees from utilizing the agency
grievance procedure to grieve matters not covered by their negotiated
grievance procedure solely on the basis of the employee's inclusion
within a bargaining unit covered by a collective bargaining agreement.
(b) Interfering with, restraining, or coercing employees in the
exercise of their right to engage in collective bargaining assured by
the Federal Service Labor-Management Relations Statute by enforcing a
rule or regulation which prohibits their bargaining unit employees from
utilizing the agency grievance procedure to grieve matters not covered
by their negotiated grievance procedure solely on the basis of their
status as employees within a bargaining unit covered by a collective
bargaining agreement.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Reinstate and process on the merits under the Agency's grievance
procedure the grievance filed by Richard C. Russell, a unit employee,
concerning his Merit Promotion rating for the position of Education
Specialist.
(b) Post at Respondents' facility at Portsmouth Naval Shipyard copies
of the attached Notice marked Appendix A on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Commander of the Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, or a designee, and shall be posted in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted, and maintained for 60
consecutive days thereafter. Reasonable steps shall be taken to ensure
that such Notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director, Region I, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply.
B. Respondent Portsmouth Naval Shipyard shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing employees in the
exercise of their right to engage in collective bargaining assured by
the Federal Service Labor-Management Relations Statute by making
statements to unit employees to the effect that solely because they are
covered by a collective bargaining agreement, they cannot utilize the
Agency's administrative grievance procedure to grieve a matter not
covered by their negotiated grievance procedure.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at its facility copies of the attached Notice marked
Appendix B on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commander of the Portsmouth Naval Shipyard, Portsmouth, New Hampshire,
or a designee, and shall be posted in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted, and maintained for 60 consecutive days thereafter.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director, Region I, Federal Labor Relations
Authority, in writing, within 30 days from the date of this Order, as to
what steps have been taken to comply.
Issued, Washington, D.C., September 29, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A
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 discourage membership in and activity on behalf of the
International Federation of Professional and Technical Engineers, Local
4, AFL-CIO-CLC, the exclusive representative of a unit of our employees,
or any other labor organization, by maintaining and enforcing a rule
which prohibits our bargaining unit employees from utilizing the agency
grievance procedure to grieve matters not covered by their negotiated
grievance procedure solely on the basis of the employee's inclusion
within a bargaining unit which is covered by a collective bargaining
agreement.
WE WILL NOT interfere with, restrain, or coerce our employees from
the exercise of their right to engage in collective bargaining assured
by the Federal Service Labor-Management Relations Statute by enforcing a
rule or regulation which prohibits our bargaining unit employees from
utilizing the agency grievance procedure to grieve matters not covered
by their negotiated grievance procedure solely on the basis of their
status as employees within a bargaining unit covered by a collective
bargaining agreement.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
WE WILL reinstate and process on the merits the Agency grievance
filed by Richard C. Russell, a unit employee, concerning his Merit
Promotion rating for the position of Education Specialist.
(Activity)
Date: . . . By: (Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director, Region I, Federal Labor Relations Authority, whose address is:
10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and
whose telephone number is: (617) 565-7280.
APPENDIX B
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 interfere with, restrain, or coerce employees from the
exercise of their right to engage in collective bargaining assured by
the Federal Service Labor-Management Relations Statute by making
statements to our unit employees to the effect that solely because they
are covered by a collective bargaining agreement, they cannot utilize
the agency's administrative grievance procedure to grieve a matter not
covered by their negotiated grievance procedure.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
(Activity)
Date: . . . By: (Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director, Region I, Federal Labor Relations Authority, whose address is:
10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and
whose telephone number is: (617) 565-7280.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 1-CA-30290
PORTSMOUTH NAVAL SHIPYARD AND DEPARTMENT OF
THE NAVY (WASHINGTON, D.C.)
Respondent
and
INTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS, LOCAL 4, AFL-CIO-CLC
Charging Party
Steven Sharfstein, Esquire
For the Respondent
Peter E. Dow, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
et seq., /10/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. Section 2423.1 et seq., concerns, in essence, whether it is an
unfair labor practice to deny a bargaining unit employee access to
Respondent's administrative grievance procedure because the employee is
represented by a union in an appropriate unit and is covered by a
collective bargaining agreement which, of course, contains a negotiated
grievance and arbitration procedure. This case was initiated by a
charge filed on August 17, 1983 (G.C. Exh. 1A), which named only the
Portsmouth Naval Shipyard and alleged violations of Section 16(a)(1),
(5), (7) and (8) of the Statute; and a First Amended Charge filed on
February 6, 1984 (G.C. Exh. 1C), which named for the first time the
United States Navy as a party, as well as the Portsmouth Naval Shipyard,
and alleged violations of Section 16(a)(1) and (2) of the Statute. The
Complaint and Notice of Hearing issued on February 13, 1984 (G.C. Exh.
1E), and fixed the date of hearing for April 6, 1984; and, pursuant
thereto, a hearing was duly held on April 6, 1984, in Portsmouth, New
Hampshire, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved and presented oral argument. At the close of the hearing, May
31, 1984, was fixed as the date for mailing post-hearing briefs which
time was subsequently extended, upon timely motion of Respondent, for
good cause shown, as to which General Counsel did not object, to June
22, 1984. Respondent and General Counsel each timely mailed an
excellent brief, received on or before June 25, 1984, which have been
carefully considered. Upon the basis of the entire record, /11/ I make
the following findings and conclusions:
Findings
There is no dispute as to the facts which were presented wholly by
exhibits and by stipulation.
1. On April 29, 1983, Mr. Richard C. Russell, an engineering
technician employed by the Portsmouth Naval Shipyard in the bargaining
unit represented by the International Federation of Professional and
Technical Engineers, Local 4, AFL-CIO-CLC (hereinafter referred to as
"Local 4"), received a "Notice of Rating on Competitive Promotion
Examination" (dated April 28, 1983) for the position of Education
Specialist as follows:
"Ineligible . . .
"Your application does not show that you meet the minimum
experience requirements." (Jt. Exh. F).
The position for which Mr. Russell had applied, Education Specialist,
(Announcement No. 83-31-18), was outside the bargaining unit represented
by Local 4 and was in a separate and distinct bargaining unit
represented by another union. /12/
2. On May 9, 1983, Mr. Russell filed a grievance. (Jt. Exh. G),
pursuant to Article 7, Section 11 of the parties' current agreement (Jt.
Exh. E). In response to the printed statement, "The following states
the specific reason(s) why I feel my rating is incorrect," Mr. Russell
stated:
"My education, training, and related experience were not
correctly evaluated." (Jt. Exh. G).
Under, "The following relief is desired," Mr. Russell stated:
1. Reevaluate my application, giving proper consideration to
my education, training, and related experience.
2. If my rating is less than "HIGHLY QUALIFIED," furnish
specific reasons, in writing, identifying the area(s) where I fail
to qualify." (Jt. Exh. G).
3. On May 13, 1983, Mr. Russell's grievance, under the negotiated
grievance procedure, was rejected by the Shipyard for the reasons that,
"1. . . . the position you applied for is not subject to the
provisions of reference (a) (Agreement between the International
Federation of Professional and Technical Engineers and the
Portsmouth Naval Shipyard -- Jt. Exh. E). Therefore, enclosure
(1) (earned rating grievance) is rejected and returned without
action." (Jt. Exh. H).
4. On May 20, 1983, Mr. Russell, in view of the Shipyard's rejection
of his grievance under the negotiated grievance procedure, filed a
grievance (Jt. Exh. I) under the Shipyard's administrative grievance
procedure (NAVSHIPYD PTSMH INST 12770.1H (Jt. Exh. D)). On May 25,
1983, the Shipyard rejected this grievance for the reason:
" . . . that paragraph 7, of reference (a) (NAVSHIPYD PTSMH
INST 12770.1H) /13/ specifically states that employees having
access to negotiated grievance procedures are not covered by this
instruction. /14/ Your grievance is, therefore, rejected and
returned without no further action." (Jt. Exh. J).
5. On May 31, 1983, Mr. Russell requested an extension of any time
limits applicable either to an administrative grievance or to a
grievance under the negotiated agreement pending advice from Mr. Joseph
R. Evans, Head, Employee Relations Division (Jt. Exh. K) which was
granted (Jt. Exh. M). Also on May 31, 1983, Mr. Russell requested Mr.
Evans to advise him of the appropriate procedure by which he, "a member
of the IFPTE bargaining unit, may submit an appeal or grievance,
relating to a promotion action to a non-unit position . . . so that the
appeal or grievance will be accepted and resolved." (Jt. Exh. L; Stip.
Tr. 61-62). By letter dated June 9, 1983 (Jt. Exh. N), Mr. Evans
responded that there " . . . is no formal procedure available to you for
appealing or grieving this promotion action . . . . " (Jt. Exh. N;
Stip. Tr. 62).
6. By letter dated June 17, 1983, Mr. Russell advised Mr. Kautz that
he was referring this matter to the Federal Labor Relations Authority
as, he asserted, that Mr. Evans' " . . . decision (that there is no
formal procedure available to you for appealing or grieving this
promotion action) violates federal law . . . . " (Jt. Exh. O). In
addition, Mr. Russell requested a further extension of the applicable
time limit pending final adjudication of this issue which was granted by
letter dated June 22, 1983, (Jt. Exh. P) (" . . . ten days following a
decision by the FLRA to continue processing your grievance.") (Jt. Exh.
P)).
7. Article 7 of the parties' current agreement (Jt. Exh. E), is the
negotiated grievance procedure. Section 1 provides, in part, as
follows:
"Section 1. This Article provides the exclusive procedure for
the settlement of employee, Employer and Union grievances. A
grievance means any complaint:
"a. By any employee concerning any matter relating to the
employment of the employee;
. . . . " (Jt. Exh. E, Art. 7, Sec. 1a)
"Section 2. Only the following types of actions are
specifically excluded from the provisions of Articles 7 and 9
(Arbitration) . . .
. . .
"d. Any examination, certification, or appointment;
. . . . " (Jt. Exh. E, Art. 7, Sec. 2d)
"Section 11. Earned Rating Grievances.
. . .
"d. Should the decision of Code 170 be unsatisfactory to the
employee, the matter may be taken to arbitration if so elected by
the Union." (Jt. Exh. E, Art. 7, Sec. 11d)
Nothing contained in Article 7 purports to exclude Mr. Russell's
grievance; however, Article 23, entitled "MERIT PROMOTION AND PLACEMENT
PROGRAM," which, in part, provides in Section 1 that, "The provisions of
this Article apply only to the filling of unit positions by unit
employees . . . . " (Emphasis supplied), in Section 17 provides as
follows:
"Section 17. An employee dissatisfied with an earned rating in
connection with his/her application for promotion to a unit
position may grieve in accordance with the provisions of Article
7, Section 11 of the Agreement." (Jt. Exh. E, Art. 23, Sec. 17)
(Emphasis supplied).
Mr. Evans, in his letter dated June 9, 1983 (Jt. Exh. N), made it
clear that he relied upon the provision of Article 23, Section 17 for
his conclusion that, " . . . you are barred from utilizing the
negotiated grievance procedure to resolve your displeasure with the
promotion action of an American Federation of Government Employees
(AFGE) unit position." (Jt. Exh. N). Mr. Evans further stated that,
"Access to the Department of the Navy (Administrative) Grievance
Procedure " . . . is disallowed by controlling Department of the Navy
regulation, Civilian Personnel Instruction (CP1) 771 . . . Based upon
this regulation, you, as a member of the IFPTE bargaining unit, are
precluded from utilizing the Navy (Administrative) Grievance Procedure
because (1) IFPTE has been accorded exclusive recognition, and (2) a
negotiated contract is currently in effect." (Jt. Exh. N).
8. Although the parties stipulated that,
" . . . the Union has concurred with the shipyard's position
that the grievance procedure in the current collective bargaining
agreement is as asserted by the shipyard not applicable" (Tr. 61),
such "stipulation" is not a stipulation of fact, which would be binding
on the undersigned, but, rather, is a conclusion of law, which is not
binding on the undersigned. Indeed, General Counsel stated at the
hearing, " . . . I think . . . that an argument could be made . . . that
this particular grievance may have been arbitrable under the contract"
(Tr. 12) and, "I can make an eloquent argument, I'm sure, why it should
be grievable under their contract . . . . " (Tr. 22); more important,
Respondent's Brief states that, " . . . it is Respondent Department of
the Navy's position that this matter could have been raised under the
negotiated procedure . . . . " (Respondent's Brief, p. 26, n. 41)
(Emphasis supplied).
Conclusions
It is not contended, nor may it be, that denial of access to an
agency's administrative grievance procedure for a matter subject to a
negotiated grievance procedure constitutes an unfair labor practice, for
that is plainly what the Statute mandates (" . . . the procedures (i.e.,
the negotiated procedures) shall be the exclusive procedures for
resolving grievances which fall within its coverage" Section 21(a)(1))
and what the agreement of the parties provides ("This Article provides
the exclusive procedure for the settlement of . . . grievances" (Jt.
Exh. E, Art. 7, Sec. 1)). All other considerations aside, the
threshold, and controlling, issue is whether the grievance, from which
this case arises, was subject to the parties negotiated grievance
procedure. Questions of arbitrability are, pursuant to Section 21(a)(1)
of the Statute, and Article 9, Section 3 of the parties' agreement (Jt.
Exh. E), to be determined by an arbitrator; but it is both necessary
and proper to determine herein whether the record clearly shows /15/
that Mr. Russell's grievance was not subject to the parties' negotiated
grievance procedure. Respondent Shipyard determined that it was not and
Local 4 concurred (Stip., Tr. 61); but no arbitrator has so determined
and, for reasons set forth hereinafter, I conclude that the record fails
to show clearly that Mr. Russell's grievance was not subject to the
negotiated grievance procedure.
First, the Shipyard appears to have given scant attention to the
grievance itself. To the contrary, Mr. Evans, in his response of June
9, 1983 (Jt. Exh. N), characterized Mr. Russell's grievance as " . . .
displeasure with the promotion action . . . . ", whereas Mr. Russell's
grievance, while it related, certainly, to a position outside the
bargaining unit, did not reach "promotion action," i.e., selection or
non-selection; but rather it was the rating itself which the grievance
asserted was incorrect for the reasons that,
"My education, training, and related experience were not
correctly evaluated" (Jt. Exh. G)
and the relief, and only relief, requested was:
"1. Reevaluate my application . . .
"2. If my rating is less than "HIGHLY QUALIFIED", furnish
specific reasons, in writing, identifying the area(s) where I fail
to qualify." (Jt. Exh. G).
Had Mr. Russell's grievance been resolved on its merits and had he
prevailed, /16/ he would, simply, have been rated "Highly Qualified" on
the Notice of Rating on Competitive Promotion Examination.
Second, Article 7, together with Article 9 (Arbitration), sets forth
a wholly complete grievance procedure. While Section 2d of Article 7
excludes, "Any examination, certification, or appointment" it has not
been asserted by Respondent Shipyard that the "Notice of Rating on
Competitive Promotion Examination" issued to Mr. Russell falls within
this exemption. Quite to the contrary, the Shipyard treated this as "an
earned rating," albeit under Article 23, Section 17; And if it were "an
earned rating" under Article 23, Section 17, it seems inescapable that
it was equally "an earned rating" under Section 11 of Article 7.
Article 7, Section 11, provides, in part, that:
"a. If an employee is dissatisfied with an earned rating, such
dissatisfaction must be made verbally known . . . . " (Jt. Exh. E,
Art. 7, Sec. 11a).
and if the dissatisfaction is not resolved to the satisfaction of the
employee, " . . . the matter may be taken to arbitration if so elected
by the Union" (Jt. Exh. E, Art. 7, Sec. 11d). Mr. Russell, a member of
Local 4's bargaining unit, as a member of the bargaining unit received a
rating with which he was dissatisfied. The fact that the job, for which
the rating was sought and given, was outside the bargaining unit does
not alter the fact that a bargaining unit member received a rating which
he asserted was not correct and which he sought to have corrected
pursuant to Article 7, Section 11 of the parties agreement. Cf.
Veterans Administration Hospital, Lexington, Kentucky, 2 FLRA No. 110, 2
FLRA 878 (1980).
Third, Article 23 is entitled "MERIT PROMOTION AND PLACEMENT PROGRAM"
and in Section 1 provided, in part, that
"The provision of this Article apply only to the filling of
unit positions by unit employees . . . . " (Jt. Exh. E, Art. 23,
Sec. 1) (Emphasis supplied).
Section 17 of Article 23, provides that:
"An employee dissatisfied with an earned rating in connection
with his/her application for promotion to a unit position may
grieve in accordance with the provisions of Article 7, Section 11
of the AGREEMENT." (Jt. Exh. E, Art. 23, Sec. 17) (Emphasis
supplied).
By its language, Section 17, supra, does not purport to qualify,
limit, or modify Article 7, Section 11; but, rather, provides that an
earned rating for promotion to a unit position may be grieved pursuant
to Article 7, Section 11.
What does Article 7, Section 11, itself, encompass? Is the coverage
of Article 7, Section 11 modified or limited by Article 23, Section 17?
Was Mr. Russell's grievance, to correct a rating, cognizable under
Article 7? However stated, the question of arbitrability must be
resolved by an Arbitrator. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 80, 11 FLRA 456 (1983).
The Shipyard may be entirely correct; but it may be wrong. Indeed, as
noted above, Respondent Department of the Navy's position is " . . .
that this matter could have been raised under the negotiated procedure."
It would be improper for me to resolve the question of arbitrability,
Department of the Navy, Portsmouth Naval Shipyard, supra, and I
expressly decline to do so.
Does the Union's concurrence with the Shipyard's position that Mr.
Russell's grievance was not subject to the negotiated grievance
procedure effectively bypass, or negate, the determination of
arbitrability as a necessary predicate for the unfair labor practice
allegation? Section 3 of Article 9 of the parties' agreement provides,
in part, that
"Questions that cannot be resolved by the Employer and the
Union as to whether or not a grievance is subject to arbitration
under this AGREEMENT shall be referred to an arbitrator for
decision . . . . " (Jt. Exh. E, Art. 9, Sec. 3).
It is true that the parties purport to have resolved that Mr.
Russell's grievance is not subject to arbitration under their Agreement;
/17/ but it is clear that Local 4 "concurred" with the Shipyard's
position only for the purpose of this proceeding and, indeed, made no
final resolution that the grievance was not subject to arbitration under
the negotiated agreement but, to the contrary, preserved the right to
proceed under the negotiated procedure. The parties made no agreement
which would have excluded all such disputes from the negotiated
procedure. /18/ Nor may the parties confer jurisdiction by agreement.
National Treasury Employees Union, Chapter 208, 4 FLRA No. 31, 4 FLRA
215, 216 (1980) (there the Agency denied a grievance as non-grievable
because it was specifically excluded by Section 21(c)(2) of the Statute;
subsequently, the Agency advised the Union that the matter was
non-grievable because it was non-negotiable and, pursuant to the
parties' agreement, the Union's recourse was to the Authority; the
Union then filed a negotiability appeal to the Authority; and the
petition was dismissed).
Where the unfair labor practice alleged is bottomed on differing and
arguable interpretations of a collective bargaining agreement, here,
specifically, as to whether Mr. Russell's grievance to correct an earned
rating was subject to the negotiated grievance procedure, it has long
been recognized that the remedy lies within the grievance machinery of
the negotiated agreement, rather than through the unfair labor practice
procedures. General Services Administration, Region 5, Public Buildings
Services, Chicago Field Office, A/SLMR No. 528, 5 A/SLMR 424 (1975);
Federal Aviation Administration, Muskegon Air Traffic Control Tower,
A/SLMR No. 534, 5 A/SLMR 457 (1975); Department of Army, Watervliet
Arsenal, Watervliet, New York, A/SLMR No. 624, 6 A/SLMR 127 (1976);
Aerospace Guidance and Metrology Center, Newark Air Force Station,
Newark, Ohio, A/SLMR No. 677, 6 A/SLMR 361 (1976); Division of Military
and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71, 8
FLRA 307, 322 (1982); Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 80, 11 FLRA 456 (1983);
Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA
No. 90, 11 FLRA 516 (1983); Department of Defense, Department of the
Air Force, 31st Combat Support Group, Homestead Air Force Base, 13 FLRA
No. 41, 13 FLRA 239 (1983). For this reason alone, I recommend that the
Complaint herein be dismissed.
Should the Authority determine, contrary to my conclusion, that Local
4's concurrence with the Shipyard's position that Mr. Russell's
grievance was not subject to the negotiated grievance procedure negates
determination of arbitrability as a necessary predicate to the unfair
labor practice allegation, or should an arbitrator determine that Mr.
Russell's grievance is not subject to the negotiated grievance
procedure, I nevertheless conclude that Respondent's denial of access to
its administrative grievance procedure does not constitute an unfair
labor practice in violation of Section 16(a)(1) or (2) of the Statute.
Section 21 of the Statute provides, in part, as follows:
"(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. Except as provided in subsections (d) and (e) of
this section (1(d) relates to prohibited personnel practices under
Section 2302(b)(1); and (e) relates to matters covered under
Sections 4303 and 7512), the 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." (5 U.S.C. Section 7121(a)(1) and
(2)) (Emphasis supplied).
The Conference Report accompanying the final version of the bill
which was subsequently enacted and signed into law stated with regard to
Section 21(a) as follows:
"A. EXCLUSIVITY OF GRIEVANCE PROCEDURE
"Senate section 7221(a) provides that, except for certain
specified exceptions, an employee covered by a collective
bargaining agreement must follow the negotiated grievance
procedures rather than the agency procedures available to other
employees not covered by an agreement. House section 7121(a) does
not limit the employee to the negotiated procedures in the case of
any type of grievance.
"The House recedes.
. . .
"C. SCOPE OF GRIEVANCE PROCEDURES
"The Senate provides that the coverage and scope of the
grievance procedures shall be negotiated by the parties (section
7221(a)). House section 7121(a) does not authorize the parties to
negotiate over the coverage and scope of the grievances that fall
within the bill's provisions but prescribes those matters which
would have to be submitted, as a matter of law, to the grievance
procedures. The Conference report follows the House approach with
an amendment. All matters that under the provisions of law could
be submitted to the grievance procedure 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." (Emphasis supplied). Legislative History of the
Federal Service Labor-Management Relations Statute, Title VII of
the Civil Service Reform Act of 1978, 96th Cong. 1st Sess.,
Subcommittee on Postal Personnel and Modernization of the
Committee on Post Office and Civil Service, H.R. Committee Print
No. 96-7 at p. 825 (hereinafter, referred to as "Legislative
History," followed by the page number of the bound legislative
history). (Conference Report, H.R. Report No. 95-1717, 95th
Cong., 2nd Sess.). /19/
See also, American Federation of Government Employees, AFL-CIO, Local
2782, 6 FLRA No. 56, 6 FLRA 314, 322 (1981).
In National Federation of Federal Employees, Local 15, 9 FLRA No. 56,
9 FLRA 478 (1982), the Authority stated,
" . . . While the Army's regulations may limit the scope of the
Agency's grievance procedures, such regulations may not be applied
in a manner inconsistent with the broad scope negotiated grievance
procedures allowed under section 7121 of the Statute. Under
section 7121 a negotiated grievance procedure extends to all
matters which under the provisions of law could be covered unless
the parties agree through collective bargaining to a procedure
having a narrower coverage . . . . " (9 FLRA at 479).
The scope of administrative grievance procedures is subject to
government-wide regulation emanating from the Office of Personnel
Management. 5 C.F.R. Section 771.204 provides as follows:
"Section 771.204 Employee coverage.
"(a) Required coverage. Except as provided in Section
771.206(b), this part shall cover all non-bargaining unit
employees of the agency.
"(b) Discretionary coverage. An agency may extend the coverage
of this part to bargaining unit employees consistent with the
provisions of 5 U.S.C. 7121, or to applicants for employment with
the agency." (Jt. Exh. B. See, also, the wholly like provision of
the Federal Personnel Manual, Chapter 771, Agency Administrative
Grievance System, Section 2-5 a and b (Jt. Exh. A)) (Emphasis
supplied). /20/
Department of the Navy Regulation, CP1 771 (OPNAVNOTE 12771 (Jt. Exh.
C) provides, in part as follows:
"III. Employee Coverage.
"This regulation applies to all DON employees except for:
. . .
"(5) A bargaining unit employee covered by a negotiated
contract.
. . . . " (Jt. Exh. C).
OPM's government-wide regulations require that agency grievance
procedures cover all non-bargaining unit employees; /21/ but OPM's
Regulations do not require that an agency's administrative grievance
procedure cover bargaining unit employees. To the contrary, 5 C.F.R.
Section 771.204(b) specifically provides that it is discretionary
whether an agency extend coverage of its administrative grievance
procedure to bargaining unit employees. Thus, the Regulation states,
"(b) Discretionary coverage. An agency may extend the coverage
. . . to bargaining unit employees consistent with the provisions
of 5 U.S.C. 7121 . . . . " (5 U.S.C. Section 771.204(b)).
The Federal Personnel Manual sets forth precisely the same coverage
and by way of guidance states that,
"(1) This means that the agency has the option to extend
coverage for bargaining unit employees under the administrative
procedure on those matters that are mutually excluded from
negotiated grievance procedures . . . . "
The government-wide regulation is controlling and is lawful; and it
grants absolute discretion to each agency to extend, or not to extend,
coverage of its administrative grievance procedure to bargaining unit
employees covered by a collective bargaining agreement. The Department
of the Navy's exercise of the discretion granted, to exclude bargaining
unit employees covered by a negotiated contract, was neither
discriminatory, in violation of Section 16(a)(2) of the Statute, nor did
it interfere with, restrain, or coerce any employee in the exercise by
the employee of any right assured by Section 2, in violation of Section
16(a)(1) of the Statute.
Congress intended that,
" . . . All matters that under the provisions of law could be
submitted to the grievance procedure shall in fact be within the
scope of any grievance procedure negotiated by the parties . . . .
" (Legislative history, p. 825).
Unless, as it provided in Section 21(a)(2), " . . . the parties agree
as part of the collective bargaining process that certain matters shall
not be covered by the grievance procedures" (Legislative history, p.
825). Nevertheless, it was the intent of Congress, as it provided in
Section 21(a), that,
" . . . an employee covered by a collective bargaining
agreement must follow the negotiated grievance procedures rather
than the agency procedures available to other employees not
covered by an agreement . . . . " (Legislative history, p. 825).
Where unions have sought to limit exclusivity by broadening the
option to select a statutory appeals procedure the Authority has held
such proposals not within the duty to bargain. Thus, in American
Federation of Government Employees, AFL-CIO, Local 2955, 5 FLRA No. 86,
5 FLRA 617 (1981), the Authority held,
" . . . we find, in agreement with the Agency, that the
disputed provision purports to grant to bargaining unit employees
the option to choose either the negotiated grievance procedure or
a statutory procedure with respect to 'any matter' covered by the
grievance procedure. This is clearly inconsistent with section
7121(a)(1) of the Statute which permits such option only in very
limited circumstances: that is, where the grievance falls within
the coverage of either section 7121(d) or (e) of the Statute. In
all other situations, notwithstanding the possible existence of an
otherwise applicable statutory procedure, the negotiated procedure
must be the exclusive procedure for resolving grievances which
fall within its coverage." (5 FLRA at 620).
To like effect, see, also: American Federation of Government
Employees, AFL-CIO, Local 2904, 7 FLRA No. 28, 7 FLRA 188 (1981).
As "all matters that under the provisions of law could be submitted
to the grievance procedure shall in fact be within the scope of any
grievance procedure negotiated by the parties" (Legislative history, p.
825) and as "the negotiated procedure must be the exclusive procedure
for resolving grievances which fall within its coverage" (AFGE, Local
2955, supra), it may well be that there is not even a duty to bargain as
to extension of agency grievance procedures to matters excluded from the
negotiated procedures pursuant to Section 21(a)(2) of the Statute; but
whether there is, or is not, a duty to bargain is not an issue before me
and I express no opinion in that regard. Clearly, pursuant to OPM's
government-wide Regulation, Respondent Department of the Navy in its
discretion could have elected to extend its administrative grievance
procedure to matters other than those provided in Section 21(d) or (e)
of the Statute, but it chose not to do so. Respondent did not violate
either Section 16(a)(1) or (2) of the Statute by excluding "A bargaining
unit employee, covered by a negotiated contract" (Jt. Exh. C) as
Congress plainly stated that, " . . . an employee covered by a
collective bargaining agreement must follow the negotiated grievance
procedures rather than the agency procedures available to other
employees not covered by an agreement . . . . " (Legislative history, p.
825).
Congress envisioned a dual procedure. A negotiated grievance
procedure for employees represented and covered by collective bargaining
agreements; and an agency grievance procedure for employees not covered
by a collective bargaining agreement. If, pursuant to Section 21(a)(2),
any matter is excluded from application of the negotiated grievance
procedure by agreement, presumptively the parties intend that such
matter be excluded as a grievable or arbitrable matter. cf., Textile
Worker's Union of America v. Lincoln Mills, 353 U.S. 448 (1957); United
Steelworkers of America v. American Mfg. Co., 363 U.S. 564 (1960);
United Steelworkers of America v. Warrior & Gulf Navigation Co., 363
U.S. 574 (1960); and United Steelworkers of America v. Enterprise Wheel
and Car Corp., 363 U.S. 593 (1960). /22/ Congressman Ford in his
post-enactment remarks, stated, in part, as follows:
"The labor organization is required to meet a duty of fair
representation for all employees . . . The costs involved in the
procedure, which may well 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 .
. . . " (Legislative history, pp. 997-998).
Nothing in the Statute requires that any matter excluded from a
negotiated grievance procedure pursuant to Section 21(a)(2) must be
subject to an agency's administrative grievance procedure; OPM's
government-wide regulation grants each agency absolute discretion as to
whether its administrative grievance procedure will be extended to
bargaining unit employees covered by a collective bargaining agreement;
and Respondent's lawful exercise of the discretion accorded, by 5 C.F.R.
Section 771.204(b), to exclude bargaining unit employees covered by a
negotiated contract did not violate Section 16(a)(1) or (2) of the
Statute.
In point of fact, this case does not involve a matter that would, in
any event, have been subject to the administrative grievance procedure
because it involved a procedure available to employees not covered by an
agreement; but, quite to the contrary, relates to a job opportunity in
a bargaining unit other than the Local 4's covered by a collective
bargaining agreement. Local 4 very correctly perceived the
desirability, if not the necessity, of seeking a solution through
coordinated negotiations with the other unions and the Shipyard.
In view of my conclusions, it is unnecessary to reach other issues
raised, including the assertions that the charge was not timely filed
against Respondent (Respondent's Brief, p. 12) or that the instant
matter is barred by Section 16(d) of the Statute (Respondent's Brief, p.
15), and I express no opinion whatever with respect thereto.
Having found that Respondents did not violate either Section 16(a)(1)
or 16(a)(2) of the Statute by denying a bargaining unit employee covered
by a collective bargaining agreement access to its administrative
grievance procedure, it is recommended that the Authority adopt the
following:
ORDER
The Complaint in Case No. 1-CA-30290 be, and the same is hereby,
dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: February 25, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Respondents conceded during the hearing that the employee's
grievance fell within the scope of the Agency grievance procedure.
Transcript at 18, lines 4-16.
(2) 5 C.F.R. Section 771.204(b) provides, in pertinent part:
. . . . . . .
(b) Discretionary coverage. An agency may extend the coverage
of this part to bargaining unit employees consistent with the
provisions of 5 U.S.C. 7121, or to applicants for employment with
the agency.
(3) The General Counsel moved to strike from Respondents' brief any
portion which contested either the findings of fact by the Judge or the
parties' stipulations of fact. Thereafter, the Respondents filed an
opposition to the General Counsel's Motion to Strike. Since the
Authority will consider only those facts properly before it and will not
permit a party to unilaterally withdraw from a stipulation, it is
unnecessary to pass on the General Counsel's Motion to Strike.
(4) The Judge did not reach Respondents' jurisdictional arguments but
recommended dismissal of the case on substantive grounds. The Judge
should have addressed the jurisdictional issues raised before him. By
so doing, the Judge would have provided a better record for Authority
review and would avoid a possibility that the Authority would be
required to remand the case for additional findings.
(5) Section 7116(d) of the Statute provides, in pertinent part:
Section 7116. Unfair labor practices
. . . . . . .
(d) Issues which can properly be raised under an appeals
procedure may not be raised as unfair labor practices prohibited
under this section . . . . (I)ssues which can be raised under a
grievance procedure may, in the discretion of the aggrieved party,
be raised under the grievance procedure or as an unfair labor
practice under this section, but not under both procedures.
(6) See Department of Defense, Defense Mapping Agency Aerospace
Center, St. Louis, Missouri, 17 FLRA 71 (1985).
(7) Section 7118(a)(4) of the Statute provides, in pertinent part:
Section 7118. Prevention of unfair labor practices
. . . . . . .
(a)(4)(A) Except as provided in subparagraph (B) of this
paragraph, no complaint shall be issued based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority(.)
(8) See generally, Department of Defense, Department of the Air
Force, 31st Combat Support Group, Homestead Air Force Base, 13 FLRA 239,
246, note 8 (1983).
(9) Section 7103 of the Statute defines conditions of employment as
follows:
Section 7103. Definitions; application
(a) For the purpose of this chapter --
. . . . . . .
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters --
(A) relating to political activities prohibited under
subchapter III of chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by
Federal statute(.)
(10) For convenience of reference, sections of the Statute
hereinafter are, also, referred to without inclusion of the initial "71"
of the Statute reference, e.g., Section 7116(a)(1) will be referred to,
simply, as "Section 16(a)(1)."
(11) General Counsel filed a Motion to Correct Transcript, to which
no opposition was filed, and said motion is hereby granted except as
follows: (a) the correction requested on p. 32, 1. 5 is denied; (b)
the correction requested on p. 61, 1. 22-23 is denied; and (c) the
correction requested on p. 63, 1. 14-15 is denied. In each of these
instances, the transcript appears correct and complete. On my own
motion, the following, additional corrections to the transcript are
hereby made:
TABLE OMITTED
The transcript is hereby corrected as fully set forth in the Appendix
hereto.
(12) Actually, there are three other bargaining units at the
Portsmouth Naval Shipyard represented by: Local 2024, American
Federation of Government Employees; Federal Employees Metal Trades
Council; and Local F-123 International Association of Fire Fighters
(Jt. Exh. Q).
(13) This response referenced the Instruction as "dtd 26 Mar 1983."
The reference to "1983" was, obviously, a typographical error as the
Instruction is dated 26 March 1981 and it was stipulated that paragraph
7, entitled "Employee Coverage" had not been updated (Tr. 62-63).
(14) Paragraph 7 excludes from coverage, inter alia:
"a. Employees having access to a negotiated grievance
procedure, which procedure includes matters covered by this
instruction." (Jt. Exh. D) (Emphasis supplied).
General Counsel asserts that this provision " . . . is less
restrictive than CP1 771 (Jt. Exh. C which, as amended April 14, 1982,
excludes, inter alia, "(5) a bargaining unit employee covered by a
negotiated contract." (Jt. Exh. C, Par. III (5)) as it would exclude
from access those employees with resort to a negotiated grievance
procedure which included matters covered by the Instruction." (G.C.
Brief, p.4, n.1), i.e., Mr. Russell's grievance, if it were not covered
by the negotiated grievance procedure would, under the Shipyard
Instruction prior to the Department of the Navy's issuance of the April
14, 1982, amendment of CP1 771 which specifically excluded from coverage
all bargaining unit employees covered by a negotiated contract, have
been covered by the Shipyard's administrative grievance procedure (Tr.
24).
Obviously, Mr. James H. Kautz, Head, Employment Division, Industrial
Relations Office, in rejecting Mr. Russell's grievance did not construe
Paragraph 7 of the Shipyard's Instruction in the same manner as General
Counsel. Since Mr. Kautz later cited and relied upon CP1 771, it is
unnecessary to decide which interpretation of the Shipyard's Instruction
is more plausible.
(15) I am aware that the Authority, in Department of the Navy,
Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA No. 80, 11
FLRA 456 (1983), held that " . . . all questions of arbitrability must
be submitted to an Arbitrator" (11 FLRA at 457), notwithstanding that
Chief Judge Fenton had found the " . . . request for arbitration is so
clearly lacking in contract support as to be deemed frivolous." (11 FLRA
at 474). But, Cf., Harry S. Truman Memorial Veterans Hospital,
Columbia, Missouri, 11 FLRA No. 90, 11 FLRA 516 (1983).
(16) Article 9, Section 2 of the parties agreement provides in part,
that: "The parties agree that the issue(s) to be arbitrated shall be no
broader in scope than the issue(s) presented during the grievance
procedure . . . . " (Jt. Exh. E, Art. 9, Sec. 2).
(17) Obviously, not every dispute as to grievability or arbitrability
is resolved by arbitration. Unions must, consistent with their duty of
fair representation, have discretion as to matters they take to
arbitration. As between themselves, agreement of the parties that a
particular matter is not arbitrable is also consistent with the
Authority's Interpretation and Guidance, 2 FLRA 273, 279 n. 7 (1979)
which states, in part, that:
" . . . such procedures must be read as providing that all
questions of arbitrability not otherwise resolved shall be
submitted to arbitration." (Emphasis supplied).
(18) Not only was no such agreement made, but on, or about, September
3, 1983, the Union proposed, in coordination with other Unions at the
Shipyard, that,
" . . . any grievance concerning a Merit Promotion opportunity
in a bargaining unit other than the grievant's shall be processed
using the grievance and arbitration procedure applicable to the
bargaining unit the grievant is a member of . . . . " (Jt. Exh.
Q).
The Shipyard did not accept the proposal and it was not pursued
further (Tr. 45).
(19) General Counsel's citation of a portion of S. Rep. No. 95-969
(General Counsel's Brief, p. 6 n. 5) is somewhat specious as the portion
of the Report quoted and relied upon (Legislative History, p. 762)
refers to a provision of S. 2640, Section 7212(c) (Legislative History,
p. 573), not enacted as it appeared in the Senate Bill. Compare,
Section 14 of the Statute and specifically subsections (a)(5) (5 U.S.C.
Section 7114(a)(5)) with Section 7121(c) of S. Bill 2640 and Section
7(d) or Executive Order 11491, as amended, on which 7212(c) was based,
and is also somewhat misplaced in that, as pertains to the matter at
issue, it ignores the legislative history of Section 21 of the Statute,
set forth above, which directly, controls both the exclusively and scope
of negotiated grievance procedures. Section 14(a)(5)(B) as enacted, 5
U.S.C. Section 7114(a)(5)(B), not only does not create a separate right
for employees to utilize agency grievance procedures, as General Counsel
appears to concede, General Counsel's Brief, p. 7, n. 7, but Section
14(a)(5)(B) simply provides that the rights of an exclusive
representative shall not preclude an employee from exercising grievance
or appellate rights established by law, rule, or regulation " . . .
except in the case of grievance or appeal procedures negotiated under
this chapter."
(20) The Federal Personnel Manual, by way of guidance, further states
with respect to discretionary bargaining unit employee coverage:
"(1) This means that the agency has the option to extend
coverage for bargaining unit employees under the administrative
procedures on those matters that are mutually excluded from
negotiated grievance procedures. 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. Section 7121 and the
negotiated grievance procedure becomes operative." (Jt. Exh. A).
(21) And bargaining unit employees until such time as a collective
bargaining agreement is negotiated, which must, pursuant to Section
21(a)(1) of the Statute, provide a negotiated procedure which "Except as
provided in subsection (d) and (e) . . . shall be the exclusive
procedures for resolving grievances which fall within its coverage."
(22) Mr. Justice Brennan stated, for example:
"And I emphasize this, for the arbitration promise is itself a
contract. The parties are free to make that promise as broad or
as narrow as they wish for there is no compulsion in law requiring
them to include any such promise in their agreement." (363 U.S. at
570).