American Federation of Government Employees, AFL-CIO, Local 3669 (Labor Organization) and Veterans Administration Medical Center, Minneapolis, Minnesota (Activity) 

 



[ v03 p311 ]
03:0311(48)NG
The decision of the Authority follows:


 3 FLRA No. 48
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3669
 Labor Organization
 
 and
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER,
 MINNEAPOLIS, MINNESOTA
 Activity
 
                                            Case No. 0-NG-32
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
    ARTICLE XXII, GRIEVANCE PROCEDURE, SECTION 2
 
    A GRIEVANCE IS DEFINED TO BE ANY DISPUTE OR COMPLAINT BETWEEN THE
 EMPLOYER AND THE UNION,
 
    OR AN EMPLOYEE COVERED BY THIS AGREEMENT, WHICH MAY PERTAIN TO ANY OF
 THE FOLLOWING:
 
    1.  ANY MATTER INVOLVING THE INTERPRETATION, APPLICATION OR VIOLATION
 OF THIS AGREEMENT,
 
    AND
 
    2.  ANY MATTER INVOLVING WORKING CONDITIONS OR THE INTERPRETATION AN
 APPLICATION OF AGENCY
 
    POLICIES, REGULATIONS AND PRACTICES NOT SPECIFICALLY COVERED BY THIS
 AGREEMENT.  THE SOLE
 
    EXCLUSION OF THIS GRIEVANCE PROCEDURE SHALL BE THOSE MATTERS SUBJECT
 TO STATUTORY APPEALS
 
    PROCEDURES.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE UNION PROPOSAL
 IS NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION 7121 OF THE STATUTE, /1/
 BECAUSE IT FAILS TO EXPRESSLY EXCLUDE FROM COVERAGE OF THE GRIEVANCE
 PROCEDURE CERTAIN MATTERS CLAIMED BY THE AGENCY TO BE OUTSIDE THE
 APPLICATION OF THE NEGOTIATED GRIEVANCE PROCEDURE "AS A MATTER OF LAW."
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7121 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10
 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SET ASIDE.  /2/
 
    REASONS:  DURING NEGOTIATIONS BETWEEN THE PARTIES ON A GRIEVANCE
 PROCEDURE AS REQUIRED BY SECTION 7121 (A) OF THE STATUTE (NOTE 1,
 SUPRA), THE UNION PROPOSED THE LANGUAGE HERE IN DISPUTE, WHICH PROVIDES
 THAT THE SOLE CONTRACTUAL EXCLUSION FROM THE GRIEVANCE PROCEDURE'S
 APPLICATION SHALL BE THOSE MATTERS WHICH ARE SUBJECT TO STATUTORY
 APPEALS PROCEDURES.  THE AGENCY CLAIMS, IN ESSENCE, THAT, AS PROPOSED,
 THE PROCEDURE WOULD APPLY TO MATTERS WHICH ARE "NONGRIEVABLE AS A MATTER
 OF LAW." MORE SPECIFICALLY, THE AGENCY CLAIMS THAT AS PROPOSED THE
 PROCEDURE WOULD APPLY TO CERTAIN MATTERS CONCERNED WITH THE APPOINTMENT
 AND DISCIPLINE OF AGENCY EMPLOYEES WHO ARE APPOINTED UNDER AUTHORITY
 CONTAINED IN TITLE 38, UNITED STATES CODE, AND, THUS, THE PROPOSED
 GRIEVANCE PROCEDURE WOULD VIOLATE LAW AND AGENCY REGULATIONS UNLESS IT
 IS MODIFIED TO EXPRESSLY EXCLUDE THOSE MATTERS.  /3/ FOR THE REASONS
 STATED BELOW, THE AGENCY'S CONTENTION THAT THE UNION'S PROPOSAL IS NOT
 WITHIN THE DUTY TO BARGAIN IS WITHOUT MERIT.  IN SO HOLDING, THE
 AUTHORITY FINDS IT UNNECESSARY TO RULE ON THE AGENCY'S CLAIM THAT THE
 MATTERS WHICH THE AGENCY ASSERTS MUST EXPRESSLY BE EXCLUDED FROM THE
 GRIEVANCE PROCEDURE ARE, BY LAW AND IMPLEMENTING REGULATIONS,
 NONGRIEVABLE AND NONARBITRABLE.
 
    THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION 7121(A) OF THE
 STATUTE, VIEWED AS AN ENTIRETY, DO NOT INDICATE THAT CONGRESS INTENDED
 TO REQUIRE THE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT SPECIFICALLY
 AND EXPRESSLY TO SET FORTH ALL OR ANY OF THOSE MATTERS WHICH, UNDER
 PROVISIONS OF LAW, COULD NOT PROPERLY BE COVERED BY THEIR NEGOTIATED
 GRIEVANCE PROCEDURE.  RATHER, IN THIS REGARD, SECTION 7121(A) OF THE
 STATUTE (NOTE 1, SUPRA) PROVIDES THAT A COLLECTIVE BARGAINING AGREEMENT
 MUST CONTAIN A GRIEVANCE PROCEDURE WHICH SHALL BE THE EXCLUSIVE METHOD
 OF RESOLVING GRIEVANCES FALLING WITHIN ITS COVERAGE, WITH THE PROVISO
 THAT THE PARTIES "MAY EXCLUDE ANY MATTER FROM THE APPLICATION OF THE
 GRIEVANCE PROCEDURE . . . " "GR