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

 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 . . . " "GRIEVANCE" IS DEFINED IN SECTION 7103(A)(9)
 OF THE STATUTE AS FOLLOWS:
 
    GRIEVANCE MEANS ANY COMPLAINT--
 
    (A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
 OF THE EMPLOYEE;
 
    (A) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
 EMPLOYMENT OF AN
 
    EMPLOYEE;  OR
 
    (C) BY AN EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--
 
    (I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
 COLLECTIVE BARGAINING
 
    AGREEMENT;  OR
 
    (II) ANY CLAIMED VIOLATION, MISINTERPRETATION OR MISAPPLICATION OF
 ANY LAW, RULE, OR
 
    REGULATION AFFECTING CONDITIONS OF EMPLOYMENT(.)
 
    SECTION 7121(C) OF THE STATUTE SPECIFICALLY EXCLUDES FROM THE
 COVERAGE OF NEGOTIATED GRIEVANCE PROCEDURES THE FOLLOWING:
 
    THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
 RESPECT TO ANY GRIEVANCE
 
    CONCERNING--
 
    (1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
 TITLE (RELATING TO
 
    PROHIBITED POLITICAL ACTIVITIES);
 
    (2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE:
 
    (3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE:
 
    (4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT;  OR
 
    (5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
 REDUCTION IN GRADE OR
 
    PAY OF AN EMPLOYEE.
 
    FURTHER, IN THIS REGARD, THE JOINT EXPLANATORY STATEMENT OF THE
 COMMITTEE ON CONFERENCE WHICH ACCOMPANIED THE BILL AS ENACTED AND SIGNED
 INTO LAW, STATED AS FOLLOWS:  /4/
 
    THE SENATE PROVIDES THAT THE COVERAGE AND SCOPE OF THE GRIEVANCE
 PROCEDURES SHALL BE
 
    NEGOTIATED BY THE PARTIES (SECTION 7121(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
 
    PROCEDURES SHALL IN FACT BE WITHIN THE SCOPE OF ANY GRIEVANCE
 PROCEDURE NEGOTIATED BY THE
 
    PARTIES UNLESS THE PARTIES AGREE AS PART OF THE COLLECTIVE BARGAINING
 PROCESS THAT CERTAIN
 
    MATTERS SHALL NOT BE COVERED BY THE GRIEVANCE PROCEDURES.
 
    IN SUM, CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A
 NEGOTIATED GRIEVANCE PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH "UNDER
 THE PROVISIONS OF LAW" COULD BE COVERED UNLESS THE PARTIES AGREED
 THROUGH THE COLLECTIVE BARGAINING PROCESS TO A PROCEDURE HAVING A
 NARROWER COVERAGE.  CONGRESS CLEARLY DID NOT, HOWEVER, MANDATE THAT, TO
 FALL WITHIN THE DUTY TO BARGAIN, EACH PROPOSED GRIEVANCE, PROCEDURE MUST
 ENUMERATE ALL OR SOME OF THE MATTERS WHICH "UNDER THE PROVISIONS OF LAW"
 COULD NOT BE SO COVERED.  SUCH A REQUIREMENT WOULD BE REDUNDANT AND
 WITHOUT LEGAL SIGNIFICANCE SINCE, AS INDICATED, SECTION 7121, AS
 EXPLAINED BY THE COMMITTEE ON CONFERENCE, ALREADY PROVIDES THAT
 NEGOTIATED GRIEVANCE PROCEDURES COVER, AT A MAXIMUM, MATTERS WHICH UNDER
 THE PROVISIONS OF LAW COULD BE SUBMITTED TO THE PROCEDURES.
 
    CONSEQUENTLY, THERE IS NOT MERIT IN THE AGENCY'S CONTENTION THAT THE
 PROPOSED PROCEDURE IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT DOES NOT
 SPECIFICALLY EXCLUDE CERTAIN MATTERS WHICH ARE ALLEGED TO BE OUTSIDE THE
 SCOPE AND COVERAGE OF THE PARTIES' NEGOTIATED AGREEMENT BY OPERATION OF
 LAW AND REGULATIONS, I.E., MATTERS CONCERNED WITH THE PERSONNEL SYSTEM
 FOR TITLE 38 EMPLOYEES.  IF THE AGENCY BELIEVES THAT, AS A MATTER OF
 LAW, CERTAIN MATTERS ARE NONGRIEVABLE AND NONARBITRABLE, GRIEVANCES
 WHICH MIGHT BE FILED WITH RESPECT TO THEM MAY BE CHALLENGED BY THE
 AGENCY AS NONGRIEVABLE OR NONARBITRABLE, IN THE CONTEXT OF SPECIFIC
 FACTUAL CIRCUMSTANCES.  IN THIS REGARD, SECTION 7121(A) OF THE STATUTE
 REQUIRES THE PARTIES TO "PROVIDE PROCEDURES FOR THE SETTLEMENT OF
 GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY . . . " FURTHERMORE, IF
 AN ARBITRATOR WERE TO RENDER AN AWARD INVOLVING THE MATTERS WHICH ,UNDER
 THE PROVISIONS OF LAW" MAY NOT BE COVERED BY NEGOTIATED GRIEVANCE
 PROCEDURES, THE AGENCY WOULD HAVE AN OPPORTUNITY TO CHALLENGE THE AWARD
 BY FILING EXCEPTIONS THERETO WITH THE AUTHORITY PURSUANT TO SECTION 7122
 OF THE STATUTE (92 STAT.  1212) ON THE BASIS THAT THE AWARD IS "CONTRARY
 TO ANY LAW, RULE OR REGULATION."
 
    IN SUMMARY, WE HOLD THAT THE UNION'S PROPOSAL IS A MATTER WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.  ACCORDINGLY, THE AGENCY'S
 ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET
 ASIDE.
 
    ISSUED, WASHINGTON, D.C., MAY 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ 5 U.S.C. 7121 OF THE STATUTE PROVIDES, IN PERTINENT PART, THAT:
 
    SEC. 7121.  GRIEVANCE PROCEDURES
 
    (A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SECTION, ANY
 COLLECTIVE BARGAINING
 
    AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
 INCLUDING QUESTIONS OF
 
    ARBITRABILITY.  EXCEPT AS PROVIDED IN SUBSECTION (D) AND (E) OF THIS
 SECTION, 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.
 
   .          .          .          .
 
 
    /2/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /3/ THE EXPRESS EXCLUSIONS DEMANDED BY THE AGENCY WERE:
 
    1.  THE SEPARATION OF EMPLOYEES IN THEIR PROBATIONARY PERIOD;
 
    2.  ANY ACTIONS AND RECOMMENDATIONS RESULTING FROM COMPETENCY REVIEWS
 BY THE SUPERVISOR OR
 
    BY A NURSE PROFESSIONAL STANDARDS BOARD;
 
    3.  ANY ACTION TAKEN BY THE CHIEF MEDICAL DIRECTOR ON THE BASIS OF
 DISCIPLINARY BOARD
 
    RECOMMENDATIONS.
 
    /4/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 157 (1978).