American Federation of Government Employees, Local 2442, AFL-CIO (Union) and Veterans Administration, Regional Office, Newark, New Jersey (Agency)

 



[ v04 p156 ]
04:0156(26)NG
The decision of the Authority follows:


 4 FLRA No. 26
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2442
 Union
 
 and
 
 VETERANS ADMINISTRATION, REGIONAL
 OFFICE, NEWARK, NEW JERSEY
 Agency
 
                                            Case No. O-NG-65
 
                      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 22, SECTION 2(D)
 
    (D) EXCEPT THAT IT (SCOPE) SHALL NOT INCLUDE A GRIEVANCE CONCERNING--
 
    (1) ANY CLAIMED VIOLATION RELATING TO PROHIBITED POLITICAL
 ACTIVITIES;  OR
 
    (2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;  OR
 
    (3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF TITLE 5 USC
 7121(C)(3);  OR
 
    (4) ANY EXAMINATION, CERTIFICATION OR APPOINTMENT RELATING TO INITIAL
 EMPLOYMENT;  OR
 
    (5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
 REDUCTION IN GRADE OR
 
    PAY OF AN EMPLOYEE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE UNION'S
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION 7121 OF THE
 STATUTE BECAUSE IT FAILS TO EXPRESSLY EXCLUDE FROM COVERAGE OF THE
 GRIEVANCE PROCEDURE THE SEPARATION OF EMPLOYEES DURING THEIR
 PROBATIONARY PERIOD.
 
                                  OPINION
 
    CONCLUSION:  THE 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 (5 C.F.R. 2424.10), THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SET ASIDE.  /1/
 
    REASONS:  DURING NEGOTIATIONS BETWEEN THE PARTIES ON A GRIEVANCE
 PROCEDURE AS REQUIRED BY SECTION 7121(A) OF THE STATUTE, THE UNION
 PROPOSED THE LANGUAGE HERE IN DISPUTE, WHICH CONTAINS CERTAIN EXCLUSIONS
 TO THE NEGOTIATED GRIEVANCE PROCEDURE THAT ARE, ESSENTIALLY, A DIRECT
 EXCERPT FROM SECTION 7121(C) OF THE STATUTE.  SECTION 7121 OF THE
 STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    SEC. 7121.  GRIEVANCE PROCEDURES
 
    (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, 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.
 
   *          *          *          *
 
 
    (C) 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(.)
 
    THE AGENCY CLAIMS IN SUBSTANCE THAT AN ADDITIONAL EXCLUSION, THE
 SEPARATION OF EMPLOYEES DURING THEIR PROBATIONARY PERIOD, MUST BE
 EXCLUDED FROM NEGOTIATED GRIEVANCE PROCEDURES "AS A MATTER OF LAW." THAT
 IS, THE AGENCY MAINTAINS THAT UNLESS THE SEPARATION OF EMPLOYEES DURING
 THEIR PROBATIONARY PERIOD IS SPECIFICALLY EXCLUDED FROM THE SCOPE OF THE
 NEGOTIATED GRIEVANCE PROCEDURE, SUCH PROCEDURE, AS HERE, WOULD NOT
 CONFORM TO SECTION 7121 OF THE STATUTE.  MOREOVER, IN THE AGENCY'S VIEW,
 DIFFERENCES OVER THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE MUST BE
 RESOLVED BY NEGOTIATING A LIST OF EXCLUSIONS TO SUCH PROCEDURE.  FOR THE
 REASONS STATED BELOW, THE AGENCY'S CONTENTION THAT THE UNION'S PROPOSAL
 IS NOT WITHIN THE DUTY TO BARGAIN CANNOT BE SUSTAINED.
 
    IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669
 AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3
 FLRA NO. 48(1980), THE AUTHORITY REJECTED AN AGENCY CONTENTION THAT A
 PROPOSED GRIEVANCE PROCEDURE WAS NOT WITHIN THE DUTY TO BARGAIN BECAUSE
 IT DID NOT EXPRESSLY EXCLUDE CERTAIN MATTERS WHICH WERE ALLEGED TO BE
 OUTSIDE THE SCOPE AND COVERAGE OF THE PARTIES' NEGOTIATED AGREEMENT BY
 OPERATION OF LAW AND REGULATIONS.  IN SO CONCLUDING, THE AUTHORITY,
 RELYING UPON THE DEFINITION OF "GRIEVANCE" IN SECTION 7103(A)(9) OF THE
 STATUTE, /2/ AS WELL AS THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION
 7121(A) IN ITS ENTIRETY, STATED AS FOLLOWS:
 
    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 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.
 
    THE AUTHORITY FURTHER INDICATED THAT:
 
    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."
 
    THE ISSUES RAISED IN THE INSTANT APPEAL ARE IDENTICAL TO TH