American Federation of Government Employees, Local 2904, AFL-CIO (Union) and Marine Corps Finance Center, Kansas City, Missouri (Agency) 

 

 7 FLRA No. 28
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPL0YEES, AFL-CIO, LOCAL 2904
 Union
 
 and
 
 MARINE CORPS FINANCE CENTER,
 KANSAS CITY, MISSOURI
 Agency
 
                                            Case No. O-NG-372
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  THE ISSUE
 PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING PROVISION WHICH WAS
 DISAPPROVED BY THE AGENCY HEAD PURSUANT TO REVIEW OF THE PARTIES'
 AGREEMENT UNDER SECTION 7114(C) OF THE STATUTE:  /1/
 
                               PROVISION /2/
 
    ARTICLE 15 GRIEVANCE PROCEDURE.
 
    SECTION 3.  THIS PROCEDURE WILL BE THE SOLE PROCEDURE FOR PROCESSING
 GRIEVANCES EXCEPT FOR
 
    MATTERS FOR WHICH STATUTORY APPEALS PROCEDURE EXIST.  WHEN STATUTORY
 APPEAL PROCEDURE EXIST,
 
    THE EMPLOYEE MAY AT HIS OPTION, RAISE THE MATTER UNDER A STATUTORY
 APPELLATE PROCEDURE OR THE
 
    NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROVISION IS OUTSIDE THE DUTY TO BARGAIN
 UNDER THE STATUTE BECAUSE IT IS INCONSISTENT WITH LAW, I.E., SECTIONS
 7121(A)(1), (D) AND (E) OF THE STATUTE, /3/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PROVISION, AS WRITTEN, IS
 INCONSISTENT WITH SECTION 7121(A)(1) OF THE STATUTE AND IS, THEREFORE,
 NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
 
    IT IS ORDERED THAT THE PETITION FOR REVIEW BE, AND IT HEREBY IS,
 DISMISSED.
 
    REASONS:  IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2955 AND NATIONAL GUARD BUREAU, OFFICE OF THE ADJUTANT GENERAL,
 DES MOINES, IOWA, 5 FLRA NO.  86(1981), THE AUTHORITY FOUND THAT A
 PROVISION WHICH WOULD PERMIT AN EMPLOYEE THE OPTION OF RAISING "ANY
 MATTER" NOT EXPRESSLY EXCLUDED FROM THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE EITHER UNDER THAT PROCEDURE OR UNDER A STATUTORY APPEAL
 PROCEDURE, AS INCONSISTENT WITH SECTION 7121(A)(1) OF THE STATUTE.  IN
 SO FINDING, THE AUTHORITY STATED:
 
    (S)ECTION 7121(A)(1) OF THE STATUTE . . . PERMITS SUCH OPTION (TO
 CHOOSE EITHER THE
 
    NEGOTIATED GRIEVANCE PROCEDURE OR A STATUTORY PROCEDURE WITH RESPECT
 TO ANY MATTER COVERED BY
 
    THE GRIEVANCE PROCEDURE) 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, NONWITHSTANDING 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.  THUS, THE PROVISION ON ITS FACE IS
 NOT WITHIN THE OBLIGATION
 
    TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.
 
    THE PROVISION AT ISSUE IN THIS CASE AS DRAFTED BEARS NO MATERIAL
 DIFFERENCE FROM THE DISPUTED PROVISION IN THE NATIONAL GUARD BUREAU
 CASE, SUPRA, WHICH WAS FOUND TO BE INCONSISTENT WITH SECTION 7121(A)(1)
 OF THE STATUTE AND, THEREFORE, NOT WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7117 OF THE STATUTE.  ACCORDINGLY, FOR THE REASONS MORE FULLY
 STATED IN THAT DECISION, THE AUTHORITY LIKEWISE FINDS THAT THE DISPUTED
 PROVISION HEREIN IS NOT WITHIN THE DUTY TO BARGAIN AND THEREFORE
 CONCLUDES THAT THE UNION'S PETITION FOR REVIEW MUST BE DISMISSED.
 
    OF COURSE, THE PROVISION COULD BE DRAFTED TO BE CONSISTENT WITH THE
 STATUTE BY PERMITTING BARGAINING UNIT EMPLOYEES AN OPTION TO CHOOSE THE
 NEGOTIATED GRIEVANCE PROCEDURE OR AN OTHERWISE APPLICABLE STATUTORY
 APPEAL PROCEDURE ONLY IN THOSE LIMITED CIRCUMSTANCES SPECIFIED IN THE
 STATUTE-- I.E., ONLY WHERE THE GRIEVANCE FALLS WITHIN THE COVERAGE OF
 SECTION 7121(D) OR (E) OF THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7114(C) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
   .          .          .          .
 
 
    (C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
 REPRESENTATIVE SHALL BE SUBJECT TO
 
    APPROVAL BY