09:0744(93)CA - AFGE Interdepartmental Local 3723 and Navy, Fleet Combat Training Center, Pacific, San Diego, CA -- 1982 FLRAdec CA



[ v09 p744 ]
09:0744(93)CA
The decision of the Authority follows:


 9 FLRA No. 93
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 INTERDEPARTMENTAL LOCAL 3723,
 AFL-CIO
 Respondent
 
 and
 
 UNITED STATES DEPARTMENT OF
 THE NAVY, FLEET COMBAT TRAINING
 CENTER, PACIFIC, SAN DIEGO,
 CALIFORNIA
 Charging Party
 
                                            Case No. 8-CO-4
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT, AND
 RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
 AFFIRMATIVE ACTIONS.  THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S
 DECISION, AND THE GENERAL COUNSEL FILED A BRIEF IN RESPONSE THERETO.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
 JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.  THUS, IN AGREEMENT
 WITH THE JUDGE, AND FURTHER FOR THE REASONS SET FORTH IN VERMONT AIR
 NATIONAL GUARD, BURLINGTON, VERMONT, 9 FLRA NO. 92 (1982), THE AUTHORITY
 FINDS THAT THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE IS WITHIN THE
 DUTY TO BARGAIN UNDER THE STATUTE, AND THAT THE RESPONDENT VIOLATED
 SECTION 7116(B)(5) /1/ BY SUMMARILY REFUSING TO BARGAIN BASED ON THE
 ERRONEOUS ASSUMPTION THAT IT WAS NOT REQUIRED TO DO SO.
 
                                   ORDER
 
    PURSUANT TO SECTION 7118 OF THE STATUTE AND SECTION 2423.29 OF THE
 AUTHORITY'S RULES AND REGULATIONS, THE AUTHORITY HEREBY ORDERS THAT THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL
 3723, AFL-CIO, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO NEGOTIATE CONCERNING THE SCOPE OF THE
 NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN ITS COLLECTIVE
 BARGAINING AGREEMENT WITH U.S.  DEPARTMENT OF THE NAVY, FLEET COMBAT
 TRAINING CENTER, PACIFIC.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST, NEGOTIATE WITH U.S. DEPARTMENT OF THE NAVY, FLEET
 COMBAT TRAINING CENTER, PACIFIC, CONCERNING THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE TO BE INCLUDED IN THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.
 
    (B) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
 AND AT ALL OTHER PLACES WHERE NOTICES TO ITS MEMBERS AND EMPLOYEES OF
 THE U.S. DEPARTMENT OF THE NAVY, FLEET COMBAT TRAINING CENTER, PACIFIC,
 ARE CUSTOMARILY POSTED, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE
 FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS, THEY SHALL BE SIGNED BY AN AUTHORIZED REPRESENTATIVE AND
 SHALL BE POSTED AND MAINTAINED BY SUCH REPRESENTATIVE FOR 60 CONSECUTIVE
 DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL PLACES WHERE
 NOTICES TO MEMBERS AND EMPLOYEES ARE CUSTOMARILY POSTED.  REASONABLE
 STEPS SHALL BE TAKEN TO INSURE THAT SUCH NOTICES ARE NOT ALTERED,
 DEFACED, OR COVERED BY ANY OTHER MATERIAL.
 
    (C) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE COMMANDING OFFICER,
 U.S. DEPARTMENT OF THE NAVY, FLEET COMBAT TRAINING CENTER, PACIFIC, SAN
 DIEGO, CALIFORNIA.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR FOR REGION VIII, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
        NOTICE TO ALL MEMBERS AND 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 MEMBERS
 
          AND EMPLOYEES OF THE U.S. DEPARTMENT OF THE NAVY, FLEET
 
                  COMBAT TRAINING CENTER, PACIFIC, THAT:
 
    WE WILL NOT FAIL OR REFUSE TO NEGOTIATE CONCERNING THE SCOPE OF THE
 NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN OUR COLLECTIVE
 0ARGAINING AGREEMENT WITH U.S. DEPARTMENT OF THE NAVY, FLEET COMBAT
 TRAINING CENTER, PACIFIC.
 
    WE WILL, UPON REQUEST, NEGOTIATE WITH U.S. DEPARTMENT OF THE NAVY,
 FLEET COMBAT TRAINING CENTER, PACIFIC, CONCERNING THE SCOPE OF THE
 NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.
 
                           (LABOR ORGANIZATION)
 
    DATED:  BY:  (SIGNATURE)
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, REGION VIII, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  350 FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS
 ANGELES, CALIFORNIA 90071, AND WHOSE TELEPHONE NUMBER IS:  (213)
 688-3805.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    JOSEPH SWERDZEWSKI, ESQ.
                          FOR THE GENERAL COUNSEL
 
    STUART A. KIRSCH, ESQ.
                         FOR THE RESPONDENT
 
    MR. RICHARD A. SCHULTZ
                         FOR THE CHARGING PARTY
 
    BEFORE:  ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
                             CASE NO.: 8-CO-4
 
                                 DECISION
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE SECTION 7101,
 ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED. REG.,
 VOL. 45, NO. 2, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART 2411, ET
 SEQ.
 
    PURSUANT TO A CHARGE FILED ON MAY 7, 1979, BY U.S. DEPARTMENT OF THE
 NAVY, FLEET COMBAT TRAINING CENTER, PACIFIC, SAN DIEGO, CALIFORNIA
 (HEREINAFTER CALLED THE ACTIVITY), A COMPLAINT AND NOTICE OF HEARING
 ISSUED ON FEBRUARY 5, 1980 ALLEGING THAT AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL, LOCAL 3723, AFL-CIO
 (HEREINAFTER CALLED RESPONDENT) REFUSED TO BARGAIN COLLECTIVELY IN GOOD
 FAITH WITH THE ACTIVITY BY REFUSING TO BARGAIN COLLECTIVELY CONCERNING
 THE ACTIVITY'S PROPOSALS RELATING TO THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE.
 
    A HEARING WAS HELD ON JULY 25, 1980 IN SAN DIEGO, CALIFORNIA.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND
 CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES
 HEREIN.  ALL PARTIES SUBMITTED BRIEFS WHICH HAD BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT,
 CONCLUSIONS AND RECOMMENDATION.
 
                             FINDINGS OF FACT
 
    1.  RESPONDENT IS NOW, AND HAS BEEN AT ALL TIMES MATERIAL HEREIN, THE
 EXCLUSIVE REPRESENTATIVE IN A GENERAL SCHEDULE AND WAGE GRADE
 NON-PROFESSIONAL UNIT OF EMPLOYEES AT THE ACTIVITY.
 
    2.  SINCE LATE NOVEMBER 1978, AND AT ALL TIMES THEREAFTER, RESPONDENT
 AND THE ACTIVITY HAVE BEEN ENGAGED IN COLLECTIVE BARGAINING FOR THE
 EMPLOYEES IN THE ABOVE DESCRIBED APPROPRIATE UNIT CONCERNING AN INITIAL
 COLLECTIVE-BARGAINING AGREEMENT.
 
    3.  AT THE INITIAL NEGOTIATION SESSION, IN JANUARY 1979, LT.
 COMMANDER W.S. ROBERTS, THE CHIEF NEGOTIATOR FOR THE ACTIVITY, ASKED
 SEVERAL QUESTIONS CONCERNING THE RESPONDENT'S GRIEVANCE PROPOSAL.
 PRIMARILY, THE DISCUSSION CONCERNED RESPONDENT'S DESIRE TO HAVE SEPARATE
 APPEALS I.E. ADVERSE ACTION APPEAL PROCEDURE AND A GRIEVANCE PROCEDURE.
 ALSO, RESPONDENT'S PROPOSAL CONTAINING A GRIEVANCE PROCEDURE TO END AT
 THE DEPARTMENT HEAD LEVEL WITH NO STEPS THROUGH THE COMMANDING OFFICER
 WAS DISCUSSED.
 
    4.  IN LATE FEBRUARY, 1979 THE PARTIES AGAIN MET.  ACCORDING TO LT.
 COMMANDER ROBERTS, IT WAS CLEAR AT THE OUTSET THAT RESPONDENT DESIRED,
 "STRICTLY THE DEFINITION THAT IS IN THE STATUTE", WHILE MANAGEMENT
 SOUGHT SOME MENTION OF SCOPE IN THE DEFINITION AREA.  MANAGEMENT TOOK
 THE POSITION, THAT IT HAD TO HAVE THE EXCLUSIONS REFERRED TO IN THE
 DEFINITION OR HAVE THE EXCLUSIONS IN THE BODY OF THE GRIEVANCE PROCEDURE
 ARTICLE;  BUT IN ONE PLACE OR THE OTHER.  /2/ THE PARTIES AGREED TO
 DEFER THE ISSUE TO THE FORMAL DISCUSSIONS OF THE GRIEVANCE PROCEDURE BY
 ADDING A SECTION TO THE DEFINITION, WHICH STATED THAT EXCLUSIONS WOULD
 BE LISTED ON THE GRIEVANCE PROCEDURE ARTICLE.
 
    5.  ON OR ABOUT MARCH 1, 1979 MANAGEMENT SUBMITTED ITS REVISED
 PROPOSAL, CONTAINING A BASIC DIFFERENCE THAT OFFERED A REDEFINITION OF
 THE INFORMAL STEP, OR INFORMAL HANDLING OF A GRIEVANCE, AND WHEN A
 COMPLAINT BECAME A GRIEVANCE.  ABOUT MARCH 3, 1979 THE PARTIES SIGNED
 OFF ON THE DEFINITION OF A GRIEVANCE.
 
    6.  THE PARTIES APPARENTLY DEFERRED DISCUSSION OF THE GRIEVANCE
 PROCEDURE UNTIL MAY 1, 1979.  AT THIS MEETING, LT. COMMANDER ROBERTS,
 PROVIDED RESPONDENT WITH A REVISED EXCLUSION LIST OF ITEMS TO BE
 EXCLUDED FROM THE SCOPE OF THE GRIEVANCE PROCEDURE.  ACCORDING TO
 COMMANDER ROBERTS, THIS LIST CONSISTED OF THE ORIGINAL LIST WITH THE
 ADDITION OF THOSE EXCLUSIONS CALLED FOR IN THE CIVIL SERVICE REFORM ACT.
  THE LIST ALSO INCLUDED THE OPTIONAL APPEAL AND GRIEVANCE OPTION CALLED
 FOR IN THE STATUTE.
 
    7.  AFTER COMMANDER ROBERTS HAD EXPLAINED THE DIFFERENCE BETWEEN
 MANAGEMENT'S ORIGINAL PROPOSAL AND THE NEW PROPOSAL, RESPONDENT'S CHIEF
 NEGOTIATOR, MR. LEO MOLINA, STATED THAT THE UNION WOULD NOT DISCUSS ANY
 EXCLUSIONS BEYOND THOSE QUOTED IN THE CIVIL SERVICE REFORM ACT.  ROBERTS
 TESTIFIED THAT HE THEN ASKED MOLINA, WHY THE UNION WOULD NOT DISCUSS THE
 EXCLUSIONS.  MOLINA, ACCORDING TO ROBERTS, THEN READ A LETTER WHICH
 STATED A POLICY THAT CONTRACTS SHOULD NOT HAVE A RESTRICTED SCOPE OF THE
 GRIEVANCE PROCEDURE BEYOND THOSE IN THE STATUTE.  IN RESPONSE TO A
 QUESTION FROM A MEMBER OF THE MANAGEMENT NEGOTIATION TEAM, MOLINA
 REPLIED THAT THE LETTER FROM WHICH HE WAS READING WAS FROM THE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES EXECUTIVE COMMITTEE DIRECTING HIM TO
 STAND BY THE POSITION.  MOLINA STATED THAT HE WOULD NOT DISCUSS THE
 PROPOSAL AT THAT TIME.
 
    8.  FOLLOWING A MANAGEMENT TEAM CAUCUS MOLINA WAS PRESENTED WITH A
 LETTER REQUESTING RESPONDENT'S POSITION ON THE NEGOTIABILITY OF THE
 EXCLUSIONS.  MOLINA RESPONDED BY READING FROM THE CONGRESSIONAL RECORD
 PORTIONS OF CONGRESSMAN FORD'S SUBMISSION STATING THAT THE STATEMENT
 ESTABLISHED CONGRESSIONAL INTENT, AND THAT THE UNION HAD UNILATERAL
 AUTHORITY, WHETHER OR NOT TO NEGOTIATE ON THE SCOPE OF THE GRIEVANCE
 PROCEDURE.  ROBERTS TOOK THE POSITION THAT THIS WAS NOT A UNILATERAL
 DETERMINATION WHICH COULD BE MADE BY THE RESPONDENT, THAT PERMISSIVE
 AREAS OF BARGAINING HAD BEEN SET OUT AND THAT IF CONGRESS HAD INTENDED
 UNILATERAL DETERMINATION BY UNIONS, IT COULD HAVE ALSO SPELLED IT OUT
 DIRECTLY.
 
    9.  MOLINA QUESTIONED WHETHER THE ACTIVITY WANTED TO GO TO IMPASSE ON
 THE MATTER.  HE STATED THAT HE WOULD DISCUSS THE MANAGEMENT PROPOSAL BUT
 WOULD NOT NEGOTIATE IT.  MOLINA SAID THAT THE EXCLUSIONS WERE NOT
 NEGOTIABLE UNLESS THE UNION CHOSE TO NEGOTIATE.  NO FURTHER DISCUSSION
 OF ANY OF THE SPECIFIC EXCLUSIONS TOOK PLACE.  ACCORDING TO ROBERTS,
 MOLINA CONCLUDED THE MEETING BY STATING THAT RESPONDENT DID NOT WANT TO
 DISCUSS THE EXCLUSIONS AT ALL.
 
    10.  ON MAY 3, 1979 THE PARTIES MET WITH A FEDERAL MEDIATOR.
 ALLEGEDLY, BOTH PARTIES REITERATED THEIR PREVIOUS POSITIONS ON THE
 NEGOTIABILITY OF THE SCOPE OF THE GRIEVANCE PROCEDURE.  RESPONDENT
 WANTED TO KNOW WHY THE ACTIVITY WANTED AN EXCLUSION DEALING WITH
 TEMPORARY PROMOTIONS.  UPON RECEIVING THE ACTIVITY'S REASONS FOR THE
 EXCLUSION, MOLINA REPLIED THAT IT WAS RESPONDENT'S OPTION ON WHETHER TO
 NEGOTIATE AND THAT RESPONDENT DID NOT WANT TO BE RESTRICTED.  THE
 ACTIVITY THEN REQUESTED TO NEGOTIATE DIFFERENT ARTICLES IN THE CONTRACT
 BUT, RESPONDENT DECLINED, STATING THERE WAS TOO MUCH INTERRELATION
 BETWEEN THE GRIEVANCE ARTICLE AND OTHER ARTICLES.  AS AN EXAMPLE, MOLINA
 CITED THE SAFETY ARTICLE, RAISING THE FACT THAT THE ACTIVITY HAD
 REQUESTED AN EXCLUSION ON REPORTS OF UNSAFE AND UNHEALTHY WORKING
 CONDITIONS.  AFTER EXPLAINING ITS REASONS, THE DISCUSSION BASICALLY
 ENDED.
 
    11.  A SUBSEQUENT MEETING WAS CALLED BY THE MEDIATOR ON MAY 8, 1979.
 THE DISCUSSION AT THIS MEETING CONCERNING THE TWO EXCLUSIONS DISCUSSED
 ON MAY 3, 1979 WAS ABOUT THE SAME.
 
    12.  BY LETTER DATED MAY 11, 1979, THE ACTIVITY EXPLAINED ITS
 UNDERSTANDING OF THE RESPONDENT'S POSITION ON THE NEGOTIABILITY OF THE
 EXCLUSION AS FOLLOWS:
 
    THAT ADDITIONAL EXCLUSIONS TO THE GRIEVANCE PROCEDURE OVER AND ABOVE
 THOSE SPECIFIED IN THE
 
    CIVIL SERVICE REFORM ACT OF 1979, WERE NOT NEGOTIABLE UNLESS THE
 UNION CHOSE TO NEGOTIATE THEM
 
    AND THAT MANAGEMENT HAS NO SAY AS TO WHETHER OR NOT ANY SUCH
 ADDITIONAL EXCLUSIONS WERE
 
    NEGOTIABLE.
 
    AND, REQUESTED TO RESUME NEGOTIATIONS.  RESPONDENT RESPONDED BY
 LETTER DATED JUNE 26, 1979, WHICH, IN SUBSTANCE, DECLINED TO BARGAIN ON
 A REDUCED SCOPE OF THE GRIEVANCE PROCEDURE.  SINCE MAY 8, 1979, THE
 PARTIES HAVE NEITHER DISCUSSED NOR NEGOTIATED THE SPECIFIC EXCLUSIONS
 FROM THE GRIEVANCE PROCEDURE.
 
                        DISCUSSION AND CONCLUSIONS
 
    SECTION 7121 OF THE STATUTE STATES THAT "ANY COLLECTIVE BARGAINING
 AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES
 INCLUDING QUESTIONS OF ARBITRABILITY." IN SEVERAL RECENT CASES, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547, AFL-CIO, AND VETERANS
 ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50;  AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669, AND VETERANS
 ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA NO. 48,
 THE AUTHORITY HAS CONSIDERED THE LEGISLATIVE HISTORY AND LANGUAGE OF
 SEC. 7121 AND STATED:
 
    IN SUM, CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A
 NEGOTIATED GRIEVANCE
 
    PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH "UNDER THE PROVISION 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.
 
    IN THE MINNEAPOLIS CASE THE AUTHORITY ALSO STATED THAT:
 
    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 .
 . . 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
 PROCEDURE . . . "
 
    THE ABOVE CASES CLEARLY INDICATE THAT ACTIVE NEGOTIATIONS CONCERNING
 GRIEVANCE PROCEDURES TO BE CONTAINED IN COLLECTIVE BARGAINING AGREEMENTS
 WAS ANTICIPATED UNDER SECTION 7121.
 
    FURTHER THE AUTHORITY IN INTERPRETATION AND GUIDANCE, FLRA NO.
 O-PS-1, 2 FLRA 32 (DECEMBER 19, 1979) AFTER REVIEWING THE LEGISLATIVE
 HISTORY OF THE STATUTE STATED:
 
    (G)RIEVANCE PROCEDURES NEGOTIATED BY THE PARTIES UNDER SECTION 7121
 OF THE STATUTE COVER
 
    ALL MATTERS WHICH MIGHT LAWFULLY BE SUBMITTED TO THOSE PROCEDURES,
 UNLESS THE PARTIES IN THEIR
 
    NEGOTIATIONS MUTUALLY AGREE THAT PARTICULAR MATTERS SHALL BE EXCLUDED
 FROM THE NEGOTIATED
 
    GRIEVANCE PROCEDURES AS PROVIDED IN SECTION 7121(A)(2) OF THE
 STATUTE.  IN THIS CONNECTION,
 
    THE HOUSE-SENATE CONFERENCE COMMITTEE REPORTED WITH RESPECT TO
 SECTION 7121 AS FOLLOWS:  /3/
 
    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.
 
    THE AUTHORITY ADDED IN FOOTNOTE 6 OF THE INTERPRETATION AND GUIDANCE
 THAT:
 
    CONTRARY TO THE POSITION OF SEVERAL RESPONDING ORGANIZATIONS, MERE
 OBJECTION BY A PARTY TO
 
    THE CONTINUATION OF EXISTING NEGOTIATED GRIEVANCE PROCEDURES WOULD
 NOT, PER SE, EXTEND THE
 
    SCOPE OF THE EXISTING PROCEDURES, SINCE SECTION 7121 CONCERNS THE
 SCOPE OF GRIEVANCE
 
    PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES.
 
    MY READING OF THE ABOVE IS THAT THE AUTHORITY CLEARLY INTENDED THAT
 PARTIES NEGOTIATE THE GRIEVANCE PROCEDURE IN EXISTING CONTRACTS.  THIS
 RATIONALE WOULD APPEAR TO BE MORE APPLICABLE IN NEW CONTRACT SITUATIONS.
  SEC. 7121 REQUIRES A GRIEVANCE PROCEDURES IN AGREEMENTS AND UNDER THE
 CITED RECENT CASES THE PARTIES MUST AGREE THROUGH THE COLLECTIVE
 BARGAINING PROCESS TO A NARROWER COVERAGE.  THESE CASES LEAVE NO DOUBT
 THAT THE PARTIES ARE REQUIRED TO NEGOTIATE.
 
    RESPONDENT ARGUES THAT THE INTERPRETATION AND GUIDANCE IS CONSISTENT
 WITH ITS POSITION THAT A RESTRICTED SCOPE IS A PERMISSIVE SUBJECT OF
 BARGAINING.  I DISAGREE WITH RESPONDENT THAT THE INTERPRETATION AND
 GUIDANCE SUPPORTS SUCH A POSITION.  THE ISSUE IN THIS MATTER IS WHETHER
 OR NOT THE PARTIES HAVE AN OBLIGATION TO NEGOTIATE IN GOOD-FAITH
 CONCERNING THE SCOPE OF THE GRIEVANCE PROCEDURE IN AN INITIAL AGREEMENT.
  LEGISLATIVE HISTORY, THE INTERPRETATION AND GUIDANCE AND CASE LAW
 INDICATE THAT THE SCOPE OF THE GRIEVANCE PROCEDURE MUST BE NEGOTIATED
 ALTHOUGH THE PARTIES NEED NOT AGREE TO A REDUCED OR RESTRICTED SCOPE.
 THEREFORE, IT IS FOUND THAT THE LANGUAGE OF 7121(A) OF THE STATUTE AS
 WELL AS THE AUTHORITY'S INTERPRETATION AND GUIDANCE DICTATES THAT THE
 PARTIES AT LEAST ACCEPT AND IN GOOD-FAITH DISCUSS THE SCOPE OF THE
 GRIEVANCE PROCEDURE.  SUCH DISCUSSIONS ARE TANTAMENT TO NEGOTIATIONS.
 RESPONDENT THEREFORE ACTED AT ITS PERIL WHEN IT SUMMARILY REFUSED TO
 NEGOTIATE BASED ON AN ERRONEOUS ASSUMPTION THAT THE SUBJECT MATTER WAS
 PERMISSIBLE AND THAT IT WAS NOT REQUIRED BY THE STATUTE TO NEGOTIATE.
 
    I ALSO AGREE WITH THE ACTIVITY THAT RESPONDENT CANNOT RELY ON THE
 POST ENACTMENT STATEMENTS OF REPRESENTATIVE WILLIAM FORD, 124 CONG.REC.
 H 13609 (DAILY ED. OCT. 14, 1978) REGARDING HIS INTERPRETATION OF SEC.
 7121(A)(2), AS FOLLOWS:
 
    THE LABOR ORGANIZATION IS REQUIRED TO MEET A DUTY OF FAIR
 REPRESENTATION OF ALL EMPLOYEES,
 
    EVEN IF NOT DUES-PAYING MEMBERS, WHO USE THE NEGOTIATED GRIEVANCE
 PROCEDURE.  THE COSTS
 
    INVOLVED IN THE PROCEDURE, WHICH MAY 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.  OF COURSE, THE UNION MAY ALSO NEGOTIATE CHANGES
 IN THE APPEALS PROCEDURE
 
    TO THE EXTENT THAT THE AGENCY HAS THE AUTHORITY TO REVISE THAT
 PROCEDURE, INSTEAD OF REPLACING
 
    THE APPEALS WITH A NEGOTIATED PROCEDURE.
 
    WE CAN ANALOGIZE THIS SITUATION TO MANAGEMENT'S "PERMISSIBLE" AREAS
 OF BARGAINING UNDER
 
    SECTION 7106(B)(1), EXCEPT THAT PERMITTING THE REDUCTION IN THE SCOPE
 OF THE GRIEVANCE
 
    PROCEDURE WAS INCLUDED IN THE CONFERENCE REPORT AS A MEANS TO INSURE
 UNION FLEXIBILITY.  THAT
 
    IS, THE UNION IS FREE TO INSIST TO IMPASSE ON THE NARROWED SCOPE IF
 THE AGENCY DOES NOT
 
    AGREE.  AN AGENCY, HOWEVER, MAY NOT INSIST TO IMPASSE THAT THE UNION
 AGREE TO A REDUCED SCOPE
 
    OF GRIEVANCES UNDER THE NEGOTIATED PROCEDURE.  THE UNIONS DO NOT HAVE
 TO NEGOTIATE IN THOSE
 
    STATUTORY APPEALS THAT WILL BE REPLACED BY A GRIEVANCE AND
 ARBITRATION PROCEDURE, THEY MAY
 
    NEGOTIATE OUT CERTAIN OR ALL OF THESE APPEALS.  (EMPHASIS SUPPLIED)
 124 CONG.REC. H 13609
 
    (DAILY ED. OCT 14, 1978).
 
    FURTHERMORE, THESE REMARKS, ARE NOT CONCLUSIVE OR BINDING, AND ARE
 NOT PERSUASIVE AS TO CONGRESSIONAL INTENT BUT INDICATE ONLY THE
 INDIVIDUAL CONGRESSMAN'S VIEW THAT THE SCOPE OF THE GRIEVANCE PROCEDURE
 IS NOT NEGOTIABLE.
 
    NOR CAN RESPONDENT RELY ON THE LANGUAGE OF N.L.R.B. V. WOOSTER
 DIVISION OF BORG WARNER 356 U.S. 343(1958) TO ESTABLISH THAT THE SCOPE
 OF THE GRIEVANCE PROCEDURE IS A PERMISSIBLE SUBJECT OF BARGAINING.
 UNLIKE THE INSTANT MATTER THAT CASE INVOLVED SUBJECTS UNDER SECTION 8(D)
 OF THE NLRA WHICH WERE NOT TERMS AND CONDITIONS OF EMPLOYMENT AND
 THEREFORE NON-MANDATORY SUBJECTS OF BARGAINING ABOUT WHICH THERE WAS NO
 OBLIGATION TO AGREE.
 
    THE ACTIVITY'S CONTENTION IN ITS BRIEF THAT NO PERMISSIBLE SUBJECTS
 FOR UNIONS EXIST WITHIN THE FEDERAL SECTOR, MUST ALSO BE REJECTED.  THE
 AUTHORITY RECENTLY FOUND SUCH A PERMISSIBLE SUBJECT DID INDEED EXIST.
 SEE, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND U.S. AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 4 FLRA
 NO.  39(1980).  HOWEVER, BASED ON THE INSTANT RECORD, IT IS FOUND THAT
 THE SCOPE OF THE GRIEVANCE PROCEDURE IS NOT SUCH A PERMISSIBLE SUBJECT,
 BUT IS A TERM AND CONDITION OF EMPLOYMENT WITHIN THE MEANING OF SECTION
 7103(A)(12) OF THE STATUTE /4/ AND IS THEREFORE A MANDATORY SUBJECT OF
 BARGAINING.  IN THIS REGARD, IT IS NOTED THAT GRIEVANCES /5/ RELATE TO
 EMPLOYMENT OF AN EMPLOYEE AND IS ENCOMPASSED WITHIN THE TERM OF
 CONDITIONS OF EMPLOYMENT REQUIRING GOOD-FAITH NEGOTIATIONS UNDER SECTION
 7103(A)(12).  UNQUESTIONABLY REFUSAL TO NEGOTIATE A MANDATORY SUBJECT OF
 BARGAINING IS VIOLATIVE OF THE STATUTE.
 
    I ALSO REJECT THE AGENCY'S CONTENTION THAT RESPONDENT'S
 REPRESENTATIVE WAS ENGAGED IN LESS THAN GOOD FAITH BARGAINING.  SUCH A
 REPRESENTATIVE, IN MY VIEW, IS ENTITLED TO, AS MR. MOLINA DID, USE ANY
 TOOLS AVAILABLE TO GUIDE HIM IN CARRYING OUT BARGAINING
 RESPONSIBILITIES.
 
    BASED ON THE FOREGOING, RESPONDENT'S CONDUCT IN THIS MATTER IS FOUND
 TO CONSTITUTE LACK OF GOOD FAITH NEGOTIATION IN VIOLATION OF SECTION
 7116(B)(5) OF THE STATUTE.  THEREFORE, IT IS RECOMMENDED THAT THE
 AUTHORITY ADOPT THE FOLLOWING ORDER.
 
    HAVING FOUND AND CONCLUDED THAT RESPONDENT VIOLATED SECTION
 7116(B)(5) OF THE STATUTE, I RECOMMEND THE AUTHORITY ISSUE THE
 FOLLOWING:
 
                                   ORDER
 
    PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION 2423.29 OF THE FINAL
 RULES AND REGULATIONS, IT IS HEREBY ORDERED THAT AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723;  AFL-CIO SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) REFUSING TO CONSULT OR NEGOTIATE WITH U.S. DEPARTMENT OF THE
 NAVY, FLEET COMBAT
 
    TRAINING CENTER, PACIFIC, CONCERNING THE SCOPE OF THE GRIEVANCE
 PROCEDURE IN AN INITIAL
 
    CONTRACT.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED AND FOUND
 NECESSARY TO EFFECTUATE THE POLICIES OF THE STATUTE:
 
    (A) BARGAIN UPON REQUEST WITH U.S. DEPARTMENT OF THE NAVY, FLEET
 COMBAT TRAINING CENTER,
 
    PACIFIC CONCERNING THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE IN
 THE INITIAL CONTRACT.
 
    (B) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES
 AND ALL OTHER PLACES
 
    WHERE NOTICES TO MEMBERS AND EMPLOYEES OF THE DEPARTMENT OF THE NAVY,
 FLEET COMBAT TRAINING
 
    CENTER, PACIFIC, ARE CUSTOMARILY POSTED, COPIES OF THE ATTACHED
 NOTICE MARKED
 
    "APPENDIX".  COPIES OF SAID NOTICE, TO BE FURNISHED BY THE REGIONAL
 DIRECTOR FOR REGION 8,
 
    AFTER BEING SIGNED BY AN AUTHORIZED REPRESENTATIVE, SHALL BE POSTED
 BY IT IMMEDIATELY UPON
 
    RECEIPT THEREOF, AND BE MAINTAINED BY IT FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS
 
    PLACES, INCLUDING ALL PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  REASONABLE
 
    STEPS SHALL BE TAKEN TO INSURE THAT SAID NOTICES ARE NOT ALTERED,
 DEFACED, OR COVERED BY ANY
 
    OTHER MATERIAL.
 
    (C) NOTIFY THE REGIONAL DIRECTOR FOR REGION 8, IN WRITING, WITHIN
 DAYS FROM THE DATE OF
 
    THIS ORDER, WHAT STEPS IT HAS TAKEN TO COMPLY HEREWITH.
 
                         ELI NASH, JR.
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 9, 1981
    WASHINGTON, D.C.
 
 
 
 
        APPENDIX 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 REFUSE TO CONSULT OR NEGOTIATE CONCERNING THE SCOPE OF
 THE GRIEVANCE PROCEDURE IN AN INITIAL CONTRACT WITH U.S. DEPARTMENT OF
 THE NAVY, FLEET COMMAND TRAINING CENTER, PACIFIC.
 
    WE WILL UPON REQUEST, BARGAIN IN GOOD FAITH CONCERNING THE SCOPE OF
 THE GRIEVANCE PROCEDURE IN INITIAL CONTRACT NEGOTIATIONS WITH U.S.
 DEPARTMENT OF THE NAVY, FLEET TRAINING CENTER, PACIFIC.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
 350 FIGUEROA STREET, 10TH FLOOR, WORLD TRADE CENTER, LOS ANGELES,
 CALIFORNIA 90071.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SEC. 7116.  UNFAIR LABOR PRACTICES
 
   *          *          *          *
 
 
    (B) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR A LABOR
 
    ORGANIZATION