09:0758(94)CA - AFGE Local Union 225 and Army, Army Armament Research and Development Command -- 1982 FLRAdec CA



[ v09 p758 ]
09:0758(94)CA
The decision of the Authority follows:


 9 FLRA No. 94
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL UNION 225
 Respondent
 
 and
 
 U.S. DEPARTMENT OF THE ARMY,
 U.S. ARMY ARMAMENT RESEARCH
 AND DEVELOPMENT COMMAND
 Charging Party
 
                                            Case No. 2-CO-7
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS
 SUBMITTED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL COUNSEL,
 THE AUTHORITY FINDS:
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 225 (THE UNION), VIOLATED
 SECTION 7116(B)(5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE) BY REFUSING TO NEGOTIATE WITH THE CHARGING PARTY,
 U.S. DEPARTMENT OF THE ARMY, U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT
 COMMAND (THE ACTIVITY), SINCE ON OR ABOUT SEPTEMBER 17, 1979, AND AT ALL
 TIMES THEREAFTER, CONCERNING THE SCOPE OF THE NEGOTIATED GRIEVANCE
 PROCEDURE TO BE INCLUDED IN THE PARTIES' COLLECTIVE BARGAINING
 AGREEMENT.
 
    AT ALL TIMES MATERIAL, THE RESPONDENT UNION HAS BEEN THE EXCLUSIVE
 REPRESENTATIVE OF A UNIT WHICH INCLUDES CERTAIN NONAPPROPRIATED FUND
 EMPLOYEES OF THE ACTIVITY ASSIGNED TO PICATINNY ARSENAL, DOVER, NEW
 JERSEY.  ON SEPTEMBER 17, 1979, THE PARTIES MET FOR THE PURPOSE OF
 COMMENCING NEGOTIATIONS ON A NEW COLLECTIVE BARGAINING AGREEMENT.  THE
 ACTIVITY PRESENTED A PROPOSAL REGARDING THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE WHICH PROVIDED FOR THE EXCLUSION OF TWENTY-ONE AREAS
 IN ADDITION TO THOSE SET FORTH IN SECTION 7121(C) OF THE STATUTE.  /1/
 THE RESPONDENT TOOK THE POSITION THAT ANY EXCLUSIONS BEYOND THOSE
 DESIGNATED IN SECTION 7121(C) WERE PERMISSIVE SUBJECTS FOR BARGAINING
 AND DECLARED ITS INTENTION NOT TO NEGOTIATE OVER SUCH ADDITIONAL
 EXCLUSIONS.  THEREAFTER, THE ACTIVITY MADE FURTHER PROPOSALS CONCERNING
 THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE, BUT THE RESPONDENT
 MAINTAINED ITS POSITION THAT IT WOULD NEITHER CONSIDER NOR DISCUSS ANY
 EXCLUSIONS BEYOND THOSE REQUIRED BY THE STATUTE.
 
    IN ITS BRIEF TO THE AUTHORITY, THE RESPONDENT AGAIN CONTENDS THAT
 EXCLUSIONS FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE (OTHER
 THAN THOSE MADE MANDATORY BY SECTION 7121(C)) ARE PERMISSIVE SUBJECTS OF
 BARGAINING AND THEREFORE NEGOTIABLE ONLY AT THE ELECTION OF THE UNION.
 THEREFORE, THE RESPONDENT MAINTAINS THAT ITS REFUSAL TO BARGAIN HEREIN
 WAS MERELY AN EXERCISE OF THAT OPTION AND DID NOT CONSTITUTE A
 DERELICTION OF ITS STATUTORY BARGAINING OBLIGATION.  THE AUTHORITY
 DISAGREES.  THUS, IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT, 9
 FLRA NO. 92(1982) AND IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 INTERDEPARTMENTAL LOCAL 3723, AFL-CIO, 9 FLRA NO. 93(1982), THE
 AUTHORITY FOUND THAT THE SCOPE OF A NEGOTIATED GRIEVANCE PROCEDURE IS A
 MANDATORY SUBJECT OF BARGAINING UNDER THE STATUTE.  ACCORDINGLY, FOR THE
 REASONS FULLY STATED IN THOSE CASES, THE AUTHORITY FINDS THAT THE
 RESPONDENT'S REFUSAL TO NEGOTIATE IN GOOD FAITH CONCERNING THE
 ACTIVITY'S PROPOSALS TO NARROW THE SCOPE OF THE NEGOTIATED GRIEVANCE
 PROCEDURE VIOLATED SECTION 7116(B)(5) OF THE STATUTE.
 
                                   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, AFL-CIO, LOCAL UNION 225,
 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 THE U.S.  DEPARTMENT OF THE ARMY, U.S. ARMY
 ARMAMENT RESEARCH AND DEVELOPMENT COMMAND.
 
    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 THE U.S. DEPARTMENT OF THE ARMY,
 U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT COMMAND, 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 IN
 THE BARGAINING UNIT 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 ARMY, U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT
 COMMAND.
 
    (D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR FOR REGION II, 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 ARMY, U.S. ARMY ARMAMENT RESEARCH
 
                      AND DEVELOPMENT COMMAND, THAT:
 
    WE WILL NOT FAIL OR REFUSE TO NEGOTIATE CONCERNING THE SCOPE OF THE
 NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN OUR COLLECTIVE
 BARGAINING AGREEMENT WITH THE U.S. DEPARTMENT OF THE ARMY, U.S. ARMY
 ARMAMENT RESEARCH AND DEVELOPMENT COMMAND.
 
    WE WILL, UPON REQUEST, NEGOTIATE WITH THE U.S. DEPARTMENT OF THE
 ARMY, U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT COMMAND, CONCERNING
 THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT.
 
    WE WILL, UPON REQUEST, NEGOTIATE WITH THE U.S. DEPARTMENT OF THE
 ARMY, U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT COMMAND, 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 II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
 ADDRESS IS:  ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10278, AND
 WHOSE TELEPHONE NUMBER IS:  (212) 264-4934.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7121(C) EXCLUDES FROM COVERAGE UNDER NEGOTIATED GRIEVANCE
 PROCEDURES GRIEVANCES 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