09:0857(115)CA - Air Force, McChord AFB, McChord AFB, WA and AFGE Local 1501 and OPM -- 1982 FLRAdec CA



[ v09 p857 ]
09:0857(115)CA
The decision of the Authority follows:


 9 FLRA No. 115
 
 DEPARTMENT OF THE AIR FORCE,
 MCCHORD AIR FORCE BASE,
 MCCHORD AIR FORCE BASE, WASHINGTON
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1501, AFL-CIO
 Charging Party
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT
 Intervenor
 
                                            Case No. 9-CA-445
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN UNFAIR LABOR PRACTICES AS ALLEGED IN THE COMPLAINT AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED.  EXCEPTIONS WERE FILED BY THE GENERAL
 COUNSEL AND THE CHARGING PARTY (THE UNION), AND AN OPPOSITION TO THE
 EXCEPTIONS WAS FILED BY THE RESPONDENT.  /1/
 
    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 BASED ON THE REASONS
 SET FORTH IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT, 9 FLRA NO.
 92(1982), WHEREIN WE HELD THAT THE SCOPE OF THE GRIEVANCE PROCEDURE IS A
 MANDATORY SUBJECT FOR BARGAINING AND, IF IMPASSE IS REACHED, IS SUBJECT
 TO IMPASSE RESOLUTION PROCEDURES.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-445 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
  
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
   JERRY M. BRASEL, ESQUIRE
                       FOR THE RESPONDENT
 
    NANCY E. PRITIKIN, ESQUIRE
                      FOR THE GENERAL COUNSEL
 
    STAN STANDIFER
                      FOR THE CHARGING PARTY
 
    LEO M. REID
                      FOR THE INTERVENOR
 
    BEFORE:  GARVIN LEE OLIVER
                      ADMINISTRATIVE LAW JUDGE
 
                             CASE NO. 9-CA-445
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE REGIONAL DIRECTOR,
 REGION 9, FEDERAL LABOR RELATIONS AUTHORITY, SAN FRANCISCO, CALIFORNIA,
 AGAINST THE DEPARTMENT OF THE AIR FORCE, MCCHORD AIR FORCE BASE, MCCHORD
 AIR FORCE BASE, WASHINGTON (RESPONDENT), BASED ON A CHARGED FILED BY THE
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1501, AFL-CIO
 (CHARGING PARTY OR UNION).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
 SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE BY REFUSING, OR ON
 ABOUT OCTOBER 4, 1979 AND MARCH 11, 1980, TO INCORPORATE A FULL SCOPE
 GRIEVANCE PROCEDURE AS PART OF THE COLLECTIVE BARGAINING AGREEMENT
 AND/OR TO IMPLEMENT SAID GRIEVANCE PROCEDURE.
 
    A HEARING WAS HELD IN THIS MATTER IN SEATTLE, WASHINGTON.  /3/ THE
 RESPONDENT, GENERAL COUNSEL, FLRA, CHARGING PARTY, AND INTERVENOR WERE
 REPRESENTED AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT
 EVIDENCE EXAMINE AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING
 BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS AND OTHER RELEVANT EVIDENCE
 ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE FOLLOWING FINDINGS OF
 FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  THE CHARGING PARTY, AT ALL TIMES MATERIAL HEREIN, HAS BEEN
 CERTIFIED AS THE EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT OF ALL
 ELIGIBLE PROFESSIONAL AND NONPROFESSIONAL DEPARTMENT OF THE AIR FORCE
 EMPLOYEES AT MCCHORD AIR FORCE BASE.
 
    2.  ON SEPTEMBER 12, 1979, RESPONDENT AND THE UNION /4/ SIGNED A
 MEMORANDUM OF UNDERSTANDING TO ESTABLISH PROCEDURES TO BE FOLLOWED IN
 RENEGOTIATING THEIR COLLECTIVE BARGAINING AGREEMENT.  SECTIONS I AND J
 PROVIDED AS FOLLOWS:
 
                 I.  PROPOSAL SUBMISSION AND DISPOSITION:
 
    (1) IT IS AGREED THAT THE PARTIES WILL EXCHANGE PROPOSALS ON 10
 SEPTEMBER 1979 AND THAT
 
    NEGOTIATIONS WILL COMMENCE AT 0900 HOURS ON 1 OCTOBER 1979.
 ADDITIONAL PROPOSALS MAY NOT BE
 
    SUBMITTED BY EITHER PARTY EXCEPT UPON MUTUAL AGREEMENT.  DISCUSSION
 OF INTENT OF UNION'S
 
    PROPOSAL WILL PRECEDE ANY OTHER ACTION.
 
    (2) PROPOSALS WILL BE REVIEWED BY THE NEGOTIATING TEAMS IN THE ORDER
 PRESENTED IN AN
 
    ATTEMPT TO REACH AGREEMENT.  SHOULD AGREEMENT NOT BE REACHED ON AN
 ARTICLE OR PORTION THEREOF,
 
    IT WILL BE TABLED UNTIL ALL OTHER PROPOSALS ARE REVIEWED.
 
    (3) THE PARTIES WILL ATTEMPT TO RESOLVE THE TABLED ITEMS IN THE ORDER
 IN WHICH THEY WERE
 
    TABLED.  SHOULD AGREEMENT NOT BE REACHED ON A TABLED ITEM, AND IT IS
 MUTUALLY AGREED THAT
 
    FURTHER NEGOTIATIONS WOULD BE FUTILE, THE ITEM WILL BE IMPASSED AND
 THE FOLLOWING SUBSECTION
 
    (4) WILL APPLY.
 
    (4) AFTER ALL EFFORTS HAVE BEEN EXHAUSTED AND AGREEMENT CANNOT BE
 REACHED ON ALL ISSUES,
 
    THE PARTIES AGREE TO REQUEST THE ASSISTANCE OF THE FEDERAL MEDIATION
 AND CONCILIATION SERVICE
 
    (FMCS).  THE PARTIES AGREE THAT THE FMCS WILL NOT BE REQUESTED UNTIL
 ALL TABLED ITEMS HAVE
 
    BEEN DISCUSSED AND AGREEMENT CANNOT BE REACHED.
 
    J.  IMPASSES:
 
    IF AN AGREEMENT CANNOT BE REACHED AFTER ASSISTANCE OF THE FEDERAL
 MEDIATOR, THE ISSUE WILL
 
    BE IMPASSED AND SUBMITTED TO THE FEDERAL SERVICE IMPASSES PANEL IN
 ACCORDANCE WITH GOVERNING
 
    DIRECTIVE.  (JOINT EX. 2;  TR. 22, 29).
 
    3.  THE PARTIES SUBMITTED THEIR RESPECTIVE WRITTEN PROPOSALS
 REGARDING THE SCOPE OF THE GRIEVANCE PROCEDURE, AMONG OTHER MATTERS,
 PRIOR TO THE BEGINNING OF NEGOTIATION.  THE UNION'S INITIAL PROPOSAL
 CONCERNING THE SCOPE OF THE GRIEVANCE PROCEDURE CONTAINED THE EXCLUSIONS
 SET FORTH IN THE STATUTE AND THE ADDITIONAL EXCLUSIONS OF REDUCTIONS
 IN-FORCE AND EQUAL EMPLOYMENT OPPORTUNITY.  (JOINT EX. 4;  TR. 13).
 RESPONDENT'S INITIAL PROPOSAL WAS TO RETAIN THE EXCLUSIONS SET FORTH IN
 THE PREVIOUS AGREEMENT.  (JOINT EX. 1, 3;  TR. 13, 30).
 
    4.  NEGOTIATIONS BEGAN OCTOBER 1, 1979.  (TR. 12, 22).  WILLIAM
 SCOTT, RESPONDENT'S LABOR RELATIONS OFFICER AND A MEMBER OF RESPONDENT'S
 TEAM, AND STAN STANDIFER, A UNION NATIONAL REPRESENTATIVE AND CHIEF
 SPOKESMAN FOR THE OCTOBER SESSIONS, HAD BEEN INVOLVED IN FOUR OTHER
 CONTRACT NEGOTIATIONS.  (TR. 22, 29).  EACH PARTY READ THROUGH AND
 EXPLAINED THE INTENT OF ITS RESPECTIVE PROPOSALS.  (TR. 13, 29, 55).
 THE PARTIES REACHED EARLY AGREEMENT ON THE PROCEDURES FOR PROCESSING
 GRIEVANCES, AGREEING TO RETAIN THE PROCESSING PROCEDURES CONTAINED IN
 THE PREVIOUS AGREEMENT.  (TR. 29-30).  WITH REGARD TO THE SCOPE OF THE
 GRIEVANCE PROCEDURE, GENERALLY, THE UNION STATED THAT THE STATUTE
 MANDATED A BROAD SCOPE GRIEVANCE PROCEDURE AND, ABSENT THE TWO PARTIES
 AGREEING ON LIMITING THE SCOPE DURING PERMISSIVE NEGOTIATIONS CONCERNING
 THE SCOPE, THE UNION WOULD ASK FOR A BROAD SCOPE AND FILE AN UNFAIR
 LABOR PRACTICE TO RESOLVE THE ISSUE.  (TR. 15-16, 30-31, 55).
 
    5.  DURING THE NEXT FEW SESSIONS, BETWEEN OCTOBER 1 AND 4, 1979, THE
 PARTIES' POSITIONS ON SCOPE OF THE GRIEVANCE PROCEDURE WERE DISCUSSED AT
 VARIOUS TIMES.  THE UNION CAUCUSED TO DISCUSS THE PROPOSALS.  (TR. 14,
 49).  AT ONE POINT, THE UNION MODIFIED ITS INITIAL PROPOSAL TO INCLUDE
 TWO OF THE EXCLUSIONS PROPOSED BY RESPONDENT RELATING TO PROBATIONARY
 EMPLOYEES AND TEMPORARY PROMOTIONS.  (TR. 16).  SINCE THERE WAS NO
 AGREEMENT, THE UNION LATER WITHDREW ITS MODIFIED PROPOSAL, WITHOUT
 EXPLANATION, AND AGAIN REQUESTED A BROAD SCOPE GRIEVANCE PROCEDURE.
 (TR. 16, 30).  RESPONDENT ADHERED TO ITS ORIGINAL POSITION AND CLAIMED
 THAT THE STATUTE PROVIDED FOR FURTHER NEGOTIATIONS AS TO EXCLUSIONS.
 (TR. 55-56).
 
    6.  WHEN IT BECAME CLEAR THAT THE PARTIES WERE IN DISPUTE OVER THE
 SCOPE OF THE GRIEVANCE PROCEDURE AND THAT NO AGREEMENT WOULD BE REACHED
 AT THAT TIME, THE PARTIES VERBALLY AGREED TO DELAY FURTHER NEGOTIATIONS
 DISCUSSION CONCERNING THE SCOPE.  (TR. 18, 32, 56, 58, 61, 64).
 
    7.  RESPONDENT'S NEGOTIATORS, WILLIAM SCOTT AND LINDA CARTER,
 TESTIFIED THAT FURTHER NEGOTIATIONS WERE TO BE DELAYED UNTIL ALL OTHER
 MATTERS HAD BEEN COMPLETED AND AGREED UPON.  (TR. 32, 56, 58).  ONE OF
 THE UNION'S NEGOTIATORS, STAN STANDIFER, TESTIFIED THAT "OTHER ARTICLES
 IN THE AGREEMENT . . . WOULD HAVE SOME BEARING ON IT.  WE AGREED THAT,
 IF THERE WERE A POSSIBILITY THAT THE POSITION WOULD CHANGE, THAT WE
 WOULD HOLD THE GRIEVANCE PROCEDURE AS THE LAST ITEM OF DISCUSSION ON THE
 TABLE" (TR. 18), "PER THE GROUND RULES . . . WE WOULD COMPLETE ALL THE
 WORK AT THE TABLE SO THAT WE COULD PRESENT THAT TO A FEDERAL MEDIATOR."
 (TR. 61).  ANOTHER OF THE UNION'S NEGOTIATORS, CHARLES COLLINS,
 TESTIFIED THAT HIS UNDERSTANDING OF THE AGREEMENT TO DELAY NEGOTIATIONS
 ON THE SCOPE OF THE GRIEVANCE PROCEDURE WAS "THAT WE WOULD COME BACK AND
 WORK ON THE GRIEVANCE PROCEDURE AFTER ALL THE OTHER ARTICLES HAD BEEN
 COMPLETED, HAD BEEN FINISHED" (TR. 64), "THAT WE WOULD FINISH UP THE
 REST OF THE WORK THAT WAS AT THE TABLE BEFORE WE DID TRY TO RESOLVE THE
 GRIEVANCE PROCEDURE." (TR. 68).
 
    8.  THE PARTIES, BY MUTUAL AGREEMENT, CALLED IN A MEDIATOR FROM THE
 FEDERAL MEDIATION AND CONCILIATION SERVICE TO ASSIST THEM IN RESOLVING A
 NUMBER OF CONTRACTUAL ISSUES IN DISPUTE, INCLUDING THE MERIT PROMOTION
 PLAN.  (TR. 17-18, 51-52).  THE PARTIES ADVISED THE MEDIATOR OF THEIR
 RESPECTIVE POSITIONS CONCERNING THE SCOPE OF THE GRIEVANCE PROCEDURE.
 THE MEDIATOR WAS ADVISED THAT THE PARTIES HAD A PROBLEM WITH
 INTERPRETATION OF THE LAW.  (TR. 17, 53, 66).  IT WAS UNDERSTOOD THAT
 THERE WOULD BE NO MEDIATION OF THE SCOPE OF THE GRIEVANCE PROCEDURE.
 (TR. 53, 66).  THE UNION ADVISED THE MEDIATOR THAT IF IT WERE TALKING
 ABOUT A BROAD SCOPE, AND THE PARTIES WERE UNABLE TO AGREE ON
 LIMITATIONS, THAT WOULD CONSTITUTE AN UNFAIR LABOR PRACTICE AND THE
 MEDIATOR WOULD HAVE NO JURISDICTION OVER SUCH AN ISSUE.  (TR. 17).
 
    9.  SOMETIME PRIOR TO MARCH 11, 1980, MR. STANDIFER STEPPED DOWN AS
 CHIEF SPOKESMAN FOR THE UNION NEGOTIATING TEAM.  HE WAS REPLACED BY
 CHARLES COLLINS, CHAPTER PRESIDENT.  (TR. 19, 63).  MR. STANDIFER
 SUBSEQUENTLY RETURNED TO ONE MEDIATION SESSION.  AT THIS TIME, AGREEMENT
 HAD BEEN REACHED ON ALL ITEMS ON THE TABLE EXCEPT FOR THE MERIT
 PROMOTION ARTICLE.  (TR. 68).  MR. STANDIFER STATED THAT, UNLESS
 MANAGEMENT HAD CHANGED ITS POSITION ON THE SCOPE OF THE GRIEVANCE
 PROCEDURE, THE UNION WAS AGAIN ASKING FOR A BROAD SCOPE PROCEDURE AND
 WOULD FILE AN UNFAIR LABOR PRACTICE CHARGE.  RESPONDENT DID NOT OBJECT
 TO THIS STATEMENT OR CHANGE ITS POSITION.  (TR. 20, 25, 68).
 
    10.  ON MARCH 11, 1980, THE PARTIES HELD THEIR LAST MEETING WITH THE
 MEDIATOR CONCERNING THE MERIT PROMOTION ARTICLE.  (TR. 33).  THE PARTIES
 WERE AT IMPASSE OVER THE MERIT PROMOTION ARTICLE, AND IT WAS NOT UNTIL
 OCTOBER 1980 THAT SOME RESOLUTION OF THAT IMPASSED ARTICLE WAS REACHED.
 (TR. 39).  THE SERVICES OF THE FEDERAL SERVICE IMPASSES PANEL WERE NOT
 REQUESTED.  (TR. 33).
 
    11.  SUBSEQUENT TO THE FINAL NEGOTIATING SESSION BEFORE THE MEDIATOR,
 INSOFAR AS THE MERIT PROMOTION ARTICLE WAS CONCERNED, MR. CLYDE "SKIP"
 HOOVER WAS THE CHAIRMAN OF THE UNION'S NEGOTIATING TEAM.  (TR. 22, 54).
 ONCE THE MERIT PROMOTION ARTICLE WAS SETTLED, RESPONDENT, BY MR. SCOTT,
 SENT A LETTER TO MR. HOOVER OF THE UNION, DATED OCTOBER 30, 1980,
 INDICATING THAT, PURSUANT TO THEIR PREVIOUS AGREEMENT, IT WAS
 RESPONDENT'S DESIRE TO RETURN TO THE BARGAINING TABLE TO NEGOTIATE OVER
 THE SCOPE OF THE GRIEVANCE PROCEDURE, SINCE ALL OTHER MATTERS HAD BEEN
 SETTLED.  (RESPONDENT EX. 3).  IN A SUBSEQUENT ORAL CONVERSATION WITH
 MR. SCOTT, MR. HOOVER INITIATED A CONVERSATION "REGARDING GETTING BACK
 TO THE BARGAINING TABLE AS WE AGREED TO." MR.  HOOVER INDICATED THAT AS
 SOON AS MR. COLLINS AND MR. BUGG RETURNED FROM OUT OF TOWN, THE UNION
 WOULD SEE ABOUT GETTING BACK TO THE TABLE AND NEGOTIATING THE GRIEVANCE
 PROCEDURE.  (TR. 35-36).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1),
 (5) AND (8) OF THE STATUTE BY REFUSING TO INCORPORATE A FULL SCOPE
 GRIEVANCE PROCEDURE AS PART OF THE COLLECTIVE BARGAINING AGREEMENT
 AND/OR TO IMPLEMENT SAID GRIEVANCE PROCEDURE AS REQUESTED BY THE UNION
 PURSUANT TO SECTION 7121 OF THE STATUTE ON OR ABOUT OCTOBER 4, 1979 AND
 MARCH 11, 1980.  THE GENERAL COUNSEL ASSERTS THAT THE UNION CONSIDERED
 AND BARGAINED IN GOOD FAITH WITH REGARD TO RESPONDENT'S PROPOSALS TO
 EXCLUDE CERTAIN MATTERS FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE
 PROCEDURE AND THAT RESPONDENT'S CONDUCT IN REFUSING TO AGREE TO A FULL
 SCOPE GRIEVANCE PROCEDURE IN OCTOBER 1979 AND MARCH 1980 VIOLATED THE
 STATUTE.
 
    THE UNION ASSERTS THAT IT WAS UNDER NO DUTY TO BARGAIN ON THE SCOPE
 SINCE A REDUCED SCOPE IS A PERMISSIVE SUBJECT OF BARGAINING FOR THE
 UNION UNDER THE STATUTE;  HOWEVER, ASSUMING SUCH A DUTY, IT CLAIMS THAT
 DUTY WAS SATISFIED IN THIS CASE.  THE UNION'S ASSERTION THAT IT WAS
 UNDER NO DUTY TO BARGAIN ON THE SCOPE OF THE GRIEVANCE PROCEDURE MUST BE
 REJECTED FOR THE REASONS SET FORTH BY ADMINISTRATIVE LAW JUDGE ELI NASH,
 JR. IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, INTERDEPARTMENTAL
 LOCAL 3723, AFL-CIO, ET AL, CASE NO. 8-CO-4 (JANUARY 9, 1981).
 
    THE GENERAL COUNSEL'S POSITION THAT THE STATUTE MANDATES THE UNION'S
 ENTITLEMENT TO THE FULL SCOPE PERMISSIBLE BY LAW ONCE IT FULFILLED ITS
 OBLIGATION TO BARGAIN OVER RESPONDENT'S REQUESTED EXCLUSIONS AND FAILURE
 BY THE PARTIES TO AGREE ON THE SCOPE WILL NOT RESULT IN IMPASSE, CANNOT
 BE ACCEPTED.  THE LANGUAGE OF THE STATUTE, ITS LEGISLATIVE HISTORY /5/
 AND PRECEDENT AUTHORITY DECISIONS AND INTERPRETATIONS TO DATE DO NOT, IN
 MY OPINION, COMPEL THIS VIEW.
 
    SECTION 7121 OF THE STATUTE CONCERNS THE SCOPE OF THE GRIEVANCE
 PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES.  /6/ THE GRIEVANCE
 PROCEDURE IS A MANDATORY SUBJECT OF BARGAINING WITHIN THIS STRICTURE.
 
    AS STATED WITH RESPECT TO SECTION 7121 IN THE CONFERENCE REPORT
 ACCOMPANYING THE FINAL VERSION OF THE BILL WHICH WAS SUBSEQUENTLY
 ENACTED AND SIGNED INTO LAW:
 
    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.  JOINT EXPLANATORY STATEMENT
 OF THE COMMITTEE ON
 
    CONFERENCE, H. R. REP. NO. 1717, 95TH CONG., 2D SESS. 157, REPRINTED
 IN (1978) U.S. CODE
 
    CONG. & AD. NEWS 2860, 2891.
 
    AS THE AUTHORITY STATED IN ITS INTERPRETATION AND GUIDANCE, CASE NO.
 O-PS-2, 2 FLRA NO. 32(1979):
 
    (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 PROCEDURE AS PROVIDED IN SECTION 7121(A)(2) OF THE STATUTE.
 
    AND, AS STATED IN FOOTNOTE 6 OF THE DECISION:
 
    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.
 
    AND AS THE AUTHORITY SUMMARIZED IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3669, AND VETERANS ADMINISTRATION MEDICAL
 CENTER, MINNEAPOLIS, MINNESOTA, CASE NO. O-NG-32, 3 FLRA NO. 48 (MAY 30,
 1980):
 
    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 AGREE THROUGH THE COLLECTIVE BARGAINING PROCESS TO
 A PROCEDURE HAVING A
 
    NARROWER COVERAGE.
 
    THE "COLLECTIVE BARGAINING PROCESS," REFERRED TO IN THE CONFERENCE
 REPORT AND BY THE AUTHORITY, MEANS THAT PROCESS PROVIDED BY THE STATUTE
 FOR COLLECTIVE BARGAINING.  IT INCLUDES "COLLECTIVE BARGAINING" AS
 DEFINED IN SECTION 7103(A)(12) AS FOLLOWS:
 
    (12) 'COLLECTIVE BARGAINING' MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYEES AND TO EXECUTE, IF REQUESTED BY EITHER PARTY, A WRITTEN
 DOCUMENT INCORPORATING ANY
 
    COLLECTIVE BARGAINING AGREEMENT REACHED, BUT THE OBLIGATION REFERRED
 TO IN THIS PARAGRAPH DOES
 
    NOT COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A
 CONCESSION.
 
    AS NOTED "THE OBLIGATION REFERRED TO IN THIS PARAGRAPH DOES NOT
 COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A CONCESSION." THE
 "COLLECTIVE BARGAINING PROCESS" ALSO INCLUDES THE SERVICES OF THE
 AUTHORITY TO RESOLVE NEGOTIABILITY QUESTIONS AT THE REQUEST OF THE
 EXCLUSIVE REPRESENTATIVE, PURSUANT TO SECTION 7117 OF THE STATUTE, AND
 THE SERVICES OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE AND THE
 FEDERAL SERVICE IMPASES PANEL TO AGENCIES AND EXCLUSIVE REPRESENTATIVES
 TO RESOLVE NEGOTIATION IMPASSES PURSUANT TO SECTION 7119 OF THE STATUTE.
 
    THE FEDERAL SERVICE IMPASSES PANEL HAS BEEN GIVEN BROAD AUTHORITY TO
 RESOLVE NEGOTIATION IMPASSES.  UNDER SECTION 7119(C)(5)(A) OF THE
 STATUTE, THE PANEL CAN RECOMMEND PROCEDURES FOR RESOLVING AN IMPASSE OR
 ASSIST THE PARTIES THROUGH ANY METHOD IT DEEMS APPROPRIATE.  IF A
 SETTLEMENT IS NOT ACHIEVED IN THIS MANNER IT HAS THE POWER TO "TAKE
 WHATEVER ACTION IS NECESSARY AND NOT INCONSISTENT WITH THIS CHAPTER TO
 RESOLVE THE IMPASSE," 5 U.S.C.  7119(C)(5)(B)(III).  SEE 5 C.F.R. PART
 2470(1980).  THE PANEL HAS EXERCISED SUCH POWER IN THE PAST TO REQUIRE
 THAT THE PARTIES EXCLUDE, OR NOT EXCLUDE, MATTERS FROM THE APPLICATION
 OF THEIR GRIEVANCE PROCEDURE.  SEE LOUISIANA ARMY AND AIR NATIONAL
 GUARD, JACKSON BARRACKS, NEW ORLEANS, LOUISIANA AND LOCALS 1707, 1708,
 AND 1737, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, CASE NO. 79 FSIP 51
 AND 79 FSIP 81 (APRIL 22, 1980);  VETERANS ADMINISTRATION MEDICAL
 CENTER, IRON MOUNTAIN, MICHIGAN AND LOCAL 2280, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 80 FSIP 41 (AUGUST 27, 1980);
 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, WASHINGTON, D.C. AND EQUAL
 EMPLOYMENT OPPORTUNITY COMMISSION COUNCIL 816, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 80 FSIP 38 (JANUARY 26, 1981).
 IN MY VIEW, SUCH ACTION IS CONSISTENT WITH SEC. 7121(A)(2) WHICH
 PROVIDES THAT, "ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY
 MATTER FROM THE APPLICATION OF THE GRIEVANCE PROCEDURE WHICH ARE
 PROVIDED FOR IN THE AGREEMENT."
 
    EVEN ASSUMING THAT THE GENERAL COUNSEL'S LEGAL POSITION IS CORRECT, A
 PREPONDERANCE OF THE EVIDENCE DOES NOT DEMONSTRATE THAT RESPONDENT'S
 REFUSAL TO INCORPORATE A FULL SCOPE GRIEVANCE PROCEDURE AS PART OF THE
 COLLECTIVE BARGAINING AGREEMENT ON OCTOBER 4, 1979 AND ON MARCH 11,
 1980, VIOLATED THE STATUTE AS ALLEGED.
 
    BASED ON THE ENTIRE RECORD, INCLUDING THE TESTIMONY OF RESPONDENT'S
 NEGOTIATORS AND UNION NEGOTIATOR, CHARLES COLLINS, I CONCLUDE THAT GOOD
 FAITH BARGAINING CONCERNING THE SCOPE OF THE GRIEVANCE PROCEDURE HAD NOT
 BEEN COMPLETED AT THE TIMES ALLEGED DUE TO THE EXISTENCE OF THE PARTIES'
 AGREEMENT TO DELAY FURTHER NEGOTIATIONS UNTIL WORK ON ALL OTHER ARTICLES
 HAD BEEN COMPLETED AND AGREED UPON.  AS OF LATE OCTOBER 1979, A NUMBER
 OF OTHER ARTICLES WERE IN DISPUTE, AND, AS OF MARCH 11, 1980, THE MERIT
 PROMOTION ARTICLE STILL REMAINED TO BE RESOLVED.  IT WAS NOT UNTIL
 OCTOBER 1980 THAT WORK ON ALL THE OTHER ARTICLES WAS FINISHED, AT WHICH
 TIME RESPONDENT OFFERED TO RETURN TO THE BARGAINING TABLE TO NEGOTIATE
 OVER THE SCOPE OF THE GRIEVANCE PROCEDURE.
 
    BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, IT IS RECOMMENDED
 THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 9-CA-445 BE, AND
 IT HEREBY IS, DISMISSED.
 
                        GARVIN LEE OLIVER
                        ADMINISTRATIVE LAW JUDGE
 
    DATED:  APRIL 29, 1981
            WASHINGTON, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE INTERVENOR SUBMITTED A LETTER REGISTERING ITS SUPPORT FOR THE
 JUDGE'S DECISION AND ENCLOSED A COPY OF A BRIEF WHICH IT HAD FILED IN A
 CASE INVOLVING A SIMILAR ISSUE (CASE NO. 46).  THE GENERAL COUNSEL FILED
 A MOTION TO STRIKE THIS SUBMISSION CONTENDING THAT INASMUCH AS IT DID
 NOT PURPORT TO CONSTITUTE EITHER EXCEPTIONS, CROSS-EXCEPTIONS, OR AN
 OPPOSITION TO EXCEPTIONS, THERE WAS NO PROVISION FOR SUCH SUBMISSION IN
 THE AUTHORITY'S RULES AND REGULATIONS.  IN RENDERING OUR DECISION
 HEREIN, THE INTERVENOR'S SUBMISSION HAS NOT BEEN CONSIDERED.
 
    /2/ ACCORDINGLY, THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE
 JUDGE'S ALTERNATIVE BASIS FOR HIS DISPOSITION AT PAGE 10 OF HIS
 DECISION.
 
    /3/ THE TRANSCRIPT AND RECORD IS HEREBY CORRECTED AS REQUESTED IN THE
 GENERAL COUNSEL'S UNOPPOSED MOTIONS TO CORRECT TRANSCRIPT AND TO STRIKE
 EXHIBITS ERRONEOUSLY INCLUDED IN THE RECORD.  IN ADDITION, THE
 TRANSCRIPT IS CORRECTED AT PAGE 41, LINES 14 AND 16 TO SHOW THAT
 RESPONDENT'S EX. 3 WAS RECEIVED IN EVIDENCE.
 
    /4/ HEREINAFTER THE TERM "PARTIES" WILL REFER ONLY TO RESPONDENT AND
 THE UNION, THE PARTIES ENGAGED IN THE COLLECTIVE BARGAINING NEGOTIATIONS
 IN ISSUE.
 
    /5/ THE POST ENACTMENT STATEMENTS OF REPRESENTATIVE WILLIAM FORD, 124
 CONG.REC. H 13609 (DAILY ED., OCTOBER 14, 1978) DO NOT CONSTITUTE
 EVIDENCE OF CONGRESSIONAL INTENT.  OFFICE OF PROGRAM OPERATIONS, FIELD
 OPERATION, SOCIAL SECURITY ADMINISTRATION, SAN FRANCISCO REGION, 5 FLRA
 NO. 45(1981).
 
    /6/ 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 (3) OF THIS
 SECTION, THE