10:0316(60)CA - Labor, Employment Standards Administation / Wage and Hour Division, Washington, DC and AFGE Local 12 and OPM, Washington, DC -- 1982 FLRAdec CA



[ v10 p316 ]
10:0316(60)CA
The decision of the Authority follows:


 10 FLRA No. 60
 
 DEPARTMENT OF LABOR, EMPLOYMENT
 STANDARDS ADMINISTRATION/WAGE AND
 HOUR DIVISION, WASHINGTON, D.C.
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 12, AFL-CIO
 Charging Party
 
 and
 
 OFFICE OF PERSONNEL MANAGEMENT,
 WASHINGTON, D.C.
 Intervenor /1/
 
                                            Case No. 3-CA-612
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
 SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE STIPULATION OF
 FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY THE PARTIES, THE
 AUTHORITY FINDS:
 
    AT ALL TIMES RELEVANT HEREIN, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 12, AFL-CIO (THE UNION) HAS BEEN RECOGNIZED AS THE
 EXCLUSIVE REPRESENTATIVE OF A UNIT CONSISTING OF ALL THE RESPONDENT'S
 NATIONAL OFFICE EMPLOYEES.  THE CASE AROSE IN CONNECTION WITH A
 GRIEVANCE FILED BY A PROBATIONARY EMPLOYEE UNDER THE PARTIES' NEGOTIATED
 AGREEMENT CHALLENGING THE RESPONDENT'S DECISION TO TERMINATE HIS
 EMPLOYMENT.  THE NEGOTIATED GRIEVANCE PROCEDURE PREDATED THE EFFECTIVE
 DATE OF THE STATUTE, BUT WAS EXTENDED BY MUTUAL AGREEMENT THEREAFTER.
 SUCH NEGOTIATED AGREEMENT ALLOWED PROBATIONARY EMPLOYEES WITHIN THE
 BARGAINING UNIT TO FILE GRIEVANCES.
 
    THE PROBATIONARY EMPLOYEES' GRIEVANCE CONCERNING THE RESPONDENT'S
 NOTICE OF INTENT TO TERMINATE HIS EMPLOYMENT WAS DENIED ON ITS MERITS AT
 THE FIRST STEP OF THE NEGOTIATED PROCEDURE.  AS THE PARTIES FAILED TO
 RESOLVE THE GRIEVANCE AT THE FIRST STEP, IT WAS REFERRED FOR RESOLUTION
 TO THE SECOND STEP WHICH INVOLVED DELIBERATIONS BY A JOINT COMMITTEE
 COMPOSED OF A SINGLE REPRESENTATIVE OF EACH PARTY.  AT SOME TIME DURING
 THE COMMITTEE'S DELIBERATIONS, THE RESPONDENT'S REPRESENTATIVE WAS
 ADVISED OF MANAGEMENT'S POSITION THAT PROBATIONARY EMPLOYEES COULD NOT
 GRIEVE TERMINATIONS UNDER THE PARTIES' NEGOTIATED PROCEDURE, AND
 COMMUNICATED THAT POSITION TO THE UNION REPRESENTATIVE.  THEREUPON THE
 JOINT COMMITTEE NOTIFIED THE APPROPRIATE HIGHER MANAGEMENT OFFICIAL BY
 MEMORANDUM THAT, BASED UPON THE RESPONDENT'S POSITION, THE COMMITTEE WAS
 DISCONTINUING FURTHER ACTION ON THE GRIEVANCE PENDING FURTHER
 INSTRUCTIONS.  THE UNION RESPONDED BY MEMORANDUM TO THIS OFFICIAL IN
 WHICH IT EXPRESSED DISAGREEMENT WITH MANAGEMENT'S POSITION THAT
 PROBATIONERS COULD NOT CONTINUE TO GRIEVE THEIR TERMINATIONS UNDER THE
 NEGOTIATED PROCEDURE, AND REQUESTED RESUMPTION OF THE SECOND STEP
 THEREUNDER.  IN RESPONSE, THE RESPONDENT'S OFFICIAL RESTATED
 MANAGEMENT'S POSITION THAT PROBATIONERS COULD NO LONGER GRIEVE THEIR
 TERMINATIONS UNDER THE NEGOTIATED PROCEDURE, BASED UPON SECTION
 7121(C)(4) OF THE STATUTE /2/ , AND THUS CONCLUDED THAT THE GRIEVANCE
 COULD NOT BE REINSTITUTED.  THEREAFTER THE UNION REQUESTED ARBITRATION
 OF THE GRIEVANCE INASMUCH AS NO SECOND STEP REPLY HAD BEEN RECEIVED, BUT
 THE AGENCY DENIED THIS REQUEST AS UNTIMELY UNDER THE TERMS OF THE
 NEGOTIATED PROCEDURE.
 
    THE COMPLAINT ALLEGES THAT, BY THE CONDUCT DESCRIBED ABOVE, THE
 RESPONDENT FAILED TO BARGAIN IN GOOD FAITH WITH THE UNION AND UNDERMINED
 THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY NOT PROCEEDING TO
 ARBITRATION, AND INTERFERED WITH THE UNION'S RIGHTS AND DUTIES AS
 PROVIDED IN SECTION 7121(A) AND (B)(3)(C) OF THE STATUTE, /3/ IN
 VIOLATION OF SECTION 7116(A)(1), (5), (7), AND (8).  /4/ IN SUPPORT OF
 SUCH ALLEGATIONS, THE GENERAL COUNSEL ARGUES, IN ESSENCE, THAT THE
 RESPONDENT VIOLATED THE STATUTE BY ENFORCING AN ERRONEOUS INTERPRETATION
 OF SECTION 7121(C)(4) AND THEREFORE TERMINATING THE GRIEVANCE OF THE
 PROBATIONER WITHOUT NOTIFICATION TO OR NEGOTIATION WITH THE UNION, AND
 BY DENYING THE UNION'S REQUEST FOR ARBITRATION.  THE RESPONDENT ARGUES
 THAT IT CORRECTLY INTERPRETED AND APPLIED SECTION 7121(C)(4) IN
 CONCLUDING THAT THE GRIEVANT DID NOT HAVE THE RIGHT TO UTILIZE THE
 PARTIES' NEGOTIATED PROCEDURE, AND THAT IT ACTED IN ACCORDANCE WITH THE
 TERMS OF THAT PROCEDURE IN DENYING THE UNION'S REQUEST FOR ARBITRATION.
 THE INTERVENOR, OPM, SUPPORTS THE RESPONDENT'S CONCLUSION THAT SECTION
 7121(C)(4) OF THE STATUTE WAS INTENDED TO EXCLUDE GRIEVANCES RELATED TO
 THE TERMINATION OF PROBATIONERS FROM COVERAGE UNDER NEGOTIATED
 GRIEVANCE
 PROCEDURES.
 
    IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA 273 (1979), THE AUTHORITY
 DISCUSSED THE PROPER INTERPRETATION AND APPLICATION OF SECTION 7121 OF
 THE STATUTE AS IT RELATES TO GRIEVANCE PROCEDURES WHICH PREDATED THE
 STATUTE;  I.E., PROCEDURES WHICH HAD BEEN NEGOTIATED PRIOR TO, BUT
 CONTINUED IN SOME FORM AFTER, THE EFFECTIVE DATE OF THE STATUTE, AS IN
 THE INSTANT CASE.  IN THAT ISSUANCE, THE AUTHORITY STATED, AT 2 FLRA
 278, N. 7, IN RELEVANT PART AS FOLLOWS:
 
    (N)EGOTIATED GRIEVANCE PROCEDURES MAY NOT CONFER JURISDICTION UPON .
 . . THE FEDERAL LABOR
 
    RELATIONS AUTHORITY TO RESOLVE . . . QUESTIONS (OF ARBITRABILITY).
 SECTION 7121 MANDATES THAT
 
    EACH COLLECTIVE BARGAINING AGREEMENT SHALL PROVIDE PROCEDURES FOR THE
 SETTLEMENT OF
 
    GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY AND UNLESS THE
 PARTIES, CONSISTENT WITH LAW,
 
    MUTUALLY AGREE OTHERWISE, SUCH PROCEDURES MUST BE READ AS PROVIDING
 THAT ALL QUESTIONS OF
 
    ARBITRABILITY NOT OTHERWISE RESOLVED SHALL BE SUBMITTED TO
 ARBITRATION.
 
    IN ACCORDANCE WITH THE ABOVE, UNLESS THE PARTIES TO A COLLECTIVE
 BARGAINING AGREEMENT NEGOTIATED PRIOR TO THE EFFECTIVE DATE OF THE
 STATUTE MUTUALLY AGREE OTHERWISE, UNDER SECTION 7121 OF THE STATUTE
 THEIR NEGOTIATED PROCEDURE MUST BE READ AS PROVIDING THAT ALL QUESTIONS
 OR ARBITRABILITY REQUIRING RESOLUTION NOT OTHERWISE RESOLVED SHALL BE
 SUBMITTED TO ARBITRATION.  THERE IS NOTHING IN THE RECORD IN THE INSTANT
 CASE TO INDICATE THAT THE UNION AND THE RESPONDENT AGREED OTHERWISE AS
 REGARDS THEIR PREVIOUSLY NEGOTIATED GRIEVANCE PROCEDURE.  THEREFORE,
 THAT PROCEDURE MUST BE READ AS PROVIDING THAT ALL QUESTIONS OF
 ARBITRABILITY NOT OTHERWISE RESOLVED SHALL BE SUBMITTED TO ARBITRATION.
 
    MORE RECENTLY, IN FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL
 OFFICE, 7 FLRA NO. 23 (1981), AND AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723, AFL-CIO AND DEPARTMENT OF THE
 NAVY, NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA, 8 FLRA NO. 12
 (1982), THE AUTHORITY HAS APPLIED THIS INTERPRETATION OF SECTION 7121 IN
 CASES WHERE IT WAS ALLEGED THAT A PARTY FAILED TO COMPLY WITH SECTION
 7121 AND THEREFORE VIOLATED SECTION 7116 OF THE STATUTE.  IN THOSE
 CASES, THE AUTHORITY, CONCLUDING THAT UNDER SECTION 7121 EITHER PARTY TO
 AN AGREEMENT MAY PROCEED TO ARBITRATION EX PARTE, DECLINED TO FIND
 VIOLATIONS OF SECTION 7116 OF THE STATUTE BASED UPON ALLEGATIONS THAT A
 PARTY HAD FAILED TO COMPLY WITH SECTION 7121 BY REFUSING TO PARTICIPATE
 IN OR TO PROCEED TO ARBITRATION.
 
    THE AUTHORITY NOW REAFFIRMS ITS PREVIOUS DETERMINATIONS THAT, UNDER
 SECTION 7121, EITHER PARTY MAY PROCEED EX PARTE TO ARBITRATION.  MORE
 SPECIFICALLY, AS THE AUTHORITY STATED IN FEDERAL AVIATION
 ADMINISTRATION, ALASKAN REGIONAL OFFICE, SUPRA, IN THIS REGARD:
 
    (S)ECTION 7121(A)(1) REQUIRES THAT "ANY COLLECTIVE BARGAINING
 AGREEMENT SHALL PROVIDE
 
    PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF
 ARBITRABILITY," AND
 
    SECTION 7121(B)(3)(C) MANDATES THAT UNSETTLED GRIEVANCES SHALL BE
 SUBJECT TO BINDING
 
    ARBITRATION "WHICH MAY BE INVOKED BY EITHER THE EXCLUSIVE
 REPRESENTATIVE OR THE
 
    AGENCY." THEREFORE, EITHER PARTY MAY INVOKE ARBITRATION ON ISSUES
 INVOLVING, INTER ALIA,
 
    QUESTIONS OF ARBITRABILITY AND IT FOLLOWS THAT THE OTHER PARTY CANNOT
 PREVENT THE ARBITRATION
 
    FROM PROCEEDING BY REFUSING TO PARTICIPATE.  THUS, NOTHING IN THE
 STATUTE RENDERS THE EX PARTE
 
    PROCEEDING IMPROPER, AND THE RESPONDENT ACTED AT ITS OWN RISK BY NOT
 PARTICIPATING.
 
    HOWEVER, THE AUTHORITY HAS DECIDED TO RECONSIDER WHETHER A REFUSAL TO
 PROCEED TO AND PARTICIPATE IN ARBITRATION NEVERTHELESS MAY CONSTITUTE AN
 UNFAIR LABOR PRACTICE, AND CONCLUDES THAT SUCH A REFUSAL TO PARTICIPATE
 IN ARBITRATION PROCEEDINGS PURSUANT TO A NEGOTIATED GRIEVANCE PROCEDURE
 IS INCONSISTENT WITH SECTION 7121 OF THE STATUTE AND THEREFORE
 CONSTITUTES A VIOLATION OF SECTION 7116(A)(1) AND (8) OR SECTION
 7116(B)(1) AND (8) OF THE STATUTE, AS THE CASE MAY BE.
 
    SECTION 7121 EXPRESSLY STATES THAT ANY COLLECTIVE BARGAINING
 AGREEMENT NEGOTIATED BY THE PARTIES "SHALL PROVIDE PROCEDURES FOR THE
 SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY," AND
 THAT SUCH PROCEDURES MUST PROVIDE THAT "ANY GRIEVANCE NOT SATISFACTORILY
 SETTLED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE SHALL BE SUBJECT TO
 BINDING ARBITRATION . . . ." WHILE SECTION 7121 FURTHER STATES THAT
 "ARBITRATION" . . . MAY BE INVOKED BY EITHER THE EXCLUSIVE
 REPRESENTATIVE OR THE AGENCY," THE AUTHORITY CONCLUDES THAT NEITHER SUCH
 LANGUAGE NOR THE LEGISLATIVE HISTORY OF SECTION 7121 PROVIDES A BASIS
 FOR EXCUSING THE OTHER PARTY FROM PARTICIPATING IN THE MECHANISM
 MANDATED BY CONGRESS IN SECTION 7121 FOR RESOLVING GRIEVANCES NOT
 SATISFACTORILY SETTLED BY THE PARTIES AT EARLIER STAGES OF THE
 NEGOTIATED GRIEVANCE PROCEDURE.  THAT IS, IT WOULD BE ANOMALOUS FOR
 CONGRESS TO HAVE REQUIRED AGENCIES AND UNIONS TO INCLUDE PROVISIONS FOR
 BINDING ARBITRATION IN THEIR NEGOTIATED AGREEMENTS IF IT WERE NOT
 CONTEMPLATED THAT BOTH PARTIES WOULD PARTICIPATE THEREIN AND SHARE THE
 COSTS THEREOF.  /5/ IN THIS REGARD, A RECENT COURT OF CLAIMS DECISION
 (ISSUED AFTER THE AUTHORITY'S DECISIONS CITED ABOVE), ABLES V. UNITED
 STATES, NO. 666-80C (CT. CL. MAR. 26, 1982), MUST BE CONSIDERED.  IN
 THAT CASE, THE COURT INDICATED THAT AN ARBITRATOR WHO PROCEEDS WITH AN
 EX PARTE ARBITRATION MAY NOT BE ENTITLED TO RECOVER THE PORTION OF HIS
 OR HER FEE WHICH WOULD OTHERWISE BE PAYABLE BY THE FEDERAL AGENCY THAT
 REFUSED TO PARTICIPATE IN THE PROCEEDINGS.  THUS, IN THOSE INSTANCES
 WHERE AGENCIES REFUSE TO PROCEED TO OR PARTICIPATE IN ARBITRATION
 PROCEEDINGS, EXCLUSIVE REPRESENTATIVES MAY BE IMPEDED IN SUBMITTING
 UNRESOLVED GRIEVANCES TO BINDING ARBITRATION AS MANDATED BY CONGRESS, OR
 MAY BE OBSTRUCTED IN DOING SO BY A REQUIREMENT TO PAY THE ENTIRE COSTS
 OF SUCH PROCEEDINGS CONTRARY TO THE CONTEMPLATION OF CONGRESS IN
 ENACTING SECTION 7121.  ACCORDINGLY, THE AUTHORITY CONCLUDES THAT WHILE
 NOTHING IN THE STATUTE PRECLUDES EITHER PARTY FROM INVOKING ARBITRATION
 AND PROCEEDING EX PARTE IF NECESSARY, A REFUSAL BY THE OTHER PARTY TO
 PARTICIPATE IN THE "PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
 INCLUDING QUESTIONS OF ARBITRABILITY," I.E., "BINDING ARBITRATION,"
 CONFLICTS WITH THE REQUIREMENTS OF SECTION 7121.  TO THE EXTENT THAT THE
 AUTHORITY'S PREVIOUS DECISIONS STATE OR IMPLY OTHERWISE, THEY WILL NO
 LONGER BE FOLLOWED.
 
    IN THE INSTANT CASE, THE RESPONDENT IS ALLEGED TO HAVE VIOLATED
 SECTION 7116(A) OF THE STATUTE BY REFUSING TO PROCEED TO ARBITRATION OF
 THE GRIEVANCE BASED ON ITS INTERPRETATION OF SECTION 7121(C)(4), AND BY
 ASSERTING THAT THE UNION'S REQUEST FOR ARBITRATION WAS UNTIMELY.  BOTH
 OF THESE QUESTIONS, I.E., WHETHER SECTION 7121(C)(4) WAS INTENDED TO BAR
 GRIEVANCES CONCERNING THE TERMINATION OF PROBATIONERS FROM THE COVERAGE
 OF NEGOTIATED GRIEVANCE PROCEDURES AND WHETHER THE REQUEST FOR
 ARBITRATION WAS UNTIMELY, ARE ARBITRABILITY QUESTIONS WHICH PROPERLY CAN
 BE PLACED BEFORE AN ARBITRATOR.  /6/ AS THE RECORD DOES NOT INDICATE
 THAT THE PARTIES HEREIN MUTUALLY AGREED OTHERWISE, THEIR PREVIOUSLY
 NEGOTIATED PROCEDURES MUST BE READ AS PROVIDING FOR ARBITRATION,
 INCLUDING ARBITRATION OF THE AFOREMENTIONED ARBITRABILITY QUESTIONS.  BY
 REFUSING TO PROCEED TO ARBITRATION, THE RESPONDENT REFUSED OR FAILED TO
 COMPLY WITH THE REQUIREMENTS OF SECTION 7121 OF THE STATUTE AND
 THEREFORE VIOLATED SECTION 7116(A)(1) AND (8), AS ALLEGED IN THE
 COMPLAINT.  /7/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
 DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION/WAGE AND HOUR
 DIVISION, WASHINGTON, D.C., SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) UNILATERALLY REFUSING OR FAILING TO PROCEED TO ARBITRATION
 REGARDING A GRIEVANCE FILED
 
    BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12,
 AFL-CIO, THE
 
    EMPLOYEES' EXCLUSIVE REPRESENTATIVE, REGARDING THE TERMINATION OF A
 PROBATIONARY UNIT EMPLOYEE
 
    CONTRARY TO THE REQUIREMENTS OF SECTION 7121 OF THE STATUTE, AFTER
 RECEIVING TIMELY NOTICE OF
 
    THE EXCLUSIVE REPRESENTATIVE'S DESIRE TO INVOKE ARBITRATION.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) UPON REQUEST, PROCEED TO ARBITRATION REGARDING THE GRIEVANCE
 FILED BY THE AMERICAN
 
    FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO, INVOLVING THE
 TERMINATION OF A
 
    PROBATIONARY UNIT EMPLOYEE.
 
    (B) POST AT ITS WASHINGTON, D.C., FACILITY, 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 THE CHIEF, EMPLOYMENT STANDARDS ADMINISTRATION/WAGE AND
 HOUR DIVISION, WASHINGTON,
 
    D.C., AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS
 THEREAFTER, IN CONSPICUOUS
 
    PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES
 TO 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) NOTIFY THE REGIONAL DIRECTOR OF REGION III, 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., OCTOBER 8, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          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 HE