[ v17 p615 ]
17:0615(90)NG
The decision of the Authority follows:
17 FLRA No. 90
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES,
LOCAL 1437
Union
and
U.S. ARMY ARMAMENT RESEARCH
AND DEVELOPMENT COMMAND,
DOVER, NEW JERSEY
Agency
Case No. 0-NG-447
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises issues
concerning the negotiability of two Union proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
Article XXIV
Arbitration Procedure
Section 2-- Scope: If the decision on a grievance processed
under the negotiated grievance procedure is not satisfactory to
one of the parties, the union, the employee, or the employer may
refer the issues to arbitration following the procedures and
requirements of this article. (Only the underlined portion of the
proposal is in dispute.)
Union Proposal 2
Article XXII
Grievance Procedure
Section 4-- Action/Remedy: A grievance not satisfactorily
settled at the Third Step may be referred to arbitration as
stipulated in Article XXIV only by the Union or the Employer. If
the Union or the Employer do not invoke arbitration for whatever
reasons, the employee will be considered "to have exhausted
his/her administrative remedies." (Only the underlined portion of
the proposal is in dispute.)
Based upon the language of the proposals and the record in the case,
both proposals purport to deal with circumstances in which an individual
employee's grievance is not resolved in the negotiated grievance
procedure to the satisfaction of that employee and neither the Union nor
the Agency invokes arbitration. /1/ As a course of action in such
circumstances, Union Proposal 1 would provide that the employee may
invoke arbitration on his or her own behalf. Union Proposal 2,
alternatively, would provide that, while only the Union or the Agency
may invoke arbitration, the failure of either party to do so would mean
that the employee has exhausted his or her contractual remedies for
purposes of appeal to a Federal court. That is, the proposal is
intended to facilitate the individual employee's attempt to obtain court
review of an action brought under the negotiated grievance procedure.
As to Union Proposal 1, the Agency contends that by providing for an
individual employee to invoke arbitration, the proposal is nonnegotiable
under section 7117(a)(1) of the Statute /2/ because it is inconsistent
with law, i.e., section 7121(b)(3)(C) of the Statute. /3/ Specifically,
the Agency argues that section 7121(b)(3)(C) provides for only the
exclusive representative or the agency to invoke arbitration and thereby
precludes individual employees from doing so. The Authority agrees.
In this regard, section 7121(b)(3)(C) of the Statute provides that
"either the exclusive representative or the agency" may invoke
arbitration. It does not also provide that individual unit employees
may invoke arbitration. Thus, the question is whether Congress intended
to limit the right to invoke arbitration solely to the exclusive
representative or the agency so as to preclude negotiation of such a
right for individual employees acting on their own behalf.
The legislative history of the section supports the conclusion that
this is the implication Congress intended. The language of section
7121(b)(3)(C) is that of the House bill (H.R. 11280), i.e., the "Udall
substitute," but it is unchanged from the bill as it was reported by the
House committee. The Report which accompanied the House committee bill
/4/ merely restates the language of the section. /5/ The Senate bill
(S. 2640) contained a similar provision, Sec. 7221(c), which provided,
in part, that "(a)rbitration may be invoked only by the agency or the
exclusive representative." The Report accompanying that bill emphasized
the intent that the right to invoke arbitration was solely and
exclusively that of the union or the agency: /6/
Subsection (c) provides that a negotiated grievance procedure
must provide for arbitration as the final step of the procedure.
This contrasts with the provisions of Executive Order 11491 under
which the determination as to whether to provide for arbitration
was left to negotiation between the parties. However, arbitration
can only be invoked by the agency or the exclusive representative.
Thus an aggrieved employee does not have a right to arbitration.
This maintains the right of an exclusive representative to refuse
to take to arbitration any grievance which it, in good faith,
believes should not be processed through to arbitration so long as
it meets its representational responsibilities under this
subchapter. . . .
Further, the Report of the Conference Committee /7/ does not identify or
allude to any conflict between the House and Senate bills in this
regard, suggesting that the House was in accord with the Senate's more
specific statement of intent as to an individual employee's right to
arbitration.
Moreover, the language and legislative history of section 7121 as a
whole lend additional support to the conclusion Congress intended
individual employees to have no right to invoke arbitration. In
particular, while section 7121(b)(3)(B) specifically provides for
individual employees to present grievances on their own behalf, Congress
did not, in section 7121(b)(3)(C) extend that right to arbitration.
Read together, sections 7121(b)(3)(B) and 7121(b)(3)(C) clearly indicate
that the employee's right to present grievances applies only to the
steps of the grievance procedure prior to arbitration. Furthermore, the
legislative history of section 7121(b)(3)(B) indicates that this right
is a narrow exception to the right, and responsibility, of the exclusive
representative to present grievances of unit employees under the
negotiated grievance procedure. As the Authority found in National
Federation of Federal Employees, Local 1001 and Department of the Air
Force, Vandenberg Air Force Base, California, 15 FLRA No. 154 (1984)
(Union Provision 1), with the exception of employees' right to present
grievances on their own behalf, the basic underlying policy of section
7121 is that "only the exclusive representative, and no other, may
represent unit employees under the negotiated grievance procedure."
(Emphasis in original.) Vandenberg Air Force Base, at 5 of slip opinion.
That is, the Authority determined that, with the stated exception,
section 7121 precluded an employee from having any representative but
the exclusive representative in the negotiated grievance procedure.
Thus, the Authority found in that case that a proposal providing for
employees to select a personal representative to present their
grievances in the negotiated grievance procedure was nonnegotiable
because it was inconsistent with section 7121(b)(3) and section
7114(a)(5) of the Statute.
Thus, based upon the language and legislative history of section 7121
as a whole, and of section 7121(b)(3)(C) in particular, the Authority
concludes that, under section 7121(b)(3)(C), only the exclusive
representative or the agency, and no other, may invoke arbitration and,
therefore, a proposal providing individual unit employees a right to
invoke arbitration is precluded by the Statute. Consequently, Union
Proposal 1 is inconsistent with section 7121(b)(3)(C) of the Statute
and, under section 7117(a)(1) of the Statute, is outside the Agency's
duty to bargain.
Turning to Union Proposal 2, as indicated above, it concerns an
alternative course of action to that provided by Union Proposal 1
whereby individual unit employees whose grievances are not taken to
arbitration by the Union might seek a remedy. The proposal would
provide, in essence, that where an individual employee attempts to
obtain court review of an action brought under the negotiated grievance
procedure, the fact that the Union did not invoke arbitration on behalf
of the employee shall constitute an exhaustion of remedies for purposes
of establishing the court's jurisdiction. Thus, the proposal is
intended to enable an employee to seek court review of an unresolved
grievance in the absence of an arbitration award.
However, in thus providing the basis for individual unit employees to
seek court review of their grievances, the proposal, as to certain types
of grievances, concerns matters which are specifically provided for by
Federal statute and, therefore, are expressly excluded from the
definition of "conditions of employment" under section 7103(a)(14)(C)
and not within the Agency's duty to bargain under the Statute. /8/ In
particular, as provided in section 7121(e)(1) of the Statute,
performance-based actions under 5 U.S.C. 4303 and adverse actions under
5 U.S.C. 7512, which also fall within the coverage of the negotiated
grievance procedure may, at the option of the aggrieved employee, be
appealed to the Merit Systems Protection Board (MSPB) under 5 U.S.C.
7701 or be raised under the negotiated grievance procedure, but not
both. /9/ Section 7121(f) provides, /10/ as to a grievance concerning
such actions, that court review may be obtained, in the same manner and
under the same conditions as an appeal from a decision by MSPB, where
the matter has been the subject of an arbitration award. Thus, once an
individual employee initiates a grievance concerning such matters under
the negotiated grievance procedure, not only is the employee confined to
that procedure, but the Statute prescribes the manner in which and the
conditions under which those matters can be appealed to a court of
appropriate jurisdiction. In setting forth the conditions governing
court review, the Statute makes no provision for review of employee
grievances of performance-based or adverse actions which have not been
resolved by an arbitration award. Therefore, under section 7121(f),
there is no basis for court review where such matters have been raised
under the negotiated grievance procedure, but have not been the subject
of an arbitration award. Hence, by providing that the failure of the
Union to invoke arbitration on behalf of an employee shall constitute an
exhaustion of remedies for purposes of establishing a basis of court
review, Union Proposal 2, insofar as it concerns the conditions under
which grievances concerning performance-based actions under 5 U.S.C.
4303 and adverse actions under 5 U.S.C. 7512 may be appealed to a court
of appropriate jurisdiction, pertains to matters which are specifically
provided for by Federal statute (i.e., section 7121(f) of the Statute,
which provides for appeal from an arbitrator's award with regard to such
matters) and, therefore, is expressly precluded from the definition of
"conditions of employment" under section 7103(a)(14)(C) and not within
the Agency's duty to bargain. See, e.g., National Treasury Employees
Union and Pension Benefit Guaranty Corporation, 9 FLRA 692 (1982)
(proposal prescribing pay adjustments for General Schedule employees
concerns matters specifically provided for by 5 U.S.C. 5332 and 5102,
which establish the means for adjusting those rates); International
Brotherhood of Electrical Workers, Local 2080, AFL-CIO-CLC and
Department of the Army, U.S. Corps of Engineers, Nashville, Tennessee,
10 FLRA 222 (1982) (proposal prescribing conditions under which premium
pay may be paid to prevailing rate employees concerns a matter
specifically provided for by 5 U.S.C. 5544). Moreover, in agreement
with the Agency, the Authority concludes that, insofar as Union Proposal
2 relates to the determination as to when an employee has exhausted
administrative remedies for purposes of invoking judicial review, it is
not a matter pertaining to "conditions of employment" within the meaning
of section 7103(a)(14) of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review as to
Union Proposals 1 and 2 be, and it hereby is, dismissed. Issued,
Washington, D.C., April 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Union Petition for Review at 2.
/2/ Section 7117(a)(1) provides:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/3/ Section 7121(b)(3)(C) provides:
Sec. 7121. Grievance procedures
. . . .
(b) Any negotiated grievance procedure referred to in
subsection (a) of this section shall--
. . . .
(3) include procedures that--
. . . .
(C) provide that any grievance not satisfactorily settled under
the negotiated grievance procedure shall be subject to binding
arbitration which may be invoked by either the exclusive
representative or the agency.
/4/ H.R. REP. NO. 95-1403, 95th Cong., 2nd Sess. 55-6 (1978).
/5/ See also 124 CONG.REC9 29185 (1978) (Sectional Analysis of "Udall
substitute").
/6/ S. REP. NO. 95-969, 95th Cong., 2nd Sess. 110 (1978).
/7/ H.R. REP. NO. 95-1717, 95th Cong., 2nd Sess. (1978).
/8/ Section 7103(a)(14)(C) provides as follows:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
. . . .
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters--
. . . .
(C) to the extent such matters are specifically provided for by
Federal statute(.)
/9/ Section 7121(e)(1) provides:
Sec. 7121. Grievance procedures
. . . .
(e)(1) Matters covered under sections 4303 and 7512 of this
title which also fall within the coverage of the negotiated
grievance procedure may, in the discretion of the aggrieved
employee, be raised either under the appellate procedures of
section 7701 of this title or under the negotiated grievance
procedure, but not both. Similar matters which arise under other
personnel systems applicable to employees covered by this chapter
may, in the discretion of the aggrieved employee, be raised either
under the appellate procedures, if any, applicable to those
matters, or under the negotiated grievance procedure, but not
both. An employee shall be deemed to have exercised his option
under the subsection to raise a matter either under the applicable
appellate procedures or under the negotiated grievance procedure
at such time as the employee timely files a notice of appeal under
the applicable appellate procedures or timely files a grievance in
writing in accordance with the provisions of the parties'
negotiated grievance procedure, whichever event occurs first.
/10/ Section 7121(f) provides:
Sec. 7121. Grievance procedures
. . . .
(f) In matters covered under sections 4303 and 7512 of this
title which have been raised under the negotiated grievance
procedure in accordance with this section, section 7703 of this
title pertaining to judicial review shall apply to the award of an
arbitrator in the same manner and under the same conditions as if
the matter had been decided by the Board. In matters similar to
those covered under sections 4303 and 7512 of this title which
arise under other personnel systems and which an aggrieved
employee has raised under the negotiated grievance procedure,
judicial review of an arbitrator's award may be obtained in the
same manner and on the same basis as could be obtained of a final
decision in such matters raised under applicable appellate
procedures.