17:0615(90)NG - NFFE Local 1437 and Army Armament Research and Development Command, Dover, NJ -- 1985 FLRAdec NG



[ 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, exce