18:0282(35)CA - NASA and Goddard Space Flight Center and Goddard Engineers, Scientists and Technicians Association -- 1985 FLRAdec CA



[ v18 p282 ]
18:0282(35)CA
The decision of the Authority follows:


 18 FLRA No. 35
 
 NATIONAL AERONAUTICS AND SPACE 
 ADMINISTRATION AND GODDARD SPACE
 FLIGHT CENTER 
 Respondents
 
 and 
 
 GODDARD ENGINEERS, SCIENTISTS AND
 TECHNICIANS ASSOCIATION 
 Charging Party
 
                                            Case No. 3-CA-20509
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondents had not engaged
 in the unfair labor practices alleged in the complaint, and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General Counsel filed exceptions to the Judge's Decision with supporting
 brief, and Respondent Goddard Space Flight Center (Goddard) filed an
 opposition to the General Counsel's exceptions;  Respondent National
 Aeronautics and Space Administration (NASA) filed cross-exceptions and
 an opposition to the General Counsel's exceptions;  and the Office of
 Personnel Management (OPM), as amicus curiae, /1/ filed an opposition,
 and memorandum in support of opposition, to exceptions of the General
 Counsel.
 
    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 and conclusions, and recommendation that the complaint
 must be dismissed, for the reasons set forth below.
 
    As more fully set forth in the attached Judge's Decision, the
 essential facts giving rise to the complaint are as follows:  Goddard
 Engineers, Scientists and Technicians Association (the Union) was
 certified on February 25, 1981, as the exclusive representative of a
 unit of all professional engineers and scientists at the Goddard Space
 Flight Center, Greenbelt, Maryland.  At all material times, the Union
 continued to be the certified exclusive representative of these
 employees.  However, there was no collective bargaining agreement
 covering employees in the above-described unit. Some time in 1980, OPM
 revised its regulations pertaining to agency grievance procedures (5
 C.F.R. Part 771).  Pursuant to such revisions, NASA revised its
 grievance procedure, incorporated the revision in a new handbook, and
 sent advance copies to its installations which were available for all
 employees on June 22, 1981.  Although NASA instructed its field
 installations that the revised procedures were applicable to Agency
 grievances filed after June 15, 1981, all installations had the
 authority to delay implementation of Agency-wide regulations pending
 completion of all bargaining obligations established under the Statute.
 In December 1981, the handbooks containing the revised Agency grievance
 procedure were inadvertently distributed by a mail service contractor to
 all employees at Goddard, despite the fact that Goddard did not issue
 any implementing instructions for the revised procedure.
 
    When the Union inquired about the applicability and distribution of
 the revised Agency grievance procedure, Goddard informed the Union that:
  (1) the distribution of the handbooks was accomplished by the Goddard
 mail service contractor without the authorization or knowledge of any
 Goddard official;  (2) no grievances had been filed by any Goddard
 employee since June 15, 1981;  and (3) Goddard had no authority to
 negotiate the substance of the revision, but would negotiate the impact
 and procedures for implementation of the revised Agency grievance
 procedure.  The Union responded that it would deal with its concerns
 about any grievance procedure applicable to members of the bargaining
 unit during negotiations for a collective bargaining agreement.
 Thereafter, on March 16, 1982, the Union and Goddard commenced
 bargaining, but as of the date of the hearing herein no final agreement
 had been reached, although the parties initialed-off on a
 grievance/arbitration procedure clause in the proposed collective
 bargaining agreement.
 
    In finding that Goddard had not violated section 7116(a)(1) and (5)
 of the Statute as alleged in the complaint, the Judge determined that
 changes in an agency grievance procedure do not involve conditions of
 employment which are negotiable under the Statute.  Without passing upon
 the Judge's determination in this regard, the Authority concludes that
 the complaint against both NASA and Goddard should be dismissed, for the
 following reasons.
 
    With regard to NASA, the record establishes that no collective
 bargaining relationship existed at the agency level between NASA and the
 Union inasmuch as the level of exclusive recognition is for a unit of
 professional employees at Goddard.  Accordingly, NASA had no obligation
 to notify and bargain with the Union before promulgating directives
 concerning revisions to its Agency grievance procedure.  See Department
 of the Army and Department of Defense, 15 FLRA No. 142 (1984);  Defense
 Contract Administration Services Region, Boston, Massachusetts, 15 FLRA
 No. 143 (1984). Further, the record supports the Judge's finding that
 NASA did not prevent Goddard from fulfilling whatever bargaining
 obligation might have existed with respect to the changes in question.
 Accordingly, the complaint must be dismissed as to Respondent NASA.  /2/
 Harry Diamond Laboratories and Department of the Army and Department of
 Defense, 15 FLRA No. 43 (1984).
 
    With regard to Respondent Goddard, the Authority notes that copies of
 the revised grievance procedure were inadvertently distributed to
 Goddard employees by a mail service contractor without the knowledge of
 or authorization by Goddard's Labor Relations Officer and therefore
 without notice to the Union.  Upon learning of the revised Agency
 grievance procedure, the Union asked Goddard about the applicability and
 distribution thereof but never specifically asked for negotiations.
 Indeed, in response to Goddard's contention that the substance of such
 revisions would not be negotiable under the Statute, the Union stated
 that it would deal with its concerns about any grievance procedure
 applicable to unit members during negotiations for a collective
 bargaining agreement.  As noted above, the Union and Goddard
 subsequently reached agreement with respect to a grievance procedure
 applicable to unit employees.  Under these circumstances, the Authority
 concludes that the Union never specifically requested negotiations
 concerning revisions in the Agency grievance procedure and, even if a
 general request arguably had been made, the Union immediately thereafter
 clearly and unmistakably withdrew it.  Accordingly, the complaint
 alleging that Goddard had failed and refused to notify and bargain with
 the Union concerning revisions in the Agency grievance procedure must be
 dismissed.  See Internal Revenue Service (District, Region, National
 Office Unit), 14 FLRA 698, 700 (1984);  United States Department of
 Defense, Department of the Army, Headquarters, Fort Sam Houston, Texas,
 8 FLRA 623, 624 (1982).
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-20509 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE
 FLIGHT
 CENTER, Respondents
 
 and 
 
 GODDARD ENGINEERS, SCIENTISTS AND TECHNICIANS
 ASSOCIATION, Charging Party 
 
 OFFICE OF PERSONNEL MANAGEMENT, Amicus Curiae /3/
 
                                       Case No. 3-CA-20509
 
    Richard L.Dunn, Esquire
    For the National Aeronautics and Space Administration
 
    Lawrence F. Watson, Esquire
    For Goddard Space Flight Center
 
    Donna DiTullio, Esquire
    For the General Counsel
 
    Mr. Frederick G. Schamann
    George C. Lacy, Esquire
    For the Charging Party
 
    Eugene N. Scallan, Esquire
    For the Office of Personnel Management
 
    Before:  LOUIS SCALZO, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter called "the Statute),
 and the Rules and Regulations issued thereunder.
 
    The complaint alleges that on or about June 15, 1981, the National
 Aeronautics and Space Administration (NASA), revised its agency
 grievance procedure and sent it to Goddard Space Flight Center (GSFC or
 Goddard) /4/ for distribution to GSFC employees;  that on or about June
 15, 1981, GSFC implemented the revised agency grievance procedure
 received from NASA;  and that GSFC did not notify the Goddard Engineers,
 Scientists and Technicians Association (Charging Party or Union) of the
 revised agency grievance procedure until December of 1981.  Based on the
 foregoing it was alleged that NASA violated Sections 7116(a)(1) and (5)
 of the Statute by preventing GSFC from fulfilling its obligation to
 bargain with the Union prior to implementation of the revised agency
 grievance procedure;  and that GSFC violated Sections 7116(a)(1) and (5)
 of the Statute by implementing the revised agency grievance procedure
 without first providing the Union with adequate notice, and an
 opportunity to negotiate the substance of the revision, procedures which
 management would observe, and appropriate arrangements for employees
 adversely affected.
 
    Counsel representing NASA, GSFC, and the Office of Personnel
 Management (OPM) argue that the Statute imposes no obligation to bargain
 concerning an agency grievance procedure.  Counsel representing NASA and
 GSFC contend further that, under the circumstances presented, any
 existing statutory obligation to bargain was in fact fulfilled by NASA
 and GSFC.  Lastly, NASA argues that it was not properly joined as a
 party to the proceeding.
 
    The parties were represented by counsel during the hearing and were
 afforded full opportunity to be heard.  Based upon the entire record
 herein, /5/ including the stipulation of facts, stipulated exhibits, and
 briefs filed by the parties, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The following stipulations of fact, entered into the record as a
 portion of Jt. Exh. 1, are accepted as true:
 
    1.  The charge herein was filed by the Union on April 14, 1982 (Jt.
 Exh. 1(a)) and a copy thereof was served on Respondent Goddard, by
 certified mail, on April 16, 1982 (Jt. Exh. 2).  Receipt of the charge
 is herein acknowledged by Respondent Goddard.
 
    2.  The charge herein was not served upon Respondent NASA.  Neither
 Mr. Grant, Director, Personnel Programs Division, nor any authorized
 person at NASA Headquarters, was served a copy of the charge in this
 case.  Neither he, nor any authorized person at NASA Headquarters, was
 contacted or given an opportunity to present the views of Respondent
 NASA during pendency of this matter prior to the issuance of the
 Complaint and Notice of Hearing.
 
    3.  The Regional Director of the Third Region, Federal Labor
 Relations Authority (herein called the Authority) by decision dated June
 30, 1982, declined to issue a complaint in this matter (Jt. Exh. 3).
 
    4.  By letter dated July 29, 1982, the Union appealed the Regional
 Director's determination (Jt. Exh. 4).  By letter dated November 29,
 1982 the Assistant General Counsel for Appeals of the Authority,
 remanded the case to the Regional Director for issuance of a complaint
 (Jt. Exh. 5).
 
    5.  Upon the aforementioned charge, the Acting General Counsel of the
 Authority, on behalf of the Authority, by the Regional Director of the
 Third Region, issued a Complaint and Notice of Hearing dated January 20,
 1983.  True copies were served by certified mail upon Respondent NASA,
 Respondent Goddard, and the Union (Jt. Exh. 6).  Receipt of the
 complaint is hereby acknowledged by Respondent NASA.  Subsequently,
 Respondents NASA and Goddard served Answers upon the Union and the
 General Counsel of the Authority (Jt. Exhs. 7 and 8).
 
    6.  At all times material herein, the Union is, and has been, a labor
 organization within the meaning of Section 7103(a)(4) of the Statute.
 
    7.  (a) At all times material herein, Respondent NASA is, and has
 been, an agency within the meaning of Section 7103(a)(3) of the Statute.
 
    7.  (b) At all times material herein, Respondent Goddard is, and has
 been, an activity under NASA within the meaning of Section 2421.4 of the
 Rules and Regulations of the Authority.
 
    8.  At all times material herein, Mr. Carl E. Grant has held the
 position of Director, Personnel Programs Division and has been and is
 now a supervisor or management official within the meaning of Section
 7103(a)(10) and (11) of the Statute and an agent of Respondent NASA at
 its Washington, D.C. location.  Mr. Grant reports to the NASA Associate
 Administrator for Management who in turn reports directly to the
 Administrator and Deputy Administrator of NASA.  The objective of Mr.
 Grant's position is to provide for planning, direction and evaluation of
 the Agency Personnel Management Program.  In his position he has
 responsibility and authority, to develop, administer and evaluate
 agency-wide personnel management policies, programs, and practices in
 various areas, including labor-management relations and employee
 relations.  His office prescribes and publishes policies, procedures,
 and regulations on personnel management and related matters subject to
 applicable laws, regulations, and conditions or limitations prescribed
 by higher authority.
 
    9.  GSFC is a NASA field installation.  The Director, GSFC, the
 highest official assigned there, reports to the NASA Associate
 Administrator for Space Science and Applications, who in turn reports
 directly to the Administrator and Deputy Administrator of NASA.  The
 Director, GSFC, is authorized to, and is responsible for, providing
 executive leadership and overall direction and management of GSFC and
 its assigned programs and activities.
 
    10.  Mr. John Ferguson is the Labor Relations Officer for Respondent
 Goddard at its Greenbelt, Maryland facility, and as such is a supervisor
 or management official within the meaning of Section 7103(a)(10) and
 (11) of the Statute.  Mr. Ferguson has occupied this position since
 October 18, 1981, at GSFC.  As labor relations officer, Mr. Ferguson
 operates under controlling policies and directives of higher
 authorities.  In the area of personnel management, NASA labor relations
 officers are subject to policies established by Mr. Grant's office.  Mr.
 Grant's position does not authorize him to direct or administer the
 operational personnel functions and activities at GSFC.  John Ferguson
 goes not work for him or any of his subordinates, nor is he subject to
 their supervision or control.
 
    11.  At all times material herein, Respondent GSFC has recognized the
 Union as the exclusive collective bargaining representative for
 employees in the following unit appropriate for collective bargaining:
 
          Included:  All professional engineers and scientists classified
       in NASA Class Code 200 and Code 700 employed by NASA, GSFC,
       Greenbelt, Maryland.
 
          Excluded:  All non-professional employees;  management
       officials;  supervisors, employees described in 5 U.S.C.
       7112(b)(2), (3), (4), (6) and (7);  and temporary employees with
       appointments of less than 180 days.
 
    The Union was certified as the exclusive representative for the
 above-described unit on February 25, 1981.
 
    12.  In 1980, OPM issued a revised Part 771 of its regulations
 relating to agency administrative grievance procedure.  5 C.F.R.Part
 771.  The OPM directive required federal agencies including NASA to
 develop an agency grievance procedure consistent with specified
 criteria.  An agency grievance procedure is subject to OPM review for
 conformance with Part 711.  The OPM directive required that the agency
 grievance procedure be published and that copies be made available to
 employees.
 
    13.  Mr. Grant directed that a grievance system conforming with Part
 771 of OPM regulations be prepared.  After a lengthy drafting, review
 and coordination process, a final version of the agency grievance
 procedure was completed.  This document, NASA Handbook (NHB) 3771.2B,
 NASA Grievance System (Jt. Exh. 9), was submitted to the printers.  The
 preface to NHB 3771.2B contained a statement that all grievances
 initiated on or after June 15, 1981, would be subject to its provisions
 and that its effective date was June 15, 1981.  In fact, NHB 3771.2B was
 still in printing on June 15, 1981.  On June 22, 1982, Mr. Grant
 transmitted by mail an advance copy of NHB 3771.2B to Personnel Officers
 and Employee Relations Officers at the various NASA field centers,
 including Respondent Goddard.  At the same time he transmitted an
 advance copy of the new Federal Personnel Manual, Chapter 771.  The
 preface of NHB 3771.2B stated that it should be used in conjunction with
 5 C.F.R.Part 771 and FPM Chapter 771.  FPM Chapter 771 was officially
 issued by OPM pursuant to FPM letter 771-9, dated July 1, 1981.  The
 finalized copy of NHB 3771.2B was sent to Respondent Goddard from the
 printers in the latter part of July 1981.
 
    14.  The revised agency grievance procedure described above in
 paragraph 13 cancelled the previous agency grievance procedure dated
 April 9, 1975 (Jt. Exh. 10).
 
    15.  The revised agency grievance procedure described in paragraph 13
 above, allowed activities, including Respondent Goddard to issue their
 own instruction for implementation of the procedure.
 
    16.  Respondent Goddard has not issued any implementing instructions
 for the revised grievance procedure.
 
    17.  NASA regulations (NMI 3711.10A) (Jt. Exh. 11), provide that each
 NASA installation (including Respondent Goddard) has the authority to
 administer its labor relations program.  This includes the authority of
 such institutions, including Goddard, to delay implementation of
 NASA-wide regulations where necessary to comply with bargaining
 obligations of Title VII, Civil Service Reform Act.
 
    18.  NHB 3771.2B, in Section 102, (Jt. Exh. 9), entitled
 "Responsibility for Implementation," places responsibility on field
 Center Personnel Directors "for coordinating and administering the NASA
 Grievance System and for providing necessary information to employees,
 supervisors and other management officials." Furthermore, the preface
 notes that installations may issue implementing instructions.  As a
 practical matter, the earliest date a field center could have
 implemented the changed provisions of the grievance system would have
 been some date after June 22, 1981, when the advance copies of both NHB
 3771.2B and FPM Chapter 771 were sent to field center personnel
 officers.  Field centers are authorized to delay implementation of
 agency-wide directives to fulfill their obligation to bargain, if any.
 
    19.  NHB 3771.2B (Jt. Exh. 9) did not contain detailed guidance for
 fact finders. This was contained in NASA FPM supplement dated July 10,
 1981 (Jt. Exh. 12).
 
    20.  Neither in NHB 3771.2B (Jt. Exh. 9) or elsewhere did Mr. Grant
 require that copies of NHB 3771.2B be distributed to employees.  NHB
 3771.2B requires that copies be distributed at branch level at all NASA
 organizations and be made available to employees.  The decision to
 distribute, and the timing of a distribution of copies of the handbook
 to individual employees is a matter not covered by NHB 3771.2B.  A
 sufficient number of copies were printed for all employees, but the
 Headquarters requirement was to make them available, not necessarily to
 distribute them to each individual.
 
    21.  Neither in NHB 3771.2B (Jt. Exh. 9) nor elsewhere did Mr. Grant
 issue any direction concerning how NHB 3771.2B would be implemented with
 regard to labor organizations or collective bargaining where a field
 center and an exclusive bargaining representative had no negotiated
 grievance procedure.  The only such guidance to field centers was
 contained in FPM Chapter 771, which is issued upon the authority of OPM.
  NASA has no control over OPM.
 
    22.  (a) During the latter part of December 1981 all employees of
 Respondent Goddard received through the internal GSFC mail system, a
 copy of the revised agency grievance procedure described in paragraph
 13.
 
    22.  (b) Respondent Goddard did not notify the Union prior to
 distributing the revised agency grievance procedure in December 1981.
 
    23.  On a date uncertain after December 23, 1981, Mr. Frederick G.
 Schamann, President of the Union, contacted Mr. John Ferguson, Labor
 Relations Officer for Respondent Goddard to inquire about the
 applicability and distribution of the revised agency grievance
 procedure.
 
    24.  In subsequent conversations between Messrs. Schamann and
 Ferguson (dates uncertain), the following took place:
 
    (a) Mr. Ferguson notified Mr. Schamann that the NASA Grievance System
 Employee Handbook (Jt. Exh. 9) was distributed to all Goddard employees
 by a Goddard mail service contractor without Mr. Ferguson's knowledge
 during the latter part of December 1981.
 
    (b) Mr. Ferguson stated that only impact and procedures for
 implementation of the revised agency grievance procedure would be
 negotiable under Title VII of the Civil Service Reform Act prior to
 implementation of the procedure;  that the substance of the agency
 grievance procedure would not be negotiable;  and that the authority to
 negotiate such substance did not exist.
 
    (c) Mr. Ferguson notified Mr. Schamann that no grievances had been
 filed or processed since the June 15, 1981 revision date of the agency
 grievance procedure.
 
    (d) Mr. Ferguson requested that Mr. Schamann submit any Union
 proposals on the revised agency grievance procedure to Mr. Ferguson.
 
    (e) Mr. Schamann stated that the Union would deal with its concerns
 about any grievance procedure applicable to unit members during
 negotiations for a collective bargaining agreement.
 
    (f) The Union has not submitted proposals on a revised agency
 grievance procedure.
 
    25.  Prior to the discussion between Messrs. Ferguson and Schamann
 described in paragraph 23 above, Mr. Schamann informed Mr. Ferguson that
 the Union was drafting proposals for submission to Respondent Goddard
 with a request to bargain for a collective bargaining agreement between
 the Union and Respondent Goddard.
 
    26.  By letter dated February 23, 1982, co-signed by Mr. Richard
 Persons and Mr. George D. Mistretta of the Union, a demand was made upon
 Respondent Goddard to bargain over a collective bargaining agreement
 (Jt. Exh. 13). collective bargaining agreement (Jt. Exh. 13).
 
    27.  On March 16, 1982, the Union submitted its proposals for
 bargaining to Respondent Goddard, and included in Article 16, a proposal
 entitled "Grievance Procedure."
 
    28.  During April 1982 Respondent Goddard and the Union began
 negotiations over their first basic collective bargaining agreement.  No
 final agreement has been reached to date.
 
    29.  On September 1, 1982, the Union and Respondent Goddard
 initialled Article 16, as agreed upon by both parties in the collective
 bargaining process.  To date, Respondent Goddard and the Union do not
 have a negotiated grievance procedure in effect.
 
    30.  On January 30, 1983 the first grievance was filed by a
 bargaining unit member under the revised agency grievance procedure.  On
 February 10, 1983, Respondent Goddard issued its final decision denying
 the grievance.
 
    31.  By entering into this Stipulation and by being referred to
 herein as "Respondent" NASA, Respondent NASA does not concede that it
 has been properly joined as a party to this proceeding.
 
                        Discussion and Conclusions
 
    A threshold question posed for resolution relates to the issue of
 whether NASA was properly joined as a party to this proceeding.  The
 complaint identified NASA as a "Respondent" and as an "agency" within
 the meaning of Section 7103(a)(3) of the Statute.  GSFC is also
 identified in the complaint as a "Respondent," and as an "activity"
 within the meaning of Section 2421.4 of the Rules and Regulations, 5
 C.F.R. 2421.4.  Both NASA and GSFC are linked to alleged unfair labor
 practices through factual representations based on administrative action
 allegedly taken by NASA and GSFC in connection with issuance of the
 revised agency grievance procedure.  In fact, counsel representing NASA
 acknowledged at the hearing that NASA could be found guilty of an unfair
 labor practice in this proceeding if it was shown that NASA interfered
 with the bargaining relationship which existed between the Union and
 GSFC (Tr. 14).
 
    It is well settled that higher agency management may, on an agency
 theory, be held accountable for the actions of lower level managers even
 in cases where the higher agency level is not specifically identified as
 a Respondent.  Department of Health and Human Services, Social Security
 Administration, Office of Program Operations and Field Operations,
 Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981).
  Similarly, higher agency management may be found culpable in an unfair
 labor practice proceeding if higher agency management is found to have
 participated in, or to have been responsible for, mandating
 administrative action deemed to be violative of Section 7116(a) of the
 Statute.  Department of the Interior, Water and Power Resources Service,
 Grand Coulee Project, Grand Coulee, Washington, and Office of the
 Secretary, Department of the Interior, Washington, D.C., 9 FLRA No. 46,
 9 FLRA 385 (1982);  Department of the Treasury, Internal Revenue
 Service, Detroit, Michigan, 9 FLRA No. 54, 9 FLRA 441 (1982);
 Department of Health and Human Services, Social Security Administration,
 Region VI, and Department of Health and Human Services, Social Security
 Administration, Galveston Texas District, 10 FLRA No. 9, 10 FLRA 26
 (1982);  Departments of the Army and the Air Force National Guard
 Bureau, and Montana Air National Guard, 10 FLRA No. 96, 10 FLRA 553
 (1982).
 
    In this case the complaint provided NASA with notice of NASA's
 alleged involvement.  The parties stipulated that copies of the
 complaint were served on NASA and GSFC as Respondents.  Accordingly, it
 is concluded that NASA's contention that it was improperly joined as a
 Respondent is without merit.  /6/
 
    The record disclosed that 5 C.F.R.Part 771, entitled "Agency
 Administrative Grievance System" formed the basis for NASA's revision
 and reissuance of the NASA agency grievance procedure.  /7/ These
 provisions are reiterated and amplified in Federal Personnel Manual
 Chapter 771, Subchapters 1, 2, and 3.  Part 771 sets forth the
 requirement that each agency falling within the purview of Part 771,
 establish an agency administrative grievance procedure.  The provisions
 of Part 771 were applicable to NASA (Stipulation 12, Jt. Exh. 1;  5
 C.F.R. 771.203).  Section 771.204(a) of Title 5 mandates that agency
 grievance procedure established under Part 771 "shall cover all
 nonbargaining unit employees" of agencies covered by Part 771.  Section
 771.204(b) provides that covered agencies "may extend the coverage of
 (Part 771) to bargaining unit employees consistent with the provisions
 of 5 U.S.C. 7121 . . . ." /8/ Section 771.205 generally describes
 matters which must be covered by Part 771 agency grievance procedures,
 and Section 771.206(c) outlines numerous matters which must be excluded.
  Section 771.301 requires covered agencies to "establish and administer
 an agency grievance system in accordance with criteria in Sec. 771.302 .
 . . ." Criteria set forth in Section 771.302 is provided to "govern the
 establishment and administration of an agency grievance system . . . ."
 Specific obligations imposed on grievants using the system are reflected
 in Section 771.303.  Section 771.304 provides for oversight review of
 agency grievance procedures by OPM, and for appropriate corrective
 action.  This Section reflects the following language:
 
          The Office of Personnel Management shall review from time to
       time each agency administrative grievance system developed under
       this part to determine whether the administrative grievance system
       meets the requirements of this part.  The Office shall require
       corrective action to bring a system which fails to meet the
       requirements into conformity.
 
    Agency grievance systems are not designed to displace negotiated
 grievance procedures.  Following the negotiation and effectuation of a
 negotiated grievance procedure, it becomes, by reason of the provisions
 of Section 7121(a)(1) of the Statute, the exclusive procedure for
 resolving bargaining unit grievances which fall within its coverage.
 
    The scope of the duty to bargain under Section 7117(a)(1) of the
 Statute /9/ extends to conditions of employment, i.e., personnel
 policies, practices and matters affecting working conditions of
 employees in a unit of exclusive recognition unless the matters proposed
 for bargaining are inconsistent with Federal law or Government-wide rule
 and regulation.  National Treasury Employees Union, and Department of
 the Treasury, Bureau of Public Debt, 3 FLRA No. 119, 3 FLRA 769 (1980);
 National Treasury Employees Union and NTEU Chapter 70, and Department of
 the Treasury, Internal Revenue Service, Atlanta, Georgia, 8 FLRA No. 8,
 8 FLRA No. 37 (1982);  National Federation of Federal Employees, Local
 1497, and Department of the Air Force, Lowry Air Force Base, Colorado, 9
 FLRA No. 20, 9 FLRA 151 (1982);  International Brotherhood of Electrical
 Workers, Local 280, AFL-CIO-CLC, and Department of the Army, U.S. Corps
 of Engineers, Nashville, Tennessee, 10 FLRA No. 43, 10 FLRA No. 222
 (1982).
 
    It is clear that 5 C.F.R.Part 771, and correlative provisions in FPM
 Chapter 771, may be classified as Government-wide rules and regulations
 within the meaning of Section 7117(a)(1) of the Statute and relevant
 Authority decisions.  National Treasury Employees Union, and Department
 of the Treasury, Bureau of Public Debt, supra;  Professional Air Traffic
 Controllers Organization, AFL-CIO, and Department of Transportation,
 Federal Aviation Administration, 4 FLRA No. 36 (1980);  National
 Federation of Federal Employees, Local 1497, and Department of the Air
 Force, Lowry Air Force Base, Colorado, supra;  International Brotherhood
 of Electrical Workers, Local 280, AFL-CIO-CLC, and Department of the
 Army, U.S. Corps of Engineers, Nashville, Tennessee, supra.  Here, the
 complaint is based upon an alleged failure "to provide the Union with
 adequate notice and an opportunity to negotiate the substance and impact
 and procedures for implementation of (NASA's) . . . revised (agency)
 grievance procedure . . . ." The imposition of such a requirement would
 necessarily be inconsistent with the provisions of 5 C.F.R.Part 771, and
 FPM Chapter 771.  That is, the position of the General Counsel would, if
 sustained, operate to utilize the collective bargaining process for the
 purpose of developing agency grievance procedures, instead of the
 methodology provided in Government-wide rules and regulations
 promulgated specifically for this purpose.  In this context it is noted
 that the imposition of a bargaining obligation would not be at all
 consistent with FPM Chapter 771, Subchapter 2-5b(1), which mandates that
 "bargaining unit employees have the same rights as non-bargaining unit
 employees until the agency and the exclusive representative negotiate a
 grievance procedure pursuant to 5 U.S.C. 7121."
 
    Imposing a bargaining requirement in this case would be an intrusion
 into administrative procedures relating to non-bargaining unit
 employees, and would frustrate the purpose and scheme underlying 5
 C.F.R.Part 771, and FPM Chapter 771.  Any change in agency grievance
 procedure generated through bargaining would necessarily alter the
 rights of non-bargaining unit employees as well.  As noted, FPM 771,
 Subchapter 2-5b(1) specifically requires that bargaining unit employees
 have the same rights as non-bargaining unit employees until
 establishment of a negotiated grievance procedure.  The extension of
 bargaining to this factual situation would effectively eliminate agency
 grievance procedures of the type envisioned by Government-wide rules and
 regulations, and would substitute a negotiated "agency" grievance
 procedure in place thereof.  /10/
 
    In summary, the bargaining obligation which the complaint seeks to
 impose is inconsistent with the regulatory pattern reflected in 5
 C.F.R.Part 771, and FPM Chapter 771.  Since the provisions of Section
 7117(a)(1) of the Statute do not operate to require bargaining in these
 circumstances, the complaint should be dismissed in its entirety.
 
    Apart from the foregoing, other case law authority points to the
 absence of a legal basis for the complaint.  In American Federation of
 Government Employees, AFL-CIO, Local 2782, 6 FLRA No. 56, 6 FLRA 314
 (1981);  and National Federation of Federal Employees, Local 15, 9 FLRA
 No. 56, 9 FLRA 478 (1982), the Authority held that OPM and agency
 regulations may limit the scope of agency grievance procedures.  These
 authorities distinguish agency grievance procedures from negotiated
 grievance procedures fashioned under the provisions of Section 7121 of
 the Statute.  In the latter case, a negotiated grievance procedure
 extends to all matters which, under the provisions of law, would be
 covered unless the parties agree to narrower coverage through collective
 bargaining.  It follows from these two cases that changes in agency
 grievance procedure may be made without bargaining.
 
    The distinction in the two grievance systems was also recognized
 under the Executive Order.  In Office of Economic Opportunity, Region V,
 Chicago, Illinois, A/SLMR No. 334, 3 A/SLMR 668 (1973), the Assistant
 Secretary held that the failure of an agency to process a grievance
 through an agency grievance procedure does not give rise to an unfair
 labor practice in the absence of discriminatory motivation.  /11/ The
 Assistant Secretary noted:
 
          On the other hand, where, as here, the grievance procedure
       which allegedly has been violated by the agency involved, is a
       procedure established by the agency itself rather than through the
       process of bilateral negotiations, I find that different
       considerations apply.  Thus, an agency grievance procedure does
       not result from any rights accorded to individual employees or to
       labor organizations under the Order.  Moreover, such a procedure
       is applicable to all employees of an agency not covered by a
       negotiated grievance procedure, regardless of whether or not they
       are included in exclusively recognized bargaining units.  Under
       these circumstances, I find that, even assuming that an agency
       improperly fails to apply the provisions of its own grievance
       procedure, such a failure, standing alone, cannot be said to
       interfere with rights assured under the Order and thereby be
       violative of Section 19(a)(1).  (Footnote omitted.)
 
          Based on the foregoing, and noting the Administrative Law
       Judge's finding, which I adopt, that the evidence does not
       establish that the Respondent's conduct herein was motivated by
       anti-union considerations, I find that the Respondent's failure to
       process the Complainants' grievances under the former's grievance
       procedure did not constitute a violation of Section 19(a)(1) of
       the Order.
 
    In light of the conclusions outlined, it is necessary to address
 other issues raised by the parties.  /12/
 
    It is recommended that the Authority issue the following Order
 pursuant to 5 C.F.R. 2423.29.
 
                                   ORDER
 
    IT IS HEREBY ORDERED, that the complaint in Case No. 3-CA-20509, be,
 and it hereby is, dismissed.
 
                                       Louis Scalzo
                                       Administrative Law Judge
 
    Dated:  July 15, 1983
    Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ OPM was granted permission to participate in this proceeding as
 amicus curiae pursuant to section 2429.9 of the Authority's Rules and
 Regulations.
 
 
    /2/ In so concluding, it is necessary to pass upon the Judge's
 findings with regard to whether NASA was properly joined as a Respondent
 herein.
 
 
    /3/ Pursuant to Sections 2423.19(q), 2423.19(t), and 2429.9 of the
 Rules and Regulations, 5 C.F.R. 2423.19(q), 2423.19(t), and 2429.9, the
 Office of Personnel Management was granted permission to participate in
 this proceeding as amicus curiae.
 
 
    /4/ Although NASA and GSFC were identified in the complaint as a
 single Respondent, it is quite clear from the allegations of the
 complaint and the opening statement made by counsel representing the
 General Counsel, that conduct allegedly pursued separately by NASA and
 GSFC, comprises the basis of the complaint.  The role alleged to have
 been played by each was recognized in a prehearing determination that
 NASA was properly named as a Respondent in the complaint (G.C. Exh.
 1(k)).  NASA and GSFC filed separate answers and post-hearing briefs.
 They were separately represented at the hearing, and were otherwise
 treated as separate Respondents by opposing counsel.  Accordingly, they
 will be referred to herein as individual Respondents.
 
 
    /5/ Under the authority provided in Section 2423.19(r) of the Rules
 and Regulations, 5 C.F.R. 2423.19(r), the following corrections are made
 in the hearing transcript:  Cover Page-- change "4-CA-20279" to
 "3-CA-20509";  Page 2, line 23-- add "Respondent Exhibit 1-Affidavit,
 15, 20";  Page 3, line 7-- change "3-CA-25059" to "3-CA-20509."
 
 
    /6/ Counsel representing NASA also asserted that NASA was not clearly
 identified as a Respondent in the charge, and endeavors to derive
 benefit from the fact that the charge initiating this proceeding was
 served only on GSFC;  and further that NASA was not provided with an
 opportunity to respond to the charge.  However, a charge is not a
 pleading and does not require the specificity of a pleading.  It merely
 serves to initiate an investigation to determine whether a complaint
 should be filed.  Defense Logistics Agency, 5 FLRA No.21 (1981);
 Department of the Interior, U.S. Geological Survey, Conservation
 Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA No. 65, 9
 FLRA 543 (1982).  Allegations may be included in a complaint even though
 not included in the charge as long as such bear a relationship to the
 charge and are closely related to events providing the basis for the
 charge.  NLRB v. Kohler Company, 220 F.2d 3 (7th Cir. 1955);  Texas
 Industries Inc. v. NLRB, 336 F.2d 128 (5th Cir. 1964);  Bureau of Land
 Management, Richfield District Office, Case No. 7-CA-247 (OALJ-81-086).
 Here the complaint was served in accordance with Authority rules and
 regulations, and was otherwise issued in accordance therewith.  Facets
 of the complaint which pertain to NASA's alleged involvement are very
 closely related to allegations set forth in the charge with respect to
 the activities of GSFC, a NASA field installation.  Thus allegations
 pertaining to NASA were properly included in the complaint, and NASA was
 appropriately identified as a Respondent.
 
 
    /7/ 5 C.F.R. Secs. 771.201-771.304 (1980).
 
 
    /8/ Federal Personnel Manual, Chapter 771, Subchapter 2-5b(1)
 provides in pertinent part:
 
          However, bargaining unit employees have the same rights as
       non-bargaining unit employees until the agency and the exclusive
       representative negotiate a grievance procedure pursuant to 5
       U.S.C. 7121, and the negotiated procedure becomes operative.
 
 
    /9/ Section 7117(a)(1) of the Statute 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.
 
 
    /10/ It may also be argued that this result is specifically
 prohibited by Section 7114(a)(5)(B) of the Statute.  This Section
 provides in part:
 
          (5) The rights of an exclusive representative under the
       provisions of this subsection shall not be construed to preclude
       an employee from--
 
          . . . .
 
          (B) exercising grievance . . . rights established by law, rule,
       or regulation . . . .
 
    If a bargaining obligation exists in this case, then NASA employees
 would in effect be precluded from "exercising grievance . . . rights
 established by . . . regulation . . . ." This could result in the denial
 of employee rights provided by Section 7114(a)(5)(B), and to unfair
 labor pract