22:0559(59)CA - DOD, AAF, Army and Air Force Exchange Service, Altus Air Force Base Exchange, Altus, OK And AFGE Local 2586 -- 1986 FLRAdec CA



[ v22 p559 ]
22:0559(59)CA
The decision of the Authority follows:


 22 FLRA No. 59
 
 DEPARTMENT of DEFENSE 
 DEPARTMENT OF THE ARMY AND THE AIR FORCE 
 ARMY AND AIR FORCE EXCHANGE SERVICE 
 ALTUS AIR FORCE BASE EXCHANGE 
 ALTUS, OKLAHOMA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 2586
 Charging Party
 
                                            Case No. 6-CA-40232
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based on a stipulation of facts by the parties, who have
 agreed that no material issue of fact exists.  Briefs for the
 Authority's consideration were filed by the Respondent and by the
 General Counsel.
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (8) of the Federal Service Labor-Management Relations Statute (the
 Statute) by informing a bargaining unit employee that she had the option
 of appealing a letter of reprimand through either the agency grievance
 procedure or the negotiated grievance procedure.  Such conduct is
 alleged to constitute a failure and refusal to comply with section
 7121(a)(1) of the Statute.
 
                                II.  Facts
 
    On March 7, 1984, the Respondent's agent, Altus Air Force Base
 Exchange Manager Javier Villalobos, issued a written reprimand to Mary
 Bailey, a bargaining unit employee, for misuse of sick leave.  The
 letter stated specifically that Bailey had the "right to file within 21
 calendar days following receipt of the written reprimand, a grievance
 through the undersigned . . . pursuant to the provisions of . . . (Army
 and Air Force Exchange Service Regulations) . . . or the negotiated
 procedure contained in the current labor agreement, but not both." After
 consulting with the Union president, Bailey pursued her appeal of the
 reprimand through the negotiated procedure.
 
                      III.  Positions of the Parties
 
    The General Counsel takes the position that the Respondent, by
 offering the bargaining unit employee a choice of appeal routes,
 violated the exclusivity of the parties' negotiated grievance procedure
 as provided under section 7121(a)(1) of the Statute.  /1/ The General
 Counsel contends further that the only exceptions to this provision are
 those appeal procedures set out specifically under section 7121(d) and
 (e) of the Statute, and that the written reprimand issued to Bailey is
 clearly not subject to an appeal procedure under either exception.  In
 this latter regard, the General Counsel cites to the Authority's
 decision in American Federation of Government Employees, AFL-CIO, Local
 2955 and National Guard Bureau, Office of the Adjutant General, Des
 Moines, Iowa, 5 FLRA 617, 620 (1981), in which the Authority concluded
 with respect to a proposal that would grant bargaining unit employees
 the option to choose either the negotiated grievance procedure or a
 statutory procedure concerning "any matter" covered by the grievance
 procedure:
 
          This is clearly inconsistent with section 7121(a)(1) of the
       Statute which permits such option only in very limited
       circumstances:  that is, where the grievance falls within the
       coverage of either section 7121(d) or (e) of the Statute.  In all
       other situations, notwithstanding the possible existence of an
       otherwise applicable statutory procedure, the negotiated procedure
       must be the exclusive procedure for resolving grievances which
       fall within its coverage.  (Emphasis in original).
 
    Thus, the General Counsel argues that the Respondent has granted a
 bargaining unit employee an option which is inconsistent with the
 Statute.
 
    On the other hand, the Respondent takes the position that its
 bargaining unit employees have a right under the collective bargaining
 agreement and by operation of law to use either the negotiated procedure
 or the agency procedure.  The respondent argues that the parties'
 agreement provides no prohibition against an employee's pursuit of a
 grievance through the appeals channels provided under Army and Air Force
 Exchange Service (AAFES) Regulations.  The Respondent further argues
 that the nonappropriated fund employees in the bargaining unit should be
 treated differently inasmuch as they have no statutory appeal procedures
 like those provided to most Federal employees as referenced in section
 7121(d) and (e) of the Statute, /2/ and that the adverse action appeal
 rights granted to the nonappropriated fund employees under AAFES
 Regulations should be equated to adverse action appeal rights under
 section 7121(d) and (e).  Therefore, the Respondent argues that its
 bargaining unit employees should have the same right as appropriated
 fund employees to choose the negotiated grievance procedure or an agency
 appeal procedure.  Finally, the Respondent contends that inasmuch as the
 bargaining unit employee choose the negotiated procedure, at worst it
 has commited a technical violation of the Statute that was de minimis in
 nature.
 
                               IV.  Analysis
 
    The plain language of section 7121(a)(1) of the Statute provides that
 "the . . . (negotiated) . . . procedures shall be the exclusive
 procedures for resolving grievances which fall within its coverage."
 (Emphasis added).  The only exceptions to this provision involve those
 matters which are covered by a negotiated grievance procedure but also
 may be resolved pursuant to the statutory appeal procedures referred to
 in section 7121(d) and (e) of the Statute.  The appeal procedure which
 the Respondent offered as an option to the bargaining unit employee in
 this case clearly does not fall within either of these two exceptions.
 Respondent correctly points out that its bargaining unit employees are
 not covered by the statutory appeal procedures noted in section 7121(d)
 and (e) of the Statute which do not apply to nonappropriated fund
 employees.  While section 7121(e)(1) of the Statute provides that
 "(s)imilar 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.  . . . ," the matter giving rise to the
 grievance in this case is a reprimand, which is not a similar matter to
 those matters specifically covered under section 7121(d) and (e) of the
 Statute.
 
    As previously noted by the General Counsel, the Authority, in
 American Federation of Government Employees, AFL-CIO, Local 2955 and
 National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa,
 5 FLRA 617 (1981), concluded, with respect to a proposal which would
 have provided optional appeal rights beyond the section 7121(d) and (e)
 exceptions to the exclusivity of the negotiated grievance procedure,
 that such a proposal is inconsistent with the Statute.  /3/ Similarly
 here, the Authority concludes that for the Respondent to offer a
 bargaining unit employee such an option is inconsistent with the plain
 language of section 7121(a)(1) of the Statute and therefore constitutes
 a failure to comply with section 7121(a)(1) in violation of section
 7116(a)(1) and (8).
 
    While we agree with the Respondent that the bargaining unit employee
 involved in this case choose the negotiated grievance procedure, and
 therefore neither she nor her exclusive representative was deprived of
 protected rights under the Statute in the instance, the fact remains
 that the Respondent failed to comply with a specific statutory
 requirement by offering the employee a choice of procedures.  Moreover,
 there is no basis in the stipulated record before us to support a
 conclusion that the Respondent will refrain from offering this option to
 unit employees in the future.  Accordingly, the Authority rejects the
 Respondent's argument that its conduct constituted no more than a
 technical violation and orders that the Respondent's violative conduct
 be remedied as set forth below.
 
                              V.  Conclusion
 
    The Authority has considered all of the facts and circumstances of
 this case, including the positions of the parties, and concludes that
 the Respondent failed to comply with section 7121 of the Statute in
 violation of section 7116(a)(1) and (8) of the Statute when it informed
 a bargaining unit employee that she had the option of appealing a letter
 of reprimand through either the agency grievance procedure or the
 negotiated grievance procedure.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, it is hereby ordered that the
 Department of Defense, Department of the Army and the Air Force, Army
 and Air Force Exchange Service, Altus Air Force Base Exchange, Altus,
 Oklahoma, shall:
 
                        1.  Cease and desist from:
 
    (a) Advising bargaining unit employees that they may choose an appeal
 procedure, as an alternative to the grievance procedure negotiated with
 the American Federation of Government Employees, AFL-CIO, Local 2586,
 the exclusive representative of its employees, to resolve any matter
 covered by the negotiated agreement, unless such matter is subject to
 resolution pursuant to statutory appeal procedures referred to in
 section 7121(d) and (e) of the Statute.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its 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) Post at its Altus Air Force Base Exchange facilities 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 Exchange Manager, or a designee, 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
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VI, 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., July 15, 1986.
  
                                       /s/ Jerry L. Calhoun Chairman
                                       /s/ Henry B. Frazier, III Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7121(a)(1) provides:
 
          Section 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 (e) of
       this section, the procedures shall be the exclusive procedures for
       resolving grievances which fall within its coverage.
 
    (2) Section 7121(d) and (e) provide in pertinent part:
 
          (d) An aggrieved employee affected by a prohibited personnel
       practice under section 2302(b)(1) of this title which also falls
       under the coverage of the negotiated grievance procedure may raise
       the matter under a statutory procedure or the negotiated
       procedure, but not both. . . .
 
          (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. . . .
 
          (2) In matters covered under section 4303 and 7512 of this
       title which have been raised under the negotiated grievance
       procedure in accordance with this section, an arbitrator shall be
       governed by section 7701(c)(1) of this title, as applicable.
 
    (3) See also American Federation of Government Employees, AFL-CIO,
 Local 2904 and Marine Corps Finance Center, Kansas City, Missouri, 7
 FLRA 188 (1981) and National Treasury Employee Union and U.S. Customs
 Service, Washington, D.C., 8 FLRA 3 (1982), wherein similar proposals
 were also held to be inconsistent with the Statute.
 
 
 
 
 
 
                                 APPENDIX
 
                          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 HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT advise bargaining unit employees that they may choose an
 appeal procedure as an alternative to the grievance procedure negotiated
 with the American Federation of Government Employees, AFL-CIO, Local
 2586, the exclusive representative of our employees, to resolve any
 matter covered by the negotiated agreement, unless such matter is
 subject to resolution pursuant to statutory appeal procedures referred
 to in section 7121(d) and (e) of the Statute.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    (Agency or Activity)
 
    Dated:  . . .  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region VI, Federal Labor Relations Authority, whose address
 is:  Federal Office Building, 525 Griffin Street, Suite 926, Dallas, TX
 75202, and whose telephone number is:  (214) 767-4996. 
 
 
 


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