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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.