22:0574(62)NG - AFGE Local 1799 and Army, Aberdeen Proving Ground, MD -- 1986 FLRAdec NG



[ v22 p574 ]
22:0574(62)NG
The decision of the Authority follows:


 22 FLRA No. 62
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL 1799
 Union
 
 and
 
 DEPARTMENT OF THE ARMY, 
 ABERDEEN PROVING GROUND, 
 MARYLAND
 Agency
 
                                            Case No. 0-NG-988
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (The Statute) and concerns the
 negotiability of the underlined portions of two provisions of a
 negotiated agreement which were disapproved by the Agency head pursuant
 to section 7114(c) of the Statute.  /1/
 
                          II.  Union Provision 1
 
          Section 17.07.  The employee may contest the merits or
       procedures used in effecting a non-disciplinary adverse action of
       separation for cause by using the appeal procedures specified in
       AR-230-2 or by using the grievance procedures contained in Article
       18, but not both.  An employee shall be deemed to have exercised
       this option for one of the procedures described above at such time
       as he timely files under either procedure whichever comes first.
 
                       A.  Positions of the Parties
 
    The Agency asserts that Union Provision 1 is nonnegotiable because it
 is inconsistent with section 7121(a)(1) of the Statute.  The Union
 argues that the provision is consistent with section 7121(e)(1) of the
 Statute.
 
                               B.  Analysis
 
    The two sections of the Statute relied upon by the parties, namely,
 section 7121(a)(1) and section 7121(e)(1), provide in relevant part, as
 follows:
 
                    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 or
       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.
 
          . . . . .
 
          (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 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. . . .
 
    Section 7121(a) establishes that, except for those limited matters
 set out in section 7121(d) and (e), the negotiated grievance procedure
 shall be the exclusive procedure for resolving all matters which fall
 within its coverage.  /2/ The limited exceptions to the exclusivity
 requirement, which are set out in section 7121(e)(1), permit employees
 covered by title 5 the option of challenging certain actions, including
 performance based non-disciplinary separations, through their negotiated
 grievance procedure or to the Merit Systems Protections Board (MSPB)
 through the appellate procedures of 5 U.S.C. Section 7701.  Section
 7121(e)(1) also permits employees not covered by title 5 to challenge
 similar actions through their negotiated grievance procedure or through
 the applicable "appellate procedures" which may exist under their
 non-title 5 personnel system.
 
    The record in this case indicates that the employees referred to in
 the provision are non-appropriated fund (NAF) employees.  These NAF
 employees are not covered by 5 U.S.C. Section 4303 relating to
 performance based adverse actions and thus, cannot appeal a
 non-disciplinary separation for cause to MSPB under 5 U.S.C. Section
 7701.  See 5 U.S.C. Section 2105(c).  In addition, according to the
 parties, NAF employees do not have access to any other statutory appeals
 procedure in which to contest such non-disciplinary separations for
 cause.  Rather, the Agency has created, by regulation, an internal
 administrative appeals system in which such matters may be contested.
 Further, the record indicates that the Agency regulation specifically
 excludes from coverage of the administrative appeals system any matter
 that is also covered by a negotiated grievance procedure.  Provision 1
 simply would grant NAF employees the option to appeal non-disciplinary
 separations for cause through either the negotiated grievance procedure
 or through the administrative procedures contained in the Agency
 regulation.
 
    Thus, the question presented by the disputed portion of Provision 1
 concerns whether the Agency's internal administrative appeals system is
 an "appellate procedure" within the meaning of section 7121(e)(1) of the
 Statute.
 
    Although the term appellate procedure is not expressly defined in the
 Statute, the legislative history of section 7121 supports a conclusion
 that Congress intended that term to include "any applicable appeals
 procedure established by or pursuant to law." H. REP. NO. 1403, 95th
 Cong., 2d Sess. 55 (1978).  See also S. REP. NO. 969, 95th Cong., 2d
 Sess. 109-110 (1978).
 
    The Union in this case does not provide any support for its claim
 that the Agency's internal administrative appeals system constitutes an
 appellate procedure within the meaning of section 7121(e)(1).
 Specifically, there is nothing in the record to indicate that the
 Agency's internal administrative appeals system was established by or
 pursuant to law.  Thus, the Agency's internal appeals system is not an
 "appellate procedure" within the meaning of section 7121(e)(1) of the
 Statute.  As a result, challenges to performance based separations for
 cause of NAF employees are required by section 7121(a)(1) of the Statute
 to be processed exclusively through the negotiated grievance procedure
 which covers such matters.
 
                              C.  Conclusion
 
    Consequently, by attempting to provide NAF employees with an option
 to contest performance based separations for cause through either the
 Agency's internal regulatory appeals procedure or through the negotiated
 grievance procedure which covers such matters, the disputed portion of
 Union Provision 1 is inconsistent with the mandate of section 7121(a)
 (1).  Therefore, Provision 1 is outside the duty to bargain under
 section 7117(a)(1) of the Statute.
 
                             III.  Provision 2
 
          Section 26.07.  The parties agree that fair and equitable
       consideration shall be afforded unit employees in respect to
       training which will improve their on-the-job performance.  In this
       connection, the selection of candidates for such training shall be
       made from interested qualified employees in the area concerned.
 
                       A.  Positions of the Parties
 
    The Agency contends that because this provision would require
 management to restrict its assignment of certain training to certain
 specified employees, it directly interferes with management's right,
 under section 7106(a)(2)(B) of the Statute, to assign work.  The Union
 argues that the undisputed first sentence read in conjunction with the
 disputed second sentence, does not interfere with management's right to
 assign work.  Further, the Union asserts that, under applicable
 Authority precedent, this proposal is within the duty to bargain because
 it contains general non-quantitative language which provides, at most, a
 procedure or an arrangement by which a management right is exercised.
 
                               B.  Analysis
 
    In our opinion, if this proposal were revised to more precisely
 implement the Union's stated intent of providing bargaining unit
 employees with fair and equitable consideration in selection for
 performance improving training assignments, it would be within the duty
 to bargain.  See Association of Civilian Technicians, New York State
 Council and State of New York, Division of Military and Naval Affairs,
 Albany, New York, 11 FLRA 475 (1983) (Union Proposal 1).  However, the
 Union's stated intent is at odds with the plain meaning of the entire
 proposal.  Specifically, the first sentence, which is not in dispute,
 merely provides that bargaining unit employees will be provided with
 fair and equitable consideration for training assignments.  The second
 sentence, on the other hand, expressly provides that selections for such
 training assignments "shall be made" from "interested qualified"
 employees, in other words from qualified volunteers.  Since there is
 nothing in the record which persuades us that the disputed second
 sentence was intended to merely establish a nondispositive preference
 for qualified volunteers, we conclude that this sentence simply would
 preclude the Agency, for example, from assigning training to a
 non-volunteer.
 
    It is well settled that an express limitation on an agency's
 discretion to pick the particular employee to whom specified training
 will be assigned violates the agency's right to assign work under
 section 7106(a)(2)(B) of the Statute.  See National Association of Air
 Traffic Specialists and Department of Transportation, Federal Aviation
 Administration, 6 FLRA 588 (1981) (Union Proposals I through III).
 Thus, the disputed second sentence would substantively interfere with
 management's right and does not constitute a negotiable procedure within
 the meaning of section 7106(b)(2) of the Statute.  See American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
 enforced sub nom. Department of Defense v. Federal Labor Relations
 Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
 FLRA, 455 U.S. 945 (1982).
 
    We turn now to the question of whether the disputed second sentence
 constitutes an appropriate arrangement within the meaning of section
 7106(b)(3) of the Statute.  Here, we may assume that the disputed
 sentence was intended to ameliorate an adverse effect perceived by a
 qualified volunteer for a performance improving training assignment who
 was not selected because the training was assigned to a non-volunteer
 instead.  In this circumstance, however, the proposed amelioration would
 totally preclude the Agency from assigning the training to the
 non-volunteer notwithstanding any determination on the part of the
 Agency that such non-volunteer would benefit from the p