22:0727(82)NG - National Weather Ssevice Employees Organization and Commerce, National Weather Service -- 1986 FLRAdec NG
[ v22 p727 ]
The decision of the Authority follows:
22 FLRA No. 82 NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION Union and DEPARTMENT OF COMMERCE NATIONAL WEATHER SERVICE Agency Case No. 0-NG-1242 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 following Union proposal: Section 9. UNION/MANAGEMENT GRIEVANCES b. Union grievances shall be initiated in writing by the President, NWSEO, and presented to the Assistant Administrator for NWS within thirty (30) calendar days of the action or condition giving rise to the grievance. Decisions by management shall be rendered in writing no later than thirty (30) calendar days following receipt of the grievance. Should the issue remain unresolved, arbitration may be invoked by the union under the provisions of Article 10. II. Positions of the Parties Based upon statements made during negotiations, /1/ the Agency argues that this proposal "as it is interpreted and intended to be applied by the Union" is contrary to: 1. 5 U.S.C. Section 7121(b)(3)(A) because it would not require the Union, when filing a grievance, to identify the grievant; 2. 5 U.S.C. Section 7102 because it violates an employee's right to refrain from assisting a union in that a grievance could be filed without an employee's knowledge or consent; 3. 5 U.S.C. Section 7701(c)(2) because, if a violation were found, an arbitrator could fashion a "class action" remedy applying to both harmed and unharmed employees; 4. 5 U.S.C. Section 7121(b)(3)(B) because it removes an employee's right to file a grievance on that employee's own behalf; and 5. 5 U.S.C. Sections 7101(b) and 7121(b)(1), which require that a grievance procedure be consistent with an effective and efficient government and that it be "simple", because the Union could file a grievance on behalf of "any number of unidentified employees without specifying what harm to employees has occurred." The Union contends that the proposal does not concern the scope of the grievance procedure but, rather, only restates the law, i.e., 5 U.S.C. Section 7103(a)(9). III. Analysis The Union states that this provision simply addresses who may file a grievance on behalf of the Union, and when and where it must be filed. This interpretation is completely consistent with the plain language of the proposal. On its face, therefore, and consistent with the Union's statement of its intent, this proposal would designate the official who will initiate grievances on behalf of the Union and establish time limits within which certain prescribed steps will be taken in the grievance process. In view of this interpretation, the Authority finds that the Agency's arguments regarding the effects of this proposal are, without exception, based upon a misinterpretation of the proposal itself. The proposal does not concern the identification of a grievant, employee rights to file or not file grievances, or any remedy that an arbitrator may or may not fashion. Moreover, no reasonable basis is apparent, either in the proposal or the record, for the Agency's conclusions. Hence, the Agency's arguments regarding this proposal cannot be sustained. Consequently, as the Agency has failed to establish any basis for finding the proposal, as interpreted by the Union and the Authority, to be outside the duty to bargain, it is negotiable under, and consistent with, section 7121 of the Statute. IV. Conclusion Based upon the foregoing analysis, the Authority concludes that the disputed proposal is within the Agency's duty to bargain. /2/ V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning the disputed proposal. Issued, Washington, D.C. July 24, 1986. /s/ JERRY L. CALHOUN Jerry L. Calhoun, Chairman /s/ HENRY B. FRAZIER III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Agency states "the Union contended that the only requirement in the law for a negotiated union/management grievance procedure was that mandated by Section 7103(a)(9)." Agency Statement of Position at 4. (2) In finding this proposal to be within the duty to bargain, the Authority makes no judgment as to its merits.