22:0727(82)NG - National Weather Ssevice Employees Organization and Commerce, National Weather Service -- 1986 FLRAdec NG

 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.