36:0183(22)CA - - Air Force, Lowry AFB, Denver, CO and AFGE Local 1974 - - 1990 FLRAdec CA - - v36 p183

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[ v36 p183 ]
36:0183(22)CA
The decision of the Authority follows:


36 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

LOWRY AIR FORCE BASE

DENVER, COLORADO

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1974

(Charging Party/Union)

7-CA-90075

DECISION AND ORDER

June 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute). The Judge found that the Respondent precluded bargaining unit members from using the Respondent's administrative grievance procedure for matters not covered by the grievance/arbitration procedures in their collective bargaining agreement.

The Judge found further that the Respondent violated section 7116(a)(1) of the Statute by interfering with, restraining, or coercing employees in the exercise of rights guaranteed in section 7102 of the Statute when it informed unit employees that, because they were covered by a collective bargaining agreement, they could not use the Agency grievance procedure to grieve the selection process for the position of supervisor of Base Duplicating.

The Judge granted the General Counsel's motion for summary judgment, denied the Respondent's motion to dismiss the General Counsel's motion for summary judgment, and recommended that the Respondent be ordered to take appropriate remedial action. The Respondent filed an exception to the Judge's Decision, and the General Counsel filed an opposition to the Respondent's exception.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decision, the exceptions, and the entire record, we find, in agreement with the Judge, that the Respondent's conduct violated the Statute.

II. Background

By letter dated September 20, 1988, a Union Steward filed a group grievance under the negotiated grievance procedure over the selection of an individual for the position of supervisor of Base Duplicating. By letter dated October 13, 1988, the Respondent returned the grievance. In its October 13 letter, the Respondent stated:

This [grievance] is being returned without action based on the fact that the position in question is not a bargaining unit position.

I refer you to the Union-Management Agreement, Article 22, Section A, which states: Section A. The Provisions of this article apply to the filling of positions within the bargaining unit through the promotion process. . . . The position in question, Offset Duplicating Press Operation Foreman, WS-4417-07, is a supervisory position and is not within the bargaining unit as defined in Article 22.

Exhibit 4`.

On October 25, 1988, the Union Steward filed a group grievance under the Agency grievance procedure (AFR 40-771) over the selection for the position of supervisor of Base Duplicating. By letter dated October 31, the Respondent rejected the grievance. In its October 31 letter, the Respondent stated:

Review of AFR 40-771, Chapter 3, states that only non-bargaining unit employees may use the grievance procedures contained in this regulation. Because all the employees of the Base Duplicating Center, with the exception of the supervisor, are part of the bargaining unit represented by Local 1974, American Federation of Government Employees (AFGE), you are ineligible to file under AFR 40-771. Therefore, your employee grievance is rejected.

Exhibit 6.

The Union filed an unfair labor practice charge with the Regional Director for Region VII concerning the Respondent's failure to process the administrative grievance. The Regional Director for Region VII issued a Complaint in the case. The Respondent filed an Answer to the Complaint in which it admitted the factual allegations of the Complaint but denied that it violated section 7116(a)(1) and (2) of the Statute. The Counsel for the General Counsel filed a Motion for Summary Judgment with the Regional Director for Region VII. Thereafter, the Regional Director for Region VII transferred the matter to the Office of the Administrative Law Judges pursuant to section 2423.22(b) of the Rules and Regulations of the Authority.

III. Administrative Law Judge's Decision

Relying on Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA 475 (1986) (Portsmouth), the Judge found that the Respondent violated section 7116(a)(1) and (2) of the Statute by maintaining a rule or regulation which precludes employees who are members of a bargaining unit and covered by a collective bargaining agreement from utilizing the Respondent's administrative grievance procedure regarding matters not covered by the negotiated grievance/arbitration procedure. The Judge found further that the Respondent violated section 7116(a)(1) of the Statute when it informed unit employees that, because they were covered by a collective bargaining agreement, they could not use the Agency grievance procedure to grieve the selection process for the position of supervisor of Base Duplicating.

The Judge rejected the Respondent's argument that the General Counsel was required to allege and prove that "the matter at issue" was not within the scope of the collective bargaining agreement. Judge's Decision at 9. The Judge noted that the Respondent took the position that "the grievance was not cognizable under the negotiated agreement since the underlying issue concerned a position outside the bargaining unit." Id. The Judge found further that the grievant did not object to the Respondent's determination that the grievance was not cognizable under the negotiated agreement. Rather, the Judge noted, the grievant conceded the issue and proceeded to file a grievance under the Agency grievance procedure. The Judge found that the parties were not required to obtain an arbitral declaration of non-grievability under the agreement because there was "no dispute between [the] parties that the matter was not a grievance under the contract." Id.

The Respondent also asserted that the administrative grievance alleged a different violation than that alleged in the grievance filed under the negotiated procedure. The Respondent argued that as the administrative grievance alleged a violation of an Agency regulation, the grievance was within the scope of the negotiated grievance procedure. The Judge found no merit in the Respondent's contention. The Judge noted that the Respondent did not convey this position to the grievant when it rejected the grievance. Rather, the Judge pointed out, the reason given by the Respondent for rejecting the grievance was that "'only non-bargaining unit employees may use the (Agency) grievance procedures.'" Id. at 10. The Judge found that the Respondent's rejection of the grievance under these circumstances violated the Statute.

IV. Respondent's Exception

The Respondent contends that it did not violate the Statute when it refused to process the employee's administrative grievance because the administrative grievance alleged a violation of an Agency regulation, AFR 40-335, which brought it within the scope of the negotiated grievance procedure. According to the Respondent, its rejection of the employee's administrative grievance does not violate section 7116(a)(1) and (2) of the Statute unless the General Counsel proves that the matter raised by the employee's administrative grievance is not grievable under the negotiated grievance procedure. The Respondent contends that "[t]he complaint should be dismissed because there has been a failure to allege an essential element of the case - that the matter was one not covered by the C[ollective] B[argaining] A[greement]." Respondent's Brief at 5.

V. General Counsel's Opposition

The General Counsel opposes the Respondent's Exception and contends that the Judge's findings and conclusions should be adopted.

VI. Analysis and Conclusion

Section 7116(a)(1) and (2) prohibits discrimination between bargaining unit and nonbargaining unit employees with respect to conditions of employment based solely on bargaining unit status. The Agency's administrative grievance procedure is a condition of employment as it is a personnel matter or practice established by regulation for resolving disputes affecting employee working conditions. Portsmouth, 23 FLRA at 480.

In Portsmouth, the Authority held that it is a violation of section 7116(a)(1) and (2) of the Statute to deny employees access to an administrative grievance procedure solely on the basis that they are represented by a union in an appropriate unit and covered by a collective bargaining agreement. The Authority noted that although section 7121(a)(1) of the Statute provides, with certain exceptions, that a grievance procedure of a collective bargaining agreement is the exclusive procedure for resolving grievances which fall within its coverage, section 7121 does not prohibit employees from using an agency grievance procedure to raise issues outside the scope of the negotiated grievance procedure.

In this case, a Union Steward filed a group grievance under the Agency's administrative procedure over the selection for the position of supervisor of Base Duplicating. The Agency refused to accept this grievance, and informed the employee in a letter that because "only non-bargaining unit employees may use the grievance procedures contained in this regulation[,]" he was "ineligible to file under AFR 40-771." Exhibit 6. The record establishes that the Respondent rejected the employee's administrative grievance solely because of the employee's bargaining unit status.

The Respondent's contention that its rejection of the administrative grievance did not violate the Statute because, as worded, that grievance was within the scope of the negotiated grievance procedure, was raised for the first time in the Respondent's response to the General Counsel's motion for summary judgment. We find no merit in the Respondent's belated attempt to differentiate the subject matter of the two grievances as a justification of its rejection of the employee's administrative grievance. As the Judge noted, the Respondent's rejection of the administrative grievance "went to the availability to the persons using the grievance procedure, not the subject matter of the grievance." Judge's Decision at 10.

The Respondent rejected the grievance solely on the basis of bargaining unit status of the employee filing the grievance. In so doing, the Respondent discriminated between bargaining unit and nonbargaining unit employees in connection with conditions of employment. Accordingly, we conclude, in agreement with the Judge, that the Respondent violated section 7116(a)(1) and (2) of the Statute. In so concluding, we express no view on whether the matter sought to be grieved under the administrative procedure is within the scope of that procedure, or the parties' negotiated agreement.

Further, we find that the Respondent violated section 7116(a)(1) of the Statute by interfering with, restraining, or coercing employees in the exercise of rights under section 7102 of the Statute to form, join, or assist a labor organization, and to engage in collective bargaining. The Respondent's statement that a unit employee could not use the administrative grievance procedure solely because he was a member of a bargaining unit could cause unit employees reasonably to conclude that they were being denied a privilege available to nonunit employees solely on the basis of their unit status. As such, the statement could discourage employees from exercising their protected rights. See Portsmouth at 481-82.

VII. Remedy

The Respondent rejected the grievance the Union Steward filed under the negotiated grievance procedure. The Respondent then refused to process the bargaining unit employee's administrative grievance for discriminatory reasons. As noted above, our finding that the Respondent violated the Statute is not dependent on, and we make no finding concerning, whether the grievance is within the scope of the administrative, or the negotiated, procedure.

We note, however, that except for matters not relevant here, a negotiated grievance procedure is the exclusive procedure for resolving disputes which fall within its coverage. See, for example, 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). In addition, unlike the situation in Portsmouth, where the parties agreed that the matter sought to be grieved under the administrative procedure was not covered by the negotiated agreement, the Respondent here asserts that the grievance which was filed under the administrative procedure may, as a matter of law, be processed only under the negotiated procedure.

To remedy the Respondent's unlawful conduct in these unique circumstances, we will order the Respondent, on the request of the Union, to reinstate and process the grievance over filling the position of supervisor of Base Duplicating under the applicable procedures of either the negotiated grievance procedure or the Agency's administrative procedure, at the option of the Union.

VIII. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Lowry Air Force Base, Denver, Colorado shall:

1. Cease and desist from:

(a) Discouraging membership in and activity on behalf of the American Federation of Government Employees, AFL-CIO, Local 1974, the exclusive representative of a unit of its employees, or any other labor organization, by precluding bargaining unit employees from using the Agency grievance procedure solely on the basis of the employee's inclusion within a bargaining unit.

(b) Interfering with, restraining, or coercing employees in the exercise of their right to engage in collective bargaining assured by the Federal Service Labor-Management Relations Statute by precluding bargaining unit employees from using the Agency grievance procedure solely on the basis of their status as unit employees.

(c) Interfering with, restraining, or coercing employees in the exercise of their right to engage in collective bargaining assured by the Federal Service Labor-Management Relations Statute by making statements to unit employees to the effect that solely because they are members of the bargaining unit, they cannot use the Agency's administrative grievance procedure.

(d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:

(a) On the request of the Union, reinstate and process the grievance Melvin N. O'Hara filed on his own behalf and on behalf of other unit employees over the selection process for filling the position of supervisor of Base Duplicating under the applicable procedures of either the negotiated grievance procedure or the Agency's administrative procedure, at the option of the Union.

(b) Post at its 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 Commander of Lowry Air Force Base, Denver Colorado, 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, whose address is: 535 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 844-5224, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT discourage membership in an activity on behalf of the American Federation of Government Employees, AFL-CIO, Local 1974, the exclusive representative of a unit of our employees, or any other labor organization, by precluding bargaining unit employees from using the Agency grievance procedure solely on the basis of the employee's inclusion within a bargaining unit.

WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their right to engage in collective bargaining assured by the Federal Service Labor-Management Relations Statute by precluding bargaining unit employees from using the Agency grievance procedure solely on the basis of their status as employees within a bargaining unit.

WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their right to engage in collective bargaining assured by the Federal Service Labor-Management Relations Statute by making statements to unit employees to the effect that solely because they are members of a bargaining unit, they cannot use the Agency's administrative grievance procedure.

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 Federal Service Labor-Management Relations Statute.

WE WILL, on the request of the Union, reinstate and process the grievance Melvin N. O'Hara filed on his own behalf and on behalf of other unit employees over the selection process for filling the position of supervisor of Base Duplicating under the applicable procedures of either the negotiated

grievance procedure or the Agency's administrative procedure, at the option of the Union.

___________________________
(Activity)

Dated__________ By____________________________

(Signature) (Title)

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 any of its provisions, they may communicate directly with th