American Federation of Government Employees, AFL-CIO, Local 3354 (Union) and U.S. Department of Agriculture, Farmers Home Administration, St. Louis, MO (Activity) 

 3 FLRA No. 50
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3354
 (Union)
 
 and
 
 U.S. DEPARTMENT OF AGRICULTURE
 FARMERS HOME ADMINISTRATION
 ST. LOUIS, MISSOURI
 (Activity)
 
                                            Case No. 0-NG-37
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
                              UNION PROPOSAL
 
    DURING NEGOTIATIONS BETWEEN THE PARTIES ON A GRIEVANCE PROCEDURE AS
 REQUIRED BY SECTION 7121(A) OF THE STATUTE, /1/ THE ACTIVITY DEMANDED
 THAT CERTAIN MATTERS BE SPECIFICALLY EXCLUDED FROM COVERAGE UNDER THE
 GRIEVANCE PROCEDURE.  /2/ IN RESPONSE, THE UNION "PROPOSED TO DELETE
 THIS (EXCLUSIONARY) SENTENCE," THUS PROPOSING, IN SUBSTANCE, A GRIEVANCE
 PROCEDURE FREE OF EXPRESS CONTRACTUAL LIMITATIONS.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE UNION PROPOSAL
 IS NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION 7121 OF THE STATUTE
 (NOTE 1, SUPRA) BECAUSE IT FAILS TO EXPRESSLY EXCLUDE FROM COVERAGE OF
 THE GRIEVANCE PROCEDURE MATTERS INVOLVING THE SEPARATION OR TERMINATION
 OF PROBATIONARY AND TEMPORARY EMPLOYEES, WHICH MATTERS ARE CLAIMED BY
 THE AGENCY TO BE OUTSIDE THE APPLICATION OF THE NEGOTIATED GRIEVANCE
 PROCEDURE BY OPERATION OF LAW AND REGULATIONS.
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7121 OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10
 OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SET ASIDE.  /3/
 
    REASONS:  THE AGENCY CLAIMS IN SUBSTANCE THAT THE UNION'S PROPOSAL
 WOULD RESULT IN THE INCLUSION UNDER THE NEGOTIATED GRIEVANCE PROCEDURE
 OF "MATTERS INVOLVING THE SEPARATION OR TERMINATION OF PROBATIONARY OR
 TEMPORARY EMPLOYEES." IN THE GRIEVANCE PROCEDURES UNDER LAW AND
 REGULATION.  MORE SPECIFICALLY, THE AGENCY PROBATIONARY AND TEMPORARY
 EMPLOYEES ARE NONNEGOTIABLE" UNDER THE STATUTE AND THE FEDERAL PERSONNEL
 MANUAL.  FOR THE REASONS STATED BELOW, THE AGENCY'S CONTENTION THAT THE
 UNION'S PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN CANNOT BE SUSTAINED.
 IN SO HOLDING, THE AUTHORITY FINDS IT UNNECESSARY TO REACH AND THEREFORE
 MAKES NO RULING ON THE AGENCY'S CLAIM THAT THE MATTERS WHICH THE AGENCY
 ASSERTS MUST EXPRESSLY BE EXCLUDED FROM THE GRIEVANCE PROCEDURE ARE, BY
 LAW AND IMPLEMENTING REGULATIONS, NONGRIEVABLE AND NONARBITRABLE.
 
    IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 3669, AFL-CIO
 AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, CASE
 NO. O-NG-32, 3 FLRA NO.  48 (MAY 30, 1980), THE AUTHORITY REJECTED AN
 AGENCY CONTENTION THAT THE PROPOSED GRIEVANCE PROCEDURE WAS NOT WITHIN
 THE DUTY TO BARGAIN BECAUSE IT DID NOT SPECIFICALLY EXCLUDE CERTAIN
 MATTERS SUCH AS THE "SEPARATION OF EMPLOYEES IN THEIR PROBATIONARY
 PERIOD" WHICH WERE ALLEGED TO BE OUTSIDE THE SCOPE AND COVERAGE OF THE
 PARTIES' NEGOTIATED AGREEMENT BY OPERATION OF LAW AND REGULATIONS.  IN
 SO CONCLUDING, THE AUTHORITY, RELYING UPON THE DEFINITION OF "GRIEVANCE"
 IN SECTION 7103(A)(9) OF THE STATUTE AS WELL AS THE LANGUAGE AND
 LEGISLATIVE HISTORY OF SECTION 7121 IN ITS ENTIRETY, /4/ STATED AS
 FOLLOWS:
 
    IN SUM, CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A
 NEGOTIATED GRIEVANCE
 
    PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH "UNDER THE PROVISIONS OF
 LAW" COULD BE COVERED
 
    UNLESS THE PARTIES AGREED THROUGH THE COLLECTIVE BARGAINING PROCESS
 TO A PROCEDURE HAVING A
 
    NARROWER COVERAGE.  CONGRESS CLEARLY DID NOT, HOWEVER, MANDATE THAT,
 TO FAIL WITHIN THE DUTY
 
    TO BARGAIN, EACH PROPOSED GRIEVANCE PROCEDURE MUST ENUMERATE ALL OR
 SOME OF THE MATTERS WHICH
 
    "UNDER THE PROVISIONS OF LAW" COULD NOT BE SO COVERED.  SUCH A
 REQUIREMENT WOULD BE REDUNDANT
 
    AND WITHOUT LEGAL SIGNIFICANCE SINCE, AS INDICATED, SECTION 7121, AS
 EXPLAINED BY THE
 
    COMMITTEE ON CONFERENCE, ALREADY PROVIDES THAT NEGOTIATED GRIEVANCE
 PROCEDURES COVER, AT A
 
    MAXIMUM, MATTERS WHICH UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED
 TO THE PROCEDURES.
 
    THE AUTHORITY FURTHER INDICATED THAT:
 
    IF THE AGENCY BELIEVES THAT, AS A MATTER OF LAW, CERTAIN MATTERS ARE
 NONGRIEVABLE AND
 
    NONARBITRABLE, GRIEVANCES WHICH MIGHT BE FILED WITH RESPECT TO THEM
 MAY BE CHALLENGED BY THE
 
    AGENCY AS NONGRIEVABLE OR NONARBITRABLE, IN THE CONTEXT OF SPECIFIC
 FACTUAL CIRCUMSTANCES.  IN
 
    THIS REGARD, SECTION 7121(A) OF THE STATUTE REQUIRES THE PARTIES TO
 "PROVIDE PROCEDURES FOR
 
    THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY .
 . . " FURTHERMORE, IF AN
 
    ARBITRATOR WERE TO RENDER AN AWARD INVOLVING THE MATTERS WHICH "UNDER
 THE PROVISIONS OF
 
    LAW" MAY NOT BE COVERED BY NEGOTIATED GRIEVANCE PROCEDURES, THE
 AGENCY WOULD HAVE AN
 
    OPPORTUNITY TO CHALLENGE THE AWARD BY FILING EXCEPTIONS THERETO WITH
 THE AUTHORITY PURSUANT TO
 
    SECTION 7122 OF THE STATUTE (92 STAT. 1212) ON THE BASIS THAT THE
 AWARD IS "CONTRARY TO ANY
 
    LAW, RULE OR REGULATION."
 
    ACCORDINGLY, WE HOLD THAT THE UNION'S PROPOSAL IN THE INSTANT CASE IS
 A MATTER WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, AND THE
 AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., MAY 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7121(A) OF THE STATUTE (92 STAT. 1211) PROVIDES:
 
    SEC. 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) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
 THE APPLICATION OF THE
 
    GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
 
    /2/ THE EXPRESS EXCLUSIONS DEMANDED BY THE ACTIVITY WERE SET FORTH IN
 THE FOLLOWING SENTENCE:
 
    MATTERS SUBJECT TO STATUTORY APPEAL AND ANY MATTERS INVOLVING THE
 SEPARATION OR TERMINATION
 
    OF PROBATIONARY OR TEMPORARY EMPLOYEES, INCLUDING THE MERITS OF SUCH
 ACTION TAKEN, ARE
 
    SPECIFICALLY EXCLUDED FROM COVERAGE BY THIS GRIEVANCE PROCEDURE.
 
    /3/ IN SO DECIDING IN THE SUBJECT CASE, THE AUTHORITY MAKES NO
 JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
 
    /4/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 157 (1978).