American Federation of Government Employees, Local 547, AFL-CIO (Union) and Veterans Administration Medical Center, Tampa, Florida (Activity) 

 4 FLRA No. 50
 
 AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 LOCAL 547, AFL-CIO
 Union
 
 and
 
 VETERANS ADMINISTRATION
 MEDICAL CENTER, TAMPA,
 FLORIDA
 Activity
 
                                            Case No. O-NG-145
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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 I
 
                            GRIEVANCE PROCEDURE
 
    SECTION 2 - SCOPE
 
    (D) EXCEPT THAT IT SHALL NOT INCLUDE A GRIEVANCE CONCERNING -
 
    (1) ANY CLAIMED VIOLATION RELATING TO PROHIBITED POLITICAL
 ACTIVITIES;  OR
 
    (2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;  OR
 
    (3) A SUSPENSION OR REMOVAL FOR NAT. SECURITY REASON, SEC.  7532;
 
    (4) ANY EXAMINATION, CERTIFICATION OR APPOINTMENT RELATING TO INITIAL
 EMPLOYMENT;  OR
 
    (5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
 REDUCTION IN GRADE OR
 
    PAY OF AN EMPLOYEE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE PROPOSAL IS
 NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION 7121 OF THE STATUTE /1/
 BECAUSE IT FAILS EXPRESSLY TO EXCLUDE MATTERS CONCERNING THE SEPARATION
 OF EMPLOYEES DURING THEIR PROBATIONARY PERIOD FROM COVERAGE BY THE
 GRIEVANCE PROCEDURE AND BECAUSE PROPOSED EXCLUSION (D)(4) IS NARROWER
 THAN MANDATED BY SECTION 7121(C)(4) OF THE STATUTE.  /2/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE 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, (5 CFR 2424.10, AS
 AMENDED BY 45 F.R. 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON
 REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING
 THE SUBJECT PROPOSAL.  /3/
 
    REASONS:  THE AGENCY PRINCIPALLY ASSERTS THAT THE PROPOSAL DOES NOT
 CONFORM TO THE REQUIREMENTS OF SECTION 7121 BECAUSE IT FAILS EXPRESSLY
 TO EXCLUDE MATTERS CONCERNING THE SEPARATION OF EMPLOYEES DURING THEIR
 PROBATIONARY PERIOD FROM COVERAGE BY THE PROPOSED GRIEVANCE PROCEDURE.
 THIS ASSERTION IS BASED ON THE AGENCY'S VIEW THAT MATTERS SPECIFICALLY
 PROHIBITED BY SECTION 7121(C) FROM BEING WITHIN THE SCOPE OF A
 NEGOTIATED GRIEVANCE PROCEDURE MUST BE EXPRESSLY EXCLUDED TO THEIR
 FULLEST EXTENT FROM COVERAGE BY A GRIEVANCE PROCEDURE NEGOTIATED UNDER
 SECTION 7121(A).  IN PARTICULAR, THE AGENCY NOTES THAT SECTION
 7121(C)(4) SPECIFICALLY EXCLUDES MATTERS CONCERNING EXAMINATION OR
 APPOINTMENT FROM COVERAGE BY A NEGOTIATED GRIEVANCE PROCEDURE.  CLAIMING
 THAT SEPARATION OF EMPLOYEES DURING THEIR PROBATIONARY PERIOD IS A
 MATTER CONCERNING EXAMINATION AND APPOINTMENT, THE AGENCY ARGUES THAT
 SUCH SEPARATIONS CONSEQUENTLY MUST BE EXPRESSLY EXCLUDED FROM THE SCOPE
 OF A NEGOTIATED GRIEVANCE PROCEDURE IN ORDER TO CONFORM TO THE
 PROVISIONS OF SECTION 7121.  SIMILARLY, THE AGENCY FURTHER ASSERTS THAT
 PROPOSED EXCLUSION (D)(4) FAILS TO CONFORM TO THE PROVISIONS OF SECTION
 7121 BECAUSE IT PROPOSES TO NARROW THE EXCLUSION SPECIFIED IN SECTION
 7121(C)(4) TO EXAMINATION, CERTIFICATION, OR APPOINTMENT MATTERS, BUT
 ONLY AS THEY RELATE TO INITIAL EMPLOYMENT.  FOR THE REASONS STATED
 BELOW, THE AGENCY'S ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY
 TO BARGAIN CANNOT BE SUSTAINED.  /4/
 
    IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669,
 AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3
 FLRA NO. 48(1980), THE AUTHORITY REJECTED AN AGENCY ASSERTION 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 GRIEVANCE
 PROCEDURE BY OPERATION OF LAW AND REGULATIONS.  IN SO CONCLUDING, THE
 AUTHORITY, RELYING ON THE DEFINITION OF "GRIEVANCE" SIN SECTION
 7103(A)(9) OF THE STATUTE AS WELL AS THE LANGUAGE AND LEGISLATIVE
 HISTORY OF SECTION 7121 IN ITS ENTIRETY, /5/ 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 FALL 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.  DECISION AT 4.  THE AUTHORITY FURTHER INDICATED:
 
    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 .
 . . . " (EMPHASIS IN
 
    DECISION.) 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." ID.
 
    THUS, THERE IS NO MERIT TO THE AGENCY'S POSITION THAT MATTERS
 SPECIFICALLY PROHIBITED BY SECTION 7121(C) FROM BEING WITHIN THE SCOPE
 OF THE GRIEVANCE PROCEDURE MUST BE EXPRESSLY EXCLUDED FROM COVERAGE BY A
 GRIEVANCE PROCEDURE NEGOTIATED UNDER SECTION 7121(A).  SIMILARLY, THERE
 IS NO MERIT TO THE AGENCY'S POSITION THAT FOR SPECIFIC PROPOSED
 EXCLUSIONS (SUCH AS PROPOSED (D)(4)) TO BE WITHIN THE DUTY TO BARGAIN
 UNDER SECTION 7121, THE EXCLUSIONS PROPOSED TO BE NEGOTIATED MAY NOT BE
 NARROWER THAN THE EXCLUSIONS SPECIFIED BY SECTION 7121(C).  AS INDICATED
 BY VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, AN AGENCY MAY
 CHALLENGE THE GRIEVABILITY AND ARBITRABILITY OF A GRIEVANCE FILED WITH
 RESPECT TO A MATTER IT BELIEVES TO BE EXCLUDED BY SECTION 7121(C)(4)
 FROM COVERAGE BY A NEGOTIATED GRIEVANCE PROCEDURE.  SUCH A CHALLENGE
 BEFORE AN ARBITRATOR WOULD BE ENTIRELY APART FROM CHALLENGES FOUNDED ON
 ANY SPECIFIC EXCLUSIONS THAT MAY BE EXPRESSED IN THE NEGOTIATED
 GRIEVANCE PROCEDURE.  AS ALSO INDICATED BY VETERANS ADMINISTRATION
 MEDICAL CENTER, MINNEAPOLIS, IF AN ARBITRATOR WERE TO RENDER AN AWARD
 INVOLVING MATTERS WHICH UNDER SECTION 7121(C)(4) MAY NOT BE COVERED BY A
 NEGOTIATED GRIEVANCE PROCEDURE, THE AGENCY WOULD HAVE THE OPPORTUNITY TO
 CHALLENGE THAT AWARD BY FILING AN EXCEPTION TO THE AWARD ON THE BASIS
 THAT IT IS DEFICIENT AS CONTRARY TO THE STATUTE.
 
    ACCORDINGLY, THE PROPOSAL IS A MATTER WITHIN THE DUTY TO BARGAIN
 UNDER THE STATUTE AND THE AGENCY'S ALLEGATION TO THE CONTRARY IS SET
 ASIDE.
 
                             UNION PROPOSAL II
 
                            GRIEVANCE PROCEDURE
 
    SECTION 10-- FAILURE TO MEET REQUIREMENTS
 
    FAILURE ON THE PART OF EMPLOYER TO MEET ANY OF THE TIME REQUIREMENTS
 OF THIS PROCEDURE WILL MEAN THAT EMPLOYER AGREED TO THE POSITION OF THE
 GRIEVANT OR THE UNION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN OR
 WHETHER, AS ALLEGED BY THE AGENCY, THE PROPOSAL VIOLATES SECTION 7106 OF
 THE STATUTE AND IS INCONSISTENT WITH GOVERNMENT-WIDE AND AGENCY
 REGULATIONS.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN
 UNDER THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS, (5 CFR 2424.10, AS AMENDED BY 45 F.R.
 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE SUBJECT
 PROPOSAL.  /6/
 
    REASONS:  THE AGENCY'S ALLEGATION THAT THIS PROPOSAL IS NOT WITHIN
 THE DUTY TO BARGAIN UNDER THE STATUTE IS BASED ON ITS VIEW THAT
 UNAVOIDABLY THIS PROPOSAL WOULD, AT TIMES, PRECLUDE MANAGEMENT FROM
 ACTING IN THE EXERCISE OF ITS RIGHTS UNDER SECTION 7106 AND WOULD, AT
 TIMES, MANDATE THAT THE ACTIVITY ACT IN VIOLATION OF GOVERNMENT-WIDE
 REGULATIONS AND AGENCY REGULATIONS FOR WHICH A COMPELLING NEED EXISTS.
 HOWEVER, NOTHING IN THE PLAIN LANGUAGE AND PURPOSE OF THE PROPOSAL
 SUPPORTS THE AGENCY'S POSITION.  THE PROPOSAL ESSENTIALLY CONCERNS THE
 COMMON DESIGN OF A NEGOTIATED GRIEVANCE PROCEDURE TO FACILITATE THE
 SETTLEMENT OF GRIEVANCES AND DISPUTES BY THE USE OF STATED TIME LIMITS
 IN THE PROCESSING STEPS OF THE PROCEDURE.  ACCORDING TO THE UNION, BOTH
 PARTIES HAVE AGREED TO TIME LIMITS FOR EACH STEP OF THE GRIEVANCE
 PROCEDURE, AND ITS PROPOSAL WOULD INVOLVE THE ACTIVITY IN THE
 RESPONSIBILITY OF OBSERVING TIME LIMITS FOR THE PRESENTATION AND
 PROCESSING OF GRIEVANCES.
 
    FOR THE REASONS THAT FOLLOW, THE AGENCY'S ALLEGATION THAT THIS
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN CANNOT BE SUSTAINED.  THE
 AGENCY HAS INTERPRETED THE PROPOSAL TO MANDATE THAT THE ACTIVITY ACT, AT
 TIMES, INCONSISTENT WITH APPLICABLE LAW OR REGULATION BECAUSE OF ITS
 FAILURE TO MEET SPECIFIED TIME REQUIREMENTS IN THE AGREEMENT.  HOWEVER,
 CONTRARY TO THE AGENCY'S VIEW, NEITHER THE LANGUAGE OF THE PROPOSAL NOR
 THE RECORD IN THIS CASE INDICATES AN INTENT FOR THE PROPOSAL TO REQUIRE
 THAT "AGREE(ING) TO THE POSITION OF THE GRIEVANT OR THE UNION" MUST EVER
 RESULT IN A FINAL GRIEVANCE RESOLUTION THAT WOULD BE INCONSISTENT WITH
 APPLICABLE LAW OR REGULATION.  VIEWING THE PROPOSAL IN THIS MANNER, THE
 AGENCY'S OBJECTION TO THE PROPOSAL IS MORE APPROPRIATE FOR RESOLUTION IN
 OTHER PROCEEDINGS.  THAT IS, AN AGENCY ASSERTION THAT IN THE DISCRETE
 CONTEXT OF SPECIFIC FACTUAL CIRCUMSTANCES, "AGREE(ING) TO THE POSITION
 OF THE GRIEVANT OR THE UNION" WOULD BE INCONSISTENT WITH APPLICABLE LAW
 OR REGULATION IS MORE APPROPRIATELY RESOLVED IN GRIEVANCE ARBITRATION
 PROCEEDINGS UNDER THE COLLECTIVE BARGAINING AGREEMENT OR UNFAIR LABOR
 PRACTICE PROCEEDINGS UNDER THE STATUTE.  /7/
 
    THUS, THE AGENCY'S ASSERTIONS THAT THE PROPOSAL VIOLATES SECTION 7106
 OF THE STATUTE OR IS INCONSISTENT WITH GOVERNMENT-WIDE AND AGENCY
 REGULATIONS CANNOT BE SUSTAINED.  RATHER, THE PROPOSAL IS A MATTER
 WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S
 ALLEGATION TO THE CONTRARY IS SET ASIDE.
 
                            UNION PROPOSAL III
 
                            GRIEVANCE PROCEDURE
 
    SECTION 11-- STAYS OF PERSONNEL ACTION
 
    A PENDING OR PROPOSED PERSONNEL ACTION WHICH HAS BEEN MADE THE
 SUBJECT OF A GRIEVANCE OR ARBITRATION WILL BE STAYED PENDING THE FINAL
 DECISION OF THE MATTER.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE PROPOSAL
 VIOLATES SECTION 7106(A) OF THE STATUTE OR IS INCONSISTENT WITH
 GOVERNMENT-WIDE AND AGENCY REGULATIONS OR WHETHER THE PROPOSAL
 PROPOSES
 A NEGOTIABLE PROCEDURE UNDER SECTION 7106(B)(2) OF THE STATUTE.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN AS
 PROPOSING A NEGOTIABLE PROCEDURE WITHIN THE MEANING OF SECTION
 7106(B)(2) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF
 THE AUTHORITY'S RULES AND REGULATIONS, (5 CFR 2424.10, AS AMENDED BY 45
 F.R. 48575), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE SUBJECT
 PROPOSAL.  /8/
 
    REASONS:  THE PROPOSAL WOULD STAY PERSONNEL ACTIONS THAT HAVE BEEN
 MADE THE SUBJECT OF A GRIEVANCE PENDING THE FINAL DECISION IN THE
 MATTER.  THE AGENCY ARGUES THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN FOR TWO REASONS:  (1) THE PROPOSAL WOULD DELAY THE
 IMPLEMENTATION OF PERSONNEL ACTIONS TAKEN BY MANAGEMENT PURSUANT TO ITS
 AUTHORITY UNDER SECTION 7106(A) OF THE STATUTE, RESULTING IN A
 PROHIBITED DILUTION OF MANAGEMENT'S STATUTORY RIGHTS;  AND (2) THE
 PROPOSAL WOULD POSTPONE IMPLEMENTATION OF MANAGEMENT'S ACTION UNTIL
 FINAL RESOLUTION OF THE GRIEVANCE, THEREBY, IN SOME CIRCUMSTANCES,
 PREVENTING MANAGEMENT FROM COMPLYING WITH NONDISCRETIONARY
 GOVERNMENT-WIDE REGULATIONS OR AGENCY REGULATIONS FOR WHICH A
 COMPELLING
 NEED EXISTS THAT MANDATE THAT PARTICULAR ACTIONS BE EFFECTUATED BY A
 SPECIFIED DATE.  THESE ARGUMENTS CANNOT BE SUSTAINED.
 
    AS TO (1), UNDER THE STATUTE A PROPOSED PROCEDURE WHICH AN AGENCY
 WILL OBSERVE IN THE EXERCISE OF ITS MANAGEMENT RIGHTS IS WITHIN THE DUTY
 TO BARGAIN EXCEPT TO THE EXTENT THAT THE ESTABLISHMENT OF THE PROCEDURE
 THROUGH NEGOTIATIONS WOULD PREVENT THE AGENCY FROM ACTING AT ALL.  THE
 STATUTE DOES NOT PRECLUDE NEGOTIATION ON A PROPOSAL MERELY BECAUSE IT
 MAY IMPOSE ON MANAGEMENT A REQUIREMENT THAT WOULD DELAY IMPLEMENTATION
 OF A PARTICULAR ACTION INVOLVING THE EXERCISE OF A SPECIFIED MANAGEMENT
 RIGHT.  RATHER, SECTION 7106(B)(2) OF THE STATUTE AUTHORIZES AN
 EXCLUSIVE REPRESENTATIVE TO NEGOTIATE FULLY ON PROCEDURES EXCEPT TO THE
 EXTENT THAT SUCH NEGOTIATIONS WOULD PREVENT AGENCY MANAGEMENT FROM
 ACTING AT ALL.  /9/ THE AGENCY DOES NOT ASSERT AND THE RECORD DOES NOT
 SHOW THAT A TEMPORARY STAY OF MANAGEMENT'S ACTION PENDING A FINAL
 DECISION ON THE GRIEVANCE WILL PREVENT THE ACTIVITY FROM ACTING AT ALL.
 THUS, CONTRARY TO THE AGENCY'S ASSERTION, THE PROPOSAL IS NOT OUTSIDE
 THE DUTY TO BARGAIN AS VIOLATIVE OF SECTION 7106(A) OF THE STATUTE.
 
    AS TO (2),THE AGENCY HAS MISINTERPRETED THE PROPOSAL.  THE LANGUAGE
 OF THE PROPOSAL DOES NOT PURPORT TO PREVENT THE ACTIVITY FROM ACTING
 WHEN A FAILURE TO DO SO WOULD VIOLATE APPLICABLE LAW OR REGULATIONS.
 NEITHER DOES THE RECORD REVEAL ANY SUCH INTENT AS TO THE MEANING OF THE
 PROPOSAL.  CONSEQUENTLY, FOR PURPOSES OF THIS DECISION, THE AUTHORITY
 INTERPRETS THE PROPOSAL AS PERMITTING MANAGEMENT TO IMPLEMENT A
 PERSONNEL ACTION WHEN REQUIRED TO DO SO BY APPLICABLE LAW OR REGULATION
 AND AS PERMITTING MANAGEMENT TO FULFILL ANY LAWFUL RESPONSIBILITIES,
 DUTIES, OR OBLIGATIONS THAT MAY HAVE ARISEN OR ACCRUED AS THE RESULT OF
 A PERSONNEL ACTION THAT HAS BEEN MADE THE SUBJECT OF A GRIEVANCE OR
 ARBITRATION.
 
    ACCORDINGLY, FOR THE REASONS STATED, THE AGENCY'S ASSERTIONS THAT THE
 PROPOSAL VIOLATES SECTION 7106(A) OF THE STATUTE AND THAT THE PROPOSAL
 IS INCONSISTENT WITH GOVERNMENT-WIDE AND AGENCY REGULATIONS ARE
 REJECTED.  RATHER, THE AUTHORITY FINDS THAT THE PROPOSAL IS A MATTER
 WITHIN THE DUTY TO BARGAIN AS PROPOSING A NEGOTIABLE PROCEDURE UNDER
 SECTION 7106(B)(2) OF THE STATUTE.  THEREFORE, THE AGENCY'S ALLEGATION
 THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    COPIES OF THE DECISION OF THE FLRA IN THE SUBJECT PROCEEDING HAVE
 THIS DAY BEEN MAILED TO THE PARTIES LISTED:
 
    MR. JAMES DELISLE
 
    REPRESENTATIVE
 
    AMERICAN FEDERATION OF GOVERNMENT
 
    EMPLOYEES, AFL-CIO
 
    41 FAIRWAY LANE
 
    JACKSONVILLE BEACH, FLORIDA 32250
 
    MR. JAMES C. KLEIN
 
    ATTORNEY
 
    VETERANS ADMINISTRATION
 
    WASHINGTON, D.C. 20420
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 7121 PERTINENTLY 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/ 5 U.S.C. 7121(C)(4) PROVIDES:
 
    (C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
 RESPECT TO ANY GRIEVANCE
 
    CONCERNING--
 
    (4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT(.)
 
    /3/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /4/ IN SO HOLDING, THE AUTHORITY DOES NOT RULE ON THE AGENCY'S CLAIM
 THAT THE SEPARATION OF EMPLOYEES DURING THEIR PROBATIONARY PERIOD IS A
 MATTER CONCERNING EXAMINATION OR APPOINTMENT WITHIN THE MEANING OF
 SECTION 7121(C)(4) AND IS CONSEQUENTLY EXCLUDED FROM COVERAGE BY A
 NEGOTIATED GRIEVANCE PROCEDURE.
 
    /5/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 157 (1978).
 
    /6/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /7/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 3669 AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA,
 3 FLRA NO.  48(1980) (WHEREIN THE AUTHORITY EMPHASIZED IN REJECTING THE
 AGENCY'S ASSERTION THAT THE PROPOSAL WAS NOT WITHIN THE DUTY TO BARGAIN
 THAT THE AGENCY'S ARGUMENTS COULD BE MORE APPROPRIATELY RESOLVED IN THE
 CONTEXT OF SPECIFIC FACTUAL CIRCUMSTANCES BY GRIEVANCE ARBITRATION);
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1692 AND
 HEADQUARTERS, 323RD FLYING TRAINING WING (ATC), MATHER AIR FORCE BASE,
 CALIFORNIA, 3 FLRA NO. 47(1980) (WHEREIN THE AUTHORITY, IN RULING THAT A
 PROPOSAL PROPOSING OFFICIAL TIME FOR COLLECTIVE BARGAINING PREPARATION
 WAS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7131(D) OF THE STATUTE,
 SPECIFICALLY DETERMINED THAT QUESTIONS AS TO WHAT ACTIVITIES WOULD
 PROPERLY CONSTITUTE PREPARATIONS ARE MORE APPROPRIATELY RESOLVED BY
 NEGOTIATION OR BY ARBITRATORS IN THE SPECIFIC FACTUAL CONTEXTS OF
 INDIVIDUAL CASES);  NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1862
 AND DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, PUBLIC HEALTH SERVICE,
 INDIAN HEALTH SERVICE, PHOENIX, ARIZONA, 3 FLRA NO. 25(1980) (WHEREIN
 THE AUTHORITY IN CONJUNCTION WITH DISMISSING THE APPEAL ADVISED THAT A
 QUESTION AS TO WHETHER PROVISIONS IN THE COLLECTIVE BARGAINING AGREEMENT
 (THAT HAD BECOME EFFECTIVE WITHOUT AGENCY APPROVAL BY OPERATION OF
 SECTION 7114(C)(3) OF THE STATUTE) WERE CONSISTENT WITH APPLICABLE LAW
 OR REGULATION COULD BE APPROPRIATELY RAISED IN GRIEVANCE ARBITRATION OR
 UNFAIR LABOR PRACTICE PROCEEDINGS).
 
    /8/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /9/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
 AND ARMY-- AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX,
 NEW JERSEY, 2 FLRA NO. 16(1979);  NATIONAL TREASURY EMPLOYEES UNION AND
 INTERNAL REVENUE SERVICE, 2 FLRA NO. 33(1979).