[ v04 p368 ]
04:0368(50)NG
The decision of the Authority follows:
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).