American Federation of Government Employees, Local 2904, AFL-CIO (Union) and Marine Corps Finance Center, Kansas City, Missouri (Agency)  

 7 FLRA No. 28
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPL0YEES, AFL-CIO, LOCAL 2904
 Union
 
 and
 
 MARINE CORPS FINANCE CENTER,
 KANSAS CITY, MISSOURI
 Agency
 
                                            Case No. O-NG-372
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  THE ISSUE
 PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING PROVISION WHICH WAS
 DISAPPROVED BY THE AGENCY HEAD PURSUANT TO REVIEW OF THE PARTIES'
 AGREEMENT UNDER SECTION 7114(C) OF THE STATUTE:  /1/
 
                               PROVISION /2/
 
    ARTICLE 15 GRIEVANCE PROCEDURE.
 
    SECTION 3.  THIS PROCEDURE WILL BE THE SOLE PROCEDURE FOR PROCESSING
 GRIEVANCES EXCEPT FOR
 
    MATTERS FOR WHICH STATUTORY APPEALS PROCEDURE EXIST.  WHEN STATUTORY
 APPEAL PROCEDURE EXIST,
 
    THE EMPLOYEE MAY AT HIS OPTION, RAISE THE MATTER UNDER A STATUTORY
 APPELLATE PROCEDURE OR THE
 
    NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROVISION IS OUTSIDE THE DUTY TO BARGAIN
 UNDER THE STATUTE BECAUSE IT IS INCONSISTENT WITH LAW, I.E., SECTIONS
 7121(A)(1), (D) AND (E) OF THE STATUTE, /3/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PROVISION, AS WRITTEN, IS
 INCONSISTENT WITH SECTION 7121(A)(1) OF THE STATUTE AND IS, THEREFORE,
 NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)),
 
    IT IS ORDERED THAT THE PETITION FOR REVIEW BE, AND IT HEREBY IS,
 DISMISSED.
 
    REASONS:  IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2955 AND NATIONAL GUARD BUREAU, OFFICE OF THE ADJUTANT GENERAL,
 DES MOINES, IOWA, 5 FLRA NO.  86(1981), THE AUTHORITY FOUND THAT A
 PROVISION WHICH WOULD PERMIT AN EMPLOYEE THE OPTION OF RAISING "ANY
 MATTER" NOT EXPRESSLY EXCLUDED FROM THE PARTIES' NEGOTIATED GRIEVANCE
 PROCEDURE EITHER UNDER THAT PROCEDURE OR UNDER A STATUTORY APPEAL
 PROCEDURE, AS INCONSISTENT WITH SECTION 7121(A)(1) OF THE STATUTE.  IN
 SO FINDING, THE AUTHORITY STATED:
 
    (S)ECTION 7121(A)(1) OF THE STATUTE . . . PERMITS SUCH OPTION (TO
 CHOOSE EITHER THE
 
    NEGOTIATED GRIEVANCE PROCEDURE OR A STATUTORY PROCEDURE WITH RESPECT
 TO ANY MATTER COVERED BY
 
    THE GRIEVANCE PROCEDURE) ONLY IN VERY LIMITED CIRCUMSTANCES:  THAT
 IS, WHERE THE GRIEVANCE
 
    FALLS WITHIN THE COVERAGE OF EITHER SECTION 7121(D) OR (E) OF THE
 STATUTE.  IN ALL OTHER
 
    SITUATIONS, NONWITHSTANDING THE POSSIBLE EXISTENCE OF AN OTHERWISE
 APPLICABLE STATUTORY
 
    PROCEDURE, THE NEGOTIATED PROCEDURE MUST BE THE EXCLUSIVE PROCEDURE
 FOR RESOLVING GRIEVANCES
 
    WHICH FALL WITHIN ITS COVERAGE.  THUS, THE PROVISION ON ITS FACE IS
 NOT WITHIN THE OBLIGATION
 
    TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.
 
    THE PROVISION AT ISSUE IN THIS CASE AS DRAFTED BEARS NO MATERIAL
 DIFFERENCE FROM THE DISPUTED PROVISION IN THE NATIONAL GUARD BUREAU
 CASE, SUPRA, WHICH WAS FOUND TO BE INCONSISTENT WITH SECTION 7121(A)(1)
 OF THE STATUTE AND, THEREFORE, NOT WITHIN THE DUTY TO BARGAIN UNDER
 SECTION 7117 OF THE STATUTE.  ACCORDINGLY, FOR THE REASONS MORE FULLY
 STATED IN THAT DECISION, THE AUTHORITY LIKEWISE FINDS THAT THE DISPUTED
 PROVISION HEREIN IS NOT WITHIN THE DUTY TO BARGAIN AND THEREFORE
 CONCLUDES THAT THE UNION'S PETITION FOR REVIEW MUST BE DISMISSED.
 
    OF COURSE, THE PROVISION COULD BE DRAFTED TO BE CONSISTENT WITH THE
 STATUTE BY PERMITTING BARGAINING UNIT EMPLOYEES AN OPTION TO CHOOSE THE
 NEGOTIATED GRIEVANCE PROCEDURE OR AN OTHERWISE APPLICABLE STATUTORY
 APPEAL PROCEDURE ONLY IN THOSE LIMITED CIRCUMSTANCES SPECIFIED IN THE
 STATUTE-- I.E., ONLY WHERE THE GRIEVANCE FALLS WITHIN THE COVERAGE OF
 SECTION 7121(D) OR (E) OF THE STATUTE.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ SECTION 7114(C) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
   .          .          .          .
 
 
    (C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
 REPRESENTATIVE SHALL BE SUBJECT TO
 
    APPROVAL BY THE HEAD OF THE AGENCY.
 
    (2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
 FROM THE DATE THE
 
    AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN ACCORDANCE WITH THE
 PROVISIONS OF THIS CHAPTER
 
    AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION (UNLESS THE AGENCY
 HAS GRANTED AN EXCEPTION
 
    TO THE PROVISION).
 
    (3) IF THE HEAD OF THE AGENCY DOES NOT APPROVE OR DISAPPROVE THE
 AGREEMENT WITHIN THE
 
    30-DAY PERIOD, THE AGREEMENT SHALL TAKE EFFECT AND SHALL BE BINDING
 ON THE AGENCY AND THE
 
    EXCLUSIVE REPRESENTATIVE SUBJECT TO THE PROVISIONS OF THIS CHAPTER
 AND ANY OTHER APPLICABLE
 
    LAW, RULE, OR REGULATION.
 
    /2/ THE UNION'S APPEAL ORIGINALLY INCLUDED ANOTHER PROVISION,
 ENTITLED "VACANCIES AND PROMOTIONS," WHICH ALSO HAD BEEN DISAPPROVED BY
 THE AGENCY HEAD UPON REVIEW OF THE PARTIES' AGREEMENT.  HOWEVER, DURING
 THE PENDENCY OF THIS CASE, THE AGENCY WITHDREW ITS ALLEGATION OF
 NONNEGOTIABILITY WITH RESPECT TO THE FIRST SECTION OF THE PROVISION AND
 THE UNION WITHDREW THE REMAINING SECTION THEREOF FROM CONSIDERATION BY
 THE AUTHORITY.  ACCORDINGLY, ANY DISPUTE BETWEEN THE PARTIES AS TO THE
 DUTY TO BARGAIN OVER THAT PROVISION HAS BEEN RENDERED MOOT AND THE
 AUTHORITY WILL NOT FURTHER CONSIDER THAT PROVISION HEREIN.
 
    /3/ SECTIONS 7121(A)(1), (D) AND (E) OF THE STATUTE PROVIDE, IN
 RELEVANT PART, AS FOLLOWS:
 
    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.
 
   .          .          .          .
 
 
    (D) AN AGGRIEVED EMPLOYEE AFFECTED BY A PROHIBITED PERSONNEL PRACTICE
 UNDER SECTION
 
    2302(B)(1) OF THIS TITLE WHICH ALSO FALLS UNDER THE COVERAGE OF THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE MAY RAISE THE MATTER UNDER A STATUTORY PROCEDURE OR THE
 NEGOTIATED PROCEDURE, BUT
 
    NOT BOTH.  AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION
 UNDER THIS SUBSECTION TO
 
    RAISE THE MATTER UNDER EITHER A STATUTORY PROCEDURE OR THE NEGOTIATED
 PROCEDURE AT SUCH TIME
 
    AS THE EMPLOYEE TIMELY INITIATES AN ACTION UNDER THE APPLICABLE
 STATUTORY PROCEDURE OR TIMELY
 
    FILES A GRIEVANCE IN WRITING, IN ACCORDANCE WITH THE PROVISIONS OF
 THE PARTIES' NEGOTIATED
 
    PROCEDURE, WHICHEVER EVENT OCCURS FIRST . . . .
 
    (E)(1) MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
 WHICH ALSO FALL WITHIN
 
    THE COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE
 DISCRETION OF THE AGGRIEVED
 
    EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE PROCEDURES OF SECTION
 7701 OF THIS TITLE OR
 
    UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.  SIMILAR
 MATTERS WHICH ARISE UNDER
 
    OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED BY THIS
 CHAPTER MAY, IN THE DISCRETION
 
    OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE
 PROCEDURES, IF ANY, APPLICABLE
 
    TO THOSE MATTERS, OR UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT
 NOT BOTH.  AN EMPLOYEE
 
    SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION UNDER THIS SUBSECTION TO
 RAISE A MATTER EITHER
 
    UNDER THE APPLICABLE APPELLATE PROCEDURES OR UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE AT SUCH
 
    TIME AS THE EMPLOYEE TIMELY FILES A NOTICE OF APPEAL UNDER THE
 APPLICABLE APPELLATE PROCEDURES
 
    OR TIMELY FILES A GRIEVANCE IN WRITING IN ACCORDANCE WITH THE
 PROVISIONS OF THE
 
    PARTIES' NEGOTIATED GRIEVANCE PROCEDURE, WHICHEVER EVENT OCCURS
 FIRST.