09:0758(94)CA - AFGE Local Union 225 and Army, Army Armament Research and Development Command -- 1982 FLRAdec CA
[ v09 p758 ]
09:0758(94)CA
The decision of the Authority follows:
9 FLRA No. 94
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL UNION 225
Respondent
and
U.S. DEPARTMENT OF THE ARMY,
U.S. ARMY ARMAMENT RESEARCH
AND DEVELOPMENT COMMAND
Charging Party
Case No. 2-CO-7
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS AND BRIEFS
SUBMITTED BY THE RESPONDENT, THE CHARGING PARTY AND THE GENERAL COUNSEL,
THE AUTHORITY FINDS:
THE COMPLAINT ALLEGES THAT THE RESPONDENT, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 225 (THE UNION), VIOLATED
SECTION 7116(B)(5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE) BY REFUSING TO NEGOTIATE WITH THE CHARGING PARTY,
U.S. DEPARTMENT OF THE ARMY, U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT
COMMAND (THE ACTIVITY), SINCE ON OR ABOUT SEPTEMBER 17, 1979, AND AT ALL
TIMES THEREAFTER, CONCERNING THE SCOPE OF THE NEGOTIATED GRIEVANCE
PROCEDURE TO BE INCLUDED IN THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT.
AT ALL TIMES MATERIAL, THE RESPONDENT UNION HAS BEEN THE EXCLUSIVE
REPRESENTATIVE OF A UNIT WHICH INCLUDES CERTAIN NONAPPROPRIATED FUND
EMPLOYEES OF THE ACTIVITY ASSIGNED TO PICATINNY ARSENAL, DOVER, NEW
JERSEY. ON SEPTEMBER 17, 1979, THE PARTIES MET FOR THE PURPOSE OF
COMMENCING NEGOTIATIONS ON A NEW COLLECTIVE BARGAINING AGREEMENT. THE
ACTIVITY PRESENTED A PROPOSAL REGARDING THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE WHICH PROVIDED FOR THE EXCLUSION OF TWENTY-ONE AREAS
IN ADDITION TO THOSE SET FORTH IN SECTION 7121(C) OF THE STATUTE. /1/
THE RESPONDENT TOOK THE POSITION THAT ANY EXCLUSIONS BEYOND THOSE
DESIGNATED IN SECTION 7121(C) WERE PERMISSIVE SUBJECTS FOR BARGAINING
AND DECLARED ITS INTENTION NOT TO NEGOTIATE OVER SUCH ADDITIONAL
EXCLUSIONS. THEREAFTER, THE ACTIVITY MADE FURTHER PROPOSALS CONCERNING
THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE, BUT THE RESPONDENT
MAINTAINED ITS POSITION THAT IT WOULD NEITHER CONSIDER NOR DISCUSS ANY
EXCLUSIONS BEYOND THOSE REQUIRED BY THE STATUTE.
IN ITS BRIEF TO THE AUTHORITY, THE RESPONDENT AGAIN CONTENDS THAT
EXCLUSIONS FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE (OTHER
THAN THOSE MADE MANDATORY BY SECTION 7121(C)) ARE PERMISSIVE SUBJECTS OF
BARGAINING AND THEREFORE NEGOTIABLE ONLY AT THE ELECTION OF THE UNION.
THEREFORE, THE RESPONDENT MAINTAINS THAT ITS REFUSAL TO BARGAIN HEREIN
WAS MERELY AN EXERCISE OF THAT OPTION AND DID NOT CONSTITUTE A
DERELICTION OF ITS STATUTORY BARGAINING OBLIGATION. THE AUTHORITY
DISAGREES. THUS, IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT, 9
FLRA NO. 92(1982) AND IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL 3723, AFL-CIO, 9 FLRA NO. 93(1982), THE
AUTHORITY FOUND THAT THE SCOPE OF A NEGOTIATED GRIEVANCE PROCEDURE IS A
MANDATORY SUBJECT OF BARGAINING UNDER THE STATUTE. ACCORDINGLY, FOR THE
REASONS FULLY STATED IN THOSE CASES, THE AUTHORITY FINDS THAT THE
RESPONDENT'S REFUSAL TO NEGOTIATE IN GOOD FAITH CONCERNING THE
ACTIVITY'S PROPOSALS TO NARROW THE SCOPE OF THE NEGOTIATED GRIEVANCE
PROCEDURE VIOLATED SECTION 7116(B)(5) OF THE STATUTE.
ORDER
PURSUANT TO SECTION 7118 OF THE STATUTE AND SECTION 2423.29 OF THE
AUTHORITY'S RULES AND REGULATIONS, THE AUTHORITY HEREBY ORDERS THAT THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL UNION 225,
SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO NEGOTIATE CONCERNING THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN ITS COLLECTIVE
BARGAINING AGREEMENT WITH THE U.S. DEPARTMENT OF THE ARMY, U.S. ARMY
ARMAMENT RESEARCH AND DEVELOPMENT COMMAND.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, NEGOTIATE WITH THE U.S. DEPARTMENT OF THE ARMY,
U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT COMMAND, CONCERNING THE
SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT.
(B) POST AT ITS LOCAL BUSINESS OFFICE, AT ITS NORMAL MEETING PLACES,
AND AT ALL OTHER PLACES WHERE NOTICES TO ITS MEMBERS AND EMPLOYEES IN
THE BARGAINING UNIT ARE CUSTOMARILY POSTED, 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 AN
AUTHORIZED REPRESENTATIVE AND SHALL BE POSTED AND MAINTAINED BY SUCH
REPRESENTATIVE FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL PLACES WHERE NOTICES TO MEMBERS AND EMPLOYEES ARE
CUSTOMARILY POSTED. REASONABLE STEPS SHALL BE TAKEN TO INSURE THAT SUCH
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(C) SUBMIT SIGNED COPIES OF SAID NOTICE TO THE COMMANDING OFFICER,
U.S. DEPARTMENT OF THE ARMY, U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT
COMMAND.
(D) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR FOR REGION II, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR MEMBERS AND EMPLOYEES OF THE
U.S. DEPARTMENT OF THE ARMY, U.S. ARMY ARMAMENT RESEARCH
AND DEVELOPMENT COMMAND, THAT:
WE WILL NOT FAIL OR REFUSE TO NEGOTIATE CONCERNING THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN OUR COLLECTIVE
BARGAINING AGREEMENT WITH THE U.S. DEPARTMENT OF THE ARMY, U.S. ARMY
ARMAMENT RESEARCH AND DEVELOPMENT COMMAND.
WE WILL, UPON REQUEST, NEGOTIATE WITH THE U.S. DEPARTMENT OF THE
ARMY, U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT COMMAND, CONCERNING
THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT.
WE WILL, UPON REQUEST, NEGOTIATE WITH THE U.S. DEPARTMENT OF THE
ARMY, U.S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT COMMAND, CONCERNING
THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN THE
PARTIES' COLLECTIVE BARGAINING AGREEMENT.
(LABOR ORGANIZATION)
DATED: BY: (SIGNATURE)
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 THE
REGIONAL DIRECTOR, REGION II, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: ROOM 241, 26 FEDERAL PLAZA, NEW YORK, NEW YORK 10278, AND
WHOSE TELEPHONE NUMBER IS: (212) 264-4934.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7121(C) EXCLUDES FROM COVERAGE UNDER NEGOTIATED GRIEVANCE
PROCEDURES GRIEVANCES CONCERNING:
(1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
TITLE (RELATING TO
PROHIBITED POLITICAL ACTIVITIES);
(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
(3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE;
(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT; OR
(5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR
PAY OF AN EMPLOYEE.