10:0316(60)CA - Labor, Employment Standards Administation / Wage and Hour Division, Washington, DC and AFGE Local 12 and OPM, Washington, DC -- 1982 FLRAdec CA
[ v10 p316 ]
10:0316(60)CA
The decision of the Authority follows:
10 FLRA No. 60
DEPARTMENT OF LABOR, EMPLOYMENT
STANDARDS ADMINISTRATION/WAGE AND
HOUR DIVISION, WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO
Charging Party
and
OFFICE OF PERSONNEL MANAGEMENT,
WASHINGTON, D.C.
Intervenor /1/
Case No. 3-CA-612
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE STIPULATION OF
FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY THE PARTIES, THE
AUTHORITY FINDS:
AT ALL TIMES RELEVANT HEREIN, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 12, AFL-CIO (THE UNION) HAS BEEN RECOGNIZED AS THE
EXCLUSIVE REPRESENTATIVE OF A UNIT CONSISTING OF ALL THE RESPONDENT'S
NATIONAL OFFICE EMPLOYEES. THE CASE AROSE IN CONNECTION WITH A
GRIEVANCE FILED BY A PROBATIONARY EMPLOYEE UNDER THE PARTIES' NEGOTIATED
AGREEMENT CHALLENGING THE RESPONDENT'S DECISION TO TERMINATE HIS
EMPLOYMENT. THE NEGOTIATED GRIEVANCE PROCEDURE PREDATED THE EFFECTIVE
DATE OF THE STATUTE, BUT WAS EXTENDED BY MUTUAL AGREEMENT THEREAFTER.
SUCH NEGOTIATED AGREEMENT ALLOWED PROBATIONARY EMPLOYEES WITHIN THE
BARGAINING UNIT TO FILE GRIEVANCES.
THE PROBATIONARY EMPLOYEES' GRIEVANCE CONCERNING THE RESPONDENT'S
NOTICE OF INTENT TO TERMINATE HIS EMPLOYMENT WAS DENIED ON ITS MERITS AT
THE FIRST STEP OF THE NEGOTIATED PROCEDURE. AS THE PARTIES FAILED TO
RESOLVE THE GRIEVANCE AT THE FIRST STEP, IT WAS REFERRED FOR RESOLUTION
TO THE SECOND STEP WHICH INVOLVED DELIBERATIONS BY A JOINT COMMITTEE
COMPOSED OF A SINGLE REPRESENTATIVE OF EACH PARTY. AT SOME TIME DURING
THE COMMITTEE'S DELIBERATIONS, THE RESPONDENT'S REPRESENTATIVE WAS
ADVISED OF MANAGEMENT'S POSITION THAT PROBATIONARY EMPLOYEES COULD NOT
GRIEVE TERMINATIONS UNDER THE PARTIES' NEGOTIATED PROCEDURE, AND
COMMUNICATED THAT POSITION TO THE UNION REPRESENTATIVE. THEREUPON THE
JOINT COMMITTEE NOTIFIED THE APPROPRIATE HIGHER MANAGEMENT OFFICIAL BY
MEMORANDUM THAT, BASED UPON THE RESPONDENT'S POSITION, THE COMMITTEE WAS
DISCONTINUING FURTHER ACTION ON THE GRIEVANCE PENDING FURTHER
INSTRUCTIONS. THE UNION RESPONDED BY MEMORANDUM TO THIS OFFICIAL IN
WHICH IT EXPRESSED DISAGREEMENT WITH MANAGEMENT'S POSITION THAT
PROBATIONERS COULD NOT CONTINUE TO GRIEVE THEIR TERMINATIONS UNDER THE
NEGOTIATED PROCEDURE, AND REQUESTED RESUMPTION OF THE SECOND STEP
THEREUNDER. IN RESPONSE, THE RESPONDENT'S OFFICIAL RESTATED
MANAGEMENT'S POSITION THAT PROBATIONERS COULD NO LONGER GRIEVE THEIR
TERMINATIONS UNDER THE NEGOTIATED PROCEDURE, BASED UPON SECTION
7121(C)(4) OF THE STATUTE /2/ , AND THUS CONCLUDED THAT THE GRIEVANCE
COULD NOT BE REINSTITUTED. THEREAFTER THE UNION REQUESTED ARBITRATION
OF THE GRIEVANCE INASMUCH AS NO SECOND STEP REPLY HAD BEEN RECEIVED, BUT
THE AGENCY DENIED THIS REQUEST AS UNTIMELY UNDER THE TERMS OF THE
NEGOTIATED PROCEDURE.
THE COMPLAINT ALLEGES THAT, BY THE CONDUCT DESCRIBED ABOVE, THE
RESPONDENT FAILED TO BARGAIN IN GOOD FAITH WITH THE UNION AND UNDERMINED
THE PARTIES' COLLECTIVE BARGAINING AGREEMENT BY NOT PROCEEDING TO
ARBITRATION, AND INTERFERED WITH THE UNION'S RIGHTS AND DUTIES AS
PROVIDED IN SECTION 7121(A) AND (B)(3)(C) OF THE STATUTE, /3/ IN
VIOLATION OF SECTION 7116(A)(1), (5), (7), AND (8). /4/ IN SUPPORT OF
SUCH ALLEGATIONS, THE GENERAL COUNSEL ARGUES, IN ESSENCE, THAT THE
RESPONDENT VIOLATED THE STATUTE BY ENFORCING AN ERRONEOUS INTERPRETATION
OF SECTION 7121(C)(4) AND THEREFORE TERMINATING THE GRIEVANCE OF THE
PROBATIONER WITHOUT NOTIFICATION TO OR NEGOTIATION WITH THE UNION, AND
BY DENYING THE UNION'S REQUEST FOR ARBITRATION. THE RESPONDENT ARGUES
THAT IT CORRECTLY INTERPRETED AND APPLIED SECTION 7121(C)(4) IN
CONCLUDING THAT THE GRIEVANT DID NOT HAVE THE RIGHT TO UTILIZE THE
PARTIES' NEGOTIATED PROCEDURE, AND THAT IT ACTED IN ACCORDANCE WITH THE
TERMS OF THAT PROCEDURE IN DENYING THE UNION'S REQUEST FOR ARBITRATION.
THE INTERVENOR, OPM, SUPPORTS THE RESPONDENT'S CONCLUSION THAT SECTION
7121(C)(4) OF THE STATUTE WAS INTENDED TO EXCLUDE GRIEVANCES RELATED TO
THE TERMINATION OF PROBATIONERS FROM COVERAGE UNDER NEGOTIATED
GRIEVANCE
PROCEDURES.
IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA 273 (1979), THE AUTHORITY
DISCUSSED THE PROPER INTERPRETATION AND APPLICATION OF SECTION 7121 OF
THE STATUTE AS IT RELATES TO GRIEVANCE PROCEDURES WHICH PREDATED THE
STATUTE; I.E., PROCEDURES WHICH HAD BEEN NEGOTIATED PRIOR TO, BUT
CONTINUED IN SOME FORM AFTER, THE EFFECTIVE DATE OF THE STATUTE, AS IN
THE INSTANT CASE. IN THAT ISSUANCE, THE AUTHORITY STATED, AT 2 FLRA
278, N. 7, IN RELEVANT PART AS FOLLOWS:
(N)EGOTIATED GRIEVANCE PROCEDURES MAY NOT CONFER JURISDICTION UPON .
. . THE FEDERAL LABOR
RELATIONS AUTHORITY TO RESOLVE . . . QUESTIONS (OF ARBITRABILITY).
SECTION 7121 MANDATES THAT
EACH COLLECTIVE BARGAINING AGREEMENT SHALL PROVIDE PROCEDURES FOR THE
SETTLEMENT OF
GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY AND UNLESS THE
PARTIES, CONSISTENT WITH LAW,
MUTUALLY AGREE OTHERWISE, SUCH PROCEDURES MUST BE READ AS PROVIDING
THAT ALL QUESTIONS OF
ARBITRABILITY NOT OTHERWISE RESOLVED SHALL BE SUBMITTED TO
ARBITRATION.
IN ACCORDANCE WITH THE ABOVE, UNLESS THE PARTIES TO A COLLECTIVE
BARGAINING AGREEMENT NEGOTIATED PRIOR TO THE EFFECTIVE DATE OF THE
STATUTE MUTUALLY AGREE OTHERWISE, UNDER SECTION 7121 OF THE STATUTE
THEIR NEGOTIATED PROCEDURE MUST BE READ AS PROVIDING THAT ALL QUESTIONS
OR ARBITRABILITY REQUIRING RESOLUTION NOT OTHERWISE RESOLVED SHALL BE
SUBMITTED TO ARBITRATION. THERE IS NOTHING IN THE RECORD IN THE INSTANT
CASE TO INDICATE THAT THE UNION AND THE RESPONDENT AGREED OTHERWISE AS
REGARDS THEIR PREVIOUSLY NEGOTIATED GRIEVANCE PROCEDURE. THEREFORE,
THAT PROCEDURE MUST BE READ AS PROVIDING THAT ALL QUESTIONS OF
ARBITRABILITY NOT OTHERWISE RESOLVED SHALL BE SUBMITTED TO ARBITRATION.
MORE RECENTLY, IN FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL
OFFICE, 7 FLRA NO. 23 (1981), AND AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723, AFL-CIO AND DEPARTMENT OF THE
NAVY, NAVY EXCHANGE, NAVAL STATION, SAN DIEGO, CALIFORNIA, 8 FLRA NO. 12
(1982), THE AUTHORITY HAS APPLIED THIS INTERPRETATION OF SECTION 7121 IN
CASES WHERE IT WAS ALLEGED THAT A PARTY FAILED TO COMPLY WITH SECTION
7121 AND THEREFORE VIOLATED SECTION 7116 OF THE STATUTE. IN THOSE
CASES, THE AUTHORITY, CONCLUDING THAT UNDER SECTION 7121 EITHER PARTY TO
AN AGREEMENT MAY PROCEED TO ARBITRATION EX PARTE, DECLINED TO FIND
VIOLATIONS OF SECTION 7116 OF THE STATUTE BASED UPON ALLEGATIONS THAT A
PARTY HAD FAILED TO COMPLY WITH SECTION 7121 BY REFUSING TO PARTICIPATE
IN OR TO PROCEED TO ARBITRATION.
THE AUTHORITY NOW REAFFIRMS ITS PREVIOUS DETERMINATIONS THAT, UNDER
SECTION 7121, EITHER PARTY MAY PROCEED EX PARTE TO ARBITRATION. MORE
SPECIFICALLY, AS THE AUTHORITY STATED IN FEDERAL AVIATION
ADMINISTRATION, ALASKAN REGIONAL OFFICE, SUPRA, IN THIS REGARD:
(S)ECTION 7121(A)(1) REQUIRES THAT "ANY COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE
PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF
ARBITRABILITY," AND
SECTION 7121(B)(3)(C) MANDATES THAT UNSETTLED GRIEVANCES SHALL BE
SUBJECT TO BINDING
ARBITRATION "WHICH MAY BE INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE
AGENCY." THEREFORE, EITHER PARTY MAY INVOKE ARBITRATION ON ISSUES
INVOLVING, INTER ALIA,
QUESTIONS OF ARBITRABILITY AND IT FOLLOWS THAT THE OTHER PARTY CANNOT
PREVENT THE ARBITRATION
FROM PROCEEDING BY REFUSING TO PARTICIPATE. THUS, NOTHING IN THE
STATUTE RENDERS THE EX PARTE
PROCEEDING IMPROPER, AND THE RESPONDENT ACTED AT ITS OWN RISK BY NOT
PARTICIPATING.
HOWEVER, THE AUTHORITY HAS DECIDED TO RECONSIDER WHETHER A REFUSAL TO
PROCEED TO AND PARTICIPATE IN ARBITRATION NEVERTHELESS MAY CONSTITUTE AN
UNFAIR LABOR PRACTICE, AND CONCLUDES THAT SUCH A REFUSAL TO PARTICIPATE
IN ARBITRATION PROCEEDINGS PURSUANT TO A NEGOTIATED GRIEVANCE PROCEDURE
IS INCONSISTENT WITH SECTION 7121 OF THE STATUTE AND THEREFORE
CONSTITUTES A VIOLATION OF SECTION 7116(A)(1) AND (8) OR SECTION
7116(B)(1) AND (8) OF THE STATUTE, AS THE CASE MAY BE.
SECTION 7121 EXPRESSLY STATES THAT ANY COLLECTIVE BARGAINING
AGREEMENT NEGOTIATED BY THE PARTIES "SHALL PROVIDE PROCEDURES FOR THE
SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY," AND
THAT SUCH PROCEDURES MUST PROVIDE THAT "ANY GRIEVANCE NOT SATISFACTORILY
SETTLED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE SHALL BE SUBJECT TO
BINDING ARBITRATION . . . ." WHILE SECTION 7121 FURTHER STATES THAT
"ARBITRATION" . . . MAY BE INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE AGENCY," THE AUTHORITY CONCLUDES THAT NEITHER SUCH
LANGUAGE NOR THE LEGISLATIVE HISTORY OF SECTION 7121 PROVIDES A BASIS
FOR EXCUSING THE OTHER PARTY FROM PARTICIPATING IN THE MECHANISM
MANDATED BY CONGRESS IN SECTION 7121 FOR RESOLVING GRIEVANCES NOT
SATISFACTORILY SETTLED BY THE PARTIES AT EARLIER STAGES OF THE
NEGOTIATED GRIEVANCE PROCEDURE. THAT IS, IT WOULD BE ANOMALOUS FOR
CONGRESS TO HAVE REQUIRED AGENCIES AND UNIONS TO INCLUDE PROVISIONS FOR
BINDING ARBITRATION IN THEIR NEGOTIATED AGREEMENTS IF IT WERE NOT
CONTEMPLATED THAT BOTH PARTIES WOULD PARTICIPATE THEREIN AND SHARE THE
COSTS THEREOF. /5/ IN THIS REGARD, A RECENT COURT OF CLAIMS DECISION
(ISSUED AFTER THE AUTHORITY'S DECISIONS CITED ABOVE), ABLES V. UNITED
STATES, NO. 666-80C (CT. CL. MAR. 26, 1982), MUST BE CONSIDERED. IN
THAT CASE, THE COURT INDICATED THAT AN ARBITRATOR WHO PROCEEDS WITH AN
EX PARTE ARBITRATION MAY NOT BE ENTITLED TO RECOVER THE PORTION OF HIS
OR HER FEE WHICH WOULD OTHERWISE BE PAYABLE BY THE FEDERAL AGENCY THAT
REFUSED TO PARTICIPATE IN THE PROCEEDINGS. THUS, IN THOSE INSTANCES
WHERE AGENCIES REFUSE TO PROCEED TO OR PARTICIPATE IN ARBITRATION
PROCEEDINGS, EXCLUSIVE REPRESENTATIVES MAY BE IMPEDED IN SUBMITTING
UNRESOLVED GRIEVANCES TO BINDING ARBITRATION AS MANDATED BY CONGRESS, OR
MAY BE OBSTRUCTED IN DOING SO BY A REQUIREMENT TO PAY THE ENTIRE COSTS
OF SUCH PROCEEDINGS CONTRARY TO THE CONTEMPLATION OF CONGRESS IN
ENACTING SECTION 7121. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT WHILE
NOTHING IN THE STATUTE PRECLUDES EITHER PARTY FROM INVOKING ARBITRATION
AND PROCEEDING EX PARTE IF NECESSARY, A REFUSAL BY THE OTHER PARTY TO
PARTICIPATE IN THE "PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF ARBITRABILITY," I.E., "BINDING ARBITRATION,"
CONFLICTS WITH THE REQUIREMENTS OF SECTION 7121. TO THE EXTENT THAT THE
AUTHORITY'S PREVIOUS DECISIONS STATE OR IMPLY OTHERWISE, THEY WILL NO
LONGER BE FOLLOWED.
IN THE INSTANT CASE, THE RESPONDENT IS ALLEGED TO HAVE VIOLATED
SECTION 7116(A) OF THE STATUTE BY REFUSING TO PROCEED TO ARBITRATION OF
THE GRIEVANCE BASED ON ITS INTERPRETATION OF SECTION 7121(C)(4), AND BY
ASSERTING THAT THE UNION'S REQUEST FOR ARBITRATION WAS UNTIMELY. BOTH
OF THESE QUESTIONS, I.E., WHETHER SECTION 7121(C)(4) WAS INTENDED TO BAR
GRIEVANCES CONCERNING THE TERMINATION OF PROBATIONERS FROM THE COVERAGE
OF NEGOTIATED GRIEVANCE PROCEDURES AND WHETHER THE REQUEST FOR
ARBITRATION WAS UNTIMELY, ARE ARBITRABILITY QUESTIONS WHICH PROPERLY CAN
BE PLACED BEFORE AN ARBITRATOR. /6/ AS THE RECORD DOES NOT INDICATE
THAT THE PARTIES HEREIN MUTUALLY AGREED OTHERWISE, THEIR PREVIOUSLY
NEGOTIATED PROCEDURES MUST BE READ AS PROVIDING FOR ARBITRATION,
INCLUDING ARBITRATION OF THE AFOREMENTIONED ARBITRABILITY QUESTIONS. BY
REFUSING TO PROCEED TO ARBITRATION, THE RESPONDENT REFUSED OR FAILED TO
COMPLY WITH THE REQUIREMENTS OF SECTION 7121 OF THE STATUTE AND
THEREFORE VIOLATED SECTION 7116(A)(1) AND (8), AS ALLEGED IN THE
COMPLAINT. /7/
ORDER
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE
DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION/WAGE AND HOUR
DIVISION, WASHINGTON, D.C., SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY REFUSING OR FAILING TO PROCEED TO ARBITRATION
REGARDING A GRIEVANCE FILED
BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12,
AFL-CIO, THE
EMPLOYEES' EXCLUSIVE REPRESENTATIVE, REGARDING THE TERMINATION OF A
PROBATIONARY UNIT EMPLOYEE
CONTRARY TO THE REQUIREMENTS OF SECTION 7121 OF THE STATUTE, AFTER
RECEIVING TIMELY NOTICE OF
THE EXCLUSIVE REPRESENTATIVE'S DESIRE TO INVOKE ARBITRATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) UPON REQUEST, PROCEED TO ARBITRATION REGARDING THE GRIEVANCE
FILED BY THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO, INVOLVING THE
TERMINATION OF A
PROBATIONARY UNIT EMPLOYEE.
(B) POST AT ITS WASHINGTON, D.C., FACILITY, 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 THE CHIEF, EMPLOYMENT STANDARDS ADMINISTRATION/WAGE AND
HOUR DIVISION, WASHINGTON,
D.C., AND SHALL BE POSTED AND MAINTAINED FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES
TO 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) NOTIFY THE REGIONAL DIRECTOR OF REGION III, 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., OCTOBER 8, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL 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 EMPLOYEES THAT:
WE WILL NOT REFUSE TO PROCEED TO ARBITRATION REGARDING A GRIEVANCE
FILED BY THE EXCLUSIVE REPRESENTATIVE OF A UNIT OF OUR EMPLOYEES,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO, ON APRIL
27, 1979, CONCERNING THE TERMINATION OF A PROBATIONARY UNIT EMPLOYEE,
CONTRARY TO THE REQUIREMENTS OF SECTION 7121 OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, AFTER RECEIVING TIMELY NOTICE OF THE
EXCLUSIVE REPRESENTATIVE'S DESIRE TO INVOKE ARBITRATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST, PROCEED TO ARBITRATION REGARDING THE GRIEVANCE
FILED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12,
AFL-CIO, ON APRIL 27, 1979, INVOLVING THE TERMINATION OF A PROBATIONARY
UNIT EMPLOYEE.
(AGENCY OR ACTIVITY)
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 III, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: 1111 18TH STREET, NW., SUITE 700, WASHINGTON, D.C. 20036
AND WHOSE TELEPHONE NUMBER IS: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ THE CHIEF ADMINISTRATIVE LAW JUDGE GRANTED A MOTION TO INTERVENE
FILED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM) PURSUANT TO SECTIONS
2423.15 AND 2423.22 OF THE AUTHORITY'S RULES AND REGULATIONS.
/2/ SECTION 7121(C)(4) PROVIDES:
SEC. 7121. GRIEVANCE PROCEDURES
. . . .
(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE
CONCERNING--
. . . .
(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT(.)
/3/ SECTION 7121(A) AND (B) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
(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. . . .
. . . .
(B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
OF THIS SECTION
SHALL--
. . . .
(3) INCLUDE PROCEDURES THAT--
. . . .
(C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE AGENCY.
/4/ SECTION 7116(A) PROVIDES:
SECTION 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER;
. . . .
(7) TO ENFORCE ANY RULE OR REGULATION (OTHER THAN A RULE OR
REGULATION IMPLEMENTING SECTION
2302 OF THIS TITLE) WHICH IS IN CONFLICT WITH ANY APPLICABLE
COLLECTIVE BARGAINING AGREEMENT
IF THE AGREEMENT WAS IN EFFECT BEFORE THE DATE THE RULE OR REGULATION
WAS PRESCRIBED; OR
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/5/ THE AUTHORITY NOTES THAT CONGRESS, IN SUBJECTING GRIEVANCES TO
BINDING ARBITRATION UNDER SECTION 7121 OF THE STATUTE, ANTICIPATED THAT
"THE COSTS WILL BE SHARED EQUALLY BY THE GOVERNMENT AND THE PARTIES WHO
ARE ALLEGING GRIEVANCES." SEE THE REMARKS OF REPRESENTATIVE CLAY OF
MISSOURI AT 124 CONG. REC. 29798 (1978). TO THE SAME EFFECT, SEE THE
REMARKS OF REPRESENTATIVE FORD OF MICHIGAN AT 124 CONG. REC. 25722
(1978).
/6/ INDEED, THE ANSWER TO THE FIRST QUESTION IS CLEAR. IN NATIONAL
COUNCIL OF FIELD LABOR LOCALS AND UNITED STATES DEPARTMENT OF LABOR, 4
FLRA NO. 51 (1980), THE AUTHORITY DETERMINED, CONTRARY TO THE ARGUMENTS
OF RESPONDENT AND OPM HEREIN, THAT SECTION 7121(C)(4) DOES NOT MANDATE
THE EXCLUSION OF GRIEVANCES OVER THE SEPARATION OF PROBATIONERS FROM
NEGOTIATED GRIEVANCE PROCEDURES. THIS DETERMINATION WAS FURTHER
DISCUSSED AND EXPRESSLY REAFFIRMED IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL IMMIGRATION & NATURALIZATION SERVICE
COUNCIL AND U.S. DEPARTMENT OF JUSTICE, IMMIGRATION & NATURALIZATION
SERVICE, 8 FLRA NO. 75 (1982) (PROPOSAL 11), APPEAL DOCKETED SUB NOM.
DEPARTMENT OF JUSTICE, IMMIGRATION & NATURALIZATION SERVICE V. FLRA, NO.
82-1622 (D.C. CIR. JUNE 3, 1982).
/7/ IN VIEW OF THIS CONCLUSION, IT IS NOT NECESSARY TO CONSIDER
WHETHER THE RESPONDENT'S CONDUCT ALSO CONSTITUTED A VIOLATION OF SECTION
7116(A)(5). WITH REGARD TO THE ALLEGED SECTION 7116(A)(7) VIOLATION,
THE RESPONDENT'S REFUSAL TO PROCESS THE PROBATIONARY EMPLOYEE'S
GRIEVANCE WAS BASED UPON THE CONTENTION THAT SECTION 7121(C)(4) OF THE
STATUTE PRECLUDED PROBATIONERS FROM GRIEVING THEIR TERMINATIONS. IT WAS
NOT BASED UPON THE RESPONDENT'S PROMULGATION AND ENFORCEMENT OF A "RULE
OR REGULATION" AFTER THE EFFECTIVE DATE OF THE PARTIES' AGREEMENT WITHIN
THE MEANING OF SECTION 7116(A)(7). ACCORDINGLY, THE AUTHORITY CONCLUDES
THAT THE ALLEGATION IN THE COMPLAINT THAT RESPONDENT VIOLATED SECTION
7116(A)(7) MUST BE, AND IT HEREBY IS, DISMISSED.