[ v22 p574 ]
The decision of the Authority follows:
22 FLRA No. 62 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1799 Union and DEPARTMENT OF THE ARMY, ABERDEEN PROVING GROUND, MARYLAND Agency Case No. 0-NG-988 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (The Statute) and concerns the negotiability of the underlined portions of two provisions of a negotiated agreement which were disapproved by the Agency head pursuant to section 7114(c) of the Statute. /1/ II. Union Provision 1 Section 17.07. The employee may contest the merits or procedures used in effecting a non-disciplinary adverse action of separation for cause by using the appeal procedures specified in AR-230-2 or by using the grievance procedures contained in Article 18, but not both. An employee shall be deemed to have exercised this option for one of the procedures described above at such time as he timely files under either procedure whichever comes first. A. Positions of the Parties The Agency asserts that Union Provision 1 is nonnegotiable because it is inconsistent with section 7121(a)(1) of the Statute. The Union argues that the provision is consistent with section 7121(e)(1) of the Statute. B. Analysis The two sections of the Statute relied upon by the parties, namely, section 7121(a)(1) and section 7121(e)(1), provide in relevant part, as follows: Section 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 or 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. . . . . . (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 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. . . . Section 7121(a) establishes that, except for those limited matters set out in section 7121(d) and (e), the negotiated grievance procedure shall be the exclusive procedure for resolving all matters which fall within its coverage. /2/ The limited exceptions to the exclusivity requirement, which are set out in section 7121(e)(1), permit employees covered by title 5 the option of challenging certain actions, including performance based non-disciplinary separations, through their negotiated grievance procedure or to the Merit Systems Protections Board (MSPB) through the appellate procedures of 5 U.S.C. Section 7701. Section 7121(e)(1) also permits employees not covered by title 5 to challenge similar actions through their negotiated grievance procedure or through the applicable "appellate procedures" which may exist under their non-title 5 personnel system. The record in this case indicates that the employees referred to in the provision are non-appropriated fund (NAF) employees. These NAF employees are not covered by 5 U.S.C. Section 4303 relating to performance based adverse actions and thus, cannot appeal a non-disciplinary separation for cause to MSPB under 5 U.S.C. Section 7701. See 5 U.S.C. Section 2105(c). In addition, according to the parties, NAF employees do not have access to any other statutory appeals procedure in which to contest such non-disciplinary separations for cause. Rather, the Agency has created, by regulation, an internal administrative appeals system in which such matters may be contested. Further, the record indicates that the Agency regulation specifically excludes from coverage of the administrative appeals system any matter that is also covered by a negotiated grievance procedure. Provision 1 simply would grant NAF employees the option to appeal non-disciplinary separations for cause through either the negotiated grievance procedure or through the administrative procedures contained in the Agency regulation. Thus, the question presented by the disputed portion of Provision 1 concerns whether the Agency's internal administrative appeals system is an "appellate procedure" within the meaning of section 7121(e)(1) of the Statute. Although the term appellate procedure is not expressly defined in the Statute, the legislative history of section 7121 supports a conclusion that Congress intended that term to include "any applicable appeals procedure established by or pursuant to law." H. REP. NO. 1403, 95th Cong., 2d Sess. 55 (1978). See also S. REP. NO. 969, 95th Cong., 2d Sess. 109-110 (1978). The Union in this case does not provide any support for its claim that the Agency's internal administrative appeals system constitutes an appellate procedure within the meaning of section 7121(e)(1). Specifically, there is nothing in the record to indicate that the Agency's internal administrative appeals system was established by or pursuant to law. Thus, the Agency's internal appeals system is not an "appellate procedure" within the meaning of section 7121(e)(1) of the Statute. As a result, challenges to performance based separations for cause of NAF employees are required by section 7121(a)(1) of the Statute to be processed exclusively through the negotiated grievance procedure which covers such matters. C. Conclusion Consequently, by attempting to provide NAF employees with an option to contest performance based separations for cause through either the Agency's internal regulatory appeals procedure or through the negotiated grievance procedure which covers such matters, the disputed portion of Union Provision 1 is inconsistent with the mandate of section 7121(a) (1). Therefore, Provision 1 is outside the duty to bargain under section 7117(a)(1) of the Statute. III. Provision 2 Section 26.07. The parties agree that fair and equitable consideration shall be afforded unit employees in respect to training which will improve their on-the-job performance. In this connection, the selection of candidates for such training shall be made from interested qualified employees in the area concerned. A. Positions of the Parties The Agency contends that because this provision would require management to restrict its assignment of certain training to certain specified employees, it directly interferes with management's right, under section 7106(a)(2)(B) of the Statute, to assign work. The Union argues that the undisputed first sentence read in conjunction with the disputed second sentence, does not interfere with management's right to assign work. Further, the Union asserts that, under applicable Authority precedent, this proposal is within the duty to bargain because it contains general non-quantitative language which provides, at most, a procedure or an arrangement by which a management right is exercised. B. Analysis In our opinion, if this proposal were revised to more precisely implement the Union's stated intent of providing bargaining unit employees with fair and equitable consideration in selection for performance improving training assignments, it would be within the duty to bargain. See Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983) (Union Proposal 1). However, the Union's stated intent is at odds with the plain meaning of the entire proposal. Specifically, the first sentence, which is not in dispute, merely provides that bargaining unit employees will be provided with fair and equitable consideration for training assignments. The second sentence, on the other hand, expressly provides that selections for such training assignments "shall be made" from "interested qualified" employees, in other words from qualified volunteers. Since there is nothing in the record which persuades us that the disputed second sentence was intended to merely establish a nondispositive preference for qualified volunteers, we conclude that this sentence simply would preclude the Agency, for example, from assigning training to a non-volunteer. It is well settled that an express limitation on an agency's discretion to pick the particular employee to whom specified training will be assigned violates the agency's right to assign work under section 7106(a)(2)(B) of the Statute. See National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) (Union Proposals I through III). Thus, the disputed second sentence would substantively interfere with management's right and does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). We turn now to the question of whether the disputed second sentence constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Here, we may assume that the disputed sentence was intended to ameliorate an adverse effect perceived by a qualified volunteer for a performance improving training assignment who was not selected because the training was assigned to a non-volunteer instead. In this circumstance, however, the proposed amelioration would totally preclude the Agency from assigning the training to the non-volunteer notwithstanding any determination on the part of the Agency that such non-volunteer would benefit from the performance improving training. Such a proposed amelioration, which totally abrogates the exercise of a management right, clearly does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). See American Federation of Government Employees, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183, 1188 (D.C. Cir. 1983), reversing and remanding American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981). C. Conclusion Based on the foregoing analysis, the disputed sentence violates management's right, under section 7106(a)(2)(B), to assign work and does not constitute a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute. IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., July 15, 1986. /s/ Jerry L. Calhoun Chairman /s/ Henry B. Frazier, III Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Agency withdrew its allegation of nonnegotiability with regard to two additional provisions included in the Union's appeal. Consequently, the appeal as to those matters is moot and the petition for review as it relates to those two provisions is dismissed. (2) While section 7121(a) also refers to matters set out in section 7121(d), such matters relate to discrimination complaints and are not relevant in the instant case.