[ v25 p895 ]
The decision of the Authority follows:
25 FLRA No. 73 INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL NO. 4, AFL-CIO-CLC Union and DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD Agency Case No. O-NG-1019 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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). The case concerns the negotiability of a proposal regarding the Portsmouth Naval Shipyard's regulation, NAVSHIPYD PTSMH Instruction 12770.1H, and the effect on that regulation of the Department of the Navy's (Agency's) revised regulation, Navy Civilian Personnel Instruction (CPI) 771. The Agency's revised regulation prohibits bargaining unit employees' use of the agency administrative grievance procedure for matters not covered by the parties' negotiated grievance procedure. The proposal would require the Shipyard to agree to follow the express language of the Shipyard's regulation, which permits bargaining unit employees' use of the agency administrative grievance procedure, rather than the Agency's regulation which prohibits such use. We find that the proposal is within the duty to bargain. II. Background and Positions of the Parties The Union contends that nothing in the Shipyard's regulation can be read to prohibit bargaining unit employees from using the agency administrative grievance procedure, and that paragraphs 6 and 7 of the regulation specifically permit unit employees to use the agency grievance procedure for matters not covered by their negotiated procedure. /1/ The Union argues that, absent a showing of a compelling need for the Agency's regulation, any reliance by the Shipyard on the Agency's regulation to prohibit unit employees' use of the agency grievance procedure for matters not covered by the negotiated procedure is contrary to the Statute. Further, the Union contends that the Shipyard has not shown or argued that a compelling need exists for applying the prohibition contained in the Agency's regulation. The Shipyard, in its reply to the Union's request to bargain, stated that in its view the Agency's modification of its regulation, excluding from coverage under the administrative procedure, individuals in a bargaining unit who are covered by a negotiated agreement, "is mandatory in application." The Agency, in response to the Union's petition for review, first alleged several procedural deficiencies in the Union's petition. Subsequently, the Union submitted to the Authority documentation to cure these deficiencies, including its election to proceed first with a related unfair labor practice case which it had earlier filed. The Agency also alleges that the proposal is not sufficiently specific and delimited. After we issued our decision in the related unfair labor practice case, Portsmouth Naval Shipyard and Department of the Navy (Washington, D.C.), 23 FLRA No. 68 (1986), petition for review filed sub nom. Department of the Navy v. FLRA, No. 86-2046 (1st Cir. Nov. 25, 1986), both parties filed further responses in this case. /2/ The Union repeated its earlier argument that the proposal is within the duty to bargain because bargaining unit employees cannot lawfully be prohibited from using the agency grievance procedure for matters not covered by the negotiated grievance procedure. In its supplemental statement of Dec. 19, 1986, the Agency acknowledges that the Union cured several procedural deficiencies. However, the Agency argues that the Authority should dismiss the petition because the Union's request for an allegation of nonnegotiability was not properly served. On the merits, the Agency argues that the proposal (1) does not concern a condition of employment of bargaining unit employees, and (2) is inconsistent with section 7121 of the Statute. The Agency also requests that we reconsider our conclusion in Portsmouth Naval Shipyard in this proceeding. In sum, it argues that the proposal is outside the duty to bargain because the only procedure available to bargaining unit employees is the negotiated procedure provided for by section 7121 of the Statute. The Agency contends the proposal therefore does not concern a condition of employment, as defined by section 7103(a)(14)(C) of the Statute, which excludes matters specifically provided for by Federal statute. According to the Agency, the decision whether to extend coverage of the agency grievance procedure to bargaining unit employees is a matter within management's discretion, as provided by Office of Personnel Management (OPM) regulations, 5 C.F.R. Sections 771.201 et seq., and is outside the duty to bargain. III. Analysis A. The Procedural Issues We find no merit in the Agency's contention that we should dismiss the petition for lack of proper service of the Union's written request for a declaration of nonnegotiability. The record shows that the Union's request was properly served. We also find no merit in the contention that the proposal is not sufficiently specific and delimited. The proposal sought to have the agency administrative grievance procedure apply to bargaining unit employees for those matters not covered by the parties' negotiated grievance procedure. The Shipyard understood what the Union was proposing. See the Agency's Supplemental Statement of Position at 2 (The Union "seeks to negotiate a proposal that bargaining unit employees may grieve through the agency's administrative grievance procedure matters excluded from the grievance procedure negotiated by the parties and incorporated into their collective bargaining agreement."). B. The Substantive Issue In Portsmouth Naval Shipyard, we had before us the same regulations involved in this petition for review. We found that the Respondents in that case, the Navy and the Shipyard, violated section 7116(a)(1) and (2) of the Statute by maintaining a regulation which precludes employees who are members of a bargaining unit and are covered by a collective bargaining agreement from using the Respondents' administrative grievance procedure to raise matters not covered by the negotiated grievance procedure. We ordered the Respondents to cease and desist from maintaining and enforcing the regulation. The Agency's arguments in this negotiability proceeding are similar to its arguments in the unfair labor practice proceeding in Portsmouth Naval Shipyard. The Agency's primary argument, as set forth in its supplemental statement of position, is as follows: (1) t he duty to bargain extends to proposals affecting unit employees' conditions of employment; (2) conditions of employment, as defined in section 7103(a)(14)(C), do not include matters specifically provided for by Federal statute; (3) the proposal in this case involves procedures for the resolution of grievances of unit employees, which is a matter specifically provided for in section 7121 of the Statute; and (4) since section 7121 is a Federal statute, the Agency has no duty to bargain by operation of section 7103(a)(14)(C). We find this argument unpersuasive for the following reasons. It is undisputed that the proposal seeks to establish a contractual requirement that the Shipyard extend coverage of the agency administrative grievance procedure to unit employees. The proposal seeks coverage only for those matters not covered by the negotiated grievance procedure of the parties' collective bargaining agreement. Section 7121(a)(1) of the Statute states that collective bargaining agreements shall provide procedures for the settlement of grievances, except those excluded by section 7121(c) or by the parties' agreement (see section 7121(a)(2)), and that as relevant here, the negotiated procedure "shall be the exclusive procedure( ) for resolving grievances which fall within its coverage." See generally, American Federation of Government Employees, Locals 225, 1504, and 3723 v. FLRA, 712 F.2d 640 (D.C. Cir. 1983). Therefore, Congress intended to require unit employees covered by a collective bargaining agreement to use the negotiated procedure to grieve matters covered by that procedure. This proposition is not in dispute. However, the Agency construes section 7121(a)(1) as reflecting a further Congressional intent; namely, that Congress specifically intended to preclude bargaining unit employees covered by a contract from using an agency administrative grievance procedure for those matters not covered by the parties' negotiated grievance procedure. We find no such Congressional intent. As we stated in Portsmouth Naval Shipyard (slip op. at 6), section 7121(a)(1) "does not prohibit employees from using the agency grievance procedure to raise issues outside the scope of the negotiated grievance procedure." In our view, section 7121(a)(1) does not address, let alone "specifically provide for," the only matter here at issue: whether coverage of the agency administrative grievance procedure can extend to unit employees for matters outside the scope of the parties' negotiated grievance procedure. Therefore, we reject the Agency's argument that the proposal does not pertain to conditions of employment because it concerns a matter "specifically provided for by Federal statute" within the meaning of section 7103(a)(14)(C). Compare American Federation of Government Employees, Council of Federal Grain Inspection Locals v. FLRA, 653 F.2d 669 (D.C. Cir. 1981), aff'g American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals and United States Department of Agriculture, Federal Grain Inspection Service, Washington, D.C., 3 FLRA 530 (1980). We also reject the Agency's "technical" argument (Supplemental Statement of Position at 8) that the proposal is inconsistent with section 7121 because it concerns an agency grievance procedure which does not include binding arbitration, and section 7121 requires grievance procedures to include a provision for binding arbitration. Section 7121's requirements apply to the contents of negotiated grievance procedures, not those of agency administrative grievance procedures. Specifically, section 7121(b)(3) states that "(a)ny negotiated grievance procedure . . . shall . . . 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." Thus, the proposal is not inconsistent with section 7121 of the Statute. Moreover, we note that the Union does not seek to negotiate over the content of the agency administrative grievance procedure, but only over its coverage. Finally, we reject the Agency's argument that the proposal is inconsistent with 5 C.F.R. Section 771.204 and is therefore outside the duty to bargain. Under section 7117(a)(1) of the Statute, a proposal is within the duty to bargain to the extent that it is "not inconsistent with" a Government-wide rule or regulation. The proposal in this case is not inconsistent with 5 C.F.R. Section 771.204. That regulation does not prohibit extension of coverage of the agency administrative grievance procedure to unit employees for matters outside the scope of the negotiated grievance procedure. Rather, it provides that "(a)n agency may extend the coverage of this part (Part 771 -- Agency Administrative Grievance System) to bargaining unit employees consistent with the provisions of 5 U.S.C. 7121, or to applicants for employment with the agency." 5 C.F.R. Section 771.204(b). IV. Conclusion Accordingly, we find that the Union's proposal is within the duty to bargain. We also find that the Agency's contentions present no basis for reconsideration of our conclusion in Portsmouth Naval Shipyard. V. Order The Shipyard must upon request, or as otherwise agreed to by the parties, bargain on the Union's proposal. /3/ Issued, Washington, D.C., February 26, 1987 /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Appendix to this decision sets forth paragraphs 6 and 7 of the Shipyard's regulation, which contain the "express language that the Union seeks to negotiate (.)" Union's Petition For Review at 1. (2) In view of the chronology of events in these cases, we have accepted and considered all submissions of both parties in this case. See 5 C.F.R. Section 2424.8. Because the record is sufficient for us to decide the issue presented, we deny the Union's request to file a further response. (3) In finding this proposal to be within the duty to bargain, we make no judgment as to its merits. APPENDIX 6. Relationship to Negotiated Grievance Procedures. This instruction does not impact upon a grievance system established through negotiated agreements between the Portsmouth Naval Shipyard and Shipyard labor organizations having exclusive recognition. 7. Employee Coverage. The Department of the Navy Grievance Procedure covers all current US civilian employees of the Portsmouth Naval Shipyard and former employees of the Shipyard for whom a remedy can be provided except the following: a. Employees having access to a negotiated grievance procedure, which procedure includes matters covered by this instruction. b. A noncitizen appointed under Civil Service Rule VIII. c. An alien appointed under Section 1471(5) of Title 22, United States Code. d. A nonappropriated fund employee defined in Section 2105(c) of Title 5 or Section 4202(5) of Title 38, United States Code. e. A physician, dentist, or nurse appointed under Chapter 73 of Title 38, United States Code. f. An applicant for employment. g. Civilian Marine employees of the Military Sealift Command.