25:0895(73)NG - IFPTE, Local No. 4 and Navy, Portsmouth Naval Shipyard -- 1987 FLRAdec NG

 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.