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The decision of the Authority follows:
30 FLRA NO. 81 30 FLRA 656 30 DEC 1987 NATIONAL TREASURY EMPLOYEES UNION Union and DEPARTMENT OF TREASURY OFFICE OF CHIEF COUNSEL Agency Case No. 0-NG-1447 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). The case presents issues concerning the negotiability of two provisions of a contract which were agreed to locally by the parties but disapproved during review of the agreement by the Agency head pursuant to section 7114 (c) of the Statute. The provisions would permit non-preference eligible excepted service employees to appeal adverse actions under the parties' negotiated grievance procedure. We find that both provisions are within the duty to bargain. II. Background The disputed provisions in this case--Article 5, Employee Grievance Procedure and Article 6, Arbitration--were disapproved by the Agency head "to the extent these articles apply the grievance procedure and arbitration to those personnel actions involving excepted service employees and probationary employees, where pursuant to 5 U.S.C. 4303 and 5 U.S.C. 7511, such employees have no right of appeal to the Merit Systems Protection Board." See Memorandum of August 10, 1987, attached to the Union's Petition for Review. Articles 5 and 6, which are set forth in the Appendix to this decision, are intended to provide excepted service employees with certain appeal rights under the collective bargaining agreement. See Union Petition for Review at 2; Agency Statement of Position at 2. Nothing in the record indicates that the disputed provisions apply to probationary employees. Our decision addresses only the provisions' application to excepted service employees. III. Positions of the Parties The Agency contends that providing excepted service employees with access to grievance procedures is inconsistent with Federal law and Government-wide regulations. The Agency acknowledges that in National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 25 FLRA 1110 (1987), petition for review filed sub nom. United States Department of Health and Human Services v. FLRA, No. 87-1595 (7th Cir. April 13, 1987), the Authority found negotiable a provision which would permit excepted service employees to be included within negotiated grievance and arbitration procedures. The Agency requests that we reconsider that decision, and contends that Congress preempted agencies from granting through labor negotiations grievance procedure rights to non-veteran employees in the excepted service. The Union also notes the Authority's decision in NTEU and HHS, 25 FLRA 1110, and states that the Authority held in that case that the grant of adverse action protections to excepted service employees was consistent with Congressional intent and within the duty to bargain. According to the Union, the Agency has not presented any new arguments which the Authority did not decide in the HHS case. The Union contends that its proposal is consistent with the Congressional scheme enacted in the Civil Service Reform Act and is within the duty to bargain. IV. Discussion Articles 5 and 6 involve grievance and arbitration procedures which would permit excepted service employees to grieve adverse actions taken against them. As noted by the parties, the articles are to the same effect as the proposal at issue in NTEU and HHS. In that case, the Authority found negotiable a proposal which would include excepted service employees within the coverage of the grievance, adverse action, and arbitration articles of the parties' negotiated agreement. The Authority considered the same arguments as those presented in this case, and found that Congress did not intend to exclude excepted service employees from coverage of negotiated grievance procedures. Nothing in the record in this case warrants a contrary conclusion as to Articles 5 and 6. Consequently, for the reasons more fully set forth in Department of Health and Human Services, we find that Article 5 and Article 6 are within the duty to bargain. V. Order The Agency must rescind its disapproval of Article 5 and Article 6. 1 Issued, Washington, D.C.,December 30, 1987. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX ARTICLE 5 EMPLOYEE GRIEVANCE PROCEDURE Section 1: Objectives and Purposes A. The Employer and the Union recognize and endorse the importance of bringing to light and adjusting problems promptly and; whenever possible, informally. For purposes of this Agreement, adjusting problems informally contemplates adjustments arrived at between an employee and a manager; an employee, a manager and a Union representative; or a manager and a Union representative. B. The purpose of this article is to provide an orderly method for the processing and disposition of grievances brought by employees or by the Union on behalf of employees. This article does not apply to the filing of institutional grievances concerning the effect or interpretation, or a claim of breach of the provisions of this Agreement relating to the rights and benefits accruing to the Union as the exclusive representative of bargaining unit employees. C. The Union agrees to submit virtually all contract-related matters to the negotiated grievance procedure for final disposition and to use sparingly unfair labor practice procedures concerning contract-related issues which may occur in the day-to-day administration of this Agreement. D. 1. Employees who believe they have been illegally discriminated against on the basis of race, color, religion, sex, national origin, age or handicapping condition have the right to raise the matter under the statutory procedure or the negotiated grievance procedure of this Agreement, but not both. Employees shall be deemed to have exercised their right of choice at such time as they timely file a formal written EEO complaint or file a timely grievance under this procedure. 2. When the employee elects to raise the matter under this negotiated grievance procedure, the grievant shall specify the specific nature of the discrimination (e.g. race, religion), the facts upon which the allegation is based, and the name of the alleged discriminating official. Section 2: Definitions The following definitions apply to the terms used in this article: a. the term "Employer" means the National Office within the Office of Chief Counsel, Internal Revenue Service; b. the term "Union" means National Treasury Employees Union (NTEU) and/or local chapter 251 of NTEU; c. the term "employee" means any member of the bargaining unit; d. the term "grievance" means any complaint: 1. by an employee concerning any matter relating to the employment of the employee; 2. by the Union concerning any matter relating to the employment of any employee; or, 3. by an employee or the Union concerning (i) the effect or interpretation, or a claim of a breach of a collective bargaining agreement or (ii) any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment. e. The term "grievance" does not mean a complaint pursuant to 5 USC 7121(c) concerning: 1. a claimed violation of subchapter II of chapter 73 of title 5 (relating to prohibited political activities); 2. retirement, life insurance, or health insurance; 3. a suspension or removal pursuant to 5 USC 7532, dealing with national security; 4. an examination, certification, or appointment, or, 5. the classification of any position which does not result in the reduction in grade or pay of any employee. f. The term "days" means calendar days. Section 3: Grievance Procedure--General A. This procedure will be the exclusive procedure available for the processing and disposition of grievances, except when the employee has a statutory right of choice, i.e., adverse actions, actions taken for unacceptable performance, or EEO complaints. B. Grievances under this procedure may be initiated by the employees, the Union, or jointly. C. Where an employee has initiated a grievance and does not elect to be represented by the Union, the Union will have a right to be present at all discussions between the employee and the Employer concerning the grievance. The Employer will resolve all grievances presented under such circumstances consistent with the terms and conditions of this Agreement. In addition, the steward appointed to represent the organizational segment of the grieving employee will be timely provided with a copy of the Employer's decision resolving the grievance. D. Employees will have the right to be accompanied, represented, and advised by the authorized representative of the Union as set forth in the steps enumerated below. Union stewards who grieve on their own behalf may select the steward of their choice. Mass Grievances E. In the event that two or more employees have designated the Union to serve as their representative on one or more grievances involving substantially the same facts and the same issue (mass grievance), or the Union has filed one or more grievances on behalf of two or more employees involving substantially the same facts and the same issue (mass grievance), the following numbers of grievants may attend: 1. three (3) grievants if the grievance involves more than one (1) but less than twenty (20) employees; and, 2. four (4) grievants if the grievance involves twenty (20) or more employees. For a mass grievance, there will be one (1) meeting per work unit at Step 1, and only one (1) meeting at succeeding steps, and the numbers described above will control how many may attend. F. Steps Step 1: The Grievance Form (Appendix A) must be filed with the employee's immediate supervisor or manager. A grievance will not be accepted unless filed within twenty-one (21) days after the incident which gave rise to the grievance or within twenty-one (21) days after the grievant became aware of the matter. The grievance will provide information concerning the nature of the grievance and a detailed statement of the specific remedy sought. The grievance will specify the article and section of the Agreement, provision of the statute or regulation or other conditions of employment allegedly violated. The parties may then request a meeting or agree that no meeting be held. If either party requests a meeting, it must take place within seven (7) days of the filing of the Grievance Form. The meeting will be with the immediate supervisor or designee and any other management representative the Employer deems necessary, and the grievant and/or the grievant's steward. A decision will be given to the aggrieved within fourteen (14) days following the filing of the written grievance. Step 2: A grievant may appeal the decision in Step 1. The appeal must be in writing and filed with the Division Director (or the appropriate Deputy Associate Chief Counsel in the case of International) within seven (7) days of receiving the decision in Step 1. The parties may request a meeting or agree that no meeting be held. If either party requests a meeting, it must take place within seven (7) days of the appeal. The meeting will be with the person with whom the appeal was filed or designee and any other management representatives the Employer deems necessary, and the grievant and/or the grievant's union steward and/or the Chief Steward. A written decision will be given to the grievant within twenty-one (21) days of the filing of the appeal. Step 3: A grievant may appeal the decision in Step 2. The appeal must be in writing and filed with the appropriate Associate Chief Counsel (or Deputy Chief Counsel (Management and Operations) in the case of the Operational Division) within fourteen (14) days of receipt of the decision. The parties may request a meeting or agree that no meeting be held. If either party requests a meeting, it must take place within seven (7) days of the appeal. The meeting will be with the Associate Chief Counsel (or Deputy Chief Counsel (Management and Operations) in the case of the Operations Division) or designee and any other management representatives the Employer deems necessary and any or all of the following: the grievant, the grievant's union steward, the Chief Steward, the Chapter President or a national representative (if the offices of Chapter President and Chief Steward are held by one individual, this does not authorize an additional union steward at the meeting). The written decision will be given to the grievant within twenty-one (21) days of the appeal. This decision, at the option of the Employer, may be provided by certified mail, return receipt requested, or by hand delivery to the chapter president with a copy to the grievant. Section 4: Right to and Notice of Arbitration The Union may invoke arbitration. The Union, within twenty-one (21) days of receipt of the decision at Step 3, must notify the final decision maker and Director, Operations Division, of the appeal by certified mail, return receipt requested, or by hand delivery. Pending grievances involving the same issues must be assigned to the same arbitrator. Section 5: Miscellaneous A. The parties may agree in writing to waive any step of this article. B. The parties may agree to extend time limits delineated in this article. C. Time periods set forth in this article will begin the day after the receipt by the Employer of a grievance or appeal and the day after the receipt by the Union of a decision to the grievance or appeal. If the 1st day of any time period falls on a Saturday, Sunday or legal holiday in the District of Columbia, such time period will expire as of the close of business of the next business day. D. Responses to grievances shall be served on the appropriate steward and the grievant. Time periods set forth in this article shall be computed from the day after the receipt of a grievance or appeal by the Employer and the day after the receipt of a response by the Union. E. When replying in writing, the Employer will render a substantive response to each issue raised by the Union. Failure to issue a substantive response shall cause no adverse consequences to the Employer. F. Grievance meetings will be scheduled at a time agreeable to the parties, during the grievant's normal tour of duty. G. Failure by the grievant or the Union to prosecute the grievance or appeal (including the meeting of time deadlines) at any step of the article will nullify the grievance. Failure by the Employer to meet any of the time deadlines of the article respecting responses will permit the grievant or the Union to move to the next level of grievance or appeal. H. The parties may not withhold evidence during the resolution of a grievance. Newly-discovered evidence may be introduced at any step of the proceeding prior to arbitration. I. Unless agreed to by the parties, new issues may not be raised by either party unless they have been raised at Step 1 of the grievance procedure. J. If the Employer raises an issue of grievability or arbitrability, the grievance will be amended to include a resolution of this issue in the processing of the grievance. K. No grievances resolved below the level of Associate Chief Counsel will be precedential. Grievances resolved by the Associate Chief Counsel or above will be precedential unless the parties agree otherwise. ARTICLE 6 ARBITRATION Section 1 Matters not settled in the grievance procedure or that are otherwise appealable to arbitration will be arbitrated pursuant to the terms of this article. Section 2 This arbitration procedure will be supported by a permanent panel of arbitrators. Section 3 A. The Employer and the Union shall mutually select a panel of permanent arbitrators to decide all arbitration cases. Four individuals with federal sector (including equal employment opportunity) arbitration experience will be selected. If the parties cannot reach agreement as to the composition of the panel, each party will nominate five arbitrators and then each party shall strike three, thus leaving four arbitrators. B. Either party may strike an arbitrator upon giving thirty (30) calendar days notice. In replacing arbitrators or otherwise filling vacancies, the parties will request three names from the Federal Mediation and Conciliation service (FMCS) for each vacancy. Each party may add two names to the list for each vacancy. They will then alternately strike names from each list until the requisite number of names remain to fill the vacancies. First strike will be determined by a flip of the coin. C. Upon notification of striking, no additional cases will be assigned to that arbitrator. If an arbitrator has been assigned a case when a party has striken him or her, the arbitrator shall retain full jurisdiction over that case to include conducting a hearing and rendering a decision. Section 4 A. Arbitration will be invoked in accordance with the time deadlines (twenty-one (21) calendar days) specified elsewhere in this Agreement. B. When invoking arbitration, the Union will serve a copy of the invocation on the Chief, Human Resources Branch. C. Pending grievances involving the same issues must be assigned to the same arbitrator. Section 5 A. The parties will each pay one half of the regular fees and expenses including travel expenses of the arbitrator hearing a case. B. Arbitration hearings will be held on the Employer's premises, or at any site mutually agreed to by the parties. C. The grievant, the grievant's representative, and all bargaining unit employees who are called as witnesses will be excused from duty to the extent necessary to participate in the arbitration proceedings without loss of pay or charge to annual leave. D. The arbitrator will determine which of the witnesses called by a party may testify at the hearing, based upon a determination that such testimony is irrelevant or unduly repetitious. E. Except in emergency situations, the arbitrator will not have the authority to keep the record open in order to hear testimony of additional witnesses. Each party has the responsibility and obligation to produce its witnesses on the day of the hearing. For purposes of this article, "emergency" has the same definition it has in 5 USC 7106. F. The arbitrator shall have the authority to make all arbitrability and/or grievability determinations. The arbitrator shall make grievability and/or arbitrability determinations before addressing the merits of the original grievance. G. If the Employer declares a grievance nonarbitrable or nongrievable, the original grievance shall be considered amended to include the issue of nongrievability. H. The arbitrator's decision shall be final, binding, and precedential, and the arbitrator shall possess the authority to make an aggrieved employee whole to the extent such remedy is not limited by law or the collective bargaining agreement, including the authority to award back pay, reinstatement, retroactive promotion where appropriate, and to issue an order to expunge the record of all references to a disciplinary, adverse, or unacceptable performance action, if appropriate. I. Upon selection of the arbitrator in a particular case, the respective representatives for the parties will communicate with the arbitrator and each other in order to select a mutually agreeable date for the arbitration hearing. Such selection will be completed within fourteen (14) calendar days of invocation. The parties will schedule the hearing to be conducted as soon as practicable, but no later than ninety (90) calendar days after selection of the arbitrator. Scheduling of a hearing is not tantamount to a waiver of any rights. Once that date has been established, any party that unilaterally requests that an arbitration hearing be postponed, delayed, and/or cancelled for whatever reason, which results in any fees being charged by the arbitrator and/or court reporter, shall pay any and all fees. J. In any grievance where the parties mutually agree to postpone, delay, and/or cancel an arbitration hearing, the parties will equally share the cost of any fees being charged by the arbitrator and/or court reporter. Where one party has no objection to the request of the other party for postponement, delay, or cancellation of the arbitration hearing, it will not absolve the requesting party from the paying of all the fees being charged. K. In any grievance where the parties settle the matter before an arbitration hearing and there are fees being charged due to the cancellation of the hearing, both parties will equally share the cost of any fees being charged. L. The strict rules of evidence are not applicable and the hearing shall be informal. M. The parties have the right to present and cross examine witnesses, issue opening and closing statements, and submit posthearing briefs. N. The arbitrator may exclude testimony or evidence which is determined to be irrelevant or unduly repetitious. O. Testimony shall be under oath or affirmation. P. The Employer and the Union agree that the jurisdiction and authority of the chosen arbitrator and opinions expressed will be confined exclusively to the interpretation of the express provision or provisions of this Agreement at issue between the parties. The arbitrator will have no authority to add to, subtract from, alter, amend, or modify any provision of this Agreement, or impose on either the Employer or the Union any limitation or obligation not specifically provided for under the terms of this Agreement. The parties reserve the right to take exceptions to any award to the Federal Labor Relations Authority. Any award may not include the assessment of expenses against either party other than as agreed to in this Agreement. Q. The arbitrator shall have the obligation of assuring that all necessary facts and considerations are brought before him or her by the representatives of the parties. This may include drawing an appropriate inference when either party fails to present facts or witnesses that the arbitrator deems necessary and relevant. However, nothing in this article entitles either party to discovery. R. The Employer will make bargaining unit employees available as witnesses when requested by the union. If the Employer determines it is not administratively practicable to comply with the Union's request, and the arbitrator determines the employee's testimony is relevant, then the hearing may be postponed. However, the Union may agree to submit an affidavit in place of the direct testimony of the employee. S. Bargaining history may not be used in an arbitration hearing unless the party wishing to use it has notified the other in writing at least thirty (30) calendar days before the hearing of its intent to use such testimony and/or affidavits. For purposes of this Agreement, the term "bargaining history" means solely the discussions of the provisions of this Agreement between the National Office of the Office of Chief Counsel, IRS, and NTEU Chapter 251. T. Unless otherwise agreed, there will be a verbatim transcript of the hearing. A copy of the transcript will be provided to each party promptly after the conclusion of the hearing. U. Arbitrators will be paid their normal fees, as provided by law. Section 6 Where one party refuses to attend an arbitration, the arbitrator shall hold the hearing. The first issue to be addressed shall be the question of whether the case is properly before the arbitrator. If the case is proper, the grievance will be heard on the merits. Copies of any transcripts, briefs, and decision will be served on the other party. The party going forward will notify the other party of its intent, listing the date and location of the hearing. Section 7 In any case where an arbitrator modifies an award pursuant to a request for reconsideration by the Office of Personnel Management, the parties will share equally the additional fees of such reconsideration. In cases where the Office of Personnel Management does not finally prevail, the Employer will assume full responsibility for the additional fees of the arbitrator. FOOTNOTES Footnote 1 In finding that Article 5 and Article 6 are within the duty to bargain, we make no judgment as to their merits.