American Federation of Government Employees, AFL-CIO, Local 3669 (Labor Organization) and Veterans Administration Medical Center, Minneapolis, Minnesota (Activity) (Authority decision, May 30, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A Minneapolis VA union proposed a grievance procedure that excluded only matters subject to statutory appeals. The VA argued it had to expressly exclude other matters it considered legally nongrievable. The Authority held the proposal within the duty to bargain and set aside the agency’s allegation. It did not decide whether any specific dispute could be grieved.

Decision snapshot

• Authority: 5 U.S.C. § 7121.
• Outcome: Grievance procedure held negotiable.
• Key point: The proposal did not need to enumerate every exclusion that might apply by law.

Full text (FLRA public release)

[ v03 p311 ]

03:0311(48)NG

The decision of the Authority follows:

3 FLRA No. 48

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3669
Labor Organization

and

VETERANS ADMINISTRATION
MEDICAL CENTER,
MINNEAPOLIS, MINNESOTA
Activity

Case No. 0-NG-32

DECISION ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

UNION PROPOSAL

ARTICLE XXII, GRIEVANCE PROCEDURE, SECTION 2

A GRIEVANCE IS DEFINED TO BE ANY DISPUTE OR COMPLAINT BETWEEN THE
EMPLOYER AND THE UNION,

OR AN EMPLOYEE COVERED BY THIS AGREEMENT, WHICH MAY PERTAIN TO ANY OF
THE FOLLOWING:

1. ANY MATTER INVOLVING THE INTERPRETATION, APPLICATION OR VIOLATION
   OF THIS AGREEMENT,

AND

2. ANY MATTER INVOLVING WORKING CONDITIONS OR THE INTERPRETATION AN
   APPLICATION OF AGENCY

POLICIES, REGULATIONS AND PRACTICES NOT SPECIFICALLY COVERED BY THIS
AGREEMENT. THE SOLE

EXCLUSION OF THIS GRIEVANCE PROCEDURE SHALL BE THOSE MATTERS SUBJECT
TO STATUTORY APPEALS

PROCEDURES.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE UNION PROPOSAL
IS NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION 7121 OF THE STATUTE, /1/
BECAUSE IT FAILS TO EXPRESSLY EXCLUDE FROM COVERAGE OF THE GRIEVANCE
PROCEDURE CERTAIN MATTERS CLAIMED BY THE AGENCY TO BE OUTSIDE THE
APPLICATION OF THE NEGOTIATED GRIEVANCE PROCEDURE "AS A MATTER OF LAW."

OPINION

CONCLUSION: THE UNION'S PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER
SECTION 7121 OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10
OF THE AUTHORITY'S RULES AND REGULATIONS, 45 F.R. 3513, THE AGENCY'S
ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
IS SET ASIDE. /2/

REASONS: DURING NEGOTIATIONS BETWEEN THE PARTIES ON A GRIEVANCE
PROCEDURE AS REQUIRED BY SECTION 7121 (A) OF THE STATUTE (NOTE 1,
SUPRA), THE UNION PROPOSED THE LANGUAGE HERE IN DISPUTE, WHICH PROVIDES
THAT THE SOLE CONTRACTUAL EXCLUSION FROM THE GRIEVANCE PROCEDURE'S
APPLICATION SHALL BE THOSE MATTERS WHICH ARE SUBJECT TO STATUTORY
APPEALS PROCEDURES. THE AGENCY CLAIMS, IN ESSENCE, THAT, AS PROPOSED,
THE PROCEDURE WOULD APPLY TO MATTERS WHICH ARE "NONGRIEVABLE AS A MATTER
OF LAW." MORE SPECIFICALLY, THE AGENCY CLAIMS THAT AS PROPOSED THE
PROCEDURE WOULD APPLY TO CERTAIN MATTERS CONCERNED WITH THE APPOINTMENT
AND DISCIPLINE OF AGENCY EMPLOYEES WHO ARE APPOINTED UNDER AUTHORITY
CONTAINED IN TITLE 38, UNITED STATES CODE, AND, THUS, THE PROPOSED
GRIEVANCE PROCEDURE WOULD VIOLATE LAW AND AGENCY REGULATIONS UNLESS IT
IS MODIFIED TO EXPRESSLY EXCLUDE THOSE MATTERS. /3/ FOR THE REASONS
STATED BELOW, THE AGENCY'S CONTENTION THAT THE UNION'S PROPOSAL IS NOT
WITHIN THE DUTY TO BARGAIN IS WITHOUT MERIT. IN SO HOLDING, THE
AUTHORITY FINDS IT UNNECESSARY TO RULE ON THE AGENCY'S CLAIM THAT THE
MATTERS WHICH THE AGENCY ASSERTS MUST EXPRESSLY BE EXCLUDED FROM THE
GRIEVANCE PROCEDURE ARE, BY LAW AND IMPLEMENTING REGULATIONS,
NONGRIEVABLE AND NONARBITRABLE.

THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION 7121(A) OF THE
STATUTE, VIEWED AS AN ENTIRETY, DO NOT INDICATE THAT CONGRESS INTENDED
TO REQUIRE THE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT SPECIFICALLY
AND EXPRESSLY TO SET FORTH ALL OR ANY OF THOSE MATTERS WHICH, UNDER
PROVISIONS OF LAW, COULD NOT PROPERLY BE COVERED BY THEIR NEGOTIATED
GRIEVANCE PROCEDURE. RATHER, IN THIS REGARD, SECTION 7121(A) OF THE
STATUTE (NOTE 1, SUPRA) PROVIDES THAT A COLLECTIVE BARGAINING AGREEMENT
MUST CONTAIN A GRIEVANCE PROCEDURE WHICH SHALL BE THE EXCLUSIVE METHOD
OF RESOLVING GRIEVANCES FALLING WITHIN ITS COVERAGE, WITH THE PROVISO
THAT THE PARTIES "MAY EXCLUDE ANY MATTER FROM THE APPLICATION OF THE
GRIEVANCE PROCEDURE . . . " "GRIEVANCE" IS DEFINED IN SECTION 7103(A)(9)
OF THE STATUTE AS FOLLOWS:

GRIEVANCE MEANS ANY COMPLAINT--

(A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
OF THE EMPLOYEE;

(A) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
EMPLOYMENT OF AN

EMPLOYEE; OR

(C) BY AN EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--

(I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
COLLECTIVE BARGAINING

AGREEMENT; OR

(II) ANY CLAIMED VIOLATION, MISINTERPRETATION OR MISAPPLICATION OF
ANY LAW, RULE, OR

REGULATION AFFECTING CONDITIONS OF EMPLOYMENT(.)

SECTION 7121(C) OF THE STATUTE SPECIFICALLY EXCLUDES FROM THE
COVERAGE OF NEGOTIATED GRIEVANCE PROCEDURES THE FOLLOWING:

THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE

CONCERNING--

(1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
TITLE (RELATING TO

PROHIBITED POLITICAL ACTIVITIES);

(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE:

(3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE:

(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT; OR

(5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR

PAY OF AN EMPLOYEE.

FURTHER, IN THIS REGARD, THE JOINT EXPLANATORY STATEMENT OF THE
COMMITTEE ON CONFERENCE WHICH ACCOMPANIED THE BILL AS ENACTED AND SIGNED
INTO LAW, STATED AS FOLLOWS: /4/

THE SENATE PROVIDES THAT THE COVERAGE AND SCOPE OF THE GRIEVANCE
PROCEDURES SHALL BE

NEGOTIATED BY THE PARTIES (SECTION 7121(A)). HOUSE SECTION 7121(A)
DOES NOT AUTHORIZE THE

PARTIES TO NEGOTIATE OVER THE COVERAGE AND SCOPE OF THE GRIEVANCES
THAT FALL WITHIN THE BILL'S

PROVISIONS BUT PRESCRIBES THOSE MATTERS WHICH WOULD HAVE TO BE
SUBMITTED, AS A MATTER OF LAW,

TO THE GRIEVANCE PROCEDURES. THE CONFERENCE REPORT FOLLOWS THE HOUSE
APPROACH WITH AN

AMENDMENT. ALL MATTERS THAT UNDER THE PROVISIONS OF LAW COULD BE
SUBMITTED TO THE GRIEVANCE

PROCEDURES SHALL IN FACT BE WITHIN THE SCOPE OF ANY GRIEVANCE
PROCEDURE NEGOTIATED BY THE

PARTIES UNLESS THE PARTIES AGREE AS PART OF THE COLLECTIVE BARGAINING
PROCESS THAT CERTAIN

MATTERS SHALL NOT BE COVERED BY THE GRIEVANCE PROCEDURES.

IN SUM, CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A
NEGOTIATED GRIEVANCE PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH "UNDER
THE PROVISIONS OF LAW" COULD BE COVERED UNLESS THE PARTIES AGREED
THROUGH THE COLLECTIVE BARGAINING PROCESS TO A PROCEDURE HAVING A
NARROWER COVERAGE. CONGRESS CLEARLY DID NOT, HOWEVER, MANDATE THAT, TO
FALL WITHIN THE DUTY TO BARGAIN, EACH PROPOSED GRIEVANCE, PROCEDURE MUST
ENUMERATE ALL OR SOME OF THE MATTERS WHICH "UNDER THE PROVISIONS OF LAW"
COULD NOT BE SO COVERED. SUCH A REQUIREMENT WOULD BE REDUNDANT AND
WITHOUT LEGAL SIGNIFICANCE SINCE, AS INDICATED, SECTION 7121, AS
EXPLAINED BY THE COMMITTEE ON CONFERENCE, ALREADY PROVIDES THAT
NEGOTIATED GRIEVANCE PROCEDURES COVER, AT A MAXIMUM, MATTERS WHICH UNDER
THE PROVISIONS OF LAW COULD BE SUBMITTED TO THE PROCEDURES.

CONSEQUENTLY, THERE IS NOT MERIT IN THE AGENCY'S CONTENTION THAT THE
PROPOSED PROCEDURE IS NOT WITHIN THE DUTY TO BARGAIN BECAUSE IT DOES NOT
SPECIFICALLY EXCLUDE CERTAIN MATTERS WHICH ARE ALLEGED TO BE OUTSIDE THE
SCOPE AND COVERAGE OF THE PARTIES' NEGOTIATED AGREEMENT BY OPERATION OF
LAW AND REGULATIONS, I.E., MATTERS CONCERNED WITH THE PERSONNEL SYSTEM
FOR TITLE 38 EMPLOYEES. IF THE AGENCY BELIEVES THAT, AS A MATTER OF
LAW, CERTAIN MATTERS ARE NONGRIEVABLE AND NONARBITRABLE, GRIEVANCES
WHICH MIGHT BE FILED WITH RESPECT TO THEM MAY BE CHALLENGED BY THE
AGENCY AS NONGRIEVABLE OR NONARBITRABLE, IN THE CONTEXT OF SPECIFIC
FACTUAL CIRCUMSTANCES. IN THIS REGARD, SECTION 7121(A) OF THE STATUTE
REQUIRES THE PARTIES TO "PROVIDE PROCEDURES FOR THE SETTLEMENT OF
GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY . . . " FURTHERMORE, IF
AN ARBITRATOR WERE TO RENDER AN AWARD INVOLVING THE MATTERS WHICH ,UNDER
THE PROVISIONS OF LAW" MAY NOT BE COVERED BY NEGOTIATED GRIEVANCE
PROCEDURES, THE AGENCY WOULD HAVE AN OPPORTUNITY TO CHALLENGE THE AWARD
BY FILING EXCEPTIONS THERETO WITH THE AUTHORITY PURSUANT TO SECTION 7122
OF THE STATUTE (92 STAT. 1212) ON THE BASIS THAT THE AWARD IS "CONTRARY
TO ANY LAW, RULE OR REGULATION."

IN SUMMARY, WE HOLD THAT THE UNION'S PROPOSAL IS A MATTER WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE. ACCORDINGLY, THE AGENCY'S
ALLEGATION THAT THE PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET
ASIDE.

ISSUED, WASHINGTON, D.C., MAY 30, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ 5 U.S.C. 7121 OF THE STATUTE PROVIDES, IN PERTINENT PART, THAT:

SEC. 7121. GRIEVANCE PROCEDURES

(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SECTION, ANY
COLLECTIVE BARGAINING

AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF

ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTION (D) AND (E) OF THIS
SECTION, THE PROCEDURES

SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
WITHIN ITS COVERAGE.

(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE

GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.

. . . .

/2/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.

/3/ THE EXPRESS EXCLUSIONS DEMANDED BY THE AGENCY WERE:

1. THE SEPARATION OF EMPLOYEES IN THEIR PROBATIONARY PERIOD;

2. ANY ACTIONS AND RECOMMENDATIONS RESULTING FROM COMPETENCY REVIEWS
   BY THE SUPERVISOR OR

BY A NURSE PROFESSIONAL STANDARDS BOARD;

3. ANY ACTION TAKEN BY THE CHIEF MEDICAL DIRECTOR ON THE BASIS OF
   DISCIPLINARY BOARD

RECOMMENDATIONS.

/4/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 157 (1978).