U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Department of Veterans Affairs and National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, AT-CA-90578, September 26, 2001, 57 FLRA No. 92.

The Authority disagreed with the ALJ, who recommended dismissal of the complaint, and instead found that the agency violated § 7116(a)(1) and (5) when it notified the union that it would not permit an attorney to attend a step 2 grievance meeting. FLRA disagreed with the ALJ's interpretation of the agreement as well as with his waiver theory. Regarding the latter, it said: "the mere fact that an arbitration clause provides the sole mechanism for resolving contract disputes does not obviate a party's right to make claims of statutory violations through the unfair labor practice procedures[.]"

Article 47, Section 6 of parties' master agreement, dealing with participation in step 2 grievance meetings, states that the "employee may be accompanied by the Chief Steward, or his/her designee." It had been the activity's practice to send only one management representative to step 2 grievance meetings. But when it began sending two representatives, the union responded by also sending a second representative. However, when management, in connection with the events giving rise to this case, learned that the union intended to send one of its stewards and a private attorney to the step 2 meeting, it notified the union that it would not permit the attorney to attend. A ULP complaint resulted, charging the agency with violating § 7116(a)(1) and (5).

In recommending dismissal of the complaint, the ALJ interpreted the agreement as limiting attendance at step 2 grievance meetings to local union officials. In the alternative, he found that the union had waived its right to raise the interpretation of Article 47 of the parties' master bargaining agreement through the filing of an unfair labor practice charge. The Authority rejected both findings. Regarding the issue of attendance at step 2 meetings, it said the following:

The plain wording of Article 47, Section 6 addresses participation in step two grievance meetings. With regard to management representation, the provision states that the management official receiving the step two grievance will meet with the employee. With regard to Union representation, the provision states only that an employee may be accompanied by the Chief Steward or the steward's designee. The provision is silent on whether representatives other than those referenced are permitted to attend such meetings. In addition, apart from who may attend step two grievance meetings as representatives of the parties, the provision is silent with respect to the total number of representatives who may attend. Moreover, the record fails to disclose any bargaining history concerning this provision that would establish the intent of the parties in this regard.

Notwithstanding the fact that Article 47, Section 6 is silent on the issue of designation and/or number of representatives, and the absence of relevant bargaining history, the Judge found that Union representation is limited to stewards and local officials at step two of the grievance procedure. In so doing, the Judge relied on the language of Article 9, Section 1. However, Article 9 is also silent on this issue. We, therefore, conclude that the Judge's interpretation of Article 47, Section 6 of the parties' master bargaining agreement is not supported and that the agreement does not preclude the attendance at step 2 grievance meetings of a representative of the union's choice.

In rejecting the ALJ's alternative finding that the national and local unions had waived any right to challenge the interpretation of Article 47 of the master agreement (which provides, among other things, that the NGP is the "sole" procedure available to the parties and unit employees for resolving grievances over the interpretation of the agreement) in a ULP proceeding, FLRA said the following:

The complaint in this case alleges that the Respondent engaged in an unfair labor practice as set forth in § 7116(a)(1) and (5) of the Statute and does not involve the resolution of a grievance. In addition, a review of Article 47, entitled "Grievance Procedure," shows that it essentially mirrors the statutory language of § 7121 of the Statute. The fact that the Respondent has raised an affirmative defense that calls for interpretation of the Master Agreement does not convert the Union's statutory claim into a grievance that is covered solely by the grievance procedure. No other arguments with regard to waiver of the right under the Statute to file an unfair labor practice were advanced during the course of these proceedings. Accordingly, we conclude that Article 47 of the parties' agreement does not contain a waiver by the parties of their statutory rights to file an unfair labor practice charge. We, therefore, find that this aspect of the Judge's decision must be reversed.