American Federation of Government Employees, Local 3004, AFL-CIO (Union) and Massachusetts National Guard, Office of the Adjutant General (Activity); American Federation of Government Employees, Local 2986, AFL-CIO (Union) and Office of the Adjutant General, Oregon Military Department, Salem, Oregon (Activity); National Association of Government Employees (Union) and Office of the Adjutant General, State of New Jersey (Activity)
[ v03 p894 ]
03:0894(130)NG
The decision of the Authority follows:
3 FLRA No. 130
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3004
Union
and
MASSACHUSETTS NATIONAL GUARD,
OFFICE OF THE ADJUTANT GENERAL
Activity
Case No. 0-NG-111
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2986
Union
and
OFFICE OF THE ADJUTANT GENERAL,
OREGON MILITARY DEPARTMENT,
SALEM, OREGON
Activity
Case No. 0-NG-123
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
UNION
and
OFFICE OF THE ADJUTANT GENERAL,
STATE OF NEW JERSEY
Activity
Case No. O-NG-129
CONSOLIDATED DECISION ON NEGOTIABILITY ISSUE
THESE CASES COME 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. SECS. 7101 ET
SEQ.).
IN EACH OF THE ABOVE-CAPTIONED CASES, A SIMILAR ISSUE AROSE
CONCERNING LIMITATIONS ON THE SCOPE OF THE NEGOTIATED GRIEVANCE
PROCEDURE, NAMELY WHETHER APPEALS OF ADVERSE ACTIONS INVOLVING NATIONAL
GUARD (NG) TECHNICIANS MUST, AS A MATTER OF LAW, BE SPECIFICALLY
EXCLUDED FROM THE NEGOTIATED GRIEVANCE PROCEDURE. THIS ISSUE AROSE IN
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3004 AND
MASSACHUSETTS NATIONAL GUARD, OFFICE OF THE ADJUTANT GENERAL, CASE NO.
O-NG-111, WHEN THE UNION, DURING THE COURSE OF NEGOTIATIONS, SOUGHT TO
NEGOTIATE AN ARBITRATION PROCEDURE WHICH DID NOT SPECIFICALLY EXCLUDE
APPEALS OF ADVERSE ACTIONS OF NG TECHNICIANS; IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2986 AND OFFICE OF THE ADJUTANT
GENERAL, OREGON MILITARY DEPARTMENT, SALEM, OREGON, CASE NO. O-NG-123,
DURING THE COURSE OF NEGOTIATIONS, WHEN THE UNION SOUGHT TO NEGOTIATE
THE SCOPE OF THE GRIEVANCE PROCEDURE WHICH SIMILARLY DID NOT
SPECIFICALLY EXCLUDE APPEALS OF ADVERSE ACTIONS OF NG TECHNICIANS; AND
IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES AND OFFICE OF THE
ADJUTANT GENERAL, STATE OF NEW JERSEY, CASE NO. O-NG-129, WHEN, DURING
THE COURSE OF NEGOTIATIONS, THE UNION PROPOSED TO DELETE AN EXISTING
CONTRACT PROVISION THAT EXPRESSLY EXCLUDED ARBITRATION OF ADVERSE
ACTIONS OF NG TECHNICIANS. /1/ IN EACH OF THE THREE CASES, THE AGENCY
HEAD DETERMINED THAT APPEALS OF ADVERSE ACTIONS INVOLVING NG TECHNICIANS
MUST BE EXCLUDED FROM THE PARTIES' NEGOTIATED GRIEVANCE AND ARBITRATION
PROCEDURES SINCE SUCH APPEALS ARE, BY VIRTUE OF SECTION 709(E) OF THE
NATIONAL GUARD TECHNICIANS ACT OF 1968, OUTSIDE THE SCOPE AND COVERAGE
OF THE PARTIES' NEGOTIATED GRIEVANCE AND ARBITRATION PROCEDURES. IN
THIS REGARD, SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF
1968 (32 U.S.C. SEC. 709(E)) PROVIDES AS FOLLOWS:
(E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND UNDER REGULATIONS
PRESCRIBED BY THE
SECRETARY CONCERNED--
(1) A TECHNICIAN WHO IS EMPLOYED IN A POSITION IN WHICH NATIONAL
GUARD MEMBERSHIP IS
REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO IS SEPARATED FROM THE
NATIONAL GUARD OR CEASES
TO HOLD THE MILITARY GRADE SPECIFIED FOR HIS POSITION BY THE
SECRETARY CONCERNED SHALL BE
PROMPTLY SEPARATED FROM HIS TECHNICIAN EMPLOYMENT BY THE ADJUTANT
GENERAL OF THE JURISDICTION
CONCERNED;
(2) A TECHNICIAN WHO IS EMPLOYES IN A POSITION IN WHICH NATIONAL
GUARD MEMBERSHIP IS
REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO FAILS TO MEET THE
MILITARY SECURITY STANDARDS
ESTABLISHED BY THE SECRETARY CONCERNED FOR A MEMBER OF A RESERVE
COMPONENT OF THE ARMED FORCE
UNDER HIS JURISDICTION MAY BE SEPARATED FROM HIS EMPLOYMENT AS A
TECHNICIAN AND CONCURRENTLY
DISCHARGED FROM THE NATIONAL GUARD BY THE ADJUTANT GENERAL OF THE
JURISDICTION CONCERNED;
(3) A TECHNICIAN MAY, AT ANY TIME, BE SEPARATED FROM HIS TECHNICIANS
EMPLOYMENT FOR CAUSE
BY THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
(4) A REDUCTION IN FORCE, REMOVAL, OR AN ADVERSE ACTION INVOLVING
DISCHARGE FROM TECHNICIAN
EMPLOYMENT, SUSPENSION, FURLOUGH WITHOUT PAY, OR REDUCTION IN RANK OR
COMPENSATION SHALL BE
ACCOMPLISHED BY THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
(5) A RIGHT OF APPEAL WHICH MAY EXIST WITH RESPECT TO CLAUSE (1),
(2), (3) OR (4) SHALL NOT
EXTEND BEYOND THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
AND
(6) A TECHNICIAN SHALL BE NOTIFIED IN WRITING OF THE TERMINATION OF
HIS EMPLOYMENT AS A
TECHNICIAN AND SUCH NOTIFICATION SHALL BE GIVEN AT LEAST THIRTY DAYS
PRIOR TO THE TERMINATION
DATE OF SUCH EMPLOYMENT.
INASMUCH AS A RESOLUTION OF EACH OF THE THREE APPEALS DEPENDS UPON A
DECISION WITH RESPECT TO THE SAME ISSUE WHICH THEY ALL SHARE, THE
AUTHORITY'S ACTION WITH RESPECT TO EACH SUCH APPEAL IS EXPRESSED IN THE
INSTANT CONSOLIDATED DECISION WHICH APPLIES INDIVIDUALLY TO EACH OF
THEM.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE PROPOSALS
WHICH PERTAIN TO THE SCOPE OF THE GRIEVANCE AND ARBITRATION PROCEDURES
HERE IN DISPUTE ARE OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7121 OF
THE STATUTE BECAUSE SUCH PROCEDURES AS IN CASE NOS. O-NG-111 AND
O-NG-123 FAIL TO EXPRESSLY EXCLUDE APPEALS OF ADVERSE ACTIONS INVOLVING
NG TECHNICIANS OR, AS IN CASE NO. O-NG-129 WOULD DELETE CERTAIN
CONTRACTUAL LANGUAGE WHICH EXPRESSLY EXCLUDES SUCH APPEALS. SECTION 7121
OF THE STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:
SECTION 7121. GRIEVANCE PROCEDURES
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, 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.
* * * *
(C) 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.
OPINION
CONCLUSION: THE PROPOSED GRIEVANCE AND ARBITRATION PROCEDURES HERE
IN DISPUTE ARE WITHIN THE DUTY TO BARGAIN UNDER SECTION 7121 OF THE
STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10), THE AGENCY'S ALLEGATIONS THAT THE
DISPUTED PROCEDURES ARE NOT WITHIN THE DUTY TO BARGAIN ARE SET ASIDE.
IN SO DECIDING THAT THE DISPUTED PROCEDURES ARE WITHIN THE DUTY TO
BARGAIN, NO JUDGMENT IS MADE AS TO THE MERITS OF SUCH PROCEDURES.
REASONS: THE PROPOSALS HERE IN DISPUTE BEAR NO MATERIAL DIFFERENCE
FROM PROPOSALS WHICH WERE BEFORE THE AUTHORITY IN ITS CONSOLIDATED
DECISION IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87
AND STATE OF KANSAS ARMY NATIONAL GUARD, CASE NO. O-NG-12; NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS R12-130 AND R12-145 AND
STATE OF NEVADA NATIONAL GUARD, CASE NO. O-NG-15; AND ASSOCIATION OF
CIVILIAN TECHNICIANS, NORTH AND SOUTH ALABAMA CHAPTERS AND STATE OF
ALABAMA NATIONAL GUARD, CASE NO. O-NG-84, 3 FLRA NO. 124, WHEREIN THE
AUTHORITY HELD SUCH PROPOSALS TO BE WITHIN THE DUTY TO BARGAIN UNDER THE
STATUTE.
IN ITS CONSOLIDATED DECISION IN THOSE CASES, THE AUTHORITY FOUND,
RELYING ON AN EARLIER DECISION IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO. LOCAL 3669 AND VETERANS ADMINISTRATION MEDICAL
CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA NO. 48, THAT PROPOSALS PERTAINING
TO THE SCOPE OF GRIEVANCE AND ARBITRATION PROCEDURES WHICH DO NOT
EXPRESSLY EXCLUDE APPEALS OF ADVERSE ACTIONS INVOLVING NATIONAL GUARD
TECHNICIANS ARE MATTERS WITHIN THE AGENCY'S DUTY TO BARGAIN UNDER
SECTION 7121 OF THE STATUTE.
THEREFORE, BASED ON THE REASONS SET FORTH IN GREATER DETAIL IN THE
NATIONAL GUARD AND VETERANS ADMINISTRATION CASES, THE AUTHORITY HOLDS
THAT THE DISPUTED GRIEVANCE AND ARBITRATION PROCEDURES IN THE INSTANT
CASES LIKEWISE ARE MATTERS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
ACCORDINGLY, THE AGENCY'S ALLEGATIONS THAT SUCH GRIEVANCE AND
ARBITRATION PROCEDURES ARE NOT WITHIN THE DUTY TO BARGAIN BECAUSE OF THE
FAILURE TO EXPRESSLY EXCLUDE CERTAIN MATTERS FROM SUCH PROCEDURES, ARE
SET ASIDE.
ISSUED, WASHINGTON, D.C., JULY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
PROPOSAL SUBMITTED IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3004 AND MASSACHUSETTS NATIONAL GUARD, OFFICE OF THE
ADJUTANT GENERAL, CASE NO. O-NG-111
ARBITRATION
SECTION 1. IF THE EMPLOYER AND THE UNION FAIL TO SETTLE ANY
GRIEVANCE PROCESSED UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, SUCH
GRIEVANCE, UPON WRITTEN REQUEST BY EITHER THE EMPLOYER OR THE UNION
WITHIN 30 CALENDAR DAYS AFTER ISSUANCE OF THE FINAL DECISION SHALL BE
SUBMITTED TO ARBITRATION.
SECTION 2. WITHIN 5 WORKING DAYS FROM THE DATE OF THE REQUEST FOR
ARBITRATION, EITHER PARTY SHALL REQUEST THE FEDERAL MEDIATION AND
CONCILIATION SERVICE TO PROVIDE A LIST OF 7 IMPARTIAL PERSONS QUALIFIED
TO ACT AS ARBITRATORS. THE PARTIES SHALL MEET WITHIN 3 WORKING DAYS
AFTER RECEIPT OF SUCH LIST. IF THEY CAN'T MUTUALLY AGREE UPON ONE OF
THE LISTED ARBITRATORS, THEN THE EMPLOYER AND THE UNION WILL EACH STRIKE
ONE ARBITRATOR'S NAME FROM THE LIST OF 7 AND WILL THEN REPEAT THIS
PROCEDURE UNTIL ONE PERSON REMAINS WHO SHALL BE THE DULY SELECTED
ARBITRATOR.
SECTION 3. THE FEDERAL MEDIATION AND CONCILIATION SERVICE SHALL BE
EMPOWERED TO MAKE A DIRECT DESIGNATION OF AN ARBITRATOR TO HEAR THE CASE
IN THE EVENT:
(1) EITHER PARTY REFUSES TO PARTICIPATE IN THE SELECTION OF AN
ARBITRATOR OR; (2) UPON
INACTION OR UNDUE DELAY ON THE PART OF EITHER PARTY.
SECTION 4. IF THE PARTIES FAIL TO AGREE ON A JOINT SUBMISSION OF THE
ISSUE FOR ARBITRATION, EACH SHALL SUBMIT A SEPARATE SUBMISSION AND THE
ARBITRATOR SHALL DETERMINE THE ISSUE OR ISSUES TO BE HEARD.
SECTION 5. THE ARBITRATOR'S FEE AND THE EXPENSES OF THE ARBITRATION,
IF ANY, SHALL BE BORNE EQUALLY BY THE EMPLOYER AND THE UNION. THE
ARBITRATION HEARING WILL BE HELD, IF POSSIBLE, ON THE EMPLOYERS'
PREMISES DURING THE REGULAR DAY SHIFT HOURS OF THE BASIC WORKWEEK. ALL
PARTICIPANTS IN THE HEARING SHALL BE IN A DUTY STATUS.
SECTION 6. THE ARBITRATOR WILL BE REQUESTED TO RENDER HIS DECISION
AS QUICKLY AS POSSIBLE, BUT IN ANY EVENT NOT LATER THAN 30 DAYS AFTER
THE CONCLUSION OF THE HEARING UNLESS THE PARTIES MUTUALLY AGREE TO
EXTEND THE TIME LIMIT.
SECTION 7. THE ARBITRATOR'S AWARD SHALL BE BINDING ON THE PARTIES.
SECTION 8. ANY DISPUTE OVER THE APPLICATION OF AN ARBITRATOR'S AWARD
SHALL BE RETURNED TO THE ARBITRATOR FOR SETTLEMENT, INCLUDING REMANDED
AWARDS.
SECTION 9. EXCEPT AS MUTUALLY AGREED BY THE PARTIES, ARBITRATION
UNDER THIS ARTICLE WILL BE CONDUCTED AS ORAL PROCEEDINGS WITH NO
VERBATIM TRANSCRIPT AND NO FILING OF BRIEFS.
SECTION 10. ABSENT A NEGATIVE ARBITRATOR'S DECISION UPON THE
ARBITRABILITY OF A GRIEVANCE, THE ARBITRATOR SHALL HEAR ARGUMENTS
REGARDING BOTH THE ARBITRABILITY AND THE MERITS OF THE CASE AT THE SAME
HEARINGS. HOWEVER, THE PARTIES MAY MUTUALLY AGREE OTHERWISE IN
INSTANCES SUCH AS HIGHLY COMPLEX CASES WHICH WOULD INVOLVE SEVERAL DAYS
OF HEARINGS.
SECTION 11. ANY PARTY TO THIS AGREEMENT WHO:
(A) REFUSES TO PRESENT A QUESTION OF ARBITRABILITY TO THE ARBITRATOR,
OR OTHERWISE PROCEED
TO ARBITRATE A GRIEVANCE; OR
(B) DOES NOT PROCEED WITHOUT UNDUE DELAY TO IMPLEMENT THE
ARBITRATOR'S AWARD SHALL PAY THE
TOTAL COST OF ARBITRATION.
UPON A FINDING BY APPROPRIATE AUTHORITY THAT THE REFUSING PARTY DID
NOT HAVE A DUTY TO ARBITRATE THE ISSUE OR IMPLEMENT THE ARBITRATOR'S
AWARD, THE GRIEVING PARTY SHALL PAY THEIR HALF OF THE ARBITRATION COSTS.
SECTION 12. THE ARBITRATOR HAS FULL AUTHORITY TO AWARD
REPRESENTATIVE FEES IN ACCORDANCE WITH THE STANDARDS OF THE CIVIL
SERVICE REFORM ACT.
PROPOSAL SUBMITTED IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2986 AND OFFICE OF THE ADJUTANT GENERAL, OREGON MILITARY
DEPARTMENT, SALEM OREGON, CASE NO. O-NG-123.
ARTICLE XIV GRIEVANCE PROCEDURE
SECTION B-- SCOPE
A. GRIEVANCE MEANS ANY COMPLAINT
(1) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
OF THE EMPLOYEE.
PROPOSAL SUBMITTED IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
AND OFFICE OF THE ADJUTANT GENERAL, STATE OF NEW JERSEY, CASE NO.
O-NG-129
DELETE: ARTICLE XIII, SECTION 16. THE PROVISIONS OF TITLE 32, USC
SECTION 709E, ARE EXPRESSLY EXCLUDED FROM BINDING ARBITRATION.
CERTIFICATE OF SERVICE
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED BELOW:
CHARLES E. HICKEY, JR.
NATIONAL VICE PRESIDENT
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES
285 DORCHESTER AVENUE
BOSTON, MASS. 02127
WAYNE A. ROBERTSON
CHIEF, OFFICE OF TECHNICIAN PERSONNEL
NATIONAL GUARD BUREAU
WASHINGTON, D.C. 20310
CHIEF OF STAFF, NEW JERSEY
P. O. BOX 979
TRENTON, NEW JERSEY 08625
OSD (MRA & L)
ATTN: MR. GREEN, ROOM 3D 264
THE PENTAGON
WASHINGTON, D.C. 20310
RONALD D. KING, DIRECTOR
CONTRACT AND APPEALS DIVISION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
1325 MASSACHUSETTS AVENUE, N.W.
WASHINGTON, D.C. 20005
ADJUTANT GENERAL
MILITARY DEPARTMENT
2150 FAIRGROUNDS RD., N.E.
SALEM, OREGON 97303
BENARD HURLOCK
DEPUTY CHIEF, OFFICE OF TECHNICIAN
PERSONNEL
NATIONAL GUARD BUREAU
WASHINGTON, D.C. 20310
GUY COLLETTI
NATIONAL REPRESENTATIVE
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES
54 CUMMINGS PARK, SUITE 312
WOBURN, MASS. 01801
ANTHONY L. CAMUSO
LTC, GS, MASS ARNG
PERSONNEL OFFICER
143 SPEEN STREET
NATICK, MA. 01760
/1/ THE TEXT OF EACH PROPOSAL IS SET FORTH IN AN APPENDIX TO THIS
DECISION.