Decision on Request for General Statement of Policy or Guidance



[ v04 p664 ]
04:0664(86)PS
The decision of the Authority follows:


 4 FLRA No. 86
 
                                            Case No. 0-PS-19
 
          DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
                                 GUIDANCE
 
    THE AUTHORITY RECEIVED A REQUEST FROM THE NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES (NFFE) THAT THE AUTHORITY ISSUE A MAJOR POLICY
 DETERMINATION CONCERNING, IN EFFECT, WHETHER APPEALS OF ADVERSE ACTIONS
 INVOLVING NATIONAL GUARD (NG) TECHNICIANS MUST BE EXPRESSLY EXCLUDED
 FROM COVERAGE OF NEGOTIATED GRIEVANCE PROCEDURES BECAUSE OF THE
 OPERATION OF SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF
 1968 (32 U.S.C. 709(E)) WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    (E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND UNDER REGULATIONS
 PRESCRIBED BY THE
 
    SECRETARY 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 (A REDUCTION IN
 FORCE, REMOVAL OR AN
 
    ADVERSE ACTION AGAINST A TECHNICIAN) SHALL NOT EXTEND BEYOND THE
 ADJUTANT GENERAL OF THE
 
    JURISDICTION CONCERNED(.)
 
    ACCORDING TO NFFE'S SUBMISSION, THE REQUEST ARISES OUT OF A SITUATION
 PRESENTLY FACED BY SOME NFFE LOCALS WHEREIN SUCH LOCALS ARE
 CONTEMPLATING THE RENEGOTIATION OF BROAD-SCOPE GRIEVANCE PROCEDURES AND
 THE NATIONAL GUARD BUREAU IS CLAIMING THAT MATTERS INVOLVING APPEALS OF
 ADVERSE ACTIONS AGAINST NG TECHNICIANS CANNOT BE SENT TO ARBITRATION.
 
    THE AUTHORITY HAS CAREFULLY CONSIDERED THIS REQUEST AND HAS
 DETERMINED THAT IT DOES NOT SATISFY THE STANDARDS GOVERNING THE ISSUANCE
 OF GENERAL STATEMENTS OF POLICY AND GUIDANCE SET FORTH IN SECTION 2427.5
 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2427.5) WHICH PROVIDES
 IN PERTINENT PART:
 
    SEC. 2427.5 STANDARDS GOVERNING ISSUANCE OF GENERAL STATEMENT OF
 POLICY AND GUIDANCE.
 
    IN DECIDING WHETHER TO ISSUE A GENERAL STATEMENT OF POLICY OR
 GUIDANCE, THE AUTHORITY SHALL
 
    CONSIDER:
 
    (A) WHETHER THE QUESTION PRESENTED CAN MORE APPROPRIATELY BE RESOLVED
 BY OTHER MEANS(.)
 
    THE QUESTION PRESENTED IN THIS REQUEST FOR A MAJOR POLICY
 DETERMINATION CAN BE MORE APPROPRIATELY RESOLVED BY OTHER MEANS.  IN
 THIS REGARD, THE ESSENCE OF THE QUESTION PRESENTED APPEARS TO BE WHETHER
 UNION PROPOSED GRIEVANCE PROCEDURES WHICH FAIL TO EXPRESSLY EXCLUDE
 APPEALS OF ADVERSE ACTIONS OF NG TECHNICIANS FROM INCLUSION WITHIN THE
 SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURES WOULD BE NONNEGOTIABLE,
 I.E., INCONSISTENT WITH LAW, RULE OR REGULATIONS, IN THIS CASE, SECTION
 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968.  THUS, THE
 QUESTION PRESENTED IS APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES
 SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.1 ET SEQ.).  /1/
 
    ACCORDINGLY, THE INSTANT REQUEST FOR A MAJOR POLICY DETERMINATION IS
 DENIED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                          CERTIFICATE OF SERVICE
 
    A COPY OF THE DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
 GUIDANCE OF THE FEDERAL LABOR RELATIONS AUTHORITY IN THE SUBJECT
 PROCEEDING HAS THIS DAY BEEN MAILED TO THE PARTIES LISTED BELOW:
 
                            MR. JAMES M. PEIRCE
 
                                 PRESIDENT
 
                 NATIONAL FEDERATION OF FEDERAL EMPLOYEES
 
                          1016 16TH STREET, N.W.
 
                          WASHINGTON, D.C. 20036
 
                          MR. KENNETH T. BLAYLOCK
 
                            NATIONAL PRESIDENT
 
                     AMERICAN FEDERATION OF GOVERNMENT
 
                            EMPLOYEES, AFL-CIO