National Association of Government Employees, Local R12-132 (Union) and California National Guard (Activity)



[ v05 p201 ]
05:0201(25)NG
The decision of the Authority follows:


 5 FLRA No. 25
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R12-132
 Union
 
 and
 
 CALIFORNIA NATIONAL GUARD
 Activity
 
                                            Case No. 0-NG-149
 
                 DECISION AND ORDER 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.).
 
    DURING THE COURSE OF CONTRACT NEGOTIATIONS BETWEEN THE PARTIES TO
 RENFW THEIR EXPIRING AGREEMENT, THE UNION SUBMITTED THE FOLLOWING
 PROPOSAL WHICH THE AGENCY DECLARED NONNEGOTIABLE:  /1/
 
                              UNION PROPOSAL
 
                               ARTICLE XXIII
 
                      NEGOTIATED GRIEVANCE PROCEDURE
 
              (DELETE) SECTIONS 1, 2, 3, 4, A., 4B., AND 4C.
 
                   (INSERT) NEW SECTIONS 1, 2, 3 AND 4:
 
    SECTION 1.  THIS ARTICLE ESTABLISHES THE EXCLUSIVE PROCEDURE
 AVAILABLE TO THE EMPLOYEES IN
 
    THE UNIT, THE UNION AND THE EMPLOYER FOR RESOLVING ALL GRIEVANCES
 WHICH FALL WITHIN ITS
 
    SCOPE.  GRIEVANCES TO BE PROCESSED UNDER THIS ARTICLE SHALL APPLY TO
 MATTERS OF CONCERN OR
 
    DISSATISFACTION REGARDING THE INTERPRETATION, APPLICATION OR
 VIOLATION OF LAW, REGULATIONS OR
 
    THIS AGREEMENT;  CONDITIONS OF EMPLOYMENT;  OR RELATIONSHIPS WITH
 AGENCY SUPERVISORS AND
 
    OFFICIALS, INCLUDING PROHIBITED PERSONNEL PRACTICE CHARGES AND
 DISCIPLINARY AND ADVERSE
 
    ACTIONS.  IT DOES NOT APPLY TO:
 
    A.  A VIOLATION RELATING TO POLITICAL ACTIVITIES;
 
    B.  RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
 
    C.  A SUSPENSION OR REMOVAL FOR NATIONAL SECURITY;
 
    D.  ANY EXAMINATION, CERTIFICATION OR APPOINTMENT;
 
    E.  CLASSIFICATION OF POSITION WHICH DOES NOT RESULT IN THE REDUCTION
 IN GRADE OR PAY OF
 
    THE EMPLOYEE;  OR
 
    F.  EEO COMPLAINTS
 
    SECTION 2.  WHERE A MATTER MAY BE RAISED UNDER AN APPLICABLE
 APPELLATE PROCEDURE AND THIS
 
    NEGOTIATED GRIEVANCE PROCEDURE THE EMPLOYEE AT HIS DISCRETION MAY
 RAISE THE MATTER UNDER THE
 
    APPELLATE PROCEDURE OR THIS NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT
 BOTH.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSED GRIEVANCE PROCEDURE,
 WHICH INCLUDES WITHIN ITS COVERAGE APPEALS OF ADVERSE ACTIONS OF
 NATIONAL GUARD TECHNICIANS, IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7117 OF THE STATUTE BECAUSE IT IS INCONSISTENT WITH FEDERAL LAW (32
 U.S.C. 709(E)), /2/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE GRIEVANCE PROCEDURE HERE IN DISPUTE, WHICH
 INCLUDES WITHIN ITS COVERAGE MATTERS RELATING TO APPEALS OF ADVERSE
 ACTIONS OF NATIONAL GUARD TECHNICIANS, IS WITHIN THE AGENCY'S DUTY TO
 BARGAIN UNDER THE STATUTE, AND IS NOT INCONSISTENT WITH 32 U.S.C.
 709(E).  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 FED.REG.
 48,575(1980)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
 OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE SUBJECT
 PROPOSAL.  /3/
 
    REASONS:  THE NATIONAL GUARD TECHNICIANS COVERED BY THE INSTANT
 PROPOSAL ARE EMPLOYED PURSUANT TO THE NATIONAL GUARD TECHNICIANS ACT OF
 1968, 32 U.S.C. 709.  THIS ACT, WHICH CREATES A SEPARATE PERSONNEL
 SYSTEM APPLICABLE ONLY TO SUCH TECHNICIANS, PROVIDES THAT SUCH
 TECHNICIANS ARE EMPLOYED IN CIVILIAN POSITIONS TO ADMINISTER AND TRAIN
 THE NATIONAL GUARD AND TO MAINTAIN AND REPAIR THE SUPPLIES ISSUED TO THE
 NATIONAL GUARD OR THE ARMED FORCES.  32 U.S.C.  709(A).  THE ACT ALSO
 REQUIRES, GENERALLY, THAT AS A CONDITION OF THEIR CIVILIAN EMPLOYMENT,
 TECHNICIANS MUST BECOME AND REMAIN MILITARY MEMBERS OF THE NATIONAL
 GUARD.  32 U.S.C. 709(B).  IN THIS LATTER REGARD, THE ACT PROVIDES THAT
 A TECHNICIAN WHO IS SEPARATED FROM THE GUARD, AS A MILITARY MEMBER, OR
 WHO FAILS TO MAINTAIN THE MILITARY GRADE SPECIFIED FOR HIS POSITION,
 "SHALL BE PROMPTLY SEPARATED FROM HIS TECHNICIAN EMPLOYMENT." 32 U.S.C.
 709(E)(1).  IN ADDITION, IF A TECHNICIAN "FAILS TO MEET . . . MILITARY
 SECURITY STANDARDS . . . (SUCH TECHNICIAN) MAY BE SEPARATED FROM HIS
 EMPLOYMENT AS A TECHNICIAN AND CONCURRENTLY DISCHARGED FROM THE NATIONAL
 GUARD.  . . .  " 32 U.S.C. 709(E)(2).  FURTHER, AND AS HERE RELEVANT, IF
 A TECHNICIAN REMAINS A MEMBER OF THE NATIONAL GUARD AND IS OTHERWISE
 ELIGIBLE FOR CONTINUED TECHNICIAN EMPLOYMENT UNDER 32 U.S.C. 709(E)(1)
 AND (3)(2), THE ACT GRANTS ADDITIONAL AUTHORITY IN 32 U.S.C. 709(E)(3)
 AND (E)(4) TO ADJUTANTS GENERAL IN THEIR RESPECTIVE JURISDICTIONS TO
 TAKE ADVERSE PERSONNEL ACTIONS (E.G., SUSPENSIONS, REDUCTIONS TO PAY OR
 GRADE AND REMOVALS) AGAINST TECHNICIANS QUA TECHNICIANS, AND FINALLY, 32
 U.S.C. 709(E)(5) AND (3)(6) PROVIDES AN APPELLATE PROCEDURE FOR
 TECHNICIANS TO APPEAL ADVERSE PERSONNEL ACTIONS TAKEN AGAINST THEM.
 
    AS TO THE INCLUSION OF MATTERS RELATED TO APPEALS OF ADVERSE
 PERSONNEL ACTIONS TAKEN AGAINST TECHNICIANS IN THE PROPOSED GRIEVANCE
 PROCEDURE, THE AGENCY TAKES THE POSITION THAT THERE IS NOTHING CONTAINED
 IN EITHER THE EXPRESS PROVISIONS OF THE CIVIL SERVICE REFORM ACT OF 1978
 OR ITS LEGISLATIVE HISTORY WHICH INDICATES A CONGRESSIONAL INTENT TO
 REPEAL, MODIFY OR SUPERSEDE ANY SUBSTANTIVE PROVISIONS OF THE
 TECHNICIANS ACT.  THEREFORE, THE AGENCY ARGUES, UNDER WELL-RECOGNIZED
 PRINCIPLES OF STATUTORY CONSTRUCTION, SECTION 709(E) OF THE TECHNICIANS
 ACT, WHICH DESIGNATES THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED
 AS THE FINAL ARBITER OF APPEALS OF ADVERSE ACTIONS OF NATIONAL GUARD
 TECHNICIANS, REMAINS THE EXCLUSIVE MEANS OF RESOLVING SUCH DISPUTES.
 
    THE AGENCY ALSO CONTENDS THAT, IF SECTION 7121(E)(1) OF THE STATUTE
 IS PROPERLY CONSTRUED, IT IS CLEAR THAT NATIONAL GUARD TECHNICIANS WERE
 NOT TO BE INCLUDED WITHIN THE DEFINITION OF EMPLOYEES COVERED BY THAT
 SECTION.  IN THIS REGARD, THE AGENCY ARGUES, SECTION 7121(E)(1)
 INTRODUCES ADVERSE ACTION MATTERS (I.E., REDUCTIONS IN PAY OR GRADE,
 SUSPENSIONS, REMOVALS, ETC.) INTO THE NEGOTIATED GRIEVANCE PROCEDURES BY
 REFERENCE TO CHAPTERS 43 AND 75 OF TITLE 5 OF THE UNITED STATES CODE
 WHICH CREATE THE ADVERSE ACTION SYSTEM;  AND, SINCE NATIONAL GUARD
 TECHNICIANS ARE SPECIFICALLY EXCLUDED BY REGULATIONS OF THE OFFICE OF
 PERSONNEL MANAGEMENT FROM COVERAGE UNDER CHAPTERS 43 AND 75 OF TITLE 5,
 /4/ SECTION 7121(E)(1) OF THE STATUTE THEREFORE MUST ALSO BE CONSTRUED
 TO EXCLUDE NATIONAL GUARD TECHNICIANS FROM ITS COVERAGE.
 
    FINALLY, THE AGENCY CONTENDS THAT INCLUSION OF APPEALS OF ADVERSE
 ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS WITHIN THE SCOPE OF
 GRIEVANCE PROCEDURES NEGOTIATED UNDER THE STATUTE, WHICH PROCEDURES END
 IN BINDING ARBITRATION, WOULD VIOLATE THE PROVISION IN 32 U.S.C.
 709(E)(5) THAT SUCH APPEALS "SHALL NOT EXTEND BEYOND THE ADJUTANT
 GENERAL OF THE JURISDICTION CONCERNED."
 
    THE AGENCY'S CONTENTIONS CANNOT BE SUSTAINED.  THE DEFINITIONS OF
 "AGENCY" AND "EMPLOYEE" FOR PURPOSES OF THE STATUTE INCLUDE NATIONAL
 GUARD TECHNICIANS UNDER 5 U.S.C. 7103(A)(3) AND (2) RESPECTIVELY.  IN
 ADDITION, SECTION 7121 OF THE STATUTE PROVIDES FOR BROAD SCOPE GRIEVANCE
 PROCEDURES.  /5/ AS STATED WITH RESPECT TO SECTION 7121 IN THE
 CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE BILL WHICH WAS
 SUBSEQUENTLY ENACTED AND SIGNED INTO LAW:
 
    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.  JOINT EXPLANATORY STATEMENT
 OF THE COMMITTEE ON
 
    CONFERENCE, H.R. REP. NO. 1717, 95TH CONG., 2D SESS. 157, REPRINTED
 IN (1978) U.S. CODE
 
    CONG. & AD. NEWS 2860, 2891.
 
    THE LIST OF MATTERS EXCLUDED FROM PERMISSIBLE COVERAGE WITHIN
 NEGOTIATED GRIEVANCE PROCEDURES BY SECTION 7121(C) OF THE STATUTE DOES
 NOT ADVERT TO ADVERSE ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS.
 THUS, ON THEIR FACE, GRIEVANCE PROCEDURES NEGOTIATED UNDER THE STATUTE
 COVER SUCH MATTERS UNLESS THE PARTIES EXCLUDE THEM THROUGH BARGAINING.
 /6/ MOREOVER, SECTION 7121(E)(1) OF THE STATUTE PROVIDES:
 
    (E)(1) MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
 WHICH ALSO FALL WITHIN
 
    THE COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE
 DISCRETION OF THE AGGRIEVED
 
    EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE PROCEDURES OF SECTION
 7701 OF THIS TITLE OR
 
    UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.  SIMILAR
 MATTERS WHICH ARISE UNDER
 
    OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED BY THIS
 CHAPTER MAY, IN THE DISCRETION
 
    OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE
 PROCEDURES, IF ANY, APPLICABLE
 
    TO THOSE MATTERS, OR UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT
 NOT BOTH.  AN EMPLOYEE
 
    SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION UNDER THIS SUBSECTION TO
 RAISE A MATTER EITHER
 
    UNDER THE APPLICABLE APPELLATE PROCEDURES OR UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE AT SUCH
 
    TIME AS THE EMPLOYEE TIMELY FILES A NOTICE OF APPEAL UNDER THE
 APPLICABLE APPELLATE PROCEDURES
 
    OR TIMELY FILES A GRIEVANCE IN WRITING IN ACCORDANCE WITH THE
 PROVISIONS OF THE
 
    PARTIES' NEGOTIATED GRIEVANCE PROCEDURE, WHICHEVER EVENT OCCURS
 FIRST.  5 U.S.C. 7121(E)(1).
 
    THIS LANGUAGE AS REPORTED OUT OF THE SENATE-HOUSE CONFERENCE
 COMMITTEE IN THE FINAL VERSION OF THE BILL ENACTED AND SIGNED INTO LAW
 WAS IDENTICAL TO THAT IN THE BILL (S. 2640) REPORTED OUT OF THE SENATE
 COMMITTEE ON GOVERNMENT AFFAIRS AND SUBSEQUENTLY PASSED BY THE SENATE.
 THE SENATE COMMITTEE REPORTED ON THIS SUBSECTION AS FOLLOWS:
 
    SUBSECTION (E) PROVIDES EMPLOYEES WITH AN OPTION, IN APPEALING
 MATTERS COVERED UNDER 5
 
    U.S.C. SECTION 4303 (DEMOTION OR REMOVAL FOR UNACCEPTABLE
 PERFORMANCE) OR 5 U.S.C. SECTION
 
    7512 (REMOVAL, SUSPENSION FOR MORE THAN 30 DAYS, REDUCTION IN GRADE,
 REDUCTION IN PAY OF AN
 
    AMOUNT EXCEEDING ONE STEP OF AN EMPLOYEE'S GRADE OR 3 PERCENT OF THE
 EMPLOYEE'S BASIC PAY,
 
    FURLOUGH FOR 30 DAYS OR LESS), OF USING THE STATUTORY APPEAL
 PROCEDURE UNDER 5 U.S.C. SECTION
 
    7701 OR THE NEGOTIATED GRIEVANCE PROCEDURE IF SUCH MATTERS HAVE BEEN
 NEGOTIATED INTO COVERAGE
 
    UNDER THE GRIEVANCE PROCEDURE.  IT ALSO PROVIDES THAT MATTERS SIMILAR
 TO THOSE LISTED ABOVE
 
    WHICH MAY ARISE UNDER OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES
 COVERED BY THIS
 
    SUBCHAPTER, SUCH AS THOSE PROVIDED IN TITLE 38, UNITED STATES CODE,
 MAY, IN THE DISCRETION OF
 
    THE AGGRIEVED EMPLOYEE, BE RAISED UNDER EITHER THE NEGOTIATED
 GRIEVANCE PROCEDURE OR UNDER ANY
 
    APPELLATE PROCEDURES WHICH WOULD OTHERWISE BE AVAILABLE TO THE
 EMPLOYEE IF THE MATTER WEREN'T
 
    COVERED BY THE GRIEVANCE PROCEDURE.  S. REP. NO. 95-969, 95TH CONG.,
 2D SESS. 110(1978)
 
    REPRINTED IN (1978) U.S. CODE CONG. & AD. NEWS 2723, 2832.
 
    THIS CLEARLY STATES CONGRESS' INTENT THAT ADVERSE ACTIONS ARISING
 "UNDER OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED BY (THE
 STATUTE)" (AS IS THE CASE WITH TITLE 32 EMPLOYEES), WHICH ARE SIMILAR TO
 THE DISCIPLINARY AND ADVERSE ACTIONS DESCRIBED IN 5 U.S.C. 4303 AND 5
 U.S.C. 7512 CAN BE COVERED BY THE PROVISIONS OF SECTION 7121 OF THE
 STATUTE.  IT ALSO CLEARLY STATES CONGRESS' INTENT THAT SUCH EMPLOYEES
 SUBJECT TO OTHER PERSONNEL SYSTEMS (AS IS THE CASE WITH TITLE 32
 EMPLOYEES) HAVE THE SAME OPTION AS EMPLOYEES COVERED BY TITLE 5 TO
 UTILIZE A NEGOTIATED GRIEVANCE PROCEDURE (IF THE PROCEDURE COVERS THE
 MATTER) OR AN AVAILABLE APPELLATE PROCEDURE WHEN THEY WISH TO CHALLENGE
 SUCH ACTIONS.  /7/ ACCORDINGLY, THE AGENCY'S CONTENTION THAT APPEALS OF
 ADVERSE ACTIONS OF NATIONAL GUARD TECHNICIANS ARE EXCLUDED FROM COVERAGE
 OF SECTION 7121(E)(1) OF THE STATUTE BY VIRTUE OF THEIR EXCLUSION FROM
 COVERAGE OF CHAPTERS 43 AND 75 OF TITLE 5 (NOTE 4, SUPRA), IS BASED ON
 MISINTERPRETATION OF SECTION 7121(E)(1) OF THE STATUTE AND CANNOT BE
 SUSTAINED.  SIMILARLY, FOR THE REASONS SET FORTH ABOVE, THE AGENCY'S
 ASSERTION THAT UNDER WELL-SETTLED PRINCIPLES OF STATUTORY CONSTRUCTION
 THE ADJUTANT GENERAL OF THE JURISDICTION INVOLVED REMAINS THE EXCLUSIVE
 MEANS OF RESOLVING SUCH DISPUTES UNDER SECTION 709(E) OF THE TECHNICIANS
 ACT CANNOT BE SUSTAINED.
 
    FINALLY, THE AGENCY'S CONTENTION THAT INCLUDING APPEALS OF ADVERSE
 ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS WITHIN THE COVERAGE OF
 NEGOTIATED GRIEVANCE PROCEDURES CULMINATING IN FINAL AND BINDING
 ARBITRATION WILL VIOLATE THE PROVISION IN 32 U.S.C. 709(E)(5) (SEE NOTE
 2, SUPRA) THAT SUCH APPEALS SHALL NOT EXTEND BEYOND THE ADJUTANT GENERAL
 LEVEL CANNOT BE SUSTAINED.  WHILE THE NATIONAL GUARD TECHNICIANS ACT OF
 1968 ESTABLISHES A STATUTORY APPEAL PROCEDURE COVERING ADVERSE ACTIONS
 INVOLVING NATIONAL GUARD TECHNICIANS, WHICH PROCEDURE CULMINATES AT THE
 ADJUTANT GENERAL LEVEL, NOTHING CONTAINED IN THAT ACT PRECLUDES THE
 AGENCY FROM FULFILLING ITS OBLIGATION UNDER THE STATUTE TO NEGOTIATE A
 SEPARATE CONTRACTUAL GRIEVANCE PROCEDURE CULMINATING IN BINDING
 ARBITRATION UNDER WHICH ADVERSE ACTIONS INVOLVING BARGAINING UNIT
 EMPLOYEES COULD BE PROCESSED AT THE OPTION OF THE EMPLOYEE.  AS
 PREVIOUSLY STATED, THE EXISTENCE OF SUCH ALTERNATIVE PROCEDURES WAS
 EXPRESSLY CONTEMPLATED BY CONGRESS IN ENACTING SECTION 7121(E) OF THE
 STATUTE.  IN SO CONCLUDING, HOWEVER, THE AUTHORITY EMPHASIZES THAT THE
 STATUTORY APPEAL PROCEDURE CONTAIN