09:0737(92)CA - Vermont Air NG, Burlington, VT and ACT, Inc. -- 1982 FLRAdec CA



[ v09 p737 ]
09:0737(92)CA
The decision of the Authority follows:


 9 FLRA No. 92
 
 VERMONT AIR NATIONAL GUARD,
 BURLINGTON, VERMONT
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN
 TECHNICIANS, INC.
 Charging Party
 
                                            Case No. 1-CA-466
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES'
 STIPULATION OF FACTS, /1/ ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY
 THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY FINDS:
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1), (5) AND (8) OF THE STATUTE /2/ IN THAT IT FAILED AND REFUSED
 TO AFFORD THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC., GREEN MOUNTAIN
 CHAPTER (ACT), A FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE UNDER SECTION
 7121 OF THE STATUTE /3/ BY INSISTING TO IMPASSE ON THE EXCLUSION FROM
 THE SCOPE OF THAT PROCEDURE OF ALL ADVERSE ACTIONS DEFINED IN SECTION
 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (32 U.S.C. 709(E)).
 
    AT ALL TIMES MATERIAL HEREIN, ACT HAS HELD EXCLUSIVE RECOGNITION FOR
 A UNIT CONSISTING OF ALL NONSUPERVISORY EMPLOYEES OF THE RESPONDENT'S
 TECHNICIAN DETACHMENT.  ON JULY 24, 1980, THE RESPONDENT AND ACT BEGAN
 NEGOTIATIONS FOR A SUCCESSOR COLLECTIVE BARGAINING AGREEMENT.  THE
 PARTIES REACHED AGREEMENT ON ALL CONTRACT ARTICLES EXCEPT THOSE WHICH
 PERTAINED TO THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE.  ALTHOUGH
 ACT HAD REQUESTED A FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE, IT DID
 CONSIDER AND BARGAIN IN GOOD FAITH OVER THE RESPONDENT'S PROPOSALS WHICH
 SOUGHT TO EXCLUDE CERTAIN MATTERS FROM THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE.  HOWEVER, AS OF AUGUST 21, 1980, ACT AND THE
 RESPONDENT HAD REACHED IMPASSE AS TO THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE.
 
    THE GENERAL COUNSEL, CITING THE AUTHORITY'S INTERPRETATION AND
 GUIDANCE, 2 FLRA 273 (1979), AND THE APPLICABLE LEGISLATIVE HISTORY OF
 SECTION 7121, /4/ CONTENDS THAT ABSENT "MUTUAL AGREEMENT" BY THE PARTIES
 TO EXCLUDE SPECIFIC MATTERS FROM THE SCOPE OF THE GRIEVANCE PROCEDURE,
 THE PARTY SEEKING A FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE IS
 ENTITLED TO IT.  THAT IS, THE GENERAL COUNSEL ASSERTS THAT THE PARTY
 SEEKING A FULL SCOPE GRIEVANCE PROCEDURE MUST CONSIDER THE OTHER PARTY'S
 POSITION AND OTHERWISE FULFILL THE REQUIREMENTS OF GOOD FAITH
 BARGAINING, BUT THAT THE PARTY SEEKING TO NARROW THE SCOPE OF THE
 GRIEVANCE PROCEDURE MAY NOT INSIST TO IMPASSE ON THE ISSUE AND THEN SEEK
 A RESOLUTION OF THE IMPASSE BY THE FEDERAL SERVICE IMPASSES PANEL (THE
 PANEL) UNDER SECTION 7119 OF THE STATUTE.  SUCH INSISTENCE TO IMPASSE ON
 A LESS THAN FULL SCOPE GRIEVANCE PROCEDURE, THE GENERAL COUNSEL ARGUES,
 DELAYS THE EXECUTION OF A COLLECTIVE BARGAINING AGREEMENT IN VIOLATION
 OF SECTION 7116(A)(1) AND (5), AND CONSTITUTES NONCOMPLIANCE WITH
 SECTION 7121 OF THE STATUTE IN VIOLATION OF SECTION 7116(A)(1) AND (8).
 THE AUTHORITY DISAGREES.
 
    THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE IS A MATTER AFFECTING
 WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES AND, AS A CONDITION OF
 EMPLOYMENT, /5/ IS A MANDATORY SUBJECT FOR COLLECTIVE BARGAINING UNDER
 THE STATUTE.  SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND
 U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, 8
 FLRA NO. 75 (1982), AT 29-30.  /6/ IN THIS REGARD, AS THE AUTHORITY HAS
 PREVIOUSLY HELD, THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION 7121
 DEMONSTRATE THAT "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." AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3669 AND VETERANS ADMINISTRATION MEDICAL CENTER,
 MINNEAPOLIS, MINNESOTA, 3 FLRA 310 AT 314 (1980).  SEE ALSO AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547, AFL-CIO AND VETERANS
 ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50 (1980),
 ENFORCED SUB NOM. VA MEDICAL CENTER (TAMPA) V. FLRA, 675 F.2D 260 (11TH
 CIR. 1982).  UNDER THE "COLLECTIVE BARGAINING PROCESS" OF THE STATUTE,
 THE PARTIES HAVE A MUTUAL OBLIGATION TO BARGAIN IN A GOOD FAITH EFFORT
 TO REACH AGREEMENT WITH RESPECT TO THE MATTER, BUT THE STATUTE "DOES NOT
 COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A CONCESSION . . .
 ." /7/ WHERE AN IMPASSE IS REACHED WITH RESPECT TO A PROPOSAL BY EITHER
 PARTY TO NARROW THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE,
 THEREFORE, EITHER PARTY MAY REQUEST THE ASSISTANCE OF THE PANEL TO
 RESOLVE THE IMPASSE UNDER SECTION 7119 OF THE STATUTE.  SEE NATIONAL
 IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, SUPRA, AT 29-30.  /8/
 CONSISTENT WITH THE INTENT OF CONGRESS EXPRESSED IN THE STATUTE AND ITS
 PERTINENT LEGISLATIVE HISTORY, A PARTY PROPOSING TO NARROW THE SCOPE OF
 THE GRIEVANCE PROCEDURE BEARS THE BURDEN IN PANEL PROCEEDINGS TO JUSTIFY
 THE PROPOSED REDUCTION IN THE SCOPE OF THE GRIEVANCE PROCEDURE.
 
    ACCORDINGLY, INASMUCH AS THE PARTIES HAD BARGAINED IN GOOD FAITH
 BEFORE REACHING AN IMPASSE HEREIN, AND INASMUCH AS SUCH CONDUCT IS
 CONSISTENT WITH SECTION 7121 OF THE STATUTE, THE AUTHORITY CONCLUDES
 THAT THE RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1), (5) OR (8) AS
 ALLEGED IN THE COMPLAINT.  /9/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-466 BE, AND
 IT HEREBY IS, DISMISSED.  
 
 ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE GENERAL COUNSEL MOVED TO AMEND THE COMPLAINT TO NAME THE
 NATIONAL GUARD BUREAU, WASHINGTON, D.C., AS AN ADDITIONAL RESPONDENT.
 THE VERMONT AIR NATIONAL GUARD OPPOSED THE MOTION.  NOTING PARTICULARLY
 THAT THE NATIONAL GUARD BUREAU IS NOT A PARTY TO THE STIPULATION, THE
 MOTION IS DENIED.
 
    /2/ SECTION 7116(A) PROVIDES IN PERTINENT PART:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;
 
   .          .          .          .
 
 
    (5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
 ORGANIZATION AS REQUIRED
 
    BY THIS CHAPTER;
 
   .          .          .          .
 
 
    (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER.
 
    /3/ SECTION 7121 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    SEC. 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 SUBSECTIONS (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.
 
    (B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
 OF THIS SECTION
 
    SHALL--
 
    (1) BE FAIR AND SIMPLE,
 
    (2) PROVIDE FOR EXPEDITIOUS PROCESSING, AND
 
    (3) INCLUDE PROCEDURES THAT--
 
    (A) ASSURE AN EXCLUSIVE REPRESENTATIVE THE RIGHT, IN ITS OWN BEHALF
 OR ON BEHALF OF ANY
 
    EMPLOYEE IN THE UNIT REPRESENTED BY THE EXCLUSIVE REPRESENTATIVE, TO
 PRESENT AND PROCESS
 
    GRIEVANCES;
 
    (B) ASSURE SUCH AN EMPLOYEE THE RIGHT TO PRESENT A GRIEVANCE ON THE
 EMPLOYEE'S OWN BEHALF,
 
    AND ASSURE THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT
 DURING THE GRIEVANCE
 
    PROCEEDING;  AND
 
    (C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
 INVOKED BY EITHER THE EXCLUSIVE
 
    REPRESENTATIVE OR THE AGENCY.
 
    (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.
 
    AS USED HEREIN, THE TERM "FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE"
 MEANS A PROCEDURE WHICH EXCLUDES FROM ITS COVERAGE ONLY GRIEVANCES
 CONCERNING THOSE MATTERS ENUMERATED IN SECTION 7121(C) OF THE STATUTE.
 
    /4/ WITH RESPECT TO THE SCOPE OF GRIEVANCE PROCEDURES UNDER SECTION
 7121, THE CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE BILL
 WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO LAW STATES:
 
    THE SENATE PROVIDES THAT THE COVERAGE AND SCOPE OF THE GRIEVANCE
 PROCEDURES SHALL BE
 
    NEGOTIATED BY THE PARTIES (SECTION 7221(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.  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.
 
    /5/ SECTION 7103(A)(14) OF THE STATUTE DEFINES "CONDITIONS OF
 EMPLOYMENT" AS:
 
    (P)ERSONNEL POLICIES, PRACTICES, AND MATTERS, WHETHER ESTABLISHED BY
 RULE, REGULATION, OR
 
    OTHERWISE, AFFECTING WORKING CONDITIONS, EXCEPT THAT SUCH TERM DOES
 NOT INCLUDE POLICIES,
 
    PRACTICES, AND MATTERS--
 
    (A) RELATING TO POLITICAL ACTIVITIES PROHIBITED UNDER SUBCHAPTER III
 OF CHAPTER 73 OF THIS
 
    TITLE;
 
    (B) RELATING TO THE CLASSIFICATION OF ANY POSITION;  OR
 
    (C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
 FEDERAL STATUTE(.)
 
    THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE UNDER SECTION 7121 OF
 THE STATUTE IS NOT A MATTER "SPECIFICALLY PROVIDED FOR BY FEDERAL
 STATUTE" SO AS TO BE EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF
 EMPLOYMENT" PURSUANT TO SECTION 7103(A)(14)(C).  COMPARE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL GRAIN
 INSPECTION LOCALS AND UNITED STATES DEPARTMENT OF AGRICULTURE, FEDERAL
 GRAIN INSPECTION SERVICE, WASHINGTON, D.C., 3 FLRA 529 (1980), ENFORCED
 SUB NOM. AFGE, COUNCIL OF FEDERAL GRAIN INSPECTION LOCALS V.  FLRA, 653
 F.2D 669 (D.C. CIR. 1981).  INDEED, IF THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE WERE NOT A CONDITION OF EMPLOYMENT, IT WOULD NOT
 COME WITHIN THE STATUTE'S DEFINITION OF COLLECTIVE BARGAINING (SEE N. 7,
 INFRA).  SUCH A RESULT WOULD BE INCONSISTENT WITH THE CONFERENCE
 REPORT'S USE OF THE TERM "COLLECTIVE BARGAINING PROCESS" WITH RESPECT TO
 THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES.
 
    /6/ THIS CONCLUSION IS FULLY CONSISTENT WITH THE AUTHORITY'S
 INTERPRETATION AND GUIDANCE, WHEREIN THE AUTHORITY STATED THAT
 "GRIEVANCE PROCEDURES NEGOTIATED BY THE PARTIES UNDER SECTION 7121 OF
 THE STATUTE COVER ALL MATTERS WHICH MIGHT LAWFULLY BE SUBMITTED TO THOSE
 PROCEDURES, UNLESS THE PARTIES IN THEIR NEGOTIATIONS MUTUALLY AGREE THAT
 PARTICULAR MATTERS SHALL BE EXCLUDED FROM THE NEGOTIATED GRIEVANCE
 PROCEDURES AS PROVIDED IN SECTION 7121(A)(2) OF THE STATUTE." 2 FLRA
 273, 277 (1979).  FURTHER, THE AUTHORITY STATED THEREIN THAT "SECTION
 7121 CONCERNS THE SCOPE OF GRIEVANCE PROCEDURES WHICH MAY BE NEGOTIATED
 BY THE PARTIES." ID. AT 278 N. 6.  OF COURSE, IN THE ABSENCE OF A
 PROPOSAL BY EITHER PARTY WHICH SEEKS TO NARROW A FULL SCOPE NEGOTIATED
 GRIEVANCE PROCEDURE, THE FULL SCOPE PROCEDURE APPLIES.
 
    /7/ SECTION 7103(A)(12) OF THE STATUTE DEFINES "COLLECTIVE
 BARGAINING" AS:
 
    (T)HE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE REPRESENTATIVE OF
 AN AGENCY AND THE
 
    EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT IN THE
 AGENCY TO MEET AT
 
    REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO
 REACH AGREEMENT WITH
 
    RESPECT TO THE CONDITIONS OF EMPLOYMENT AFFECTING SUCH EMPLOYEES AND
 TO EXECUTE, IF REQUESTED
 
    BY EITHER PARTY, A WRITTEN DOCUMENT INCORPORATING ANY COLLECTIVE
 BARGAINING AGREEMENT REACHED,
 
    BUT THE OBLIGATION REFERRED TO IN THIS PARAGRAPH DOES NOT COMPEL
 EITHER PARTY TO AGREE TO A
 
    PROPOSAL OR TO MAKE A CONCESSION(.)
 
    /8/ BY ESTABLISHING THE PANEL IN SECTION 7119(C)(1) "AS AN ENTITY
 WITHIN THE AUTHORITY, THE FUNCTION OF WHICH IS TO PROVIDE ASSISTANCE IN
 RESOLVING NEGOTIATION IMPASSES BETWEEN AGENCIES AND EXCLUSIVE
 REPRESENTATIVES," CONGRESS THUS CREATED THE IMPASSE PROCEDURE AS A
 CONTINUING PART OF THE COLLECTIVE BARGAINING PROCESS PRESCRIBED BY THE
 STATUTE.  IN THIS REGARD, "(I)F THE PARTIES DO NOT ARRIVE AT A
 SETTLEMENT AFTER ASSISTANCE BY THE PANEL . . . THE PANEL MAY . . . TAKE
 WHATEVER ACTION IS NECESSARY AND NOT INCONSISTENT WITH (THE STATUTE) TO
 RESOLVE THE IMPASSE." SECTION 7119(C)(5)(B).  MOREOVER, THE PANEL'S
 ACTION "SHALL BE BINDING ON SUCH PARTIES DURING THE TERM OF THE
 AGREEMENT, UNLESS THE PARTIES AGREE OTHERWISE" (SECTION 7119(C)(5)(C));
 AND THE FAILURE OR REFUSAL BY EITHER PARTY "TO COOPERATE IN IMPASSE
 PROCEDURES AND IMPASSE DECISIONS AS REQUIRED BY (THE STATUTE)" IS AN
 UNFAIR LABOR PRACTICE (SECTION 7116(A)(6);  7116(B)(6)).  SEE ALSO
 DEPARTMENT OF DEFENSE, ARMY-AIR FORCE EXCHANGE SERVICE (FORT DIX) V.
 FLRA, 659 F.2D 1140, 1146 (D.C. CIR. 1981).  IT IS NOTED THAT THE PANEL
 HAS PROVIDED ASSISTANCE TO PARTIES IN THE PAST WITH REGARD TO IMPASSES
 OVER PROPOSED EXCLUSIONS TO FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURES
 WHERE NEITHER PARTY RAISED A QUESTION CONCERNING ITS DUTY TO BARGAIN ON
 THE MATTER.  SEE, E.G., NORTH CAROLINA AIR NATIONAL GUARD, 145TH
 TACTICAL AIRLIFT GROUP, CHARLOTTE, NORTH CAROLINA AND LOCAL 3001,
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 81 FSIP 21 (MAY
 26, 1981), FSIP RELEASE NO. 190;  DEPARTMENT OF THE NAVY, NAVAL WEAPONS
 STATION, CONCORD, CALIFORNIA AND LOCAL 1931, AFGE, 81 FSIP 140 AND 82
 FSIP 14 (JAN. 27, 1982), FSIP RELEASE NO. 201;  DEPARTMENT OF THE AIR
 FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE,
 OHIO AND COUNCIL 214, AFGE, 81 FSIP 53 (NOV. 20, 1981), FSIP RELEASE NO.
 200.  HOWEVER, WHERE A PARTY HAS RAISED A QUESTION CONCERNING ITS DUTY
 TO BARGAIN OVER PROPOSED EXCLUSIONS TO A FULL SCOPE GRIEVANCE PROCEDURE,
 THE PANEL HAS DEFERRED ACTION "UNTIL THIS THRESHOLD ISSUE IS RESOLVED BY
 THE AUTHORITY," WITHOUT PREJUDICE TO A REQUEST FOR FURTHER ASSISTANCE IF
 AN IMPASSE REMAINED AFTER SUCH RESOLUTION BY THE AUTHORITY.  SEE
 DEPARTMENT OF THE ARMY, HEADQUARTERS, U.S. ARMY ARMAMENT MATERIEL
 READINESS COMMAND, ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS AND LOCAL
 15, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, 80 FSIP 59 (DEC. 23,
 1980), FSIP RELEASE NO. 176.
 
    /9/ IN VIEW OF THE FOREGOING CONCLUSION, THE AUTHORITY FINDS IT
 UNNECESSARY TO ADDRESS THE RESPONDENT'S CONTENTION THAT SECTION 709(E)
 OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 REQUIRES THE SPECIFIC
 EXCLUSION OF ADVERS