09:0829(109)CA - Rhode Island NG and ACT, Inc. -- 1982 FLRAdec CA



[ v09 p829 ]
09:0829(109)CA
The decision of the Authority follows:


 9 FLRA No. 109
 
 RHODE ISLAND NATIONAL GUARD
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
 Charging Party
 
                                            Case No. 1-CA-422
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD VIOLATED
 SECTION 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) AND RECOMMENDING THAT IT CEASE AND
 DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.  THEREAFTER, THE
 RESPONDENT AND THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S
 DECISION.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND THE ENTIRE RECORD IN THE SUBJECT CASE, THE
 AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION ONLY TO THE EXTENT CONSISTENT HEREWITH.  /1/
 
    THE POSITIONS OF THE PARTIES HEREIN ARE SUBSTANTIALLY SIMILAR TO
 THOSE OF THE PARTIES IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT,
 9 FLRA NO. 92(1982), WHEREIN WE HELD THAT THE SCOPE OF THE GRIEVANCE
 PROCEDURE IS A MANDATORY SUBJECT FOR BARGAINING AND, IF IMPASSE IS
 REACHED, IS SUBJECT TO IMPASSE RESOLUTION PROCEDURES.  THUS, CONTRARY TO
 THE JUDGE AND BASED ON THE REASONING SET FORTH IN THAT DECISION, THE
 AUTHORITY FINDS THAT THE RESPONDENT'S ACTIONS DID NOT CONSTITUTE A
 VIOLATION OF THE STATUTE, AS ALLEGED.  /2/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-422 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    AMEDEO C. MEROLLA, ESQ.
                      FOR THE RESPONDENT
 
    JAMES R. COLLINS, ESQ.
                      FOR THE GENERAL COUNSEL
 
    BEFORE:  ALAN W. HEIFETZ
                      ADMINISTRATIVE LAW JUDGE
 
                             CASE NO. 1-CA-422
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT
 OF AN UNFAIR LABOR PRACTICE CHARGE FILED JULY 8, 1980, WITH THE FEDERAL
 LABOR RELATIONS AUTHORITY.  AN AMENDED CHARGE WAS FILED ON NOVEMBER 3,
 1980, AND CONSEQUENTLY, ON DECEMBER 9, 1980, THE REGIONAL DIRECTOR OF
 THE AUTHORITY ISSUED A COMPLAINT ALLEGING THAT THE RHODE ISLAND NATIONAL
 GUARD VIOLATED 5 U.S.C.  7116(A)(1), (5) AND (8) BY REFUSING TO AFFORD
 THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC. (THE UNION) A FULL SCOPE
 GRIEVANCE PROCEDURE BY INSISTING TO IMPASSE ON THE EXCLUSION FROM THE
 SCOPE OF THE NEGOTIATED GRIEVANCE-AR0ITRATION CONTRACT ARTICLE ALL
 ADVERSE ACTIONS AS DEFINED IN 32 U.S.C. 709(E).  RESPONDENT DENIES THAT
 ALLEGATION AND ASSERTS THAT THE CHARGE IS UNTIMELY, THAT IT HAS
 BARGAINED IN GOOD FAITH, AND THAT THE COMPLAINT SHOULD BE DISMISSED
 SINCE IT IS NOT PERMITTED BY LAW TO ABROGATE THE RESPONSIBILITIES OF THE
 ADJUTANT GENERAL OF RHODE ISLAND AS SET FORTH IN 32 U.S.C.  709(E).
 
    A HEARING WAS HELD ON MAY 13, 1981, IN BOSTON, MASSACHUSETTS.  ALL
 PARTIES WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES AND TO
 INTRODUCE EVIDENCE.  POST HEARING BRIEFS WERE FILED BY JULY 16, 1981,
 AND HAVE BEEN CONSIDERED.  UPON THE ENTIRE RECORD, INCLUDING MY
 OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
 FINDINGS, CONCLUSIONS, AND RECOMMENDATION:
 
                             FINDINGS OF FACT
 
    IN OCTOBER 1979 THE PARTIES BEGAN EFFORTS TO NEGOTIATE A COLLECTIVE
 BARGAINING AGREEMENT TO SUCCEED THE MOST RECENT ONE WHICH EXPIRED IN
 1976.  AMONG PROPOSALS PRESENTED BY THE UNION WAS ONE WHICH WOULD
 PROVIDE FOR A FULL SCOPE GRIEVANCE PROCEDURE.  ON THE OTHER HAND,
 RESPONDENT INITIALLY PROPOSED A LESS THAN FULL SCOPE GRIEVANCE
 PROCEDURE, ONE WHICH EXCLUDED MATTERS COVERED BY 32 U.S.C. 709(E).  /3/
 THE GRIEVANCE PROCEDURE WAS AT ALL TIMES CONTAINED IN ARTICLE 10 OF EACH
 PARTY'S PROPOSAL AND THE FINAL CONTRACT.
 
    ON JANUARY 9, 1980, THE PARTIES HELD THEIR FIRST CONTRACT NEGOTIATION
 SESSION.  RESPONDENT'S POSITION WITH RESPECT TO THE EXCLUSION OF 709(E)
 MATTERS WAS THAT, AS A MATTER OF LAW, THEY WERE ENTITLED TO THE
 EXCLUSION, THAT THEY WOULD NOT RELINQUISH THOSE LEGAL RIGHTS, BUT THAT
 THEY WOULD DISCUSS THE WORDING OF ARTICLE 10.
 
    ON JANUARY 15, 1980, THE UNION PRESENTED RESPONDENT WITH A
 COUNTERPROPOSAL ON ARTICLE 10.  THAT COUNTERPROPOSAL, HOWEVER, CONTAINED
 A PROVISION FOR A FULL SCOPE GRIEVANCE PROCEDURE.
 
    THE SECOND CONTRACT NEGOTIATION SESSION WAS HELD ON FE0RUARY 23,
 1980.  AT THAT TIME RESPONDENT PRESENTED THE UNION WITH A
 COUNTERPROPOSAL ON ARTICLE 10, BUT IT CONTAINED THE SAME LANGUAGE OF THE
 INITIAL PROPOSAL WHICH WOULD HAVE EXCLUDED 709(E) MATTERS FROM THE SCOPE
 OF THE GRIEVANCE PROCEDURE.
 
    ON MARCH 5, 1980, THE PARTIES MET FOR ANOTHER NEGOTIATION SESSION.
 THE UNION PROPOSED THAT SECTIONS 5 THROUGH 13 OF RESPONDENT'S MOST
 RECENT PROPOSAL BE ADOPTED IF RESPONDENT WOULD ACCEPT SECTIONS 1 THROUGH
 6 OF THE UNION'S PROPOSAL.  RESPONDENT REJECTED THIS OFFER.
 
    PROGRESS WAS MADE AT THE MARCH 17 MEETING OF THE PARTIES.  THEY
 REACHED AGREEMENT ON ALL OF ARTICLE 10 EXCEPT ON THE QUESTIONS OF 709(E)
 EXCLUSIONS AND WHETHER EMPLOYEES WOULD HAVE AN ELECTION BETWEEN THE
 NEGOTIATED PROCEDURE AND STATUTORY APPEALS WHERE BOTH WERE AVAILABLE.
 
    THE NEXT NEGOTIATION SESSION WAS HELD ON APRIL 2, 1980.  THE UNION
 PRESENTED A COUNTERPROPOSAL WHICH WOULD EXCLUDE FROM THE GRIEVANCE
 PROCEDURE THOSE MATTERS EXCLUDED BY SECTION 7121(C) OF THE STATUTE.
 RESPONDENT INDICATED ITS WILLINGNESS TO CONSIDER THE PROPOSAL BUT IT
 MADE NO FURTHER RESPONSE.
 
    A FEDERAL MEDIATOR WAS PRESENT AT THE MEETING ON JUNE 13, 1980. AT
 THIS TIME, RESPONDENT PRESENTED THE UNION WITH A COUNTERPROPOSAL
 CONTAINING 13 EXCLUSIONS FROM THE GRIEVANCE PROCEDURE INCLUDING MATTERS
 COVERED BY 709(E).  THERE WAS LITTLE OR NO DISCUSSION ON THE
 COUNTERPROPOSAL AND THE UNION INDICATED THAT IT WOULD TAKE THE MATTER
 UNDER ADVISEMENT.
 
    THE FINAL MEETING WAS HELD ON JUNE 27.  AT THAT TIME THERE WERE SEVEN
 ITEMS ON WHICH THERE WAS NO AGREEMENT, INCLUDING THE SCOPE OF THE
 GRIEVANCE PROCEDURE.  SOON AFTER THE MEETING OPENED, THE UNION REQUESTED
 TO CAUCUS WITH THE MEDIATOR WHO WAS IN ATTENDANCE.  THE UNION ADHERED TO
 ITS PROPOSAL OF APRIL 2 WHICH WOULD EXCLUDE FROM THE GRIEVANCE PROCEDURE
 ONLY THOSE MATTERS EXCLUDED BY STATUTE.  THE UNION REQUESTED THE
 MEDIATOR TO APPROACH RESPONDENT TO SEE IF THERE WAS ANY MOVEMENT ON ITS
 PART.  THE MEDIATOR RETURNED AND INFORMED THE UNION THAT RESPONDENT HAD
 GONE AS FAR AS IT WOULD GO.  THE PARTIES THEN MET AND THE UNION INFORMED
 RESPONDENT THAT IT WOULD TAKE STEPS TO REQUEST THE ASSISTANCE OF THE
 FEDERAL SERVICE IMPASSES PANEL.  THERE WERE NO FURTHER DISCUSSIONS ON
 THE SCOPE OF THE GRIEVANCE PROCEDURE ALTHOUGH RESPONDENT INDICATED ITS
 WILLINGNESS TO CONTINUE TO NEGOTIATE ON THE OUTSTANDING ARTICLES.
 
    WITH THE EXCEPTION OF THE SCOPE OF THE GRIEVANCE PROCEDURE, ALL
 OUTSTANDING CONTRACT ITEMS WERE SUBMITTED TO THE FSIP WHICH HAS RENDERED
 ITS DECISION ON THOSE MATTERS.
 
                        DISCUSSION AND CONCLUSIONS
 
    ALTHOUGH THE AMENDED CHARGE OF NOVEMBER 3, 1980, RELATES TO AN UNFAIR
 LABOR PRACTICE ALLEGEDLY OCCURRING ON APRIL 2, 1980 (MORE THAN SIX
 MONTHS PREVIOUS), THE COMPLAINT IS NOT TIME BARRED SINCE THE ORIGINAL
 CHARGE OF JULY 8, 1980, ENCOMPASSES THE SAME CAUSE OF ACTION AND WAS
 FILED WITHIN SIX MONTHS OF THE DATE OF ITS ALLEGED OCCURRENCE.  THE
 MOTION TO DISMISS ON THIS GROUND IS, THEREFORE, DENIED.
 
    THE GENERAL COUNSEL TAKES THE POSITION THAT A PARTY SEEKING A FULL
 SCOPE GRIEVANCE PROCEDURE IS ENTITLED TO SUCH A GRIEVANCE PROCEDURE ONCE
 IT HAS FULFILLED ITS OBLIGATION TO BARGAIN IN GOOD FAITH, AND THAT A
 PARTY SEEKING TO LIMIT THE SCOPE OF THE GRIEVANCE PROCEDURE MAY NOT TAKE
 ITS POSITION TO IMPASSE.  THE STATUTE, ITS LEGISLATIVE HISTORY, AND THE
 DECISIONS OF THE AUTHORITY SUPPORT THIS VIEW.
 
    SECTION 7121 OF THE STATUTE CONCERNS THE SCOPE OF THE GRIEVANCE
 PROCEDURE WHICH MAY BE NEGOTIATED BY THE PARTIES AND PROVIDES THAT,
 OTHER THAN FOR CERTAIN ENUMERATED EXCLUSIONS FROM THE SCOPE OF A
 GRIEVANCE PROCEDURE, THE GRIEVANCE PROCEDURE SHALL INCLUDE ALL LAWFUL
 MATTERS EXCEPT THOSE WHICH THE PARTIES AGREE TO EXCLUDE.  /4/ STATED
 ANOTHER WAY, IF THE PARTIES DO NOT AGREE TO LIMIT THE SCOPE OF THE
 GRIEVANCE PROCEDURE, IT COVERS ALL MATTERS NOT SPECIFICALLY EXCLUDED BY
 THE STATUTE.
 
    AS THE LEGISLATIVE HISTORY OF THE STATUTE SHOWS, THE SENATE VERSION
 WOULD HAVE PROVIDED THAT THE PARTIES MIGHT NEGOTIATE INTO THE SCOPE OF
 THE GRIEVANCE PROCEDURE ANY MATTER NOT SPECIFICALLY EXCLUDED BY TERMS OF
 THE LEGISLATION.  THE HOUSE VERSION, HOWEVER, WOULD NOT AUTHORIZE THE
 PARTIES TO NEGOTIATE ANY EXCLUSIONS IN ADDITION TO THOSE SPECIFICALLY
 ENUMERATED IN ITS BILL.  THE CONFEREES ADOPTED THE APPROACH TAKEN BY THE
 HOUSE BUT ADDED AN AMENDMENT WHICH ALLOWED FOR THE EXPANSION OF
 EXCLUSIONS WHERE THE PARTIES WERE ABLE TO AGREE ON ADDITIONAL
 EXCLUSIONS.  AS THE CONFERENCE REPORT STATED:
 
    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.  /5/
 
    ALTHOUGH CONCEDEDLY, POST-ENACTMENT STATEMENTS DO NOT CONSTITUTE
 EVIDENCE OF CONGRESSIONAL INTENT, THE FOLLOWING REMARKS OF
 REPRESENTATIVE WILLIAM FORD ARE CONSISTENT WITH THE POSITION TAKEN BY
 THE CONFEREES AND SUGGEST THAT NOTHING TO THE CONTRARY WAS BEFORE
 CONGRESS FOR CONSIDERATION:
 
    . . . ALTHOUGH THE BASIC HOUSE APPROACH OF STATING IN THE STATUTE THE
 SCOPE OF THE
 
    PROCEDURE WAS FOLLOWED, THE CONFEREES ALSO ADOPTED A PROVISION AIMED
 SOLELY AT ALLOWING THE
 
    EXCLUSIVE REPRESENTATIVE, AT ITS OPTION, TO PROPOSE AND AGREE TO A
 REDUCED COVERAGE FOR THE
 
    NEGOTIATED GRIEVANCE PROCEDURE-- PERHAPS FOR FINANCIAL REASONS.  OF
 COURSE, THE UNION MAY ALSO
 
    NEGOTIATE CHANGES IN THE APPEALS PROCEDURE TO THE EXTENT THAT THE
 AGENCY HAS THE AUTHORITY TO
 
    REVISE THAT PROCEDURE, INSTEAD OF REPLACING THE APPEALS WITH A
 NEGOTIATED PROCEDURE.
 
    WE CAN ANALOGIZE THIS SITUATION TO MANAGEMENT'S "PERMISSIBLE" AREAS
 OF BARGAINING UNDER
 
    SECTION 7106(B)(1), EXCEPT THAT PERMITTING THE REDUCTION IN THE
 GRIEVANCE PROCEDURE WAS
 
    INCLUDED IN THE CONFERENCE REPORT AS A MEANS TO INSURE UNION
 FLEXIBILITY.  THAT IS, THE UNION
 
    IS FREE TO PROPOSE A NARROWED SCOPE OF GRIEVANCES, IS FREE TO
 WITHDRAW THAT PROPOSAL AT ANY
 
    TIME, AND IS FREE TO INSIST TO IMPASSE ON THE NARROWED SCOPE IF THE
 AGENCY DOES
 
    NOT AGREE.  AN AGENCY, HOWEVER, MAY NOT INSIST TO IMPASSE THAT THE
 UNION AGREE TO A REDUCED
 
    SCOPE OF GRIEVANCES UNDER THE NEGOTIATED PROCEDURE.  THE UNIONS DO
 NOT HAVE TO NEGOTIATE IN
 
    THOSE STATUTORY APPEALS THAT WILL BE REPLACED BY A GRIEVANCE AND
 ARBITRATION PROCEDURE;  THEY
 
    MAY NEGOTIATE OUT CERTAIN OR ALL OF THESE APPEALS.  /4/
 
    INDEED, THE AUTHORITY DOES NOT INTERPRET SECTION 7121 AS BROADLY AS
 CONGRESSMAN FORD.  IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 32
 (DECEMBER 19, 1979), THE AUTHORITY STRESSED THE CONCEPTS OF NEGOTIATION
 AND MUTUALITY AS PRECONDITIONS TO RESTRICTING THE SCOPE OF THE GRIEVANCE
 PROCEDURE:
 
    (G)RIEVANCE 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.  /7/
 
    THUS IT IS CLEAR THAT THE AUTHORITY HOLDS THAT, AT A MINIMUM, BOTH
 PARTIES MUST NEGOTIATE IN GOOD FAITH OVER ANY PROPOSAL TO RESTRICT THE
 SCOPE OF THE GRIEVANCE PROCEDURE.  /8/ HOWEVER, AS PREVIOUSLY NOTED, THE
 AUTHORITY HAS INTERPRETED SECTION 7121 AS REQUIRING MUTUAL AGREEMENT TO
 RESTRICT THE SCOPE OF THE GRIEVANCE PROCEDURE.  THE QUESTION IN THIS
 CASE IS WHETHER IMPASSE, AND CONSEQUENTLY DISPUTED RESOLUTION BY A THIRD
 PARTY, CONSTITUTES MUTUAL AGREEMENT.  I THINK NOT.  IMPASSE ONLY
 CONSTITUTES AN AGREEMENT TO DISAGREE, WITH THE CONSEQUENCE USUALLY BEING
 RESOLUTION OF THE DISAGREEMENT BY A THIRD PARTY.  "'IMPASSE' WITHIN THE
 MEANING OF THE FEDERAL LABOR LAWS PRESUPPOSES A REASONABLE EFFORT AT
 GOOD-FAITH BARGAINING WHICH, DESPITE NOBLE INTENTIONS, DOES NOT CONCLUDE
 IN AN AGREEMENT BETWEEN THE PARTIES." /9/ AN IMPASSE, BY ITS VERY
 NATURE, CONNOTES A DEADLOCK REACHED BECAUSE OF AN INABILITY OR
 UNWILLINGNESS TO COMPROMISE.  THAT THE DEADLOCK MAY BE BROKEN BY MEANS
 OF A THIRD PARTY, CHOOSING ONE OF TWO INCONSISTENT PROPOSALS, DOES NOT
 MEAN THAT AN AGREEMENT, A MEETING OF THE MINDS, HAS BEEN ACHIEVED.  THAT
 TYPE OF "EITHER/OR" RESOLUTION MAY BE PRAGMATIC, BUT IT DOES NOT SIGNIFY
 MUTUAL AGREEMENT.  MUTUAL AGREEMENT OCCURS WHERE BOTH PARTIES SHARE IN
 THE DEVELOPMENT OF THE PRODUCT, WHETHER BY ASSENT OR BY COMPROMISE.
 WHERE, AFTER GOOD-FAITH BARGAINING, SUCH A FAILURE TO AGREE RESULTS,
 SECTION 7121 MANDATES IMPLEMENTATION OF A FULL SCOPE GRIEVANCE
 PROCEDURE.
 
    THE FACT THE EMPLOYEES IN THIS CASE ARE NATIONAL GUARD TECHNICIANS
 COVERED BY TITLE 32 OF THE UNITED STATED CODE DOES NOT ALTER THE
 CONCLUSION THAT THEY ARE ENTITLED TO A FULL SCOPE GRIEVANCE PROCEDURE.
 THAT TITLE OF THE UNITED STATES CODE IS NOT IN CONFLICT WITH TITLE 5 OF
 THE CODE.  SECTION 7121(E)(1) OF THE STATUTE PROVIDES:
 
    (E)(1) MATTERS COVERED UNDER SECTION 4303 AND 7512 OF THIS TITLE
 WHICH ALSO FALL WITHIN THE
 
    COVERAGE OF THE
 
    THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE DISCRETION
 
    OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE
 PROCEDURE 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 PROCEDURE, 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.  /10/
 
    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 THREE 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 MATTERS WEREN'T
 
    COVERED BY THE GRIEVANCE PROCEDURE.  /11/
 
    THIS CLEARLY STATES CONGRESS' INTENT THAT DISCIPLINARY MATTERS
 ARISING UNDER TITLE 38 WHICH ARE SIMILAR TO THE DISCIPLINARY AND ADVERSE
 ACTIONS DESCRIBED IN 5 U.S.C.  4303 AND 5 U.S.C. 7512 BE COVERED BY THE
 PROVISIONS OF SECTION 7121 OF THE STATUTE.  IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669 AND VETERANS ADMINISTRATION
 MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, CASE NO. O-NG-32, 3 FLRA NO. 48
 (MAY 30, 1980), THE AUTHORITY STATED THAT:
 
    IF THE AGENCY BELIEVES THAT, AS A MATTER OF LAW, CERTAIN MATTERS ARE
 NONGRIEVABLE AND
 
    NONARBITRABLE, GRIEVANCES WHICH MIGHT BE FILED WITH RESPECT TO THEM
 MAY BE CHALLENGED BY THE
 
    AGENCY AS NONGRIEVABLE OR NONARBITRABLE, IN THE CONTEXT OF SPECIFIC
 FACTUAL CIRCUMSTANCES.  IN
 
    THIS REGARD, SECTION 7121(A) OF THE STATUTE REQUIRES THE PARTIES TO
 "PROVIDE PROCEDURES FOR
 
    THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY .
 . . . " FURTHERMORE, IF
 
    AN ARBITRATOR WERE TO RENDER AN AWARD INVOLVING THE MATTERS WHICH
 "UNDER THE PROVISIONS OF THE
 
    LAW" MAY NOT BE COVERED BY NEGOTIATED GRIEVANCE PROCEDURES, THE
 AGENCY WOULD HAVE AN
 
    OPPORTUNITY TO CHALLENGE THE AWARD BY FILING EXCEPTIONS THERETO WITH
 THE AUTHORITY PURSUANT TO
 
    SECTION 7122 OF THE STATUTE (92 STAT. 1212) ON THE BASIS THAT THE
 AWARD IS "CONTRARY TO ANY
 
    LAW, RULE, OR REGULATION."
 
    THIS SAME RATIONALE HAS BEEN APPLIED BY THE AUTHORITY TO HOLD THAT
 THE NATIONAL GUARD IS UNDER A STATUTORY DUTY TO BARGAIN NOTWITHSTANDING
 THAT PROPOSED GRIEVANCE PROCEDURES FAIL EXPRESSLY TO EXCLUDE CERTAIN
 MATTERS FROM SUCH PROCEDURES.  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 (JULY 31, 1980).  THUS, RESPONDENT IS FREE TO RAISE ITS
 ARGUMENT THAT IT IS INAPPROPRIATE FOR ARBITRATORS, AND ULTIMATELY THE
 AUTHORITY, TO BECOME INVOLVED IN INTERNAL MILITARY MATTERS, "IN THE
 CONTEXT OF SPECIFIC FACTUAL CIRCUMSTANCES."
 
    THE EVIDENCE AMPLY DEMONSTRATES THAT THE PARTIES BARGAINED TO IMPASSE
 ON THE SCOPE OF THE GRIEVANCE PROCEDURE AS WELL AS ON SEVERAL OTHER
 ITEMS WHICH WERE REFERRED TO AND RESOLVED BY THE FSIP.  HAVING FOUND
 THAT RESPONDENT INSISTED TO THE POINT OF IMPASSE ON A LESS THAN FULL
 SCOPE GRIEVANCE PROCEDURE DURING NEGOTIATIONS ON A COLLECTIVE BARGAINING
 AGREEMENT, I AM CONSTRAINED TO CONCLUDE THAT RESPONDENT HAS VIOLATED
 SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE.  ACCORDINGLY, I
 RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5
 C.F.R. 2423.29(C):
 
                                   ORDER
 
    ORDERED, THAT THE RHODE ISLAND NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES BY INSISTING
 TO IMPASSE ON A LESS
 
    THAN FULL SCOPE GRIEVANCE PROCEDURE DURING NEGOTIATIONS ON A
 COLLECTIVE BARGAINING AGREEMENT.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE.
 
    (A) UPON REQUEST OF THE UNION, RESUME NEGOTIATIONS ON A COLLECTIVE
 BARGAINING AGREEMENT
 
    AND, IN THE ABSENCE OF AN AGREEMENT WITH THE UNION TO LIMIT THE SCOPE
 OF THE GRIEVANCE
 
    PROCEDURE TO BE CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT,
 TIMELY EXECUTE A COLLECTIVE
 
    BARGAINING AGREEMENT CONTAINING A FULL SCOPE GRIEVANCE PROCEDURE.
 
    (B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
 "APPENDIX" ON FORMS TO BE
 
    FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS THEY SHALL BE
 
    SIGNED BY AN AUTHORIZED REPRESENTATIVE AND SHALL BE POSTED AND
 MAINTAINED FOR 60 CONSECUTIVE
 
    DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS
 AND OTHER PLACES WHERE
 
    INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE
 CUSTOMARILY
 
    POSTED.  REASONABLE STEPS SHALL BE TAKEN TO ENSURE THAT THE NOTICES
 ARE NOT ALTERED, DEFACED,
 
    OR COVERED BY ANY OTHER MATERIAL.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
 DAYS FROM THE DATE OF
 
    THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THE ORDER.
 
                         ALAN W. HEIFETZ
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  SEPTEMBER 25, 1981
            WASHINGTON, DC
 
                                 APPENDIX
 
        NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
 
           THE FEDERALLA0OR RELATIONS AUTHORITY AND IN ORDER TO
 
          EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE
 
            UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 
              RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
 INSISTING TO IMPASSE ON A LESS THAN FULL SCOPE GRIEVANCE PROCEDURE
 DURING NEGOTIATIONS ON A COLLECTIVE BARGAINING AGREEMENT.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL, UPON REQUEST OF THE ASSOCIATION OF CIVILIAN TECHNICIANS,
 INC., RESUME NEGOTIATIONS ON A COLLECTIVE BARGAINING AGREEMENT AND, IN
 THE ABSENCE OF AGREEMENT WITH THE ASSOCIATION OF CIVILIAN TECHNICIANS,
 INC. TO LIMIT THE SCOPE OF THE GRIEVANCE PROCEDURE TO BE CONTAINED IN
 THE COLLECTIVE BARGAINING AGREEMENT, TIMELY EXECUTE A COLLECTIVE
 BARGAINING AGREEMENT CONTAINING A FULL SCOPE GRIEVANCE PROCEDURE.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION I, WHOSE
 ADDRESS IS:  441 STUART STREET, 9TH FLOOR, BOSTON, MA 02116 AND WHOSE
 TELEPHONE NUMBER IS (617) 223-0920.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE RESPONDENT EXCEPTED TO THE JUDGE'S FINDING THAT THE COMPLAINT
 IN THE CASE WAS NOT TIME BARRED CONTENDING THAT THE REGIONAL DIRECTOR
 HAD DISMISSED THE INITIAL CHARGE AND THAT THE AMENDED CHARGE ON WHICH
 THE COMPLAINT WAS BASED WAS UNTIMELY FILED.  IT IS NOTED THAT THE RECORD
 REVEALED THAT THE REGIONAL DIRECTOR, IN FACT, REVOKED THE DISMISSAL
 LETTER WHICH HE HAD ISSUED ON THE CHARGE.  HENCE, THE AUTHORITY, IN
 AGREEMENT WITH THE JUDGE, FINDS THAT THE COMPLAINT WAS TIMELY FILED.
 
    /2/ IN VIEW OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY TO
 ADDRESS THE RESPONDENT'S CONTENTION THAT SECTION 709(E) OF THE NATIONAL
 GUARD TECHNICIANS ACT OF 1968 (32 USC 709(E)) REQUIRES AS A MATTER OF
 LAW THE SPECIFIC EXCLUSION OF ADVERSE ACTIONS INVOLVING TECHNICIANS FROM
 COVERAGE UNDER NEGOTIATED GRIEVANCE PROCEDURES.  (BUT SEE NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA
 NATIONAL GUARD, 5 FLRA NO.  25(1981);  AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3486 AND NEW JERSEY AIR NATIONAL GUARD, 177TH
 FIGHTER INTERCEPTOR GROUP, 5 FLRA NO. 26(1981), REVERSED SUB NOM. NEW
 JERSEY AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP AND
 DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 81-1592
 (3RD CIR. APR. 12, 1982).)
 
    /3/ IN GENERAL, 32 U.S.C. 709(E) PROVIDES FOR REMOVAL, DISCHARGE AND
 CERTAIN OTHER ADVERSE ACTIONS AGAINST TECHNICIANS BY THE ADJUTANT
 GENERAL WITH NO RIGHT OF APPEAL BEYOND THE ADJUTANT GENERAL.
 
    /4/ SECTION 7121 OF THE STATUTE 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.
 
   *          *          *          *
 
 
    (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