09:0842(110)CA - Division of Military and Naval Affairs, New York NG, Albany, NY and New York State ACT -- 1982 FLRAdec CA



[ v09 p842 ]
09:0842(110)CA
The decision of the Authority follows:


 9 FLRA No. 110
 
 DIVISION OF MILITARY AND
 NAVAL AFFAIRS, NEW YORK
 NATIONAL GUARD, ALBANY,
 NEW YORK
 Respondent
 
 and
 
 NEW YORK STATE ASSOCIATION
 OF CIVILIAN TECHNICIANS
 Charging Party
 
                                            Case No. 1-CA-554
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
 SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 STIPULATION OF FACTS AND THE PARTIES' CONTENTIONS, /1/ THE AUTHORITY
 FINDS:
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) WHEN IT INSISTED TO IMPASSE ON EXCLUDING
 FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE ADVERSE ACTIONS
 COVERED BY SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968.
  /2/
 
    THE CHARGING PARTY (THE UNION) IS THE EXCLUSIVE REPRESENTATIVE OF
 CERTAIN TECHNICIANS EMPLOYED BY THE RESPONDENT.  BY NOVEMBER 13, 1980
 THE UNION AND THE RESPONDENT HAD REACHED IMPASSE DURING COLLECTIVE
 BARGAINING ON THE SUBJECT OF THE SCOPE OF THE GRIEVANCE PROCEDURE.  THE
 UNION HAD REQUESTED A FULL SCOPE GRIEVANCE PROCEDURE WHILE THE
 RESPONDENT INSISTED THAT CERTAIN MATTERS BE EXCLUDED FROM THE SCOPE OF
 THAT PROCEDURE.
 
    THE POSITIONS OF THE PARTIES 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.  BASED ON THE REASONS SET
 FORTH IN THAT DECISION, THE AUTHORITY FINDS THAT THE RESPONDENT'S
 ACTIONS HEREIN DID NOT VIOLATE THE STATUTE AS ALLEGED IN THE COMPLAINT.
 /3/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-554 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
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ AS PART OF THE STIPULATION, THE GENERAL COUNSEL MOVED TO AMEND
 THE COMPLAINT TO NAME THE NATIONAL GUARD BUREAU, WASHINGTON, D.C., AS AN
 ADDITIONAL RESPONDENT.  THE NATIONAL GUARD BUREAU OPPOSED THE MOTION.
 NOTING PARTICULARLY THAT THE NATIONAL GUARD BUREAU IS NOT A PARTY TO THE
 STIPULATION, THE MOTION IS DENIED.
 
    /2/ SECTION 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 EMPLOYED 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 TECHNICIAN
 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.
 
    /3/ 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 REQUIRES AS A MATTER OF LAW THE SPECIFIC
 EXCLUSION OF MATTERS GOVERNED BY THAT SECTION FROM COVERAGE UNDER THE
 NEGOTIATED GRIEVANCE PROCEDURE.  (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. F