10:0135(28)CA - Delaware NG and ACT Delaware Chapter -- 1982 FLRAdec CA



[ v10 p135 ]
10:0135(28)CA
The decision of the Authority follows:


 10 FLRA No. 28
 
 DELAWARE NATIONAL GUARD
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN TECHNICIANS
 DELAWARE CHAPTER
 Charging Party
 
                                            Case No. 2-CA-798
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
 THAT THE COMPLAINT BE DISMISSED.  EXCEPTIONS WERE FILED BY THE GENERAL
 COUNSEL AND THE RESPONDENT FILED AN OPPOSITION TO THE EXCEPTIONS.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (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, THE AUTHORITY HEREBY ADOPTS THE
 JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS.  IN AGREEMENT WITH
 THE JUDGE, THE AUTHORITY FINDS THAT RESPONDENT'S REFUSAL TO ACQUIESCE TO
 THE CHARGING PARTY'S DEMAND FOR A FULL SCOPE NEGOTIATED GRIEVANCE
 PROCEDURE DID NOT, PER SE, CONSTITUTE A VIOLATION OF THE STATUTE.  SEE
 VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT, 9 FLRA NO. 92(1982).
 MOREOVER, NOTING THAT THE RESPONDENT'S INSISTENCE THAT MATTERS COVERED
 BY SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (N.1 OF
 THE JUDGE'S DECISION) MUST BE EXCLUDED FROM THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE OCCURRED PRIOR TO A TIME AT WHICH IT COULD HAVE HAD
 KNOWLEDGE OF THE AUTHORITY'S DECISION IN CALIFORNIA NATIONAL GUARD, 5
 FLRA NO.  25(1981), APPEAL DOCKETED, NO. 81-7231 (9TH CIR. APR. 17,
 1981), THE AUTHORITY FINDS, IN AGREEMENT WITH THE JUDGE, THAT THE
 RESPONDENT'S ACTIONS DID NOT CONSTITUTE BAD FAITH BARGAINING IN
 VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 2-CA-798 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    CHARLES GRUVER III, ESQUIRE
    FOR THE RESPONDENT
  
    LEE MINGLEDORFF, ESQUIRE
    NINA L. SCHWARTZ, ESQUIRE
 
    FOR THE GENERAL COUNSEL
    THOMAS J. OWSINSKI
    FOR THE CHARGING PARTY
 
    BEFORE:  RANDOLPH D. MASON
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF
 AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON APRIL 30, 1981, BY THE
 REGIONAL DIRECTOR, REGION 2, FEDERAL LABOR RELATIONS AUTHORITY, NEW
 YORK, NEW YORK, AGAINST THE DELAWARE NATIONAL GUARD ("RESPONDENT").
 
    THE COMPLAINT ALLEGES A VIOLATION OF SEC. 7116(A)(8) DUE TO
 RESPONDENT'S REFUSAL ON FEBRUARY 20, 1981 "TO INCLUDE IN THE COLLECTIVE
 BARGAINING AGREEMENT . . . A FULL SCOPE GRIEVANCE PROCEDURE AS DESCRIBED
 IN SECTION 7121 OF THE STATUTE." IT FURTHER ALLEGES A VIOLATION OF SEC.
 7116(A)(5) AND (1) SINCE (A) RESPONDENT ALLEGEDLY REFUSED TO NEGOTIATE
 IN GOOD FAITH ON THAT DATE, AND (B) RESPONDENT'S ACTIONS ON THAT DATE
 CONSTITUTED A PATENT BREACH OF THE EXISTING COLLECTIVE BARGAINING
 AGREEMENT.  RESPONDENT DENIES THE ABOVE ALLEGATIONS.
 
    A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT
 WILMINGTON, DELAWARE, ON JULY 31, 1981.  ALL PARTIES WERE REPRESENTED
 AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND
 EXAMINE AND CROSS-EXAMINE WITNESSES.  THE PARTIES FILED BRIEFS WHICH
 HAVE BEEN DULY CONSIDERED.  BASED ON THE ENTIRE RECORD HEREIN, INCLUDING
 MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, THE EXHIBITS, AND
 OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING
 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER.
 
                             FINDINGS OF FACT
 
    AT ALL TIMES MATERIAL HEREIN, THE ASSOCIATION OF CIVILIAN TECHNICIANS
 DELAWARE CHAPTER ("UNION") HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF AN
 APPROPRIATE UNIT OF CERTAIN TECHNICIAN EMPLOYEES OF RESPONDENT.
 
    IN APRIL OF 1979, REPRESENTATIVES OF THE RESPONDENT AND THE UNION
 COMMENCED FORMAL NEGOTIATIONS FOR THE PURPOSE OF ARRIVING AT A
 COLLECTIVE BARGAINING AGREEMENT.  ALTHOUGH THE RECORD DOES NOT REFLECT
 THE TOTAL NUMBER OF NEGOTIATING SESSIONS, IT IS CLEAR THAT ABOUT TEN OF
 THESE SESSIONS INCLUDED NEGOTIATIONS OVER A GRIEVANCE PROCEDURE.  ON
 JULY 12, 1979, THE PARTIES' NEGOTIATING TEAMS REACHED AN AGREEMENT ON A
 GRIEVANCE PROCEDURE.  THE SCOPE OF THIS PROCEDURE WAS SET FORTH IN
 ARTICLE 26 AS FOLLOWS:
 
    SECTION 4.-- THE PARTIES TO THIS AGREEMENT RECOGNIZE THAT THE
 NEGOTIATED AGREEMENT SHALL
 
    NOT APPLY WITH RESPECT TO ANY GRIEVANCE CONCERNING--
 
    A.  ANY CLAIMED VIOLATION RELATED TO PROHIBITED POLITICAL ACTIVITIES.
 
    B.  RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE.
 
    C.  A SUSPENSION OR REMOVAL FOR SECURITY REASONS.
 
    D.  THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
 REDUCTION IN GRADE OR
 
    PAY OF AN EMPLOYEE.
 
    E.  EXAMINATION, CERTIFICATION, OR APPOINTMENT.
 
    THUS THE PARTIES MERELY RECITED THE FIVE MANDATORY EXCLUSIONS SET
 FORTH IN SEC. 7121(C) OF THE STATUTE.
 
    UPON EXECUTION OF THE ENTIRE COLLECTIVE BARGAINING AGREEMENT ON
 AUGUST 21, 1979, THE CONTRACT WAS SUBMITTED TO THE NATIONAL GUARD BUREAU
 FOR APPROVAL.  ON SEPTEMBER 18, 1979, THE BUREAU APPROVED THE AGREEMENT
 WITH TWO EXCEPTIONS.  IN ONE EXCEPTION THE BUREAU DISAPPROVED THE
 ABOVE-QUOTED SECTION 4 OF ARTICLE XXVI BECAUSE "(A)LL ADVERSE ACTIONS
 ARE EXCLUDED FROM BINDING ARBITRATION UNDER 32 U.S.C. 709(E)(4)(5).  /2/
 
    GENERALLY SPEAKING, SECTION 709(E) PROVIDES THAT A TECHNICIAN'S RIGHT
 OF APPEAL FROM CERTAIN FORMS OF SEPARATION, REDUCTION IN FORCE, REMOVAL,
 OR ADVERSE ACTION SHALL NOT EXTEND BEYOND THE ADJUTANT GENERAL OF THE
 JURISDICTION CONCERNED.  SINCE THE PARTIES' AGREEMENT PROVIDED FOR
 BINDING ARBITRATION, I.E., AN APPEAL EXTENDING BEYOND THE LEVEL OF THE
 ADJUTANT GENERAL, THE NATIONAL GUARD BUREAU AND THE DELAWARE NATIONAL
 GUARD TOOK THE POSITION THAT ARBITRATION OF THESE DISPUTES WOULD
 CONFLICT WITH FEDERAL LAW UNDER SEC. 709(E).
 
    AT THIS TIME, THE PARTIES WERE AWARE OF TWO NEGOTIABILITY CASES
 (O-NG-12 AND O-NG-15) PENDING BEFORE THE AUTHORITY WHICH MIGHT
 ULTIMATELY SHED SOME LIGHT ON THE PARTIES' DISPUTE.  IN ORDER TO GET THE
 ENTIRE AGREEMENT EXECUTED AND APPROVED, THE PARTIES NEGOTIATED THE
 FOLLOWING ADDITIONAL PARAGRAPH TO ARTICLE 26:
 
    SECTION 4-- THE PARTIES TO THIS AGREEMENT RECOGNIZE THAT THE
 NEGOTIATED AGREEMENT SHALL NOT
 
    APPLY WITH RESPECT TO ANY GRIEVANCE CONCERNING--
 
   .          .          .          .
 
 
    F.  ADVERSE ACTIONS PENDING RESOLUTION OF O-NG-12 AND 15 PRESENTLY
 AWAITING DECISION BY
 
    FLRA.  UPON RECEIPT OF SUCH DECISION THE PARTIES AGREE TO MEET AND
 NEGOTIATE THE EXCLUSION OF
 
    ADVERSE ACTIONS FROM THE GRIEVANCE PROCEDURES.
 
    ON JULY 31, 1980, THE AUTHORITY ISSUED A CONSOLIDATED DECISION
 RESOLVING THE NEGOTIABILITY ISSUE POSED BY CASE NOS. O-NG-12, O-NG-15,
 AND O-NG-84.  /3/ THOSE CASES INVOLVED THE NEGOTIABILITY OF PROPOSALS
 SIMILAR TO THE LANGUAGE IN ARTICLE 26, SECTION 4, TENTATIVELY ADOPTED ON
 JULY 12, 1979, BY THE INSTANT PARTIES, BUT LATER DISAPPROVED BY THE
 AGENCY HEAD.  ALTHOUGH THE GUARD HAD ARGUED IN THOSE CASES, INTER ALIA,
 THAT SEC. 709(E) OF THE TECHNICIANS ACT OF 1968 PRECLUDED COVERAGE OF
 SUCH ADVERSE ACTIONS IN NEGOTIATED GRIEVANCE AND ARBITRATION PROCEDURES
 FOR TECHNICIANS, THE AUTHORITY DECLINED TO DECIDE THAT ISSUE.  THE
 AUTHORITY SIMPLY HELD, IN PART, THAT IT WAS UNNECESSARY FOR AN AGREEMENT
 ABOUT THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO SPECIFICALLY
 PROVIDE FOR THE EXCLUSION OF SUCH ADVERSE ACTIONS.  IT REASONED THAT
 SEC. 7121 ALREADY PROVIDES THAT NEGOTIATED GRIEVANCE PROCEDURES COVER,
 AT A MAXIMUM, MATTERS WHICH UNDER "PROVISIONS OF LAW" COULD BE SUBMITTED
 TO THE PROCEDURES.  IT WAS FURTHER STATED THAT, "CONGRESS CLEARLY DID
 NOT, HOWEVER, MANDATE THAT, TO FALL WITHIN THE DUTY TO BARGAIN, EACH
 PROPOSED GRIEVANCE PROCEDURE MUST ENUMERATE ALL OR SOME OF THE MATTERS
 WHICH 'UNDER THE PROVISIONS OF LAW' COULD NOT BE SO COVERED." THUS,
 WITHOUT DECIDING WHETHER THE GUARD WAS CORRECT IN ITS CONTENTION THAT
 APPEALS BY TECHNICIANS OF ADVERSE ACTIONS WERE NONGRIEVABLE AND
 NONARBITRABLE BY VIRTUE OF SEC.  709(E), THE AUTHORITY POINTED OUT THAT
 GRIEVANCES WHICH MIGHT BE FILED BY TECHNICIANS MAY BE CHALLENGED BY THE
 AGENCY AS NONGRIEVABLE OR NONARBITRABLE AND THE LATTER ISSUE WOULD BE
 RESOLVED BY AN ARBITRATOR.
 
    BY LETTER DATED DECEMBER 29, 1980, THE UNION'S CHIEF NEGOTIATOR,
 THOMAS J. OWSINSKI, WROTE TO THE ADJUTANT GENERAL OF THE DELAWARE
 NATIONAL GUARD AND REQUESTED A MEETING TO DISCUSS ARTICLE 26, SECTION
 4(F) "IN ORDER TO REACH AGREEMENT ON LANGUAGE PROVIDING BARGAINING UNIT
 MEMBERS WITH THE ABILITY TO SUBMIT GRIEVANCES INVOLVING ADVERSE ACTIONS
 TAKEN AGAINST THEM." ON JANUARY 5, 1981, RESPONDENT'S PERSONNEL OFFICER
 REPLIED THAT SUCH DISCUSSIONS SHOULD AWAIT THE UPCOMING APPOINTMENT OF
 THE NEW ADJUTANT GENERAL, BUT THAT IF IT WAS NECESSARY TO EXPEDITE THE
 MATTER, RESPONDENT WAS WILLING TO BEGIN DISCUSSIONS AT THE UNION'S
 CONVENIENCE.
 
    ON JANUARY 26, 1981, UNION REPRESENTATIVE OWSINSKI WROTE RESPONDENT
 THAT IT WOULD ONLY BE NECESSARY TO HAVE A "BRIEF MEETING IN ORDER TO
 PROPERLY RESTRUCTURE THE LANGUAGE CONTAINED IN ARTICLE 26, SEC. 4(F), SO
 IT WILL COMPORT WITH THE DECISIONS RENDERED IN O-NG-12 AND 15 AND OUR
 EARLIER MUTUAL AGREEMENTS REACHED DURING CONTRACT NEGOTIATIONS."
 
    REPRESENTATIVES OF THE UNION AND RESPONDENT MET ON FEBRUARY 20, 1981,
 TO NEGOTIATE ON THE SUBJECT OF THE EXCLUSION OF ADVERSE ACTIONS FROM THE
 GRIEVANCE PROCEDURE.  THE CHIEF SPOKESMEN FOR THE UNION AND RESPONDENT
 WERE THOMAS OWSINSKI AND RICHARD GEBELEIN, RESPECTIVELY.  AT THE OUTSET
 OF THE MEETING, OWSINSKI REITERATED THE POSITION TAKEN BY THE UNION IN
 ITS LETTER OF JANUARY 26.  HE ASKED GEBELEIN IF HE WOULD ELIMINATE THE
 EXCLUSION CONTAINED IN SECTION 4(F) OF ARTICLE 26 AND RETURN TO THE
 "FULL SCOPE" LANGUAGE ON WHICH THE PARTIES HAD ORIGINALLY AGREED ON JULY
 12, 1979, WHICH WAS SIMILAR TO THE PROPOSALS FOUND NEGOTIABLE IN O-NG-12
 AND O-NG-15, KANSAS ARMY NATIONAL GUARD, 3 FLRA NO. 124(1980).
 
    GEBELEIN REJECTED THE UNION'S OFFER AND TOOK THE POSITION THAT ALL
 MATTERS COVERED BY SECTION 709(E) OF THE TECHNICIAN'S ACT HAD TO BE
 SPECIFICALLY EXCLUDED FROM THE GRIEVANCE AND ARBITRATION PROCEDURES.  HE
 MADE IT CLEAR THAT THIS POSITION WAS BASED ON RESPONDENT'S LEGAL
 CONCLUSION THAT SEC. 709(E) PRECLUDES SUCH MATTERS FROM GOING TO
 ARBITRATION SINCE THAT SECTION MANDATES THAT THE ADJUTANT GENERAL SHALL
 BE THE FINAL ARBITER.  /4/ THE RESPONDENT'S PROPOSAL WOULD HAVE AMENDED
 SECTION 4(F) OF ARTICLE 26 TO EXCLUDE THE FOLLOWING:
 
    F.  ADVERSE ACTIONS CONCERNING REDUCTION IN FORCE, REMOVAL,
 DISCHARGE, SUSPENSION, FURLOUGH
 
    WITHOUT PAY, OR REDUCTION IN RANK OR COMPENSATION.
 
    GEBELEIN MADE IT CLEAR THAT THIS PROPOSAL WOULD EXCLUDE ALL MATTERS
 COVERED BY SEC. 709(E).  /5/
 
    AFTER CONSIDERING RESPONDENT'S PROPOSAL, THE UNION ASKED RESPONDENT
 IF IT WOULD CONSIDER A COMPROMISE IN WHICH SOME, BUT NOT ALL, OF THE
 ACTIONS COVERED BY SEC.  709(E) WOULD BE EXCLUDED FROM THE GRIEVANCE
 PROCEDURE.  THE UNION DID NOT GIVE SPECIFIC EXAMPLES OR OTHERWISE MAKE
 ANY SPECIFIC PROPOSALS ON THIS POINT.  IN ANY EVENT, IN VIEW OF
 RESPONDENT'S LEGAL CONCLUSION THAT ALL SEC. 709(E) MATTERS WERE
 PRECLUDED FROM COVERAGE FOR THE SAME REASON, RESPONDENT NECESSARILY
 REJECTED THE POSSIBILITY OF SUCH A COMPROMISE.
 
    AT THAT POINT THE UNION REJECTED THE RESPONDENT'S PROPOSAL AND
 OFFERED THE FOLLOWING PROPOSAL IN WRITING:
 
    THE ASSOCIATION IN FINALITY DEMANDS THAT THE GRIEVANCE ARTICLE (ART.
 XXVI SEC. 4) CONTAIN
 
    NO EXCLUSIONS WHICH WOULD PREVENT THE FILING OF A GRIEVANCE IN THE
 AREAS CITED IN YOUR
 
    PROPOSAL.
 
    RESPONDENT REJECTED THIS PROPOSAL AND AGAIN STATED THAT ALL SEC.
 709(E) MATTERS SHOULD BE EXCLUDED.  OWSINSKI STATED THAT HE UNDERSTOOD
 THE PARTIES' RESPECTIVE POSITIONS AND THAT HE INTENDED TO FILE AN UNFAIR
 LABOR PRACTICE CHARGE.  THE UNION FILED THE CHARGE ON THE DAY OF THE
 ABOVE MEETING, FEBRUARY 20, 1981.  NEITHER PARTY REQUESTED FURTHER
 NEGOTIATIONS AND NO ATTEMPT WAS MADE TO SECURE THE SERVICES OF A
 MEDIATOR OR THE FEDERAL SERVICE IMPASSES PANEL.
 
                            CONCLUSIONS OF LAW
 
    COUNSEL FOR THE GENERAL COUNSEL ALLEGES THAT ON FEBRUARY 20, 1981 THE
 FOLLOWING EVENTS OCCURRED:  (A) THE UNION MADE A GOOD FAITH EFFORT TO
 NEGOTIATE SOMETHING LESS THAN A FULL-SCOPE /6/ GRIEVANCE PROCEDURE
 REGARDING ADVERSE ACTIONS FOR TECHNICIANS, (B) RESPONDENT ALWAYS
 INSISTED ON LIMITING THE SCOPE OF THE PROCEDURE BY SPECIFICALLY
 EXCLUDING ADVERSE ACTIONS, AND (C) AT THE CONCLUSION OF THE MEETING
 RESPONDENT REFUSED TO ACQUIESCE IN THE UNION'S FINAL DEMAND FOR A FULL
 SCOPE PROCEDURE.  THE GENERAL COUNSEL ARGUES THAT THE LATTER REFUSAL BY
 RESPONDENT CONSTITUTED A VIOLATION OF SEC. 7116(A)(1), (5) AND (8) OF
 THE STATUTE.  /7/ THIS POSITION IS FOUND ON HIS BELIEF THAT THE UNION
 HAS AN ABSOLUTE RIGHT TO A FULL SCOPE GRIEVANCE PROCEDURE IN THE EVENT
 THAT THE PARTIES ARE UNABLE TO "MUTUALLY AGREE" ON SPECIFIC EXCLUSIONS
 AFTER A LIMITED AMOUNT OF BARGAINING.  RESPONDENT TAKES THE POSITION
 THAT IT ENGAGED IN GOOD FAITH BARGAINING AND THAT IT WAS UNDER NO
 OBLIGATION TO ACQUIESCE IN THE UNION'S DEMAND OR MAKE ANY CONCESSIONS.
 
    SECTION 7121 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    (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 . . . .
 
    (2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
 THE APPLICATION OF THE
 
    GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
 
    THE CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE BILL
 WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO LAW PROVIDED:
 
    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. AND AD. NEWS 2860, 2891.
 
    THEREAFTER, THE AUTHORITY MADE THE FOLLOWING STATEMENT REGARDING SEC.
 7121(A)(2) IN INTERPRETATION AND GUIDANCE, 2 FLRA 273, 277(1979);
 
    (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.
 
    THUS THE GENERAL COUNSEL ARGUES THAT THE UNION HAS A RIGHT TO A
 FULL-SCOPE GRIEVANCE PROCEDURE UNLESS MANAGEMENT AND THE UNION "MUTUALLY
 AGREE" TO EXCLUDE ANY PARTICULAR MATTERS FROM COVERAGE.  SINCE NO SUCH
 MUTUAL AGREEMENT WAS REACHED IN THE INSTANT CASE, HE CONTENDS THAT THE
 UNION'S ALLEGED RIGHT MATURED AT THE CONCLUSION OF THE FEBRUARY 20
 NEGOTIATIONS.  UNDER THE GENERAL COUNSEL'S VIEW, THERE WOULD BE NO NEED
 FOR THE UNION TO SEEK THE AID OF THE FEDERAL SERVICE IMPASSES PANEL.
 THIS VIEW IS BASED IN PART ON A POST-ENACTMENT STATEMENT BY CONGRESSMAN
 FORD /8/ WHICH DOES NOT CONSTITUTE EVIDENCE OF LEGISLATIVE INTENT.
 
    I DISAGREE WITH THE GENERAL COUNSEL'S POSITION.  IN THE FIRST PLACE,
 THE RELEVANT PORTION OF THE STATUTE STATES THAT "(A)NY COLLECTIVE
 BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM THE APPLICATION OF THE
 GRIEVANCE PROCEDURES . . . ." THIS LANGUAGE DOES NOT LIMIT EXCLUSIONS TO
 THOSE "MUTUALLY AGREED" BY THE PARTIES.  THIS IS SO BECAUSE IN THE
 NORMAL COLLECTIVE BARGAINING PROCESS PARTIES WHO DO NOT REACH AGREEMENT
 CAN HAVE AN "AGREEMENT" IMPOSED UPON THEM BY THE IMPASSES PANEL.  THERE
 IS NO REASON WHY THE UNION SHOULD NOT BE REQUIRED TO COMPLETE THE NORMAL
 COLLECTIVE BARGAINING PROCESS BY REQUESTING THE SERVICES OF THE IMPASSES
 PANEL WHEN AN IMPASSE HAS ARISEN OVER THE SCOPE OF THE GRIEVANCE
 PROCEDURE.  TO HOLD OTHERWISE WOULD BE TO DEPRIVE THE PANEL OF
 JURISDICTION IN THIS AREA-- CONGRESS WOULD HAVE MADE THIS CLEAR IN THE
 STATUTE IF SUCH A RESULT HAD BEEN INTENDED.  /9/
 
    IN ADDITION, CONGRESS SPECIFICALLY CHANGED THE LAW REGARDING THE
 NEGOTIATION OF THE SCOPE OF GRIEVANCE PROCEDURES WHEN IT ENACTED SEC.
 7121.  PREVIOUSLY, UNDER SEC. 13 OF E.O. 11491, THE PARTIES WERE
 REQUIRED TO NEGOTIATE IN ALL MATTERS THAT WERE TO BE COVERED.  ON THE
 OTHER HAND, SEC. 7121 AUTOMATICALLY PROVIDES FOR A FULL SCOPE PROCEDURE
 (WITH CERTAIN MANDATORY EXCEPTIONS) UNLESS THE PARTIES' AGREEMENT
 PROVIDES FOR THE EXCLUSION OF A MATTER.  THIS CHANGE CONSTITUTED A
 SPECIFIC BENEFIT FOR UNIONS BY MAKING A BROAD SCOPE PROCEDURE EASIER TO
 ATTAIN.  HOWEVER, THERE IS NOTHING IN THE LEGISLATIVE HISTORY THAT
 INDICATES THAT CONGRESS INTENDED TO GRANT UNIONS THE ADDITIONAL RIGHT TO
 DEMAND AND SECURE A FULL SCOPE PROCEDURE OVER THE AGENCY'S OBJECTION
 WITHOUT HAVING TO GO TO THE IMPASSES PANEL FOR RELIEF.  AGAIN, IT IS
 UNLIKELY THAT CONGRESS WOULD HAVE INTENDED SUCH A RESULT WITHOUT CLEARLY
 MAKING FULL-SCALE NEGOTIATIONS "AT THE ELECTION OF" THE UNION.  /10/ IN
 SHORT, CONGRESS WOULD NOT HAVE CREATED THE UNUSUAL, HYBRID FORM OF
 BARGAINING ARGUED BY THE GENERAL COUNSEL IN THIS MATTER WITHOUT CLEARLY
 PROVIDING FOR IT IN THE STATUTE.  SINCE RESPONDENT DID NOT VIOLATE SEC.
 7121, I MUST CONCLUDE THAT NO VIOLATION OF SEC. 7116(A)(8) OCCURRED.
 
    CLEARLY RESPONDENT'S MERE REFUSAL TO ACQUIESCE IN THE UNION'S DEMAND
 FOR A FULL SCOPE PROCEDURE IN THIS CASE DID NOT, BY ITSELF, CONSTITUTE
 BAD FAITH BARGAINING IN VIOLATION OF SEC. 7116(A)(5).  IT IS NECESSARY
 TO VIEW THE TOTALITY OF RESPONDENT'S CONDUCT IN ORDER TO DETERMINE
 WHETHER IT BARGAINED IN BAD FAITH.  THE GENERAL COUNSEL ADVERTS TO THE
 FACT THAT RESPONDENT'S NEGOTIATORS ADMITTEDLY DID NOT HAVE AUTHORITY TO
 NEGOTIATE A GRIEVANCE PROCEDURE FOR ADVERSE ACTIONS UNLESS THE ADJUTANT
 GENERAL (RATHER THAN AN ARBITRATOR) WOULD BE THE FINAL ARBITER OF SUCH
 DISPUTES.  BUT RESPONDENT HAD BASED ITS POSITION ON ITS LEGAL CONCLUSION
 THAT THIS RESULT WAS COMPELLED BY SEC. 709(E) OF THE TECHNICIANS ACT OF
 1968.  AT THE TIME OF THE NEGOTIATIONS IN QUESTION, THE PARTIES WERE
 ONLY AWARE OF THE AUTHORITY'S DECISION IN STATE OF KANSAS ARMY NATIONAL
 GUARD, 3 FLRA NO. 124(1980), IN WHICH THE AUTHORITY SPECIFICALLY
 REFRAINED FROM RESOLVING THAT QUESTION OF LAW.  THUS THE MATTER WAS NOT
 FREE FROM DOUBT AND REASONABLE ARGUMENTS COULD BE MADE ON BOTH SIDES OF
 THE ISSUE.  IN A DECISION ISSUED ON THE SAME DAY AS THE PARTIES'
 NEGOTIATIONS HEREIN, THE AUTHORITY HELD, IN PART, THAT SEC. 709(E) DID
 NOT PRECLUDE THE GRIEVABILITY AND ARBITRABILITY OF ADVERSE ACTIONS FOR
 TECHNICIANS.  THAT DECISION IS CURRENTLY ON APPEAL TO THE NINTH CIRCUIT.
  CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25 (FEB. 20, 1981), APPEAL
 DOCKETED, NOS. 81-7231, 81-7336 (9TH CIR. 1981).  THE DECISION WAS
 UNKNOWN TO THE PARTIES WHEN THEY NEGOTIATED, AND IT IS CLEAR THAT IT WAS
 NOT "UNREASONABLE" FOR RESPONDENT TO HAVE INSISTED AT THAT TIME ON THE
 EXCLUSION OF ADVERSE ACTIONS FROM THE GRIEVANCE PROCEDURE FOR
 TECHNICIANS.  FURTHER, IN LIGHT OF ITS LEGAL POSITION, IT WAS ALSO NOT
 UNREASONABLE FOR RESPONDENT TO REFUSE TO COMPROMISE AS REQUESTED BY THE
 UNION.  THE LATTER ASKED RESPONDENT TO CONSIDER PROVIDING GRIEVANCE
 PROCEDURE COVERAGE FOR SOME, BUT NOT ALL, TYPES OF SEC. 709(E) ADVERSE
 ACTIONS.  OBVIOUSLY, IF RESPONDENT'S LEGAL POSITION WAS CORRECT, THEN
 ALL SUCH ACTIONS WOULD BE NONARBITRABLE.  ALTHOUGH COMPROMISE IS
 GENERALLY DESIRABLE, GOOD FAITH BARGAINING DOES NOT REQUIRE A PARTY TO
 TAKE INCONSISTENT POSITIONS.  IT CANNOT BE SAI