10:0303(56)CA - Kansas Army NG and NG Bureau and NAGE Local Rl4-87 -- 1982 FLRAdec CA



[ v10 p303 ]
10:0303(56)CA
The decision of the Authority follows:


 10 FLRA No. 56
 
 KANSAS ARMY NATIONAL GUARD
 AND NATIONAL GUARD BUREAU
 Respondents
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R14-87
 Charging Party
 
                                            Case No. 7-CA-818
 
                            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 RESPONDENTS VIOLATED HEREIN
 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) BY THE RESPONDENT NATIONAL GUARD
 BUREAU'S ACTIONS IN ADVISING THE RESPONDENT KANSAS ARMY NATIONAL GUARD
 TO ADHERE TO ITS DECLARATION OF NONNEGOTIABILITY DESPITE A DETERMINATION
 BY THE FEDERAL LABOR RELATIONS AUTHORITY /2/ THAT THE SPECIFIC CONTRACT
 PROPOSAL INVOLVED WAS NEGOTIABLE AND BY THE LATTER RESPONDENT'S ENSUING
 ACTIONS IN CONTINUING TO DECLARE THE PROPOSAL NONNEGOTIABLE.
 
    THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN TECHNICIANS
 EMPLOYED BY THE KANSAS ARMY NATIONAL GUARD.  IN MAY 1978 THE KANSAS ARMY
 NATIONAL GUARD AND THE CHARGING PARTY (NAGE LOCAL R14-87) COMMENCED
 NEGOTIATIONS ON A COLLECTIVE BARGAINING AGREEMENT.  AGREEMENT WAS
 EVENTUALLY REACHED ON ALL BUT ONE ISSUE (THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE) WHICH WAS REFERRED TO THE AUTHORITY IN A PETITION
 FOR REVIEW OF NEGOTIABILITY ISSUE.  THE KANSAS ARMY NATIONAL GUARD HAD
 DECLARED NONNEGOTIABLE A PROPOSAL ADVANCED BY NAGE LOCAL R14-87
 REGARDING THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE WHICH DID NOT
 SPECIFICALLY EXCLUDE FROM THE SCOPE APPEALS OF ADVERSE ACTIONS TAKEN
 AGAINST NATIONAL GUARD TECHNICIANS.  THE AUTHORITY, IN A DECISION ISSUED
 JULY 31, 1980 (NOTE 1, SUPRA), FOUND THE PROPOSAL TO BE NEGOTIABLE.
 
    IN SO DOING THE AUTHORITY RELIED UPON AN EARLIER DECISION (AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669 AND VETERANS
 ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA 310 (1980)
 IN WHICH IT HAD STATED:
 
    IN SUM, 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 THE PARTIES AGREED THROUGH THE COLLECTIVE BARGAINING
 PROCESS TO A PROCEDURE HAVING
 
    A NARROWER COVERAGE.  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.  SUCH A
 REQUIREMENT WOULD BE REDUNDANT
 
    AND WITHOUT LEGAL SIGNIFICANCE SINCE, AS INDICATED, SECTION 7121, AS
 EXPLAINED BY THE
 
    COMMITTEE ON CONFERENCE, ALREADY PROVIDES THAT NEGOTIATED GRIEVANCE
 PROCEDURES COVER, AT A
 
    MAXIMUM, MATTERS WHICH UNDER PROVISIONS OF LAW COULD BE SUBMITTED TO
 THE PROCEDURES.
 
    . . . 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
 
    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."
 
    THUS, THE AUTHORITY FOUND THE SPECIFIC PROPOSALS PRESENTED TO THEM IN
 THE CASES INVOLVED NEGOTIABLE WITHOUT REACHING OR RULING UPON THE MERITS
 OF THE ACTIVITIES' (ALL THREE INVOLVED WERE NATIONAL GUARD BUREAU
 ACTIVITIES) ARGUMENT THAT THE TERMS OF SECTION 709(E) OF THE NATIONAL
 GUARD TECHNICIANS ACT OF 1968 (32 U.S.C. 709(E)) RENDERED ADVERSE
 ACTIONS TAKEN AGAINST NATIONAL GUARD TECHNICIANS NONGRIEVABLE AND
 NONARBITRABLE.  /3/
 
    UPON NOTIFICATION OF THE AUTHORITY'S DECISION, AGENTS OF THE KANSAS
 ARMY NATIONAL GUARD CONTACTED AN AGENT OF THE NATIONAL GUARD BUREAU TO
 DISCUSS WHAT STEPS SHOULD BE TAKEN IN LIGHT OF THE DECISION.  THE
 LATTER, EXPRESSING THE VIEW THAT THE PROVISIONS OF SECTION 709(E) OF THE
 NATIONAL GUARD TECHNICIANS ACT OF 1968 WERE NOT SUPERSEDED BY THE
 STATUTE, ADVISED THE FORMER TO MAINTAIN THE POSITION THAT NAGE LOCAL
 R14-87'S CONTRACT PROPOSAL WAS CONTRARY TO LAW, AND, HENCE,
 NONNEGOTIABLE DESPITE THE AUTHORITY'S DECISION.  WHEN THE KANSAS ARMY
 NATIONAL GUARD MET WITH NAGE LOCAL R14-87 ON OR ABOUT SEPTEMBER 30, 1980
 TO CONDUCT FURTHER NEGOTIATIONS ON THE GRIEVANCE PROCEDURE TO BE
 CONTAINED IN THE PARTIES' CONTRACT, THIS, IN FACT, WAS THE POSITION
 TAKEN.  NAGE LOCAL R14-87 REITERATED ITS PROPOSAL THAT THE LANGUAGE
 WHICH HAD BEEN FOUND NEGOTIABLE BY THE AUTHORITY BE INCORPORATED IN THE
 COLLECTIVE BARGAINING AGREEMENT.  IN RESPONSE TO A PROPOSAL TO THIS
 EFFECT, THE KANSAS ARMY NATIONAL GUARD ISSUED A WRITTEN DECLARATION OF
 NONNEGOTIABILITY DATED OCTOBER 1, 1980.
 
    THE RESPONDENTS ARGUE THAT, INASMUCH AS THE AUTHORITY'S DECISION ON
 THE NEGOTIABILITY OF THE NAGE LOCAL R14-87 PROPOSAL REGARDING THE SCOPE
 OF THE NEGOTIATED GRIEVANCE PROCEDURE WAS LEGALLY ERRONEOUS, THEIR
 ACTIONS DID NOT VIOLATE THE STATUTE.  ADDITIONALLY, THE RESPONDENTS
 MAINTAIN THAT, INASMUCH AS, PURSUANT TO SECTION 7123 OF THE STATUTE, /4/
 THEY HAD SIXTY DAYS FROM THE ISSUANCE OF THE DECISION TO INSTITUTE
 ACTION FOR JUDICIAL REVIEW, THERE WAS NO OBLIGATION TO NEGOTIATE OVER
 THE MATTER DURING THAT TIME FRAME AND THEY HAD ELECTED NOT TO DO SO.
 /5/
 
    THE GENERAL COUNSEL AND NAGE LOCAL R14-87 CONTEND THAT THE
 RESPONDENT'S ACTIONS VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE
 STATUTE.
 
    THE AUTHORITY FINDS, BASED ON THE REASONS EXPRESSED IN DEPARTMENT OF
 THE AIR FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100 (1981) APPEAL
 DOCKETED, NO. 81-2244, (10TH CIR. NOV. 5, 1981), THAT THE KANSAS AIR
 NATIONAL GUARD'S ACTION CONSTITUTED A REFUSAL TO NEGOTIATE IN GOOD FAITH
 AND VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE.  /6/ HOWEVER,
 INASMUCH AS THE STIPULATION INDICATES THAT THE NATIONAL GUARD BUREAU'S
 ROLE IN THE MATTER WAS THAT OF ADVISING THE KANSAS ARMY NATIONAL GUARD
 TO TAKE THE COURSE OF ACTION WHICH IT DID AS OPPOSED TO DIRECTING THE
 LATTER TO TAKE SUCH ACTION, IT HAS NOT BEEN ESTABLISHED THAT THE
 NATIONAL GUARD BUREAU HAD ANY ACTUAL RESPONSIBILITY FOR THE REFUSAL TO
 NEGOTIATE WHICH OCCURRED.  CF. DEPARTMENT OF HEALTH AND HUMAN SERVICES,
 SOCIAL SECURITY ADMINISTRATION, REGION VI, AND DEPARTMENT OF HEALTH AND
 HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION, GALVESTON, TEXAS
 DISTRICT, 10 FLRA NO. 9 (1982), WHEREIN A VIOLATION WAS FOUND ONLY
 AGAINST THE REGION, BASED UPON THE REGION'S DIRECTION TO THE DISTRICT TO
 CHANGE A POLICY WITH REGARD TO REPORTING MILEAGE.  THEREFORE, THE
 COMPLAINT IS DISMISSED INSOFAR AS IT ALLEGES THAT THE NATIONAL GUARD
 BUREAU VIOLATED THE STATUTE.
 
    IN FINDING THAT THE KANSAS ARMY NATIONAL GUARD VIOLATED THE STATUTE,
 THE AUTHORITY REJECTS THE ARGUMENT THAT, DURING THE PERIOD INVOLVED, IT
 WAS INSULATED FROM ANY OBLIGATION TO BARGAIN BY VIRTUE OF THE RUNNING OF
 A PERIOD IN WHICH TO FILE FOR COURT REVIEW OF THE AUTHORITY'S DECISION.
 SECTION 7123(C) OF THE STATUTE SPECIFICALLY PROVIDES THAT, "THE FILING
 OF A PETITION UNDER SUBSECTION (A) OR (B) OF THIS SECTION SHALL NOT
 OPERATE AS A STAY OF THE AUTHORITY'S ORDER UNLESS THE COURT SPECIFICALLY
 ORDERS THE STAY." MOREOVER, THE RESPONDENT'S SUGGESTION THAT THE ACTION
 IN THIS REGARD WAS AN ELECTION NOT TO BARGAIN DURING THE TIME FRAME
 ALLOWED FOR FILING OF A PETITION FOR JUDICIAL REVIEW IS INCONSISTENT
 WITH THE STIPULATION AND ACCOMPANYING EXHIBITS.  SUCH EXHIBITS ESTABLISH
 THAT THE KANSAS ARMY NATIONAL GUARD MET "TO CONDUCT FURTHER NEGOTIATIONS
 ON THE GRIEVANCE PROCEDURE . . . IN LIGHT OF THE AUTHORITY'S DECISION IN
 3 FLRA (852)" AND ISSUED A DECLARATION OF NONNEGOTIABILITY WHICH WAS
 EXPRESSLY BOTTOMED ON AN ASSERTION THAT THE PROPOSAL WHICH NAGE LOCAL
 R14-87 PRESENTED TO IT CONFLICTED WITH LAW AND IMPLEMENTING REGULATION.
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, IT IS HEREBY ORDERED THAT
 THE KANSAS ARMY NATIONAL GUARD SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) DECLARING NONNEGOTIABLE A PROPOSAL PERTAINING TO THE SCOPE OF THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE MADE BY THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R14-87, WHICH HAS
 
    PREVIOUSLY BEEN DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR
 RELATIONS AUTHORITY.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES
 
    IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO CARRY OUT THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST OF THE NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R14-87,
 
    NEGOTIATE CONCERNING THE PROPOSAL PERTAINING TO THE SCOPE OF THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE WHICH WAS DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR
 RELATIONS AUTHORITY IN
 
    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 852 (1980).
 
    (B) POST AT THE FACILITIES OF THE KANSAS ARMY NATIONAL GUARD COPIES
 OF THE ATTACHED NOTICE
 
    ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.
 UPON RECEIPT OF SUCH
 
    FORMS, THEY SHALL BE SIGNED BY AN AUTHORIZED OFFICIAL, AND SHALL BE
 POSTED AND MAINTAINED FOR
 
    60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING
 BULLETIN BOARDS AND OTHER
 
    PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED.  THE KANSAS
 ARMY NATIONAL GUARD
 
    SHALL TAKE REASONABLE STEPS TO INSURE THAT SUCH NOTICES ARE NOT
 ALTERED, DEFACED, OR COVERED
 
    BY ANY OTHER MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE
 
    REGIONAL DIRECTOR, REGION 7, FEDERAL LABOR RELATIONS AUTHORITY, IN
 WRITING, WITHIN 30 DAYS
 
    FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO
 COMPLY HEREWITH.
 
    IT IS HEREBY FURTHER ORDERED THAT THE COMPLAINT INSOFAR AS IT ALLEGES
 A VIOLATION OF SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY
 RESPONDENT NATIONAL GUARD BUREAU BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
                         NOTICE TO ALL EMPLOYEES
 
                                PURSUANT TO
 
                        A DECISION AND ORDER OF THE
 
                     FEDERAL LABOR 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 DECLARE NONNEGOTIABLE A PROPOSAL PERTAINING TO THE SCOPE
 OF THE NEGOTIATED GRIEVANCE PROCEDURE MADE BY THE NATIONAL ASSOCIATION
 OF GOVERNMENT EMPLOYEES, LOCAL R14-87, WHICH HAS PREVIOUSLY BEEN
 DETERMINED TO BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY.
 
    WE WILL NOT, IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
 OR COERCE OR EMPLOYEES IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    WE WILL, UPON REQUEST OF THE NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R14-87, NEGOTIATE CONCERNING THE PROPOSAL PERTAINING TO
 THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE WHICH WAS DETERMINED TO
 BE NEGOTIABLE BY THE FEDERAL LABOR RELATIONS AUTHORITY IN 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 852 (1980).
 
                           (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 QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
 DIRECTOR, REGION 7, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
  1531 STOUT STREET, SUITE 301, DENVER, CO 80202 AND WHOSE TELEPHONE
 NUMBER IS:  (816) 374-2199.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE RESPONDENTS FILED A MOTION TO DISREGARD THE BRIEFS FILED BY
 THE CHARGING PARTY AND THE GENERAL COUNSEL CONTENDING THAT THEY WERE
 UNTIMELY.  THEY WERE, IN FACT, TIMELY FILED AND THE RESPONDENT'S MOTION
 IS HEREBY DENIED.
 
    /2/ 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 852 (1980).
 
    /3/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND
 CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25 (1981), APPEAL DOCKETED NO.
 81-7231 (9TH CIR. APRIL 17, 1981);  BUT SEE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3486 AND NEW JERSEY AIR NATIONAL
 GUARD, 177TH FIGHTER INTERCEPTOR GROUP, 5 FLRA N