10:0381(63)CA - 182nd Tactical Air Support Group, Illinois Air NG, the Adjutant General of Illinois, Springfield, IL and Illinois Air Chapter 34, ACT -- 1982 FLRAdec CA



[ v10 p381 ]
10:0381(63)CA
The decision of the Authority follows:


 10 FLRA No. 63
 
 182ND TACTICAL AIR SUPPORT
 GROUP, ILLINOIS AIR NATIONAL GUARD,
 THE ADJUTANT GENERAL OF
 ILLINOIS, SPRINGFIELD, ILLINOIS
 Respondent
 
 and
 
 ILLINOIS AIR CHAPTER 34,
 ASSOCIATION OF CIVILIAN
 TECHNICIANS
 Charging Party
 
                                            Case Nos. 5-CA-86 
                                            5-CA-532
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
 ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
 IN UNFAIR LABOR PRACTICES AS ALLEGED IN THE CONSOLIDATED COMPLAINT AND
 RECOMMENDING THAT THE COMPLAINT BE DISMISSED.  EXCEPTIONS WERE FILED BY
 THE GENERAL COUNSEL AND THE CHARGING PARTY (THE UNION).
 
    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 RECOMMENDATION.  IN THIS REGARD, AND
 FOR THE REASONS SET FORTH IN VERMONT AIR NATIONAL GUARD, BURLINGTON,
 VERMONT, 9 FLRA NO. 92 (1982) THE AUTHORITY FINDS THAT THE RESPONDENT'S
 REFUSAL TO AGREE TO A FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE WAS NOT,
 PER SE, A VIOLATION OF THE STATUTE.  MOREOVER, THE AUTHORITY FINDS, IN
 AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT'S ACTIONS IN DECLARING
 NON-NEGOTIABLE THE UNION'S PROPOSAL THAT MATTERS GOVERNED BY SECTION
 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 BE INCLUDED WITHIN
 THE SCOPE OF THE NEGOTIATED PROCEDURE DID NOT CONSTITUTE BAD FAITH
 BARGAINING IN VIOLATION OF THE STATUTE /1/ SINCE AT THE TIME OF THE
 RESPONDENT'S DECLARATION OF NON-NEGOTIABILITY, NO ESTABLISHED PRECEDENT
 EXISTED WHICH WAS DISPOSITIVE OF THE ISSUE OF THE NEGOTIABILITY OF THE
 PROPOSAL INVOLVED.  /2/
 
    FOR THESE REASONS, AND IN AGREEMENT WITH THE JUDGE'S CONCLUSION, THE
 AUTHORITY FINDS THAT THE RESPONDENT'S ACTIONS IN REFUSING TO AGREE TO A
 FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE DID NOT VIOLATE SECTION
 7116(A)(1), (5) OR (8) OF THE STATUTE.  /3/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NOS. 5-CA-86 AND
 5-CA-532 BE AND IT HEREBY IS DISMISSED.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 15, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
   
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DONALD R. BRENEMAN
                            FOR THE RESPONDENT
 
    SHARON A. BAUER, ESQUIRE
    ARLANDER KEYS, ESQUIRE
                          FOR THE GENERAL COUNSEL
 
    THOMAS J. OWSINSKI
                          FOR THE CHARGING PARTY
 
    BEFORE:  GAVIN LEE OLIVER
    ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
 CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE REGIONAL
 DIRECTOR, REGION FIVE, FEDERAL LABOR RELATIONS AUTHORITY, CHICAGO,
 ILLINOIS, AGAINST THE 182ND TACTICAL AIR SUPPORT GROUP, ILLINOIS AIR
 NATIONAL GUARD, THE ADJUTANT GENERAL OF ILLINOIS, SPRINGFIELD, ILLINOIS
 (RESPONDENT), BASED ON CHARGES FILED BY THE ILLINOIS AIR CHAPTER 34,
 ASSOCIATION OF CIVILIAN TECHNICIANS (CHARGING PARTY OR UNION).
 
    THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
 SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE BY REFUSING TO AGREE TO
 THE FULL SCOPE FOR A NEGOTIATED GRIEVANCE PROCEDURE AS REQUESTED BY THE
 UNION PURSUANT TO SECTION 7121 OF THE STATUTE IN MARCH 1979 AND APRIL
 1980.
 
    A HEARING WAS HELD IN THIS MATTER IN SPRINGFIELD, ILLINOIS.  /4/ THE
 RESPONDENT, GENERAL COUNSEL, AND CHARGING PARTY WERE REPRESENTED AND
 AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE
 AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS.
 
    BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, THE EXHIBITS, STIPULATIONS, AND OTHER
 RELEVANT EVIDENCE ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE
 FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  SINCE JULY 1970 RESPONDENT HAS RECOGNIZED THE UNION AS THE
 EXCLUSIVE REPRESENTATIVE OF ALL NON-SUPERVISORY, NON-MANAGERIAL
 EMPLOYEES OF THE 182ND TACTICAL AIR SUPPORT GROUP, PEORIA, ILLINOIS.
 RESPONDENT AND THE UNION HAVE BEEN PARTIES TO A COLLECTIVE BARGAINING
 AGREEMENT, APPROVED ON MAY 14, 1976, WHICH EXPIRED ON MAY 14, 1978.
 (JOINT EX. 1).
 
    2.  COMMENCING IN MARCH 1978 AND CONTINUING TO DATE RESPONDENT AND
 THE UNION HAVE BEEN ENGAGED IN NEGOTIATIONS TOWARD A NEW COLLECTIVE
 BARGAINING AGREEMENT.  (JOINT EX.  1).  ON SEPTEMBER 13, 1978 THE
 PARTIES INITIALLED A MEMORANDUM OF UNDERSTANDING IN WHICH THEY REACHED
 AGREEMENT ON SEVERAL ITEMS.  ONE OF THEM EXCLUDED FROM THE SCOPE OF THE
 NEGOTIATED GRIEVANCE PROCEDURES ALL MATTERS FOR WHICH STATUTORY APPEALS
 PROCEDURES EXISTED, INCLUDING THOSE SET FORTH IN 32 U.S.C. 708(E).  /5/
 (TR. 27, 78-79;  RESPONDENT'S EX. 6).
 
    3.  SUBSEQUENT TO THE EFFECTIVE DATE OF THE STATUTE THE UNION
 CONCLUDED THAT THE STATUTE PROVIDED FOR A BROADER SCOPE GRIEVANCE
 PROCEDURE.  (TR. 27).  SINCE MARCH 1979 AND CONTINUING TO THE DATE OF
 THE HEARING, AND IN THE COURSE OF BARGAINING, THE UNION HAS DEMANDED
 THAT THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE, TO BE INCLUDED IN
 THE COLLECTIVE BARGAINING AGREEMENT, BE EXPANDED PURSUANT TO SECTION
 7121 OF THE STATUTE.  DURING THE SAME PERIOD RESPONDENT HAS REFUSED TO
 AGREE TO A FULL SCOPE GRIEVANCE PROCEDURE WHICH WOULD INCLUDE APPEALS OF
 THOSE PERSONNEL ACTIONS LISTED IN 32 U.S.C. 709(E).  (JOINT EX. 1).
 
    4.  IN LATE MARCH OF 1979, AT A MEETING WITH RESPONDENT TO FINALIZE
 REMAINING AGREEMENT ISSUES, THE UNION INFORMED RESPONDENT THAT THE
 SEPTEMBER 1978 AGREEMENT CONCERNING THE SCOPE OF THE GRIEVANCE
 PROCEDURE
 SHOULD NOT BE PUT INTO THE FINAL CONTRACT AS THE AGREEMENT WAS NOT
 ILLEGAL UNDER THE NEW STATUTE, AND THE UNION WAS ENTITLED TO A FULL
 SCOPE GRIEVANCE PROCEDURE AS OUTLINED IN THE STATUTE.  (TR. 28-29, 55,
 59, 81-82).  RESPONDENT REPLIED THAT THE SEPTEMBER 1978 AGREEMENT WAS
 VALID, AND THE STATUTE DID NOT MAKE THE PREVIOUS AGREEMENT ILLEGAL.
 (TR. 82, 94).  RESPONDENT STATED THAT IT COULD NOT AGREE TO ANY SCOPE
 POLICY THAT INCLUDED SECTION 709(E) APPEALS.  (TR. 55, 94).  THE UNION
 REQUESTED THAT RESPONDENT DRAFT A PROPOSAL OUTLING THE PARTICULAR
 SUBJECT MATTERS WHICH IT FELT SHOULD BE EXCLUDED FROM THE SCOPE OF THE
 GRIEVANCE MACHINERY.  (TR. 29, 56, 59).  RESPONDENT REFUSED TO DO SO,
 STATING THAT IT WOULD STAND ON THE SEPTEMBER 1978 AGREEMENT.  (TR. 29,
 56, 59, 94).
 
    5.  RESPONDENT AND THE UNION MET AGAIN IN APRIL 1979.  RESPONDENT
 REITERATED THAT IT WAS READY TO SIGN THE SEPTEMBER 1978 AGREEMENT.  THE
 UNION MAINTAINED THAT IT WOULD NEVER SIGN A CONTRACT THAT DID NOT PERMIT
 THE FULL SCOPE ALLOWED UNDER THE STATUTE.  RESPONDENT STATED THAT THE
 SCOPE OF THE GRIEVANCE ARTICLE SHOULD EXCLUDE STATUTORY APPEAL MATTERS
 AND SECTION 709(E) MATTERS.  THE UNION WOULD NOT DISCUSS A TOTAL
 EXCLUSION OF SECTION 709(E), CONTENDING SUCH WAS ILLEGAL UNDER THE
 STATUTE, BUT ASKED FOR PARTICULAR ISSUES MANAGEMENT WISHED TO EXCLUDE.
 RESPONDENT MAINTAINED THAT IT COULD NOT BARGAIN 709(E) ITEMS AND
 EVERYTHING WITHIN 709(E) MUST BE EXCLUDED.  (TR. 30-31, 56-57, 90-91,
 112;  GENERAL COUNSEL'S EX. 2).
 
    6.  ON JUNE 13 AND 20, 1979 THE UNION OFFERED RESPONDENT A PROPOSAL
 TO ACCEPT THE SEPTEMBER 1978 AGREEMENT WITH THE UNDERSTANDING THAT THE
 PARTIES WOULD SUBSEQUENTLY ADOPT AUTHORITY DECISIONS RENDERED IN TWO
 NEGOTIABILITY CASES.  (GENERAL COUNSEL'S EX. 3 AND 4).  ON JUNE 21, 1979
 A RESPONDENT COUNTER-PROPOSAL AND AN ADDITIONAL UNION PROPOSAL WERE
 EXCHANGED RELATIVE TO ACCEPTANCE OF THE 1978 AGREEMENT WITH
 RENEGOTIATION POSSIBLE UNDER CERTAIN CIRCUMSTANCES AFTER AUTHORITY
 NEGOTIABILITY DECISIONS IN OTHER CASES.  (GENERAL COUNSEL'S EX. 5 AND
 6).
 
    7.  ON SEPTEMBER 27, 1979 THE UNION AGAIN PROPOSED THAT THE PARTIES
 ACCEPT THE 1978 AGREEMENT AND AGREE TO LATER AMEND IT TO REFLECT THE
 MAXIMUM SCOPE AUTHORIZED IN PENDING NEGOTIABILITY CASES.  (GENERAL
 COUNSEL'S EX. 7).  RESPONDENT REPLIED THAT IT STOOD BY THE SEPTEMBER
 1978 AGREEMENT REGARDING THE SCOPE OF THE GRIEVANCE PROCEDURE.  (GENERAL
 COUNSEL'S EX. 8).
 
    8.  ON NOVEMBER 23, 1979 THE UNION ADVISED RESPONDENT, IN PART, "THE
 UNION POSITION IN THE PAST AS WELL AS THE PRESENT IS THAT WE ARE
 PERFECTLY WILLING TO ACCEPT THOSE ITEMS EXCLUDED FROM THE GRIEVANCE
 PROCESS BY THE ACT AND TOTALLY COMMITTED TO ACCEPTING CONTRACTUAL
 LANGUAGE THAT ALLOWS FOR THAT SCOPE." (GENERAL COUNSEL'S EX. 9).
 
    9.  FOLLOWING ISSUANCE OF THE AUTHORITY'S INTERPRETATION AND
 GUIDANCE, 2 FLRA NO. 32 (DECEMBER 19, 1979), BOTH PARTIES REQUESTED TO
 RETURN TO THE BARGAINING TABLE AND BARGAIN FURTHER.  THE UNION ADVISED
 RESPONDENT, IN PART, "THAT WE DESIRE THE FULL SCOPE OF GRIEVANCE
 COVERAGE UNDER SECTION 7121 OF THE STATUTE WHICH WOULD COVER ALL
 MATTERS, EXCEPT THOSE EXPRESSLY EXCLUDED BY STATUTE, AS CONTRACTUAL
 LANGUAGE AND FOR BINDING ARBITRATION TO INCLUDE ALL MATTERS THAT ARE
 WITHIN THE SCOPE OF THE GRIEVANCE PROCEDURE." IN SETTING FORTH ITS
 POSITION, RESPONDENT STATED, IN PART, "(T)HE EMPLOYER'S POSITION WOULD
 ALLOW FOR FURTHER BARGAINING, BUT THAT THE UNION'S POSITION WAS FIRM IN
 DEMANDING THE WIDEST SCOPE POSSIBLE UNDER THE LAW AND WOULD NOT ALLOW
 FOR FURTHER BARGAINING." (GENERAL COUNSEL'S EX. 10 AND 11).
 
    10.  THE PARTIES MET ON APRIL 23, 1980.  THE UNION REQUESTED THAT
 MANAGEMENT RESENT A PROPOSAL.  RESPONDENT PRESENTED THE FOLLOWING
 PROPOSAL:
 
    1.  THE PARTIES AGREE TO A SCOPE OF GRIEVANCE AND ARBITRATION
 PROCEDURES WHICH WOULD
 
    INCLUDE ALL MATTERS WITH ONLY THE FOLLOWING EXCLUSIONS:
 
    A.  THOSE MATTERS INCLUDED IN 32 USC 709(E) WHICH LIMIT THE RIGHT OF
 APPEAL TO THE ADJUTANT
 
    GENERAL OF THE JURISDICTION CONCERNED, AND
 
    B.  EEO COMPLAINTS, AND
 
    C.  CLASSIFICATION MATTERS FOR WHICH THE ADJUTANT GENERAL HAS NO
 AUTHORITY, AND
 
    D.  PERFORMANCE RATING COMPLAINTS.
 
    2.  IT IS FURTHER AGREED THAT EITHER PARTY MAY UNILATERALLY DEMAND TO
 RENEGOTIATE THE SCOPE
 
    OF GRIEVANCE AND ARBITRATION COVERAGE UPON A FLRA DECISION WHICH
 WOULD ESTABLISH THAT ANY
 
    MATTERS INCLUDED IN 32 USC 709(E) ARE NEGOTIABLE AND CAN BE PROPERLY
 INCLUDED IN NEGOTIATED
 
    GRIEVANCE AND ARBITRATION PROCEDURES.  (GENERAL COUNSEL'S EX.  12)
 
    THE UNION PRESENTED THE FOLLOWING COUNTER-PROPOSAL:
 
    THE UNION IS WILLING TO EXCLUDE MATTERS PERTAINING TO EEO AND THOSE
 ITEMS EXPRESSLY
 
    EXCLUDED BY THE STATUTE WITH ALL OTHER MATTERS TO BE INCLUDED IN THE
 GRIEVANCE
 
    PROCESS.  (GENERAL COUNSEL'S EX. 13).
 
    RESPONDENT REPLIED THAT THE UNION'S PROPOSAL TO INCLUDE SECTION
 709(E) MATTERS WAS UNACCEPTABLE AS 709(E) DID NOT PERMIT ANY DISCRETION
 ON THE PART OF THE ADJUTANT GENERAL OR HIS REPRESENTATIVES TO NEGOTIATE
 OR ARBITRATE SUCH MATTERS AS ARE INCLUDED UNDER 709(E), AND RESPONDENT
 WOULD PREPARE A LETTER OF NON-NEGOTIABILITY.  (TR. 113, 115).
 RESPONDENT SUGGESTED THAT THE PARTIES BREAK FOR LUNCH SO THAT IT COULD
 PREPARE THE LETTER OF NON-NEGOTIABILITY.  (TR. 113, 115).
 
    11.  DURING THE LUNCHEON RECESS, THE UNION DECIDED THAT IT SHOULD
 WITHDRAW THAT PORTION OF ITS PROPOSAL DEALING WITH THE EXCLUSION OF EEO
 MATTERS.  (TR. 40, 63).  UPON RETURN FROM LUNCH, RESPONDENT OFFERED THE
 LETTER OF NON-NEGOTIABILITY TO THE UNION, WHICH STATED, IN PART, AS
 FOLLOWS:
 
    YOUR COUNTER-PROPOSAL IS INCONSISTENT WITH LAW AND THE EMPLOYER'S
 DUTY TO BARGAIN IN GOOD
 
    FAITH DOES NOT EXTEND TO SUCH MATTERS AND THEREFORE, YOUR PROPOSAL IS
 DETERMINED
 
    NON-NEGOTIABLE TO THE EXTENT OF ITS INCONSISTENCY WITH 32 U.S.C.
 709(E).  (GENERAL COUNSEL'S
 
    EX. 14).
 
    AT THE SAME TIME, THE UNION WITHDREW ITS PROPOSAL ON THE EEO
 EXCLUSION.  (TR. 41, 63, 113).  THE FINAL POSITION OF THE UNION WAS THAT
 IT MUST HAVE THE FULL SCOPE OF GRIEVANCE AND ARBITRATION CONTAINED IN
 THE STATUTE AND ANYTHING LESS WOULD HINDER ITS RIGHT TO REPRESENT
 EMPLOYEES.  (TR. 42).  THE FINAL POSITION OF RESPONDENT WAS THAT 32
 U.S.C. 709(E) PRECLUDED ANY DISCRETION ON THE PART OF THE ADJUTANT
 GENERAL OR HIS REPRESENTATIVES TO NEGOTIATE OR AGREE TO ARBITRATE SUCH
 MATTERS AS ARE INCLUDED UNDER 709(E).  (TR. 115).
 
               DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
 
    THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1),
 (5), AND (8) OF THE STATUTE BY REFUSING TO AGREE TO THE FULL SCOPE FOR
 THE NEGOTIATED GRIEVANCE PROCEDURE AS REQUESTED BY THE UNION PURSUANT TO
 SECTION 7121 OF THE STATUTE IN OR ABOUT MARCH 1979 AND ON OR ABOUT APRIL
 23, 1980.  THE GENERAL COUNSEL ASSERTS THAT THE UNION CONSIDERED AND
 BARGAINED IN GOOD FAITH WITH REGARD TO RESPONDENT'S PROPOSALS TO EXCLUDE
 CERTAIN MATTERS FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE AND
 THAT RESPONDENT'S CONDUCT IN REFUSING TO AGREE TO A FULL SCOPE GRIEVANCE
 PROCEDURE THROUGHOUT 1979 AND IN APRIL 1980 AND IN ISSUING A
 NON-NEGOTIABILITY DETERMINATION IN APRIL 1980 VIOLATED THE STATUTE.
 
    THE GENERAL COUNSEL'S POSITION THAT (1) THE STATUTE MANDATES THE
 UNION'S ENTITLEMENT TO THE FULL SCOPE PERMISSIBLE BY LAW ONCE IT
 FULFILLED ITS OBLIGATION TO BARGAIN OVER RESPONDENT'S REQUESTED
 EXCLUSIONS, AND (2) FAILURE BY THE PARTIES TO AGREE ON THE SCOPE WILL
 NOT RESULT IN IMPASSE CANNOT BE ACCEPTED.  THE LANGUAGE OF THE STATUTE,
 ITS LEGISLATIVE HISTORY, /6/ AND PRECEDENT AUTHORITY DECISIONS AND
 INTERPRETATIONS TO DATE DO NOT, IN MY OPINION, COMPEL THIS VIEW.
 
    SECTION 7121 OF THE STATUTE CONCERNS THE SCOPE OF GRIEVANCE
 PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES.  /7/ THE GRIEVANCE
 PROCEDURE IS A MANDATORY SUBJECT OF BARGAINING WITHIN THIS STRICTURE.
 AS STATED WITH RESPECT TO SECTION 7121 IN THE CONFERENCE REPORT
 ACCOMPANYING THE FINAL VERSION OF THE BILL WHICH SUBSEQUENTLY ENACTED
 AND SIGNED INTO LAW:
 
    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.
 
    AS THE AUTHORITY STATED IN INTERPRETATION AND GUIDANCE, CASE NO.
 O-PS-2, 2 FLRA NO. 32 (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.
 
    AND, AS STATED IN FOOTNOTE 6 OF THAT DECISION:
 
    CONTRARY TO THE POSITION OF SEVERAL RESPONDING ORGANIZATIONS, MERE
 OBJECTION BY A PARTY TO
 
    THE CONTINUATION OF EXISTING NEGOTIATED GRIEVANCE PROCEDURES WOULD
 NOT, PER SE, EXTEND THE
 
    SCOPE OF THE EXISTING PROCEDURES, SINCE SECTION 7121 CONCERNS THE
 SCOPE OF GRIEVANCE
 
    PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES.
 
    AND AS THE AUTHORITY SUMMARIZED 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):
 
    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 PARTIES AGREED THROUGH THE COLLECTIVE BARGAINING PROCESS
 TO A PROCEDURE HAVING A
 
    NARROWER COVERAGE.
 
    THE "COLLECTIVE BARGAINING PROCESS," REFERRED TO IN THE CONFERENCE
 REPORT AND BY THE AUTHORITY, MEANS THAT PROCESS PROVIDED BY THE STATUTE
 FOR COLLECTIVE BARGAINING.  IT INCLUDES "COLLECTIVE BARGAINING" AS
 DEFINED IN SECTION 7103(A)(12) AS FOLLOWS:
 
    (12) 'COLLECTIVE BARGAINING' MEANS THE 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.
 
    AS NOTED "THE OBLIGATION REFERRED TO IN THIS PARAGRAPH DOES NOT
 COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A CONCESSION." THE
 "COLLECTIVE BARGAINING PROCESS" ALSO INCLUDES THE SERVICES OF THE
 AUTHORITY TO RESOLVE NEGOTIABILITY QUESTIONS AT THE REQUEST OF THE
 EXCLUSIVE REPRESENTATIVE PURSUANT TO SECTION 7117 OF THE STATUTE AND THE
 SERVICES OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE AND THE
 FEDERAL SERVICES IMPASSES PANEL ARE AVAILABLE TO AGENCIES AND EXCLUSIVE
 REPRESENTATIVES TO RESOLVE NEGOTIATION IMPASSES PURSUANT TO SECTION 7119
 OF THE STATUTE.
 
    THE FEDERAL SERVICES IMPASSES PANEL HAS BEEN GIVEN BROAD AUTHORITY TO
 RESOLVE NEGOTIATION IMPASSES.  UNDER SECTION 7119 OF THE STATUTE, THE
 PANEL CAN RECOMMEND PROCEDURES FOR RESOLVING AN IMPASSE OR ASSIST THE
 PARTIES THROUGH ANY METHOD IT DEEMS APPROPRIATE.  IF A SETTLEMENT IS NOT
 ACHIEVED IN THIS MATTER IT HAS THE POWER TO "TAKE WHATEVER ACTION IS
 NECESSARY AND NOT INCONSISTENT WITH THE CHAPTER TO RESOLVE THE IMPASSE",
 5 U.S.C. 7119(C)(5)(B) (III).  SEE 5 C.F.R. PART 2470 (1980).  THE PANEL
 HAS EXERCISED SUCH POWER IN THE PAST TO REQUIRE THAT THE PARTIES
 EXCLUDE, OR NOT EXCLUDE, MATTERS FROM THE APPLICATION OF THEIR GRIEVANCE
 PROCEDURE.  SEE LOUISIANA ARMY AND AIR NATIONAL GUARD, JACKSON BARRACKS,
 NEW ORLEANS, LOUISIANA AND LOCALS 1707, 1708, AND 1737, NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, CASE NO. 79 FSIP 51 AND 79 FSIP 81
 (APRIL 22, 1980);  VETERANS ADMINISTRATION MEDICAL CENTER, IRON
 MOUNTAIN, MICHIGAN AND LOCAL 2280, AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, CASE NO. 80 FSIP 41 (AUGUST 27, 1980);  EQUAL
 EMPLOYMENT OPPORTUNITY COMMISSION, WASHINGTON, D.C., AND EQUAL
 EMPLOYMENT OPPORTUNITY COMMISSION COUNCIL 216, AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 80 FSIP 38 (JANUARY 26, 1981).
 IN MY VIEW, SUCH ACTION IS CONSISTENT WITH SECTION 7121(A)(2) WHICH
 PROVIDES THAT, "ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY
 MATTER FROM THE APPLICATION OF THE GRIEVANCE PROCEDURE WHICH ARE
 PROVIDED FOR IN THE AGREEMENT."
 
    EVEN ASSUMING THAT THE GENERAL COUNSEL'S LEGAL POSITION IS CORRECT, A
 PREPONDERANCE OF THE EVIDENCE DOES NOT SHOW THAT THE UNION BARGAINED IN
 GOOD FAITH WITH RESPECT TO RESPONDENT'S EXCLUSIONARY PROPOSALS, OR THAT
 RESPONDENT'S REFUSAL TO AGREE TO A FULL SCOPE GRIEVANCE PROCEDURE IN
 1979 AND ON APRIL 23, 1980 VIOLATED THE STATUTE AS ALLEGED.
 
    THE RECORD REFLECTS THAT IN 1979 THE UNION FAILED TO DISCUSS A TOTAL
 EXCLUSION OF SECTION 709(E) MATTERS, CONTENDING THAT SUCH WAS ILLEGAL
 UNDER THE STATUTE AND THAT IT WOULD NEVER SIGN A CONTRACT THAT DID NOT
 PERMIT FULL SCOPE.  THE AUTHORITY HAS MADE IT CLEAR THAT "THE STATUTORY
 APPEAL PROCEDURE CONTAINED IN THE NATIONAL GUARD TECHNICIANS 'ACT OF
 1968 CAN BE THE EXCLUSIVE PROCEDURE COVERING ADVERSE ACTIONS INVOLVING
 NATIONAL GUARD TECHNICIANS WHERE SUCH MATTERS HAVE BEEN SPECIFICALLY
 EXCLUDED BY THE PARTIES FROM THE SCOPE OF THEIR NEGOTIATED GRIEVANCE
 PROCEDURE THROUGH BARGAINING." NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25
 (1981).  CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3559,
 AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
 MINNESOTA, 4 FLRA NO. 53 (1980).  THUS, THE UNION'S REFUSAL TO DISCUSS
 THE TOTAL EXCLUSION OF SECTION 709(E) MATTERS WAS NOT BARGAINING IN GOOD
 FAITH WITH RESPECT TO RESPONDENT'S PROPOSALS, BECAUSE IT LIMITED THE
 AREA OF NEGOTIATION BY MANDATING THE FORM THAT AN AGREEMENT MAY TAKE.
 
    THE RECORD ALSO REFLECTS THAT DURING 1979 THE UNION MAINTAINED THAT
 THE PARTIES' SEPTEMBER 1978 AGREEMENT CONCERNING THE SCOPE OF THE
 GRIEVANCE PROCEDURE HAD BEEN MADE ILLEGAL BY THE STATUTE, WHILE
 RESPONDENT INSISTED THAT IT CONTINUED TO BE LEGAL AND VALID UNDER THE
 STATUTE.  ON MAY 14, 1979 THE AUTHORITY, IN RESPONSE TO A REQUEST FOR A
 MAJOR POLICY DETERMINATION, ANNOUNCED IN THE FEDERAL REGISTER THAT AN
 INTERPRETATION OF THE STATUTE WAS WARRANTED ON THE PROPER INTERPRETATION
 AND APPLICATION OF SECTION 7121 OF THE STATUTE AS IT RELATES TO THE
 SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES IN EXISTING AGREEMENTS.  THE
 AUTHORITY ISSUED ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 32 ON
 DECEMBER 19, 1979.  THE AUTHORITY CONCLUDED IN ITS INTERPRETATION AND
 GUIDANCE:
 
    1.  SECTION 7121 OF THE STATUTE, UNDER WHICH THE SCOPE OF NEGOTIATED
 GRIEVANCE PROCEDURES
 
    SHALL COVER ALL MATTERS WHICH MIGHT LAWFULLY BE SUBMITTED TO THOSE
 PROCEDURES EXCEPT FOR
 
    PARTICULAR MATTERS MUTUALLY AGREED BY THE PARTIES TO BE EXCLUDED,
 DOES NOT APPLY IN SITUATIONS
 
    WHERE THE PARTIES TO AN EXISTING AGREEMENT CONTAINING GRIEVANCE
 PROCEDURES NEGOTIATED UNDER
 
    SECTION 31 OF THE ORDER WISH TO MAINTAIN THOSE NEGOTIATED GRIEVANCE
 PROCEDURES.
 
    2.  HOWEVER, WHERE EITHER PARTY TO AN EXISTING NEGOTIATED AGREEMENT
 OBJECTS TO THE RENEWAL
 
    OR CONTINUATION OF THE EXISTING NEGOTIATED GRIEVANCE PROCEDURES,
 SECTION 7121 OF THE STATUTE
 
    REQUIRES THAT THE PARTIES RENEGOTIATE THE SCOPE OF THEIR GRIEVANCE
 PROCEDURES IN COMPLIANCE
 
    WITH THE PROVISIONS OF THAT SECTION.  UNDER SECTION 7121, THE
 GRIEVANCE PROCEDURES SO
 
    RENEGOTIATED WOULD COVER ALL MATTERS WHICH MIGHT LAWFULLY BE
 SUBMITTED TO THE NEGOTIATED
 
    GRIEVANCE PROCEDURES, EXCEPT THOSE MATTERS EXPRESSLY EXCLUDED BY
 AGREEMENT OF THE
 
    PARTIES.  PENDING SUCH RENEGOTIATION, THE CURRENT AGREEMENT MUST
 REMAIN IN EFFECT.
 
    NEITHER PARTY'S BARGAINING POSITION IN 1979 WAS TOTALLY CONSISTENT
 WITH THE AUTHORITY'S INTERPRETATION OF THE STATUTE.  PREVIOUS AGREEMENTS
 WERE NOT TOTALLY INVALID, AS CONTENDED BY THE UNION, AND NEITHER WERE
 THEY TOTALLY BINDING, AS CONTENDED BY RESPONDENT.  I FIND THESE
 POSITIONS OF THE PARTIES IN 1979 AND THE FACT THAT THIS MAJOR POLICY
 STATEMENT WAS PENDING DURING MUCH OF 1979 ADDITIONAL PERSUASIVE REASON
 NOT BE FIND THAT IN EARLY 1979 RESPONDENT VIOLATED SECTIONS 7116(A)(1),
 (5), AND (8) OF THE STATUTE BY REFUSING TO AGREE TO THE UNION'S
 PROPOSAL.
 
    THE RECORD REFLECTS THAT RESPONDENT, UPON RECEIPT OF THE AUTHORITY'S
 INTERPRETATION AND GUIDANCE, PROMPTLY RECOGNIZED THE UNION'S RIGHT TO
 RENEGOTIATE THE SEPTEMBER 1978 AGREEMENT.  DURING THE COURSE OF A APRIL
 23, 1980 NEGOTIATING SESSION RESPONDENT DECLARED THE UNION'S PROPOSAL TO
 BE INCONSISTENT WITH LAW, NAMELY 32 U.S.C. 709(E).  THIS DECLARATION OF
 NON-NEGOTIABILITY BY THE RESPONDENT DID NOT VIOLATE THE DUTY TO
 NEGOTIATE UNDER THE STATUTE AS NO PRIOR DETERMINATION OF THE
 NEGOTIABILITY OF THE MATTER HAD BEEN MADE BY THE FEDERAL LABOR RELATIONS
 AUTHORITY UP TO THIS TIME.  /8/ CF. DEPARTMENT OF THE TREASURY, BUREAU
 OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION, CHICAGO, ILLINOIS AND
 NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 94, 2 FLRA NO. 74
 (1980).  THE PROPER RESOLUTION OF THE MATTER AT THE TIME WAS UNDER THE
 PROCEDURES SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
 AUTHORITY'S RULES AND REGULATIONS SINCE THE MATTER PROPOSED TO BE
 BARGAINED DID NOT INVOLVE ACTUAL OR CONTEMPLATED CHANGES IN CONDITIONS
 OF EMPLOYMENT.  SEE, E.G., NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25 (1981);
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND STATE OF
 KANSAS ARMY NATIONAL GUARD, ET AL, 3 FLRA NO. 124 (1980);  DECISION ON
 REQUEST FOR GENERAL STATEMENT OF POLICY OR GUIDANCE, 4 FLRA NO. 86
 (1980).  ACCORDINGLY, RESPONDENT ALSO DID NOT VIOLATE SECTIONS (1), (5),
 AND (8) OF THE STATUTE BY ISSUING A NON-NEGOTIABILITY DETERMINATION AND
 IN REFUSING TO AGREE TO THE UNION'S PROPOSAL ON APRIL 23, 1980.
 
    IN VIEW OF MY DISPOSITION OF THE CASE ON THE ABOVE GROUNDS, IT IS
 UNNECESSARY TO REACH OTHER ISSUES POSED BY THE PARTIES IN JOINT EXHIBIT
 1 AND IN THEIR BRIEFS.  (SEE. TR. 14).
 
    BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND THAT THE
 AUTHORITY ISSUE THE FOLLOWING:
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE CONSOLIDATED COMPLAINT IN CASE NO.
 5-CA-86 AND 5-CA-532 BE, AND IT HEREBY IS, DISMISSED.
 
                        GARVIN LEE OLIVER
                        ADMINISTRATIVE LAW JUDGE
 
 
    DATED:  APRIL 29, 1981
    WASHINGTON, DC
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SEE SECTION 2424.5 OF THE AUTHORITY'S RULES AND REGULATIONS,
 DEALING WITH NEGOTIABILITY APPEALS, WHICH PROVIDES AS FOLLOWS:
 
    SECTION 2424.5 SELECTION OF THE UNFAIR LABOR PRACTICE PROCEDURE OR
 THE NEGOTIABILITY
 
    PROCEDURE.
 
    WHERE A LABOR ORGANIZATION FILES AN UNFAIR LABOR PRACTICE CHARGE
 PURSUANT TO PART 2423 OF
 
    THIS SUBCHAPTER WHICH INVOLVES A NEGOTIABILITY ISSUE, AND THE LABOR
 ORGANIZATION ALSO FILES
 
    PURSUANT TO THIS PART A PETITION FOR REVIEW OF THE SAME NEGOTIABILITY
 ISSUE, THE AUTHORITY AND
 
    THE GENERAL COUNSEL ORDINARILY WILL NOT PROCESS THE UNFAIR LABOR
 PRACTICE CHARGE AND THE
 
    PETITION FOR REVIEW SIMULTANEOUSLY.  UNDER SUCH CIRCUMSTANCES, THE
 LABOR ORGANIZATION MUST
 
    SELECT UNDER WHICH PROCEDURES TO PROCEED . . .  CASES WHICH SOLELY
 INVOLVE AN AGENCY'S
 
    ALLEGATION THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO
 THE MATTER PROPOSED TO BE
 
    BARGAINED AND WHICH DO NOT INVOLVE ACTUAL OR CONTEMPLATED CHANGES IN
 CONDITIONS OF EMPLOYMENT
 
    MAY ONLY BE FILED UNDER THIS PART.
 
    /2/ COMPARE DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY, 6
 FLRA NO. 100 (1981) WHEREIN A VIOLATION WAS FOUND BASED ON AN AGENCY'S
 ACTION IN DECLARING NON-NEGOTIABLE A PROPOSAL WHICH WAS, IN ALL MATERIAL
 RESPECTS, IDENTICAL TO A PROPOSAL WHICH THE AUTHORITY HAD PREVIOUSLY
 DETERMINED TO BE NEGOTIABLE.
 
    /3/ THE AUTHORITY FINDS IT UNNECESSARY TO, AND SPECIFICALLY DOES NOT,
 PASS UPON THE JUDGE'S STATEMENTS AND FINDINGS REGARDING THE UNION'S LACK
 OF GOOD FAITH WITH RESPECT TO BARGAINING OVER THE RESPONDENT'S PROPOSALS
 TO EXCLUDE SECTION 709(E) MATTERS FROM THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE.
 
    /4/ THE TRANSCRIPT IS HEREBY CORRECTED AS REQUESTED IN THE GENERAL
 COUNSEL'S UNOPPOSED MOTION.
 
    /5/ SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968, 32
 U.S.C. 709(E) (1970) 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 OR 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.
 
    /6/ THE POST-ENACTMENT STATEMENTS OF REPRESENTATIVE WILLIAM FORD, 124
 CONG. REC. H13609 (DAILY ED. OCT. 14, 1978) REGARDING HIS INTERPRETATION
 OF SECTION 7121(A)(2) DO NOT CONSTITUTE EVIDENCE OF CONGRESSIONAL
 INTENT.  OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY
 ADMINISTRATION, SAN FRANCISCO REGION, 5 FLRA NO. 45 (1981).
 
    /7/ SECTION 7121 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    SECTION 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
 
    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.
 
    /8/ ON FEBRUARY 20, 1