11:0365(74)CA NAGE, LOCAL R8-22 VS ARMY, NGB, MICHIGAN -- 1983 FLRAdec CA



[ v11 p365 ]
11:0365(74)CA
The decision of the Authority follows:


11 FLRA NO. 74

MICHIGAN ARMY NATIONAL GUARD
LANSING, MICHIGAN

     Respondent

     and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R8-22

     Charging Party

Case No. 5-CA-20127

DECISION AND ORDER

The Administrative Law Judge issued his Decision in the above-entitled proceeding, granting the General Counsel's Motion for Summary Judgment, finding that the Respondent had engaged in certain unfair labor practices, and recommending that the Respondent be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision.

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 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 this case, the Authority hereby adopts the Judge's findings, conclusions and recommendations. 1 [ v11 p365 ]

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Michigan Army National Guard, Lansing, Michigan shall:

1. Cease and desist from:

(a) Failing and refusing to comply with the Decision and Order of the Federal Service Impasses Panel issued in Case No. 81 FSIP 58.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their 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) Comply with the Decision and Order of the Federal Service Impasses Panel issued in Case No. 81 FSIP 58, and otherwise cooperate in impasse procedures and decisions as required by the Federal Service Labor - Management Relations Statute.

(b) Post at its facilities 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 the Adjutant General, Michigan Army National Guard, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Adjutant General 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 V, Federal Labor [ v11 p366 ] Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., February 18, 1983

Ronald W. Haughton, Chairman

Henry B. Frazier III, Member

Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v11 p367 ]

          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 fail and refuse to comply with the Decision and Order of the Federal Service Impasses Panel issued in Case No. 81 FSIP 58.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL comply with the Decision and Order of the Federal Service Impasses Panel issued in Case No. 81 FSIP 58, and will otherwise cooperate in impasse procedures and decisions as required by the Federal Service Labor - Management Relations Statute.

                  ______________________________
                       (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 any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region V, whose address is: Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604 and whose telephone number is: (31) 353-6306. [ v11 p368 ]

MICHIGAN ARMY NATIONAL GUARD
LANDING, MICHIGAN

     Respondent

     and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R8-22

     Charging Party

Case No. 5-CA-20127

Lt. Colonel Lawrence W. Reedy
         For The Respondent

Sandra J. LeBold, Esquire
         For the General Counsel

Before:  BURTON S. STERNBURG
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101 et seq., and the Rules and Regulations issued thereunder, Fed. Reg. Vol. 45, No. 12, January 17, 1980, and Vol. 46, No. 154, August 11, 1981, 5 C.F.R. Chapter XIV, Part 2411, et seq.

Pursuant to a charge filed on February 19, 1982, by the National Association of Government Employees, Local R8-22, (hereinafter called the Union or NAGE), a Complaint and Notice of Hearing was issued on February 26, 1982, by the Regional Director for region V, Federal Labor [ v11 p369 ] Relations Authority, Chicago, Illinois. The Complaint alleges that the Michigan Army National Guard, Lansing, Michigan, (hereinafter called the Respondent or National Guard), violated Sections 7116(a)(1), (5) and (6) of the Federal Service Labor - Management Relations Statute, (hereinafter called the Statute), by virtue of its actions in failing and refusing to bargain in good faith with the Union and to comply and cooperate with a Decision and Order of the Federal Service Impasses Panel, (hereinafter called the panel).

On March 19, 1982, the Respondent filed its Answer denying the commission of any unfair labor practices but, admitting that it had declined to implement the Decision and Order of the Panel on the ground that the Order of the "Panel was beyond the scope of its authority, in direct contravention of the law and in direct conflict with the statutory and responsibility of the Adjutant General of Michigan."

A hearing was scheduled for May 3, 1982, in Lansing, Michigan. Prior to the scheduled hearing, the General Counsel on April 9, 1982 filed a Motion for Summary Judgment. Thereafter, pursuant to the Rules and Regulations, the Chief Administrative Law Judge postponed the scheduled hearing and issued under his name a briefing schedule.

On May 3, 1982, Respondent filed a Cross Motion for Summary Judgment, wherein it admitted "that there are no material issues of fact in the case," but justified its refusal to implement the award of the Panel on the ground that such award is contrary to Federal Law (32 U.S.C. Section 709(e), National Guard Technicians Act) and that such conclusion was upheld by the United States Court of Appeals for the Third Circuit in New Jersey Air National Guard, 177th Fighter Interceptor Group and Department of Defense v. Federal Labor Relations Authority, No. 81-1592, (C.A. 3, April 12, 1982). On May 12, 1982, the General Counsel filed a Response and Opposition to Respondent's Cross Motion For Summary Judgment.

Upon examination of the General Counsel's Motion for Summary Judgment and the Respondent's reply thereto, it is clear that there are no genuine issues of material fact and that only legal issues are involved. In these circumstances, the required hearing under the Statute may consist solely of an opportunity to present written argument. See, F. Davis, Administrative Law Treatise, 2d Edition, Sections 12.1 and 12.10; Internal Revenue Services, A/SLMR No. 897, 7 A/SLMR 782, (1977). As noted above, the parties have been afforded the opportunity to present written argument in this matter.

Upon consideration of the General Counsel's Motion for Summary judgment, Respondent's Cross Motion for Summary Judgment and General Counsel's Response and Opposition to Respondent's Cross Motion, and all [ v11 p370 ] the pleadings and exhibits attached thereto, I find that there is no genuine issue of material fact and that for the reasons set forth infra, the General Counsel is entitled to Summary Judgment as a matter of law. Accordingly, the General Counsel's Motion is granted and I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The Union is the exclusive representative of all non-supervisory general schedule and wage grade technicians assigned to the Michigan Army National Guard, excluding management officials and technicians engaged in Federal personnel work except in a purely clerical capacity.

On or about September 15, 1980, Respondent and the Union commenced negotiations for a new collective bargaining agreement which would be applicable to the unit employees represented by the Union.

During the course of the negotiations the Union proposed a full scope grievance procedure which would encompass, among other things, (1) Reduction in force actions and (2) Adverse Actions.

Specifically, the Union proposed as follows:

In questions of grievability/arbitrability arising from 32 USC 709(e)(4) and (5) matters, (National Guard Technicians Act), the selected arbitrator will render a written decision on the matter of arbitrability before hearing the substance of the grievance. The arbitrator shall have the authority to make all arbitrability and/or grievability determinations. His decision will be binding on both parties. Either party may exercise their right as provided in 5 USC 7122 (of the Federal Service Labor - Management Relations Statute).

The Respondent took the position that Sections 709(e)(4) and (5) of the National Guard Technicians Act vests in the Adjutant General the final authority with respect to (1) Reduction-in-force actions and (2) Adverse actions, and makes his rulings thereon non-appealable. Accordingly, the Respondent countered with the following proposal:

Special authority of the Adjutant General:

The right of appeal which exists for the following cases shall not extend beyond the Adjutant General of Michigan: [ v11 p371 ]

(1) Reduction-in-force actions

(2) Adverse Actions

Subsequently, the Union submitted the matter to the Federal Service Impasses Panel for resolution. On May 26, 1981, the Panel issued its Decision in Case No. 81 FSIP 58, wherein the parties were ordered to adopt the Union's proposal as set forth above.

On January 26, 1982, the Union wrote a letter to the Respondent wherein it demanded that the Respondent immediately implement the Panel's decision. On February 4, 1982, the Respondent sent a letter to the Union wherein it refused to implement the Panel's Order on the ground that compliance with the Panel's Decision would constitute a violation of the National Guard Technicians Act which vests final authority in certain personnel matters solely in the Adjutant General. 2

Discussion and Conclusions

It is well settled that the refusal to comply with a final order of the Federal Service Impasses Panel constitutes a violation of Sections 7116(a)(1) and (6) of the Statute. Kentucky National Guard and National Association of Government Employees, Local RS-100, 4 FLRA No. 73; Division of Military and Naval Affairs, State of New York and New York Council, Association of Civilian Technicians, 8 FLRA No. 33; State of California National Guard and National Association of Government Employees, Locals R12-125, R12-132, R12-146, R12-150, 8 FLRA No. 11.

Respondent does not appear to quarrel with the state of the law and admits that it failed and refused to comply with an Order of the Impasses Panel. However, Respondent takes the position that the Panel's decision and Order is contrary to law and argues that in such circumstances, it is [ v11 p 372] under no obligation to comply therewith. In support of its position, Respondent relies upon the decision of the United States Court of Appeals for the Third Circuit in New Jersey Air National Guard v. Federal Labor Relations Authority, No. 81-1592, April 12, 1982, wherein the Court concluded that there was a conflict between Section 709(e) of the National Guard Technicians Act and Section 7121 of the Statute and that Section 7121 did not override Section 709(e).

On February 20, 1981, the Authority issued negotiability decisions in National Association of Government Employees, Local R12-132 and California National Guard, 5 FLRA No. 25; and American Federation Government Employees, AFL - CIO, Local 3486 and New Jersey Air National Guard, 177th Fighter Interceptor Group, Pomona, New Jersey, 5 FLRA No. 26. Both cases involved the identical issue involved herein, namely, "whether a union's proposed grievance procedure which includes within its coverage appeals of adverse actions of National Guard Technicians is outside the duty to bargain under Section 7117 of the Statute because it is inconsistent with Federal Law ... as alleged by the Agency." The Authority concluded that "the grievance procedure here in dispute, which includes within its coverage matters relating to appeals of adverse actions of National Guard Technicians, is within the Agency's duty to bargain - under the Statute, and is not inconsistent with 32 USC Section 709(e)." The Authority, in both cases, ordered the Agency to bargain over the Union's proposal, which as noted above, made adverse actions cognizable under the grievance procedure.

Subsequently, the Agency in the New Jersey National Guard case, supra, petitioned the Third Circuit Court of Appeals for a review of the Authority's negotiability determination. On April 12, 1982, the Court, as noted above, ruled in favor of the Agency and found in essence, that the Statute did not take precedence over the National Guard Technicians Act and that the Adjutant General's decisions with respect to adverse actions were not reviewable under the grievance procedures mandated by Section 7121 of the Statute. The Court granted the petition for review and set aside the decision of the Authority.

On April 28, 1982, the Authority petitioned for a rehearing. Subsequently, on May 24, 1982, the Court denied the Authority's petition for rehearing.

In view of the foregoing, the sole question remaining for resolution is the deference to be given to the Third Circuit's decision which runs contra to the Authority's analysis of the law.

In the absence of any information concerning the course the Authority intends to take in this matter, i.e., adopt the Court's rationale or seek further review of its position through the medium of this case or another [ v11 p373 ] case in one of the other remaining 10 Circuit Courts of Appeals, I feel, with all due respect to the Third Circuit Court of Appeals' well reasoned Decision, that I am Duty bound to follow the legal precedents enunciated by the Authority until such time as they are reversed either by the Authority itself or by the Supreme Court. See, Iowa Beef Packers Inc., 144 NLRB 615, 616, wherein the National Labor Relations Board imposed similar constraints upon the Administrative Law Judges assigned to its Agency.

Accordingly, since Respondent admits that it failed and refused to comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 81 FSIP 58, which, according to past decisions of the Authority was not contrary to law, I find that Respondent by such action violated Sections 7116(a)(1) and (6) of the Statute. 3

Having found and concluded that Respondent violated Section 7116(a)(1) and (6) of the Statute, I recommend that the Authority issue the following:

ORDER

Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Statute, it is hereby ordered that the Michigan Army National Guard, Lansing, Michigan shall:

1. Cease and desist from:

(a) Failing and refusing to comply and cooperate with the Decision and Order of the Federal Service Impasses Panel issued in Case No. 81 FSIP 58.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their 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: [ v11 p374 ]

(a) Comply and cooperate with the Decision and Order of the Federal Service Impasses Panel issued in Case No. 81 FSIP 58.

(B) Post at its facilities copies of the attached notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Adjutant General, Michigan Army National Guard, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Adjutant General 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 V, 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.

BURTON S. STERNBURG
Administrative Law Judge

Dated: June 30, 1982
       Washington, D.C.

[ v11 p375 ]

APPENDIX

          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 TITLE 5 OF THE
             UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
   WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to comply with the Decision and Order of the Federal Service Impasses Panel issued in Case No. 81 FSIP 58.

WE WILL NOT, in any like to related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL comply and cooperate with the Decision and Order of the Federal Service Impasses Panel issued in Case No. 81 FSIP 58, and will otherwise cooperate in impasses procedures and decisions as required by the Federal Service Labor Management Relations Statute.

                  __________________________
                    (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 Director, Federal Labor Relations Authority, Region V, whose address is: 175 West Jackson Boulevard, Suite A-1359, Chicago, Illinois 60604 and whose telephone number is: (312) 886-3468. [ v11 p376 ]

MICHIGAN ARMY NATIONAL GUARD
LANSING, MICHIGAN

     (Activity)

     and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R8-22

     (Union)

Case No. 5-CA-20127
   11 FLRA No.74

ORDER DENYING MOTION FOR RECONSIDERATION

This case is before the Authority at this time for ruling on a motion filed by the National Guard Bureau, seeking reconsideration of the Authority's Decision and Order of February 18, 1983. For the reason set forth below, the motion must be denied.

Section 2429.17 of the Authority's Rules and Regulations, provides, in pertinent part:

2429.17 Reconsideration.

After a final decision or order of the Authority has been issued, a party to the proceeding before the Authority who can establish in its moving papers extraordinary circumstances for so doing, may move for reconsideration of such final decision or order. The motion shall be filed within 10 days after service of the Authority's decision or order....

The Authority's Decision and Order was dated and served on the parties by mail on February 18, 1983. Therefore under section 2429.17 of the Authority's Rules and Regulations, and sections 2429.21 and 2429.22, which are also applicable to the computation of the time limit here involved, any motion for reconsideration had to be filed in the National Office of the Authority before the close of business on March 7, 1983, in order to be considered timely. However, the instant motion was not filed until March 9, 1983. The motion is therefore untimely and must be denied on that basis. [ v11 p ]

Accordingly, the motion for reconsideration is hereby denied.

For the Authority.

Issued, Washington, D.C., June 2, 1983

James J. Shepard, Executive Director

[ v11 p2 ]

FOOTNOTES

Footnote 1 With regard to Respondent's contention that section 709(e) of the National Guard Technicians Act of 1968 requires the specific exclusion of adverse actions involving technicians from coverage under negotiated grievance procedures, See 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); Kansas Army National Guard and National Guard Bureau, 10 FLRA No. 56 (1982). But see American Federation of Government Employees, AFL-CIO, Local 3486 and New Jersey Air National Guard, 177th Fighter Interceptor Group, Pomona, New Jersey, 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, 677 F.2d 276 (3rd Cir. 1982), petition for cert. denied American Federation of Government Employees, AFL-CIO, Local 3486 v. New Jersey Air National Guard, 177th Fighter Interceptor Group and Department of Defense, No. 82-224 (Aug. 9, 1982).

Footnote 2 Sections 709(e)(4) and (5) of the National Guard Technicians Act provide in pertinent part as follows: (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 ap