American Federation of Government Employees, Local 3486, AFL-CIO (Union) and New Jersey Air National Guard, 177th Fighter Interceptor Group, Pomona, New Jersey (Activity) 

 5 FLRA No. 26
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3486
 Union
 
 and
 
 NEW JERSEY AIR NATIONAL GUARD,
 177TH FIGHTER INTERCEPTOR GROUP,
 POMONA, NEW JERSEY
 Activity
 
                                            Case No. 0-NG-119
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    A DISPUTE AROSE BETWEEN THE PARTIES AS TO THE NEGOTIABILITY OF THE
 FOLLOWING THREE PROPOSALS:
 
                              UNION PROPOSALS
 
                            REDUCTION-IN-FORCE
 
    SECTION 8.  AN EMPLOYEE WILL BE PERMITTED TO GRIEVE ANY VIOLATION OF
 THIS ARTICLE UNDER THE
 
    DISPUTES PROVISION OF THIS CONTRACT.
 
                            GRIEVANCE PROCEDURE
 
    SECTION 4.  AN AGGRIEVED EMPLOYEE AFFECTED BY DISCRIMINATION,
 REMOVAL, REDUCTION IN GRADE
 
    OR PAY BASED ON AN UNACCEPTABLE PERFORMANCE OR ANY OTHER ADVERSE
 ACTION MAY RAISE THE MATTER
 
    UNDER ANY STATUTORY APPELLANT (SIC) PROCEDURE OR WITH THE CONCURRENCE
 OF THE UNION UNDER THE
 
    NEGOTIATED PROCEDURE BUT NOT BOTH;  EXCEPT FOR A DISCRIMINATION
 COMPLAINT WHICH MAY BE A MIXED
 
    PROCEDURE AND FILED UNDER BOTH PROCESSES.  (UNDERSCORING ADDED.)
 
                        ADVERSE DISCIPLINARY ACTION
 
    SECTION 4(B) THE PARTIES AGREE THAT THE GRIEVANCE PROCEDURE
 NEGOTIATED HEREIN (ARTICLE XI(
 
    MAY BE USED TO ADJUDICATE ANY MISUNDERSTANDING OR DISAGREEMENT
 RELATING TO "JUST CAUSE" AND
 
    WHAT IS CONSIDERED "FAIR AND EQUITABLE".
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSALS, WHICH ESSENTIALLY
 PERTAIN TO THE SCOPE AND COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE,
 ARE MATTERS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE
 STATUTE BECAUSE THEY ARE INCONSISTENT WITH FEDERAL LAW (32 U.S.C.
 709(E)) /1/ AND THE STATUTE, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSALS CONCERN MATTERS WHICH
 ARE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE, ALTHOUGH CERTAIN
 PORTIONS THEREOF (UNDERSCORED ABOVE) ARE INCONSISTENT WITH THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 FED. REG. 48,575(1980)), IT
 IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO
 BY THE PARTIES) BARGAIN CONCERNING THE SUBJECT PROPOSALS ENTITLED
 "REDUCTION-IN-FORCE" AND "ADVERSE DISCIPLINARY ACTION" IN THEIR ENTIRETY
 AND THE ONE ENTITLED "GRIEVANCE PROCEDURE" TO THE EXTENT INDICATED
 HEREIN.  /2/
 
    REASONS:  AS NOTED ABOVE, THE AGENCY ALLEGES THAT 32 U.S.C. 709(E)
 PRECLUDES NEGOTIATIONS OVER THOSE PORTIONS OF THE UNION'S PROPOSALS
 WHICH WOULD INCLUDE WITHIN THE SCOPE OF THE NEGOTIATED GRIEVANCE
 PROCEDURE MATTERS SUCH AS REDUCTIONS-IN-FORCE, REDUCTIONS IN GRADE OR
 PAY BASED ON UNACCEPTABLE PERFORMANCE, OR ANY OTHER ADVERSE ACTION
 INVOLVING NATIONAL GUARD TECHNICIANS.  SPECIFICALLY, THE AGENCY ALLEGES
 THE APPEALS OF SUCH ACTIONS CANNOT BY LAW EXTEND BEYOND THE ADJUTANT
 GENERAL OF THE JURISDICTION CONCERNED.  FOR THE SAME REASON, THE AGENCY
 FURTHER ALLEGES, ADJUDICATION OF SUCH TERMS AS "JUST CAUSE" AND "FAIR
 AND EQUITABLE" AS THEY ARE APPLIED TO ADVERSE DISCIPLINARY ACTIONS
 IMPOSED BY THE ADJUTANT GENERAL WOULD BE CONTRARY TO 32 U.S.C. 709(E)
 SINCE ANY RULING BY AN ARBITRATOR WITH REGARD TO SUCH TERMS WOULD
 INFRINGE ON THE EXERCISE OF THE ADJUTANT GENERAL'S AUTHORITY IN SUCH
 MATTERS.
 
    THESE PROPOSALS WHICH ESSENTIALLY PERTAIN TO THE SCOPE AND COVERAGE
 OF THE NEGOTIATED GRIEVANCE PROCEDURE BEAR NO MATERIAL DIFFERENCE FROM
 THE DISPUTED PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA
 NATIONAL GUARD, 5 FLRA NO. 25(1980), AND WHICH WAS HELD TO BE WITHIN THE
 DUTY TO BARGAIN UNDER THE STATUTE.  IN THAT CASE, THE AUTHORITY
 DETERMINED THE PROPOSED GRIEVANCE PROCEDURE WHICH INCLUDED WITHIN ITS
 COVERAGE MATTERS RELATING TO APPEALS OF ADVERSE ACTIONS INVOLVING
 NATIONAL GUARD TECHNICIANS WAS WITHIN THE DUTY TO BARGAIN UNDER SECTION
 7117 OF THE STATUTE.  /3/ THEREFORE, BASED ON THE REASONS SET FORTH IN
 GREATER DETAIL IN CALIFORNIA NATIONAL GUARD, THE PROPOSALS HERE IN
 DISPUTE, EXCEPT TO THE EXTENT SPECIFIED BELOW, MUST ALSO BE HELD TO BE
 WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    THE PORTION OF THE UNION'S PROPOSAL ENTITLED "GRIEVANCE PROCEDURE"
 WHICH WOULD PERMIT THE FILING OF A DISCRIMINATION COMPLAINT UNDER BOTH A
 STATUTORY APPEAL PROCEDURE AND THE NEGOTIATED GRIEVANCE PROCEDURE IS
 NONNEGOTIABLE INASMUCH AS THE STATUTE PRECLUDES AN EMPLOYEE SO AFFECTED
 FROM UTILIZING BOTH PROCEDURES, BUT INSTEAD REQUIRES THE EMPLOYEE TO
 ELECT ONE PROCEDURE OR THE OTHER.
 
    SECTION 7121(D) OF THE STATUS PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    (D) AN AGGRIEVED EMPLOYEE AFFECTED BY A PROHIBITED PERSONNEL PRACTICE
 UNDER SECTION
 
    2302(B)(1) OF THIS TITLE WHICH ALSO FALLS UNDER THE COVERAGE OF THE
 NEGOTIATED GRIEVANCE
 
    PROCEDURE MAY RAISE THE MATTER UNDER A STATUTORY PROCEDURE OR THE
 NEGOTIATED PROCEDURE, BUT
 
    NOT BOTH.  . . .
 
    BY THE EXPRESS LANGUAGE OF SECTION 7121(D), IT IS CLEAR THAT AN
 EMPLOYEE AFFECTED BY A DISCRIMINATION MATTER AS DEFINED IN 5 U.S.C.
 2302(B)(1), /4/ WHICH MATTER ALSO FALLS UNDER THE COVERAGE OF A
 NEGOTIATED GRIEVANCE PROCEDURE, MAY RAISE THE MATTER UNDER EITHER A
 STATUTORY APPEAL PROCEDURE OR THE NEGOTIATED PROCEDURE, BUT MAY NOT
 RAISE THE MATTER UNDER BOTH PROCEDURES.  THE LEGISLATIVE HISTORY IN THIS
 REGARD INDICATES THAT THE LANGUAGE OF SECTION 7121(D) OF THE STATUTE AS
 ENACTED AND SIGNED INTO LAW IS IDENTICAL TO THAT CONTAINED IN SECTION
 7221(F) OF THE BILL (S. 2640) REPORTED OUT OF THE SENATE COMMITTEE ON
 GOVERNMENTAL AFFAIRS AND SUBSEQUENTLY PASSED BY THE SENATE.  THE SENATE
 COMMITTEE REPORTED ON THIS SUBSECTION, IN PERTINENT PART, AS FOLLOWS:
 /5/
 
    WHERE THE NEGOTIATED PROCEDURE COVERS . . . DISCRIMINATION
 COMPLAINTS, UNDER SECTION
 
    . . . 7221(F) THE EMPLOYEE WILL HAVE AN OPTION TO USE THE NEGOTIATED
 GRIEVANCE PROCEDURE OR
 
    THE STATUTORY APPEAL PROCEDURE, BUT NOT BOTH.
 
    ACCORDINGLY, WHILE IT IS CLEARLY NEGOTIABLE TO INCLUDE DISCRIMINATION
 MATTERS AS SET FORTH IN 5 U.S.C. 2302(B)(A) WITHIN THE SCOPE OF
 NEGOTIATED GRIEVANCE PROCEDURES, /6/ TO THE EXTENT THAT THE UNION'S
 PROPOSAL IN THE INSTANT CASE WOULD PERMIT AN EMPLOYEE TO PURSUE "A
 DISCRIMINATION COMPLAINT . . . UNDER BOTH PROCESSES," THE PROPOSAL
 CONFLICTS WITH SECTION 7121(D) OF THE STATUTE AND IS, THEREFORE, OUTSIDE
 THE DUTY TO BARGAIN.
 
    FURTHERMORE, AS THE AGENCY CONTENDS, IF THE INTENT OF THE PROPOSED
 "GRIEVANCE PROCEDURE" WERE TO REQUIRE AN AGGRIEVED EMPLOYEE TO OBTAIN
 THE CONCURRENCE OF THE UNION PRIOR TO THE INITIATION OF A GRIEVANCE,
 THEN THE PROPOSAL WOULD CONFLICT WITH SECTION 7121(B)(3)(B) OF THE
 STATUTE /7/ AND WOULD THEREFORE BE OUTSIDE THE DUTY TO BARGAIN.  THE
 UNION, IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF POSITION, STATED, IN
 THIS REGARD, THAT, "THE LANGUAGE WAS NOT INTENDED TO DEPRIVE ANY
 EMPLOYEE(S) OF THEIR RIGHTS UNDER THE (S)STATUTE (BUT) WAS PROPOSED WITH
 THE INTENT THAT ONLY THE UNION MAY INVOKE ARBITRATION." HOWEVER, THE
 PROPOSAL STATES THAT "AN AGGRIEVED EMPLOYEE AFFECTED BY DISCRIMINATION .
 . . MAY RAISE THE MATTER . . . WITH THE CONCURRENCE OF THE UNION UNDER
 THE NEGOTIATED PROCEDURE." THUS, ON ITS FACE, THE PROPOSAL WOULD REQUIRE
 CONCURRENCE OF THE UNION PRIOR TO THE FILING OF A GRIEVANCE.  TO THAT
 EXTENT, THE PROPOSAL IS INCONSISTENT WITH SECTION 7121(B)(3)(B) OF THE
 STATUTE WHICH GUARANTEES TO EMPLOYEES THE RIGHT TO PRESENT GRIEVANCES ON
 THEIR OWN BEHALF AND IS, THEREFORE, OUTSIDE THE DUTY TO BARGAIN.
 
    IN SUMMARY, THE PROPOSALS ENTITLED "REDUCTION-IN-FORCE" AND "ADVERSE
 DISCIPLINARY ACTION," IN THEIR ENTIRETY, AND THE PROPOSAL ENTITLED
 "GRIEVANCE PROCEDURE," EXCEPT AS SPECIFIED HEREIN, ARE WITHIN THE
 AGENCY'S DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.
 ACCORDINGLY, THE AGENCY'S ALLEGATIONS THAT THE UNION'S PROPOSALS ARE NOT
 WITHIN THE DUTY TO BARGAIN ARE, TO THAT EXTENT, SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 20, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 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 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.
 
    /2/ IN DECIDING THAT PORTIONS OF THE UNION'S PROPOSALS ARE WITHIN THE
 DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF
 SUCH PROPOSALS.
 
    /3/ SEE ALSO, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
 3669, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
 MINNESOTA, 4 FLRA NO.  53(1980).
 
    /4/ 5 U.S.C. 2302(B)(1) PROVIDES AS FOLLOWS:
 
    SEC. 2302.  PROHIBITED PERSONNEL PRACTICES
 
    (B) ANY EMPLOYEE WHO HAS AUTHORITY TO TAKE, DIRECT OTHERS TO TAKE,
 RECOMMEND, OR APPROVE
 
    ANY PERSONNEL ACTION, SHALL NOT, WITH RESPECT TO SUCH AUTHORITY--
 
    (1) DISCRIMINATE FOR OR AGAINST ANY EMPLOYEE OR APPLICANT FOR
 EMPLOYMENT--
 
    (A) ON THE BASIS OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN,
 AS PROHIBITED UNDER
 
    SECTION 717 OF THE CIVIL RIGHTS ACT OF 1964 (42 U.S.C.  2000E-16);
 
    (B) ON THE BASIS OF AGE, AS PROHIBITED UNDER SECTIONS 12 AND 15 OF
 THE AGE DISCRIMINATION
 
    IN EMPLOYMENT ACT OF 1967 (29 U.S.C. 631, 633A);
 
    (C) ON THE BASIS OF SEX, AS PROHIBITED UNDER SECTION 6(D) OF THE FAIR
 LABOR STANDARDS ACT
 
    OF 1938 (29 U.S.C 206(D));
 
    (D) ON THE BASIS OF HANDICAPPING CONDITION, AS PROHIBITED UNDER
 SECTION 501 OF THE
 
    REHABILITATION ACT OF 1973 (29 U.S.C. 791);  OR
 
    (E) ON THE BASIS OF MARITAL STATUS OR POLITICAL AFFILIATION, AS
 PROHIBITED UNDER ANY LAW,
 
    RULE, OR REGULATION.  . . .
 
    /5/ S. REP. NO. 95-969, 95TH CONG., 2D SESS. 110(1978).
 
    /6/ SEE, IN THIS REGARD, NATIONAL TREASURY EMPLOYEES UNION AND
 INTERNAL REVENUE SERVICE, 3 FLRA NO. 112(1980), WHEREIN THE AUTHORITY
 HELD, IN PART, THAT A PROPOSAL WHICH SOUGHT TO INCORPORATE THE
 PROVISIONS OF 5 U.S.C. 2302(B) INTO THE NEGOTIATED GRIEVANCE PROCEDURE
 WAS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    /7/ SECTION 7121(B)(3)(B) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7121.  GRIEVANCE PROCEDURES
 
   .          .          .          .
 
 
    (B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
 OF THIS SECTION
 
    SHALL--
 
   .          .          .          .
 
 
    (3) INCLUDE PROCEDURES THAT--
 
   .          .          .          .
 
 
    (B) ASSURE SUCH AN EMPLOYEE THE RIGHT TO PRESENT A GRIEVANCE ON THE
 EMPLOYEE'S OWN BEHALF,
 
    AND ASSURE THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT
 DURING THE GRIEVANCE
 
    PROCEEDING.  . . .