American Federation of Government Employees, Local 2955, AFL-CIO (Union) and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa (Agency) 

 5 FLRA No. 86
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2955
 Union
 
 and
 
 NATIONAL GUARD BUREAU,
 OFFICE OF THE ADJUTANT GENERAL,
 DES MOINES, IOWA
 Agency
 
                                            Case No. O-NG-206
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN 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.).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE
 FOLLOWING PROVISION WHICH WAS DISAPPROVED BY THE AGENCY HEAD PURSUANT TO
 REVIEW OF THE PARTIES' AGREEMENT UNDER SECTION 7114(C) OF THE STATUTE:
 /1/
 
                                 PROVISION
 
    SECTION 4.  APPEAL AND GRIEVANCE OPTIONS.  ANY MATTER NOT EXPRESSLY
 EXCLUDED BY THIS ARTICLE MAY BE RAISED AT THE OPTION OF THE EMPLOYEE
 UNDER A STATUTORY APPELLATE PROCEDURE OR THE NEGOTIATED GRIEVANCE
 PROCEDURE, BUT NOT BOTH (EXCEPT FOR DISCRIMINATION COMPLAINTS).  FOR THE
 PURPOSE OF THIS SECTION AND PURSUANT TO SECTION 7121(E)(1) OF THE ACT,
 AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION UNDER THIS
 SECTION ONLY WHEN THE EMPLOYEE FILES A TIMELY NOTICE OF APPEAL UNDER THE
 APPELLATE PROCEDURE OR FILES A TIMELY GRIEVANCE IN WRITING UNDER THE
 NEGOTIATED GRIEVANCE PROCEDURE.
 
                     QUESTION BEFORE THE AUTHORITY /2/
 
    THE SPECIFIC QUESTION BEFORE THE AUTHORITY IS WHETHER THE PROVISION
 IS OUTSIDE THE DUTY TO BARGAIN AS SET FORTH IN SECTION 7117 OF THE
 STATUTE BECAUSE IT IS INCONSISTENT WITH LAW, I.E., SECTIONS 7121(A)(1),
 (D) AND (E) OF THE STATUTE /3/ AND SECTION 709(E) OF THE NATIONAL GUARD
 TECHNICIANS ACT OF 1968, /4/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE DISPUTED PROVISION, AS WRITTEN, IS
 INCONSISTENT WITH SECTION 7121(A)(1) OF THE STATUTE AND IS, THEREFORE,
 NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT TO SECTION
 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10, AS
 AMENDED BY 45 F.R. 48575(1980)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE AGENCY PRINCIPALLY CONTENDS THAT THE PROVISION IS
 NONNEGOTIABLE BECAUSE IT IS INCONSISTENT WITH THE EXCLUSIVITY
 REQUIREMENT OF SECTION 7121(A)(1) OF THE STATUE.  SPECIFICALLY, THE
 AGENCY ASSERTS THAT THE FIRST SENTENCE OF THE PROVISION IS CLEARLY
 INCONSISTENT WITH THE STATUTORY REQUIREMENT THAT NEGOTIATED GRIEVANCE
 PROCEDURES, EXCEPT AS PROVIDED IN SECTION 7121(D) AND (E), " . . . BE
 THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL WITHIN ITS
 COVERAGE." BY ITS PLAIN MEANING, THE AGENCY CONCLUDES, THE PROVISION
 WOULD IMPROPERLY PERMIT EMPLOYEES IN THE BARGAINING UNIT TO ELECT TO USE
 EITHER THE NEGOTIATED PROCEDURE OR A "STATUTORY APPELLATE PROCEDURE" TO
 RESOLVE ANY MATTER, NOT EXPRESSLY EXCLUDED FROM THE NEGOTIATED
 PROCEDURE, WHICH MAY OTHERWISE BE CONSIDERED UNDER A STATUTORY APPEALS
 PROCEDURE.  THE UNION, ON THE OTHER HAND, ASSERTS THAT THE PROVISION
 DOES NOT "CONFER UPON EMPLOYEES ANY RIGHT UNDER A STATUTORY APPEAL
 PROCEDURE WHICH THAT PROCEDURE DOES NOT ALLOW IN THE FIRST PLACE." THE
 UNION ALSO STATES, "THE CONTRACT DOES NOT AUTHORIZE THE EMPLOYEE TO OPT
 FOR DUAL PROCESSING OF HIS COMPLAINT."
 
    SIMPLY STATED, WE FIND, IN AGREEMENT WITH THE AGENCY, THAT THE
 DISPUTED PROVISION PURPORTS TO GRANT TO BARGAINING UNIT EMPLOYEES THE
 OPTION TO CHOOSE EITHER THE NEGOTIATED GRIEVANCE PROCEDURE OR A
 STATUTORY PROCEDURE WITH RESPECT TO "ANY MATTER" COVERED BY THE
 GRIEVANCE PROCEDURE.  THIS IS CLEARLY INCONSISTENT WITH SECTION
 7121(A)(1) OF THE STATUTE WHICH PERMITS SUCH OPTION ONLY IN VERY LIMITED
 CIRCUMSTANCES:  THAT IS, WHERE THE GRIEVANCE FALLS WITHIN THE COVERAGE
 OF EITHER SECTION 7121(D) OR (E) OF THE STATUTE.  IN ALL OTHER
 SITUATIONS, NOTWITHSTANDING THE POSSIBLE EXISTENCE OF AN OTHERWISE
 APPLICABLE STATUTORY PROCEDURE, THE NEGOTIATED PROCEDURE MUST BE THE
 EXCLUSIVE PROCEDURE FOR RESOLVING GRIEVANCES WHICH FALL WITHIN ITS
 COVERAGE.  THUS, THE PROVISION ON ITS FACE IS NOT WITHIN THE OBLIGATION
 TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.  /5/
 
    WHILE THE LANGUAGE OF THE DISPUTED PROVISION IS CLEARLY INCONSISTENT
 WITH THE UNION'S STATED INTENT, THE LOCAL PARTIES MAY, OF COURSE, REVISE
 THE PROVISION TO COMPORT WITH THE OBJECTIVES DESCRIBED BY THE UNION IN
 THE RECORD OF THIS CASE.
 
    ISSUED, WASHINGTON, D.C., MAY 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7114(C) OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
 FOLLOWS:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
   *          *          *          *
 
 
    (C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
 REPRESENTATIVE SHALL BE SUBJECT TO APPROVAL BY THE HEAD OF THE AGENCY.
 
    (2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
 FROM THE DATE THE AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN
 ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER AND ANY OTHER APPLICABLE
 LAW, RULE, OR REGULATION (UNLESS THE AGENCY HAS GRANTED AN EXCEPTION TO
 THE PROVISION).
 
    (3) IF THE HEAD OF THE AGENCY DOES NOT APPROVE OR DISAPPROVE THE
 AGREEMENT WITHIN THE 30-DAY PERIOD, THE AGREEMENT SHALL TAKE EFFECT AND
 SHALL BE BINDING ON THE AGENCY AND THE EXCLUSIVE REPRESENTATIVE SUBJECT
 TO THE PROVISIONS OF THIS CHAPTER AND ANY OTHER APPLICABLE LAW, RULE, OR
 REGULATION.
 
    /2/ THE AGENCY ALSO ASSERTED THE UNION'S PETITION FOR REVIEW WAS
 UNTIMELY FILED WITH THE AUTHORITY AND REQUESTED THAT THE PETITION BE
 DISMISSED.  THE AGENCY'S ALLEGATION OF NON-NEGOTIABILITY, THE DATE OF
 SERVICE OF WHICH STARTS THE RUNNING OF THE TIME LIMIT FOR THE UNION'S
 PETITION UNDER SECTION 2424.3 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2424.3), WAS MADE BY THE NATIONAL GUARD BUREAU (NGB) IN THE
 COURSE OF REVIEWING THE LOCALLY EXECUTED AGREEMENT UNDER THE PROVISIONS
 OF SECTION 7114(C) OF THE STATUTE.  THE RECORD INDICATES THE ALLEGATION
 WAS CONTAINED IN A LETTER FORM THE NGB ADDRESSED TO THE ADJUTANT
 GENERAL, IOWA, ADVISING HIM OF THE NGB'S ALLEGATION OF
 NON-NEGOTIABILITY;  THE AGENCY'S CLAIM THAT THE PETITION HEREIN IS
 UNTIMELY IS BASED ON THIS LETTER.  HOWEVER, THE RECORD DOES NOT REVEAL
 HOW OR WHEN THE ALLEGATION WAS COMMUNICATED TO THE UNION.  THUS, THE
 AGENCY HAS NOT ESTABLISHED ANY BASIS FOR FINDING THE UNION'S PETITION TO
 BE UNTIMELY FILED, AND ITS REQUEST TO DISMISS THE PETITION IS DENIED.
 
    /3/ SECTIONS 7121(A)(1), (D) AND (E) OF THE STATUTE PROVIDE, IN
 RELEVANT PART, AS FOLLOWS:
 
    SEC. 7121. GRIEVANCE PROCEDURES
 
    (A)(1) EXCEPT AS PROVIDED IN PARAGRAPH ( ) 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.
 
   *          *          *          *
 
 
    (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.
 AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION UNDER THIS
 SUBSECTION TO RAISE THE MATTER UNDER EITHER A STATUTORY PROCEDURE OR THE
 NEGOTIATED PROCEDURE AT SUCH TIME AS THE EMPLOYEE TIMELY INITIATES AN
 ACTION UNDER THE APPLICABLE STATUTORY PROCEDURE OR TIMELY FILES A
 GRIEVANCE IN WRITING, IN ACCORDANCE WITH THE PROVISIONS OF THE PARTIES'
 NEGOTIATED PROCEDURE, WHICHEVER EVENT OCCURS FIRST . . . .
 
    (E)(1) MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
 WHICH ALSO FALL WITHIN THE COVERAGE OF THE NEGOTIATED GRIEVANCE
 PROCEDURE MAY, IN THE DISCRETION OF THE AGGRIEVED EMPLOYEE, BE RAISED
 EITHER UNDER THE APPELLATE PROCEDURES OF SECTION 7701 OF THE TITLE OR
 UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.  SIMILAR MATTERS
 WHICH ARISE UNDER OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES
 COVERED BY THIS CHAPTER MAY, IN THE DISCRETION OF THE AGGRIEVED
 EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE PROCEDURES, IF ANY,
 APPLICABLE TO THOSE MATTERS, OR UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE, BUT NOT BOTH.  AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED
 HIS OPTION UNDER THIS SUBSECTION TO RAISE A MATTER EITHER UNDER THE
 APPLICABLE APPELLATE PROCEDURES OR UNDER THE NEGOTIATED GRIEVANCE
 PROCEDURE AT SUCH TIME AS THE EMPLOYEE TIMELY FILES A NOTICE OF APPEAL
 UNDER THE APPLICABLE APPELLATE PROCEDURES OR TIMELY FILES A GRIEVANCE IN
 WRITING IN ACCORDANCE WITH THE PROVISIONS OF THE PARTIES' NEGOTIATED
 GRIEVANCE PROCEDURE, WHICHEVER EVENT OCCURS FIRST.
 
    /4/ SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968, 32
 U.S.C. 709(E) PROVIDES, INTER ALIA, THAT APPEALS BY NATIONAL GUARD
 TECHNICIANS OF ADVERSE ACTIONS "SHALL NOT EXTEND BEYOND THE ADJUTANT
 GENERAL OF THE JURISDICTION CONCERNED(.)"
 
    /5/ IN VIEW OF OUR HOLDING IN THIS REGARD, WE NEED NOT REACH THE
 AGENCY'S ADDITIONAL CLAIM THAT THE PROVISION IS INCONSISTENT WITH
 SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968.  HOWEVER,
 WE NOTE THAT THE IDENTICAL ISSUE WAS DECIDED DURING THE PENDENCY OF THIS
 CASE IN NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132, AND
 CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25(1981).  IN THAT CASE, WE HELD
 THAT A NEGOTIATED GRIEVANCE PROCEDURE WHICH INCLUDED WITHIN ITS COVERAGE
 APPEALS OF ADVERSE ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS WAS NOT
 INCONSISTENT WITH SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT
 OF 1968 AND WAS WITHIN THE AGENCY'S DUTY TO BARGAIN.