American Federation of Government Employees, Local 2953 (Union) and State of Nebraska, Military Department, Office of the Adjutant General, Lincoln, Nebraska (Agency) 

 7 FLRA No. 111
 
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 2953
 Union
 
 and
 
 STATE OF NEBRASKA,
 MILITARY DEPARTMENT,
 OFFICE OF THE ADJUTANT GENERAL,
 LINCOLN, NEBRASKA
 Agency
 
                                            Case No. O-NG-302
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D)
 AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) (5 U.S.C. 7101 ET SEQ.).  THE ISSUES PRESENTED ARE THE
 NEGOTIABILITY OF FOUR UNION PROPOSALS AS FOLLOWS:
 
                       UNION PROPOSALS I THROUGH III
 
                             UNION PROPOSAL I
 
               (ARTICLE 8, SECTION 8-5) DISCIPLINARY ACTION
 
    WHERE INFORMAL DISCIPLINARY ACTIONS FAIL TO CORRECT A DISCIPLINARY
 PROBLEM, THE SUPERVISOR MAY ELECT TO TAKE FORMAL DISCIPLINARY ACTION.
 FORMAL DISCIPLINARY ACTIONS ARE THOSE THAT ARE REDUCED TO WRITING.
 DISCIPLINARY ACTION PROPOSING SUSPENSION, REMOVAL, OR REDUCTION IN GRADE
 OR PAY, WILL BE PROCESSED AS FOLLOWS:
 
    A.  AT LEAST 30 DAYS ADVANCE WRITTEN NOTICE OF THE PROPOSED ACTION
 WILL BE PROVIDED THE EMPLOYEE AND HIS/HER REPRESENTATIVE.  THIS NOTICE
 WILL EXPLAIN THE ACTION PROPOSED AND THE SPECIFIC REASONS FOR IT.
 
    B. THE EMPLOYEE WILL BE GIVEN A REASONABLE TIME BUT NOT LESS THAN 7
 DAYS TO ANSWER ORALLY OR IN WRITING AND FURNISH DOCUMENTARY EVIDENCE.
 
    C.  A WRITTEN NOTICE OF ORIGINAL DECISION AND THE SPECIFIC REASONS
 THEREFORE WILL BE ISSUED TO THE EMPLOYEE AND HIS/HER REPRESENTATIVE AT
 THE EARLIEST PRACTICAL DATE.  THIS FINAL NOTICE WILL SPECIFY THE ACTION
 DECIDED UPON AND THE EFFECTIVE DATE.  FINAL NOTICE WILL ADVISE THE
 EMPLOYEE OF THE RIGHT OF APPEAL, IN WRITING, THE TIME LIMIT FOR FILING
 THE APPEAL, AND WHERE HE/SHE MAY OBTAIN FURTHER INFORMATION ABOUT APPEAL
 RIGHTS.
 
    D.  WHEN A EMPLOYEE, REPRESENTED BY THE UNION, IS AFFECTED BY
 DISCIPLINARY ACTION UNDER THIS ARTICLE, THE UNION MAY INVOKE BINDING
 ARBITRATION THROUGH THE PROCESS DESCRIBED IN ARTICLE 24, GRIEVANCE
 PROCEDURE AND ARTICLE 25 ARBITRATION.
 
                             UNION PROPOSAL II
 
              (ARTICLE 24, SECTION 24-3) GRIEVANCE PROCEDURE
 
    A GRIEVANCE MEANS ANY COMPLAINT:
 
    A.  (1) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE
 EMPLOYMENT OF THE EMPLOYEE;
 
    (2) BY THE UNION CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT OF
 ANY EMPLOYEE;  OR
 
    (3) BY ANY EMPLOYEE, THE UNION OR THE EMPLOYER CONCERNING:
 
    A.  THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH OF A
 COLLECTIVE BARGAINING
 
    AGREEMENT;
 
    B.  ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
 ANY LAW, RULE, OR
 
    REGULATION AFFECTING CONDITIONS OF EMPLOYMENT.
 
    B.  EXCEPT THAT IT SHALL NOT INCLUDE A GRIEVANCE CONCERNING:
 
    (1) ANY CLAIMED VIOLATION RELATING TO PROHIBITED POLITICAL
 ACTIVITIES;  OR
 
    (2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
 
    (3) A SUSPENSION OR A REMOVAL UNDER 5 USC 7532 (NATIONAL SECURITY);
 
    (4) ANY EXAMINATION, CERTIFICATION OR APPOINTMENT;  OR
 
    (5) RECLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
 REDUCTION IN GRADE OR PAY
 
    OF AN EMPLOYEE.
 
                            UNION PROPOSAL III
 
              (ARTICLE 24, SECTION 24-4) GRIEVANCE PROCEDURE
 
    AN AGGRIEVED EMPLOYEE AFFECTED BY DISCRIMINATION, A REMOVAL OR
 REDUCTION IN GRADE OR PAY
 
    BASED ON UNACCEPTABLE PERFORMANCE OR ADVERSE ACTION MAY AT HIS/HER
 OPTION RAISE THE MATTER
 
    UNDER THIS NEGOTIATED GRIEVANCE PROCEDURE.  THE UNION MAY INVOKE
 BINDING ARBITRATION THROUGH
 
    THE PROCESS PRESENTED IN ARTICLE 25.
 
    ANY GRIEVANCE COVERED BY THIS SECTION SHALL FIRST BE TAKEN UP BY THE
 CONCERNED EMPLOYEE AND
 
    UNION REPRESENTATIVE WITH THE APPROPRIATE EMPLOYER REPRESENTATIVE
 WITHIN 5 (5) WORK DAYS OF
 
    THE FINAL NOTICE OF ACTION. THE EMPLOYEE WILL HAVE FIVE (5) WORKING
 DAYS WITHIN WHICH TO
 
    ANSWER THE GRIEVANCE IN WRITING.  IF THE MATTER IS NOT SATISFACTORILY
 SETTLED AT THIS POINT,
 
    THE UNION MAY INVOKE ARBITRATION WITHIN TWENTY (20) DAYS OF RECEIPT
 OF THE EMPLOYER'S REPLY.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER UNION PROPOSALS I THROUGH III,
 WHICH ESSENTIALLY PERTAIN TO THE SCOPE AND COVERAGE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE, CONCERN MATTERS OUTSIDE THE DUTY TO BARGAIN UNDER
 THE STATUTE BECAUSE THEY ARE INCONSISTENT WITH FEDERAL LAW, NAMELY, 32
 U.S.C. 709(E), /1/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  UNION PROPOSALS I THROUGH III DO NOT CONCERN
 MATTERS WHICH ARE INCONSISTENT WITH FEDERAL LAW (32 U.S.C. 709(E)) AND,
 THEREFORE, SUCH PROPOSALS ARE WITHIN THE DUTY TO BARGAIN UNDER THE
 STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
 RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE
 AGENCY SHALL UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES)
 BARGAIN CONCERNING UNION PROPOSALS I THROUGH III.  /2/
 
    REASONS:  THE AGENCY ALLEGES THAT NEGOTIATION OF THOSE PORTIONS OF
 UNION PROPOSALS I THROUGH III PERMITTING THE ARBITRATION OF DISCIPLINARY
 ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS IS PRECLUDED BY SECTION
 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (32 U.S.C. 709(E))
 WHICH SECTION ESTABLISHES THAT APPEALS OF SUCH DISCIPLINARY ACTIONS
 CANNOT EXTEND BEYOND THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED.
  FURTHER, THE AGENCY ALLEGES, SINCE SECTION 7121(E)(1) OF THE STATUTE
 /3/ CANNOT BE APPLIED TO NATIONAL GUARD TECHNICIANS, UNION PROPOSAL III,
 WHICH IS BASED ON THE LANGUAGE OF SECTION 7121(E)(1), IS ADDITIONALLY
 NONNEGOTIABLE FOR THAT REASON.  SPECIFICALLY, THE AGENCY ARGUES, SECTION
 7121(E)(1) IS ITSELF BASED ON TWO OTHER SECTIONS OF TITLE 5, NAMELY 5
 U.S.C. 4303 AND 5 U.S.C. 7512, BOTH OF WHICH EXCLUDE NATIONAL GUARD
 TECHNICIANS FROM THEIR COVERAGE.  /4/ THUS, THE AGENCY CONCLUDES, SINCE
 SECTION 7121(E)(1) CANNOT BE APPLIED TO NATIONAL GUARD TECHNICIANS, IT
 FOLLOWS THAT UNION PROPOSAL III ALSO CANNOT BE APPLIED AND IS,
 THEREFORE, NONNEGOTIABLE.
 
    THE AGENCY'S ALLEGATIONS CANNOT BE SUSTAINED.  UNION PROPOSALS I
 THROUGH III WHICH, AS NOTED, ESSENTIALLY PERTAIN TO THE SCOPE AND
 COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE, BEAR NO MATERIAL
 DIFFERENCE FROM THE DISPUTED PROPOSAL WHICH WAS HELD NEGOTIABLE IN
 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND
 CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25(1981), APPEAL DOCKETED,
 CALIFORNIA NATIONAL GUARD AND DEPARTMENT OF DEFENSE V.  FEDERAL LABOR
 RELATIONS AUTHORITY, NO. 81-7231 (9TH CIR. APRIL 17, 1981).  IN THAT
 CASE, THE AUTHORITY DETERMINED THAT THE DISPUTED PROPOSAL, WHICH
 INCLUDED WITHIN THE SCOPE AND COVERAGE OF THE NEGOTIATED GRIEVANCE
 PROCEDURE MATTERS RELATING TO APPEALS OF ADVERSE ACTIONS INVOLVING
 NATIONAL GUARD TECHNICIANS AS WELL AS THE EMPLOYEE OPTION TO APPEAL AN
 ADVERSE ACTION THROUGH THE STATUTORY OR NEGOTIATED PROCEDURE, WAS WITHIN
 THE DUTY TO BARGAIN UNDER THE STATUTE.  THEREFORE, BASED ON THE REASONS
 SET FORTH IN DETAIL IN THE CALIFORNIA NATIONAL GUARD CASE, UNION
 PROPOSALS I THROUGH III MUST ALSO BE HELD TO BE WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE.
 
                             UNION PROPOSAL IV
 
               (ARTICLE 2, SECTION 32-5) REDUCTION IN FORCE
 
    FOR THE PURPOSE OF DETERMING RETENTION STANDING IN A REDUCTION IN
 FORCE, THE CURRENT
 
    APPRAISAL WILL BE USED.  FOR AN EMPLOYEE WITH NO APPRAISALS ON
 RECORD, THE SATISFACTORY RATING
 
    WILL BE USED.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER UNION PROPOSAL IV IS OUTSIDE THE
 DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT WITH AN AGENCY REGULATION FOR
 WHICH A COMPELLING NEED EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE
 /5/ AND SECTION 2424.11(C) OF THE AUTHORITY'S RULES AND REGULATIONS (5
 CFR 2424.11(C)(1981)), /6/ AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  A COMPELLING NEED EXISTS UNDER SECTION
 7117(A)(2) OF THE STATUTE AND SECTION 2424.11(C) OF THE AUTHORITY'S
 RULES AND REGULATIONS FOR THE AGENCY REGULATION SO AS TO BAR NEGOTIATION
 OF UNION PROPOSAL IV.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION
 PROPOSAL IV BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THE RECORD IN THIS CASE INDICATES THAT THE UNION INTERPRETS
 THE TERM "CURRENT APPRAISAL" IN PROPOSAL IV AS MEANING A CURRENT
 APPRAISAL OF THE TECHNICIAN'S CIVILIAN PERFORMANCE AND NOT A COMBINED
 CURRENT APPRAISAL OF THE TECHNICIAN'S CIVILIAN AND MILITARY PERFORMANCE
 AS IS REQUIRED BY THE AGENCY'S REGULATIONS.  /7/ AS TO THE APPRAISAL OF
 THE TECHNICIAN'S MILITARY PERFORMANCE, THE UNION ARGUES THAT SUCH
 APPRAISAL SHOULD BE LIMITED TO SITUATIONS WHERE THE AGENCY WISHES TO
 EFFECTUATE A MILITARY REDUCTION-IN-FORCE (RIF).  IN OTHER WORDS, UNION
 RIF WOULD BE BASED SOLELY ON THE TECHNICIAN'S CURRENT CIVILIAN
 PERFORMANCE APPRAISAL.
 
    IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2953
 AND NATIONAL GUARD BUREAU, OFFICE OF THE ADJUTANT GENERAL, NEBRASKA, 7
 FLRA NO. 12(1981), APPEAL DOCKETED, AFGE, LOCAL 2953 V. FLRA, NO.
 81-2384 (D.C. CIR. DEC. 28, 1981), THE AUTHORITY HELD TO BE OUTSIDE THE
 DUTY TO BARGAIN A UNION PROPOSAL THAT WOULD REQUIRE THE AGENCY TO
 ESTABLISH, WITH RESPECT TO A RIF OF NATIONAL GUARD TECHNICIANS, A
 RETENTION WITH RESPECT TO A RIF OF NATIONAL GUARD TECHNICIANS, A
 RETENTION REGISTER RANKING SUCH TECHNICIANS ACCORDING TO A NUMBER OF
 FACTORS RELATED TO THEIR CIVILIAN TECHNICIAN SERVICE, INCLUDING THEIR
 CIVILIAN APPRAISAL SCORES, BUT WITHOUT REFERENCE TO THE APPRAISALS OF
 THEIR MILITARY SUPERVISORS.  IN SO HOLDING, THE AUTHORITY CONCLUDED THAT
 A COMPELLING NEED EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE AND
 SECTION 2424.11(C) OF THE AUTHORITY'S RULES AND REGULATIONS FOR A
 NATIONAL GUARD BUREAU REGULATION, I.E., TECHNICIAN PERSONNEL MANUAL
 (TPM) 351, SUBCHAPTER 5, PARAGRAPH 5-3E, WHICH PROVIDES IN ESSENCE THAT
 RIF RETENTION STANDING WILL BE DETERMINED BY A COMPOSITE MEASUREMENT OF
 BOTH CIVILIAN TECHNICIAN PERFORMANCE AND RELATED MILITARY PERFORMANCE.
 THE AUTHORITY RULED THAT THE PROPOSAL, WHICH WOULD PRECLUDE MANAGEMENT
 FROM CONSIDERING MILITARY PERFORMANCE AT ALL IN RANKING TECHNICIANS ON
 THE RETENTION REGISTER FOR RIF PURPOSES, WAS INCONSISTENT WITH AND
 THEREFORE BARRED FROM NEGOTIATION BY THE REGULATION.
 
    IN THIS CASE, WHICH INVOLVES THE SAME PARTIES, UNION PROPOSAL IV, AS
 INTERPRETED BY THE UNION, WOULD HAVE THE SAME EFFECT AND HENCE BEARS NO
 MATERIAL DIFFERENCE FROM THE UNION PROPOSAL HELD NONNEGOTIABLE IN THE
 NATIONAL GUARD BUREAU, OFFICE OF THE ADJUTANT GENERAL, NEBRASKA CASE.
 FOR THE REASONS FULLY SET FORTH IN THAT CASE, THIS PROPOSAL MUST ALSO BE
 HELD NOT TO BE WITHIN THE DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., JANUARY 22, 1982
 
                       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), PROVIDES, INTER ALIA, THAT APPEALS BY NATIONAL GUARD
 TECHNICIANS OF ADVERSE ACTIONS "SHALL NOT EXTEND BEYOND THE ADJUTANT
 GENERAL OF THE JURISDICTION CONCERNED(.)"
 
    /2/ IN DECIDING THAT UNION PROPOSALS I THROUGH III ARE WITHIN THE
 DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE
 MERIT OF SUCH PROPOSALS.
 
    /3/ SECTION 7121(E)(1) PROVIDES IN PERTINENT PART:
 
    SEC. 7121.  GRIEVANCE PROCEDURES
 
   .          .          .          .
 
 
    (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 THIS 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 . . . .
 
    /4/ WITH RESPECT TO PERFORMANCE RELATED ADVERSE ACTIONS, THE AGENCY
 RELIES ON 5 CFR 432.201(C)(3)(XIV) WHICH PROVIDES THAT REGULATIONS
 CONCERNING PERFORMANCE RELATED ADVERSE ACTIONS DO NOT APPLY TO "(ACTIONS
 TAKEN) AGAINST A NATIONAL GUARD TECHNICIAN." WITH REGARD TO OTHER
 ADVERSE ACTIONS, THE AGENCY CITES 32 U.S.C. 709(F) WHICH PROVIDES THAT
 SECTIONS 7511 AND 7512 OF TITLE 5 "DO NOT APPLY TO (NATIONAL GUARD
 TECHNICIANS)."
 
    /5/ SECTION 7117(A)(2) PROVIDES:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY
 
    AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
 SUBSECTION ONLY IF THE
 
    AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
 COMPELLING NEED (AS
 
    DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
 THE RULE OR REGULATION.
 
    /6/ SECTION 2424.11(C) PROVIDES:
 
    SEC. 2424.11 ILLUSTRATIVE CRITERIA.
 
    A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
 ANY CONDITION OF
 
    EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT . . .
 
   .          .          .          .
 
 
    (C) THE RULE RO REGULATION IMPLEMENTS A MANDATE TO THE AGENCY OR
 PRIMARY NATIONAL
 
    SUBDIVISION UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
 IMPLEMENTATION IS ESSENTIALLY
 
    NONDISCRETIONARY IN NATURE.
 
    /7/ TECHNICIAN PERSONNEL MANUAL 351, SUBCHAPTER 5, PARAGRAPH 5-3E.