American Federation of Government Employees, Local 3098 (Union) and Indiana Air National Guard, Hulman Field, Terre Haute, Indiana (Agency) 

 7 FLRA No. 121
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 3098
 Union
 
 and
 
 INDIANA AIR NATIONAL GUARD,
 HULMAN FIELD
 TERRE HAUTE, INDIANA
 Agency
 
                                            Case No. O-NG-233
 
                DICISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURS7ANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND RAISES THE QUESTION OF THE NEGOTIABILITY OF TWO UNION PROPOSALS.
 UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, /1/ INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                         UNION PROPOSALS I AND II
 
                             UNION PROPOSAL I
 
    SECTION 7C.  A HEARING, IF REQUESTED AS A RESULT OF AN ORIGINAL
 DECISION, WILL BE SCHEDULED
    AT THE EARLIEST PRACTICABLE DATE, AND SHOULD BE CONDUCTED WITHIN 30
 DAYS FROM THE DATE A
    HEARING EXAMINER IS APPROVED.  AT THE REQUEST OF THE UNION, AN
 ARBITRATION HEARING MAY TAKE
    THE PLACE OF THE ADMINISTRATIVE HEARING.  SELECTION OF AN ARBITRATOR
 SHALL BE MADE IN
    ACCORDANCE WITH ARTICLE . . . .  ARBITRATION AND THE AWARD IS
 BINDING. IF AN EMPLOYEE ELECTS
    TO APPEAL AN ADVERSE ACTION, THE APPEAL MAY BE SUBMITTED AT ANY TIME
 WITHIN THE 15 CALENDAR
    DAYS AFTER RECEIPT OF THE NOTICE OF ORIGINAL DECISION.
 
 
                             UNION PROPOSAL II
 
    SECTION 10.  THE STATE ADJUTANT GENERAL WILL RENDER HIS FINAL
 DECISION BY CONSIDERING THE
    HEARING EXAMINER'S RECOMMENDATION AND ISSUE HIS DECISION ON THE
 APPEAL OR TAKE A LESS SEVERE
    ACTION THAN RECOMMENDED BY THE EXAMINER, WITHOUT REGARD TO THE
 EXAMINER'S RECOMMENDATIONS. IF
    AN EMPLOYEE ELECTED TO USE BINDING ARBITRATION, THE ARBITRATOR'S
 DECISION SHALL BE BINDING ON
    THE PARTIES.  THE EMPLOYEE AND HIS REPRESENTATIVE WILL BE FURNISHED A
 COPY OF THE FINDINGS AND FINAL DECISION.
 
 
    UNION PROPOSALS I AND II PRINCIPALLY WOULD INCLUDE WITHIN THE SCOPE
 AND COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE MATTERS RELATING TO
 APPEALS OF ADVERSE ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS AS WELL
 AS PROVIDE THE EMPLOYEE AN OPTION TO APPEAL AN ADVERSE ACTION THROUGH
 THE STATUTORY OR NEGOTIATED PROCEDURE.  IN THIS REGARD, THE PROPOSALS
 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, NO. 81-7231 (9TH CIR. APR. 17, 1981).  THEREFORE, CONTRARY TO
 THE AGENCY'S ASSERTIONS THAT THE PROPOSALS ARE OUTSIDE THE DUTY TO
 BARGAIN BECAUSE THEY ARE INCONSISTENT WITH LAW (32 U.S.C.  709(E)(5) AND
 BASED ON THE REASONS SET FORTH IN DETAIL IN THE CALIFORNIA NATIONAL
 GUARD CASE, UNION PROPOSALS I AND II MUST ALSO BE HELD TO BE 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 AND II.  /2/
 
    ISSUED, WASHINGTON, D.C., JANUARY 28, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ THE AGENCY'S SUBMISSION FILED IN RESPONSE TO THE UNION'S RESPONSE
 WAS NOT CONSIDERED BY THE AUTHORITY AS IT DID NOT MEET THE REQUIREMENTS
 FOR FILING ADDITIONAL SUBMISSIONS TO THE AUTHORITY UNDER SECTION 2424.8
 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    /2/ IN FINDING UNION PROPOSALS I AND II NEGOTIABLE, THE AUTHORITY
 MAKES NO JUDGMENT AS TO THEIR MERITS.