American Federation of Government Employees, Local 3098, AFL-CIO (Union) and Indiana Air National Guard (Agency)

 8 FLRA No. 2
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 3098
 Union
 
 and
 
 INDIANA AIR NATIONAL GUARD
 Agency
 
                                            Case No. 0-NG-301
 
                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)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE),
 AND RAISES AN ISSUE AS TO THE NEGOTIABILITY OF THE FOLLOWING TWO UNION
 PROPOSALS:
 
    SECTION 4:  APPEALS AND GRIEVANCE OPTIONS
 
    AN AGGRIEVED EMPLOYEE AFFECTED BY DISCRIMINATION, A REMOVAL OR
 REDUCTION IN GRADE BASED ON
 
    UNACCEPTABLE PERFORMANCE, OR ADVERSE ACTION MAY AT HIS/HER OPTION
 RAISE THE MATTER UNDER A
 
    STATUTORY APPELLATE PROCEDURE OR THE NEGOTIATED GRIEVANCE PROCEDURE,
 BUT NOT BOTH (EXCEPT FOR
 
    DISCRIMINATION COMPLAINTS).  FOR THE PURPOSES 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 GRIEVANCE IN WRITING
 UNDER THE APPELLATE
 
    PROCEDURE OR FILES A TIMELY GRIEVANCE IN WRITING UNDER THE NEGOTIATED
 GRIEVANCE PROCEDURE.
 
    SECTION 11:  STAYS OF PERSONNEL ACTION
 
    A PENDING OR PROPOSED PERSONNEL ACTION WHICH HAS BEEN MADE THE
 SUBJECT OF A GRIEVANCE OR
 
    ARBITRATION WILL BE STAYED PENDING THE FINAL DECISION OF THE MATTER.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
    INSOFAR AS SECTION 4 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, IT BEARS 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).  HOWEVER, INSOFAR AS SECTION 4 WOULD PERMIT THE FILING OF A
 DISCRIMINATION COMPLAINT UNDER BOTH A STATUTORY APPEAL PROCEDURE AND THE
 NEGOTIATED GRIEVANCE PROCEDURE, IT BEARS NO MATERIAL DIFFERENCE FROM
 THAT PORTION OF THE "GRIEVANCE PROCEDURE" PROPOSAL FOUND NON-NEGOTIABLE
 IN 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), APPEAL DOCKETED, NO. 81-1592 (3RD
 CIR.APR. 17, 1981).  THEREFORE, BASED ON THE REASONS SET FORTH IN DETAIL
 IN THE AFOREMENTIONED DECISIONS, THE PRESENT PROPOSAL MUST ALSO BE HELD
 TO BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE EXCEPT TO THE EXTENT
 NOTED.
 
    INSOFAR AS SECTION 11 IS CONCERNED, IT IS IDENTICAL TO PROPOSAL 3
 WHICH WAS HELD NEGOTIABLE IN AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 547, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL
 CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50(1981), APPEAL DOCKETED, NO.
 80-5938 (5TH CIR. NOV. 25, 1981).  CONSEQUENTLY, FOR THE REASONS STATED
 IN THAT CASE, SECTION 11 MUST ALSO BE HELD TO BE A NEGOTIABLE PROCEDURE
 UNDER SECTION 7106(B)(2) OF THE STATUTE.  /1/
 
    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 ON
 SECTION 4 OF THE PROPOSAL EXCEPT TO THE EXTENT INDICATED HEREIN AND ON
 SECTION 11 OF THE PROPOSAL IN ITS ENTIRETY.  /2/
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN SO CONCLUDING, THE AUTHORITY REJECTS AS UNSUPPORTED THE
 AGENCY'S CONTENTIONS THAT THE PROPOSAL WOULD PREVENT THE AGENCY FROM
 ACTING AT ALL TO EXERCISE ITS RIGHTS.  FURTHER, IN THIS REGARD, THE FACT
 THAT THIS PROPOSAL CONCERNS NATIONAL GUARD TECHNICIANS PROVIDES NO BASIS
 FOR REACHING A DIFFERENT RESULT FROM THAT CONCERNING PROPOSAL 3 IN
 VETERANS ADMINISTRATION MEDICAL CENTER, SUPRA.  SEE DEPARTMENT OF THE
 AIR FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100(1981).
 
    /2/ IN FINDING THE UNION PROPOSALS NEGOTIABLE TO THE EXTENT INDICATED
 ABOVE, THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.