09:0848(112)CA - Minnesota Army NG, The Adjutant General, State of Minnesota, St. Paul, MN and ACT, Inc., Tony Kempenich Memorial Chapter -- 1982 FLRAdec CA

 9 FLRA No. 112
 
 MINNESOTA ARMY NATIONAL GUARD,
 THE ADJUTANT GENERAL, STATE OF
 MINNESOTA, ST. PAUL, MINNESOTA
 Respondent
 
 and
 
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
 TONY KEMPENICH MEMORIAL CHAPTER
 Charging Party
 
                                            Case No. 5-CA-718
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
 SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 STIPULATION OF FACTS AND THE PARTIES' CONTENTIONS, THE AUTHORITY FINDS:
 
    THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) WHEN IT REFUSED TO IMPASSE TO AGREE TO A
 FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE TO BE INCLUDED IN ITS
 COLLECTIVE BARGAINING AGREEMENT WITH THE CHARGING PARTY (THE UNION).
 
    THE UNION IS THE EXCLUSIVE REPRESENTATIVE OF CERTAIN TECHNICIANS
 EMPLOYED BY THE RESPONDENT.  ON FEBRUARY 23, 1980, THE UNION CITING
 INTERPRETATION AND GUIDANCE, 2 FLRA 274(1979), REQUESTED THAT
 NEGOTIATIONS BEGIN ON A GRIEVANCE PROCEDURE.  EVENTUALLY THOSE
 NEGOTIATIONS BECAME INTERTWINED WITH NEGOTIATIONS OVER A COLLECTIVE
 BARGAINING AGREEMENT TO REPLACE ONE WHICH HAD EXPIRED IN 1978.  ALTHOUGH
 THE RESPONDENT INITIALLY TOOK THE POSITION THAT A UNION PROPOSAL WHICH
 WOULD INCLUDE WITHIN THE SCOPE OF THE GRIEVANCE PROCEDURE MATTERS
 GOVERNED BY SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968
 WAS NONNEGOTIABLE, /1/ IT SUBSEQUENTLY MODIFIED ITS POSITION AND
 PROPOSED THAT SUCH MATTERS BE EXCLUDED FROM THE SCOPE OF THE NEGOTIATED
 GRIEVANCE PROCEDURE.  THE UNION REJECTED THIS PROPOSAL AND INSISTED ON A
 FULL SCOPE GRIEVANCE PROCEDURE.  THE PARTIES REACHED IMPASSE ON, AMONG
 OTHER THINGS, THIS ISSUE AND THE RESPONDENT REQUESTED, ON OCTOBER 15,
 1980, THE SERVICES OF THE FEDERAL SERVICE IMPASSES PANEL (THE PANEL).
 /2/
 
    THE POSITIONS OF THE PARTIES HEREIN ARE SUBSTANTIALLY SIMILAR TO
 THOSE OF THE PARTIES IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT,
 9 FLRA NO. 92(1982), WHEREIN WE HELD THAT THE SCOPE OF THE GRIEVANCE
 PROCEDURE IS A MANDATORY SUBJECT FOR BARGAINING AND, IF IMPASSE IS
 REACHED, IS SUBJECT TO IMPASSE RESOLUTION PROCEDURES.  BASED ON THE
 REASONS SET FORTH IN THAT DECISION, THE AUTHORITY FINDS THAT THE
 RESPONDENT'S ACTIONS HEREIN DID NOT VIOLATE THE STATUTE AS ALLEGED IN
 THE COMPLAINT.  /3/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 5-CA-718 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 709(E) 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/ PURSUANT TO SECTION 2429.5 OF ITS RULES AND REGULATIONS, THE
 AUTHORITY TAKES OFFICIAL NOTICE OF THE FACT THAT BY LETTER DATED
 NOVEMBER 19, 1980, THE PANEL DECLINED TO ASSERT JURISDICTION OVER THE
 GRIEVANCE PROCEDURE ISSUE FOR THE REASON THAT THE ISSUE FORMED "THE
 BASIS OF AN UNFAIR LABOR PRACTICE CHARGE, FILED BY THE UNION, WHICH IS
 NOW BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY . . . . "
 
    /3/ IN VIEW OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY TO
 ADDRESS THE RESPONDENT'S CONTENTION THAT SECTION 709(E) OF THE NATIONAL
 GUARD TECHNICIANS ACT OF 1968 REQUIRES AS A MATTER OF LAW THE SPECIFIC
 EXCLUSION OF MATTERS GOVERNED BY THAT SECTION FROM COVERAGE UNDER THE
 NEGOTIATED GRIEVANCE PROCEDURE.  (BUT SEE NATIONAL ASSOCIATION OF
 GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5
 FLRA NO. 25(1981);  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3486 AND NEW JERSEY AIR NATIONAL GUARD, 177TH FIGHTER
 INTERCEPTOR GROUP, 5 FLRA NO. 26(1981), REVERSED SUB NOM. NEW JERSEY AIR
 NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP AND DEPARTMENT OF
 DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, NO.  81-1592 (3RD CIR.
 APR. 12, 1982).)