09:0852(113)CA - 154th Tactical Fighter Group, Hawaii Air NG and AFGE Local 882 -- 1982 FLRAdec CA

 9 FLRA No. 113
 
 154TH TACTICAL FIGHTER GROUP,
 HAWAII AIR NATIONAL GUARD
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 882
 Charging Party
 
                                            Case No. 8-CA-836
 
                            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 CHARGING PARTY (THE UNION) IS THE EXCLUSIVE REPRESENTATIVE OF A
 UNIT CONSISTING OF CERTAIN OF THE RESPONDENT'S EMPLOYEES.  IN MAY 1980
 THE PARTIES BEGAN NEGOTIATION OF A SUCCESSOR COLLECTIVE BARGAINING
 AGREEMENT.  FOLLOWING NUMEROUS NEGOTIATION SESSIONS AND TENTATIVE
 AGREEMENT ON CERTAIN ARTICLES, IN NOVEMBER 1980 THE UNION SUBMITTED A
 NEW PROPOSAL ON A "PERFORMANCE APPRAISALS" ARTICLE WHICH, AMONG OTHER
 THINGS, PROVIDED FOR ARBITRATION OF ANY DISPUTE RELATING TO THAT
 ARTICLE.  /1/ THE RESPONDENT COUNTER PROPOSED THAT ACTIONS BASED ON
 UNACCEPTABLE PERFORMANCE AND APPEALS OF PERFORMANCE APPRAISALS BE
 EXCEPTED FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE.
 ADDITIONALLY, THE RESPONDENT TOOK THE POSITION THAT THE TENTATIVELY
 AGREED TO "CONTRACT REOPENER" ARTICLE SHOULD REMAIN IN THE AGREEMENT.
 /2/ ALTHOUGH THE PARTIES FULLY CONSIDERED EACH OTHER'S POSITIONS ON THE
 "CONTRACT REOPENER" AND "PERFORMANCE APPRAISAL" ARTICLES, THEY WERE
 UNABLE TO REACH AGREEMENT.
 
    THE GENERAL COUNSEL CONTENDS THAT RESPONDENT'S ACTIONS IN FAILING TO
 ACCEDE TO A FULL-SCOPE NEGOTIATED GRIEVANCE PROCEDURE BY BARGAINING TO
 IMPASSE, CONSTITUTED BAD FAITH BARGAINING IN VIOLATION OF SECTION
 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE).  THE RESPONDENT ARGUES THAT ITS INSISTENCE THAT
 CERTAIN MATTERS BE EXCLUDED FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE
 PROCEDURE DID NOT CONSTITUTE BAD FAITH BARGAINING.
 
    THE POSITIONS OF THE PARTIES 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.  FOR 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. 8-CA-836 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/ PREVIOUSLY, THE PARTIES HAD TENTATIVELY AGREED TO A "PERFORMANCE
 APPRAISALS" ARTICLE WHICH CONTAINED NO REFERENCE TO AVENUES OF APPEAL.
 
    /2/ EARLIER IN THE NEGOTIATIONS, THE PARTIES HAD TENTATIVELY AGREED
 TO A "CONTRACT REOPENER" ARTICLE WHICH ESSENTIALLY DECLARED ACTIONS
 TAKEN PURSUANT TO SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT
 OF 1968 TO BE OUTSIDE THE SCOPE OF THE GRIEVANCE PROCEDURE ARTICLE UNTIL
 SUCH TIME AS THE RESPONDENT WITHDREW ITS CLAIM ON NONNEGOTIABILITY, OR
 THE AUTHORITY MADE A DISPOSITIVE DETERMINATION ON SUCH ISSUE.
 
    /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 ADVERSE ACTIONS INVOLVING TECHNICIANS FROM COVERAGE UNDER
 NEGOTIATED GRIEVANCE PROCEDURES.  (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).)