10:0553(96)CA - Army and Air Force, NG Bureau and Montana Air NG and ACT, Inc., Montana Air Chapter, Chapter #29 -- 1982 FLRAdec CA

 10 FLRA No. 96
 
 DEPARTMENTS OF THE ARMY
 AND THE AIR FORCE
 NATIONAL GUARD BUREAU
 AND MONTANA AIR NATIONAL GUARD
 Respondents
 
 and
 
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
 MONTANA AIR CHAPTER, CHAPTER #29
 Charging Party
 
                                            Case No. 7-CA-1398
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record, including the parties'
 stipulation of facts, accompanying exhibits, and briefs submitted by the
 Respondent and the General Counsel, the Authority finds:
 
    The complaint alleges that the Respondent National Guard Bureau
 violated section 7116(a)(1), (5) and (8) of the Federal Service
 Labor-Management Relations Statute (the Statute) by refusing to approve
 certain provisions of a collective bargaining agreement negotiated
 between the Charging Party (the Union) and the Montana Air National
 Guard.  The complaint further alleges that the Respondent Montana Air
 National Guard violated section 7116(a)(1) and (5) of the Statute by
 failing to implement and give effect to those particular provisions.
 
    At all times material herein, the Union has held exclusive
 recognition for a unit consisting of all non-supervisory employees of
 the Montana Air National Guard Technician Force.  In 1980, the Union and
 the Montana Air National Guard commenced negotiations on a successor
 collective bargaining agreement.  They signed off on the agreement
 reached on March 25, 1981, and pursuant to section 7114(c) of the
 Statute /1/ forwarded it to the National Guard Bureau for approval.  By
 memorandum dated April 21, 1981, the National Guard Bureau approved the
 contract except for, inter alia, a provision related to the negotiated
 grievance procedure.  The express reason for the disapproval of this
 particular provision was the absence of a specific exclusion from the
 grievance procedure of matters relating to section 709(e) of the
 National Guard Technicians Act of 1968 (32 USC 709(e)).  /2/ The
 National Guard Bureau contended that the absence of a specific exclusion
 implied that such matters were included within the scope of the
 negotiated grievance procedure and subject to arbitration.  Subjecting
 such matters to arbitration, the National Guard Bureau maintained, was
 contrary to law.  /3/
 
    The Authority had, prior to the date of the National Guard Bureau's
 action, rendered decisions in several cases which addressed the issue of
 whether appeals of adverse actions involving National Guard technicians
 must, as a matter of law, be specifically excluded from grievance
 procedures negotiated pursuant to the Statute.  In those decisions,
 issued on July 31, 1980, the Authority found that such a specific
 exclusion was not required by law and that proposals pertaining to the
 scope of the grievance and arbitration procedures which did not
 expressly exclude appeals of adverse actions involving National Guard
 technicians were within an agency's duty to bargain.  /4/ Hence, the
 National Guard Bureau's declaration that the negotiated provision
 relating to the scope of the grievance procedure violated law was
 contrary to a previously made determination by the Authority on the same
 issue.  The National Guard Bureau's action in disapproving a contractual
 provision which was not distinguishable from proposals previously found
 by the Authority to be within the duty to bargain constituted a breach
 of the obligation to negotiate in good faith /5/ and violated section
 7116(a)(1) and (5) of the Statute.  /6/ Moreover, the National Guard
 Bureau's actions constituted a refusal to comply with section 7114(c)(2)
 of the Statute and therefore is a violation of section 7116-a)(1) and
 (8).  However, the Authority does not find that the Montana Air National
 Guard violated the Statute by its ministerial actions in implementing
 the directives of higher level agency management.  Social Security
 Administration, Region VI, 10 FLRA No. 9 (1982).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the National Guard Bureau shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to approve a negotiated provision relating
 to the scope of the grievance procedure, which the Montana Air National
 Guard and the Association of Civilian Technicians, Inc., Montana Air
 Chapter, Chapter #29, had agreed to, when the Federal Labor Relations
 Authority had previously found contract proposals which were not
 distinguishable from the provision disapproved to be within the duty to
 bargain and not violative of law.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing any employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    (c) In any like or related manner failing or refusing to comply with
 any provision of the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Withdraw and rescind its disapproval of the contractual provision
 relating to the scope of the negotiated grievance procedure which was
 agreed to by the Montana Air National Guard and the Association of
 Civilian Technicians, Inc., Montana Air Chapter, Chapter #29, and notify
 those two parties of such action in writing.
 
    (b) Post at the facilities of the Montana Air National Guard copies
 of the attached Notice on forms to be furnished by the Federal Labor
 Relations Authority.  Upon receipt of such forms they shall be signed by
 an authorized official of the National Guard Bureau, and shall be posted
 and maintained for 60 consecutive days thereafter, in conspicuous
 places, including bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director of Region 7, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS HEREBY FURTHER ORDERED that the complaint in Case No.
 7-CA-1398, insofar as it alleges a violation of section 7116(a)(1) and
 (5) of the Statute by Respondent Montana Air National Guard be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., December 3, 1982
 
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to approve a contract provision relating
 to the scope of the negotiated grievance procedure, which the Montana
 Air National Guard and the Association of Civilian Technicians, Inc.,
 Montana Air Chapter, Chapter #29, had agreed to, when the Federal Labor
 Relations Authority had previously found contract proposals which were
 not distinguishable from the provision disapproved to be within the duty
 to bargain and not violative of law.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any employee in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL NOT in any like or related manner fail or refuse to comply
 with any provisions of the Federal Service Labor-Management Relations
 Statute.
 
    WE WILL withdraw and rescind our disapproval of the contractual
 provision relating to the scope of the negotiated grievance procedure
 which was agreed to by the Montana Air National Guard and the
 Association of Civilian Technicians, Inc., Montana Air Chapter, Chapter
 #29, and notify those two parties of such action in writing.
                                       (Activity or Agency)
 
 Dated:  . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or Compliance
 with its provisions, they may communicate directly with the Regional
 Director for the Federal Labor Relations Authority whose address is:
 Federal Building & U.S. Customs House, 1531 Stout Street, Suite 301,
 Denver, Colorado 80202 and whose telephone number is:  (303) 837-5224.
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7114(c) provides:
 
          (c)(1) An agreement between any agency and an exclusive
       representative shall be subject to approval by the head of the
       agency.
 
          (2) The head of the agency shall approve the agreement within
       30 days from the date the agreement is executed if the agreement
       is in accordance with the provisions of this chapter and any other
       applicable law, rule, or regulation (unless the agency has granted
       an exception to the provision).
 
          (3) If the head of the agency does not approve or disapprove
       the agreement within the 30-day period, the agreement shall take
       effect and shall be binding on the agency and the exclusive
       representative subject to the provisions of this chapter and any
       other applicable law, rule, or regulation.
 
          (4) A local agreement subject to a national or other
       controlling agreement at a higher level shall be approved under
       the procedures of the controlling agreement or, if none, under
       regulations prescribed by the agency.
 
 
    /2/ The negotiated procedure was silent as to whether such matters
 were within its coverage.
 
 
    /3/ Section 709(e) of the National Guard Technicians Act of 1968 sets
 forth provisions relating to adverse actions taken against National
 Guard technicians, and appeals thereof.
 
 
    /4/ National Association of Government Employees, Local R14-87 and
 State of Kansas Army National Guard et al., 3 FLRA 852 (1980);  American
 Federation of Government Employees, AFL-CIO, Local 3004 and
 Massachusetts National Guard, Office of the Adjutant General et al., 3
 FLRA 893 (1980).  But see New Jersey Air National Guard, 177th Fighter
 Intercepter Group and Department of Defense v. Federal Labor Relations
 Authority, 677 F2d 276 (3rd Cir. 1982), which dealt with a contractual
 proposal which explicitly provided for the inclusion of section 709(e)
 matters within the scope of the grievance procedure unlike Kansas Army
 National Guard and Massachusetts National Guard which involved proposals
 which, like the provision in the instant case, were silent as to such
 coverage.
 
 
    /5/ See Department of the Air Force, U.S. Air Force Academy, 6 FLRA
 No. 100 (1981), wherein the Authority found that, where the
 negotiability of a proposal is established by Authority precedent, it is
 a refusal to bargain, and a violation of section 7116(a)(1) and (5) of
 the Statute, to maintain that the proposal is non-negotiable.
 
 
    /6/ See Department of Health and Human Services, Social Security
 Administration, Region VI, and Department of Health and Human Services,
 Social Security Administration, Galveston, Texas District, 10 FLRA No. 9
 (1982), wherein the Authority found that when the obligation to
 negotiate is breached by the acts and conduct of agency management, such
 a breach may provide the basis for a section 7116(a)(1) and (5)
 violation regardless of the location of that agency management in the
 chain of command.