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The decision of the Authority follows:
14 FLRA No. 11 WISCONSIN ARMY NATIONAL GUARD Activity and ASSOCIATION OF CIVILIAN TECHNICIANS Union Case No. O-AR-385 DECISION This matter is before the Authority on an exception to the award of Arbitrator Robert J. Mueller filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. The dispute in this matter concerns the removal of a national guard technician under section 709(e) of the National Guard Technicians Act of 1968 (the Technicians Act), 32 U.S.C. 709(e)(1976). The technician filed a grievance concerning his removal that was submitted to arbitration on the issue of whether the grievance was arbitrable. As his award, the Arbitrator ruled that the grievance was subject to arbitration on its merits and directed the Activity to proceed to arbitration absent resolution of the grievance. The Agency now contends that the award is contrary to law, specifically section 709(e) of the Technicians Act. A number of decisions and orders by the Authority on negotiability issues pursuant to section 7105(a)(2)(E) of the Statute, essentially determining, as relevant here, that coverage by a negotiated grievance procedure of a grievance concerning any of the matters enumerated in section 709(e) /1/ was not inconsistent with that provision, have been reviewed by courts of appeals under section 7123 of the Statute. In their decisions the courts have uniformly interpreted and applied the Technicians Act so as to preclude as a matter of law the arbitration of a grievance over an adjutant general's decision to remove a technician under section 709(e), notwithstanding the grievance and arbitration provisions of the Statute. Indiana Air National Guard v. FLRA, 712 F.2d 1187 (7th Cir. 1983); State of Nebraska, Military Department, Office of the Adjutant General v. FLRA, 705 F.2d 945 (8th Cir. 1983); California National Guard v. FLRA, 697 F.2d 874 (9th Cir. 1983); New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3d Cir.), cert. denied, sub nom. AFGE Local 3486 v. New Jersey Air National Guard, -U.S.-, 103 S.Ct. 343(1982). In New Jersey Air National Guard the court held that the language of section 709(e) of the Technicians Act conflicts with the obligation on the part of the National Guard to arbitrate a grievance over a removal once the adjutant general has decided to separate the technician. It specifically rejected the argument that the grievance and arbitration provisions of section 7121 of the Statute override the provisions of section 709(e) so as to permit arbitration as an alternative to the statutory procedure established by the Technicians Act. 677 F.2d at 280, 286. Accord State of Nebraska, Military Department, Office of the Adjutant General, 705 F.2d at 952 & n. 11. In Association of Civilian Technicians, Pennsylvania State Council and Pennsylvania Army and Air National Guard, 14 FLRA No. 6(1984) (Union proposal 5), the Authority specifically held on the basis of the rationale set forth above and the conclusions of the courts of appeal that inclusion in a negotiated grievance and arbitration procedure of a grievance concerning an adjutant general's decision to take any of the actions enumerated in section 709(e) is precluded by that provision of the Technicians Act. Thus, in terms of this case, the Authority concludes that the award, by finding the grievance over the adjutant general's decision to remove the technician grievant to be arbitrable and ordering that the Activity proceed to arbitration, is deficient as contrary to section 709(e) of the Technicians Act. Accordingly, the award is set aside. Issued, Washington, D.C., February 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The matters enumerated in section 709(e) generally relate to the discipline and discharge of civilian technicians and include separation, removal, discharge, suspension, furlough without pay, reduction in force and reduction in rank or compensation.