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14:0057(11)AR - Wisconsin Army NG and ACT -- 1984 FLRAdec AR

[ v14 p57 ]
The decision of the Authority follows:

 14 FLRA No. 11
                                            Case No. O-AR-385
    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.