16:0346(52)CA - NG Bureau, Falls Church, Virginia and AFGE -- 1984 FLRAdec CA

 16 FLRA No. 52
 
 NATIONAL GUARD BUREAU
 FALLS CHURCH, VIRGINIA
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 7-CA-20229
 
                            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 in this case, 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 National Guard Bureau (Respondent)
 violated section 7116(a)(1), (5) and (8) of the Statute when it
 disapproved, pursuant to its section 7114(c) authority, the grievance
 arbitration provision of the contract which had been negotiated and
 agreed to by the South Dakota Air National Guard and the American
 Federation of Government Employees, Local 3035, AFL-CIO.  The agreed
 upon article provided for binding arbitration of grievances processed
 under the negotiated grievance procedure and did not expressly exclude
 from such arbitration actions taken pursuant to section 709(e) of the
 National Guard Technicians Act of 1968, 32 USC 709(e)(5) (Technicians
 Act).  /1/
 
    The issue to be resolved herein is whether the National Guard Bureau
 violated section 7116(a)(1), (5) and (8) of the Statute by refusing to
 approve a grievance arbitration provision in an agreement negotiated by
 the subordinate Activity and the Union until the parties expressly
 exclude from the scope of the grievance procedure those matters covered
 by section 709(e) of the Technicians Act.
 
    The Authority has previously considered this issue in Department of
 the Army and Air Force, National Guard Bureau and Montana Air National
 Guard, 10 FLRA 553 (1982), reversed sub nom. Montana Air National Guard
 v. FLRA, 730 F.2d 577 (9th Cir. 1984).  In that unfair labor practice
 case, the Authority held that the National Guard Bureau violated section
 7116(a)(1), (5) and (8) of the Statute when it disapproved a grievance
 arbitration provision, agreed to by the subordinate activity and the
 union, which contained general language and did not expressly exclude
 actions covered by section 709(e) of the Technicians Act.  In so
 finding, the Authority relied on its earlier decisions in National
 Association of Government Employees, Local R14-87 and State of Kansas
 Army National Guard et al., 3 FLRA 853 (1980) and American Federation of
 Government Employees, AFL-CIO, Local 3004 and Massachusetts National
 Guard, Office of the Adjutant General et al., 3 FLRA 894 (1980), where
 it 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.
 
    The U.S. Court of Appeals for the Ninth Circuit, in reversing the
 Authority's decision in Montana Air National Guard, stated:
 
          In California National Guard (697 F.2d 874 (9th Cir. 1983), we
       noted the importance Congress attached to the preservation of
       state control, and Congress' intention "'to bring Guard
       technicians within the coverage of schemes such as the
       Labor-Management Act only with the provision that the state
       controls set out in section 709(e) would remain.'" Id. at 879-80
       n.2, quoting New Jersey Air National Guard v. F.L.R.A., 677 F.2d
       276, 284 (3d Cir.), cert. denied, . . . 103 S.Ct. 343 . . .
       (1982).  To ensure that Congress' intention is fully carried out,
       we now hold that the Bureau can require Sec. 709(e) to be
       expressly excluded from the scope of a negotiated grievance
       provision.
 
    In agreement with the Ninth Circuit's reference to the unique status
 of the National Guard, the Authority finds that the Guard may require
 that the parties' contract expressly exclude section 709(e) matters from
 the scope of the parties' negotiated arbitration procedure.  As the
 Ninth Circuit indicated, such an express exclusion is consistent with
 fully carrying out Congress' intent that the state controls set out in
 section 709(e) of the Technicians Act remain in effect in the context of
 collective bargaining agreements entered into by the Guard under the
 Statute.
 
    Accordingly, the Authority shall order that the instant complaint be
 dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 7-CA-20229 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., October 31, 1984.
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The contract provisions at issue provide:
 
                                ARBITRATION
 
          Section a.  If the Employer and the Union fail to settle any
       grievance over the interpretation or application of the agreement
       processed under the negotiated grievance procedure, such
       grievance, upon written request by either party within 30 calendar
       days after issuance of the Employer's final decision, shall be
       submitted to arbitration.
 
          Section b.  Within five working days from the date of the
       request for arbitration, the parties shall jointly request the
       Federal Mediation and Conciliation Service to provide a list of
       five impartial persons qualified to act as arbitrators.  The
       parties shall meet within five working days after the receipt of
       such list.  If they cannot mutually agree upon one of the listed
       arbitrators, then the Union and the Employer will each strike one
       arbitrator's name from the list of five and will then repeat this
       procedure.  The remaining person shall be the duly selected
       arbitrator.
 
          Section c.  If, for any reason, either party refuses to
       participate in the selection of an arbitrator, the Federal
       Mediation and Conciliation Service shall be empowered to make a
       direct designation of an arbitrator to hear the case.
 
          Section d.  The arbitrator's fee, travel and per diem expenses,
       in accordance with Joint Travel Regulation, shall be borne equally
       by the Employer and the Union.  The arbitration hearing will be
       held, if possible, on the Employer's premises during the regular
       day shift hours of the basic work week.  A reasonable number of
       relevant witnesses to the hearing shall be in a duty status with
       no overtime authorized.
 
          Section e.  The arbitrator will be requested to render a
       decision as quickly as possible, but in any event not later than
       30 days after the conclusion of the hearing, unless the parties
       mutually agree to extend the time limit.
 
          Section f.  The arbitrator's award shall be binding on the
       parties.  However, either party may file exceptions to an award
       with the Federal Labor Relations Authority, under the regulations
       prescribed by the Authority.