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The decision of the Authority follows:
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.