09:0829(109)CA - Rhode Island NG and ACT, Inc. -- 1982 FLRAdec CA
[ v09 p829 ]
09:0829(109)CA
The decision of the Authority follows:
9 FLRA No. 109
RHODE ISLAND NATIONAL GUARD
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
Charging Party
Case No. 1-CA-422
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD VIOLATED
SECTION 7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) AND RECOMMENDING THAT IT CEASE AND
DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. THEREAFTER, THE
RESPONDENT AND THE GENERAL COUNSEL FILED EXCEPTIONS TO THE JUDGE'S
DECISION.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THE SUBJECT CASE, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATION ONLY TO THE EXTENT CONSISTENT HEREWITH. /1/
THE POSITIONS OF THE PARTIES HEREIN ARE SUBSTANTIALLY SIMILAR TO
THOSE OF THE PARTIES IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT,
9 FLRA NO. 92(1982), WHEREIN WE HELD THAT THE SCOPE OF THE GRIEVANCE
PROCEDURE IS A MANDATORY SUBJECT FOR BARGAINING AND, IF IMPASSE IS
REACHED, IS SUBJECT TO IMPASSE RESOLUTION PROCEDURES. THUS, CONTRARY TO
THE JUDGE AND BASED ON THE REASONING SET FORTH IN THAT DECISION, THE
AUTHORITY FINDS THAT THE RESPONDENT'S ACTIONS DID NOT CONSTITUTE A
VIOLATION OF THE STATUTE, AS ALLEGED. /2/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-422 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 5, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
AMEDEO C. MEROLLA, ESQ.
FOR THE RESPONDENT
JAMES R. COLLINS, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
CASE NO. 1-CA-422
DECISION
STATEMENT OF THE CASE
THIS PROCEEDING AROSE PURSUANT TO THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT
OF AN UNFAIR LABOR PRACTICE CHARGE FILED JULY 8, 1980, WITH THE FEDERAL
LABOR RELATIONS AUTHORITY. AN AMENDED CHARGE WAS FILED ON NOVEMBER 3,
1980, AND CONSEQUENTLY, ON DECEMBER 9, 1980, THE REGIONAL DIRECTOR OF
THE AUTHORITY ISSUED A COMPLAINT ALLEGING THAT THE RHODE ISLAND NATIONAL
GUARD VIOLATED 5 U.S.C. 7116(A)(1), (5) AND (8) BY REFUSING TO AFFORD
THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC. (THE UNION) A FULL SCOPE
GRIEVANCE PROCEDURE BY INSISTING TO IMPASSE ON THE EXCLUSION FROM THE
SCOPE OF THE NEGOTIATED GRIEVANCE-AR0ITRATION CONTRACT ARTICLE ALL
ADVERSE ACTIONS AS DEFINED IN 32 U.S.C. 709(E). RESPONDENT DENIES THAT
ALLEGATION AND ASSERTS THAT THE CHARGE IS UNTIMELY, THAT IT HAS
BARGAINED IN GOOD FAITH, AND THAT THE COMPLAINT SHOULD BE DISMISSED
SINCE IT IS NOT PERMITTED BY LAW TO ABROGATE THE RESPONSIBILITIES OF THE
ADJUTANT GENERAL OF RHODE ISLAND AS SET FORTH IN 32 U.S.C. 709(E).
A HEARING WAS HELD ON MAY 13, 1981, IN BOSTON, MASSACHUSETTS. ALL
PARTIES WERE AFFORDED FULL OPPORTUNITY TO EXAMINE WITNESSES AND TO
INTRODUCE EVIDENCE. POST HEARING BRIEFS WERE FILED BY JULY 16, 1981,
AND HAVE BEEN CONSIDERED. UPON THE ENTIRE RECORD, INCLUDING MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING
FINDINGS, CONCLUSIONS, AND RECOMMENDATION:
FINDINGS OF FACT
IN OCTOBER 1979 THE PARTIES BEGAN EFFORTS TO NEGOTIATE A COLLECTIVE
BARGAINING AGREEMENT TO SUCCEED THE MOST RECENT ONE WHICH EXPIRED IN
1976. AMONG PROPOSALS PRESENTED BY THE UNION WAS ONE WHICH WOULD
PROVIDE FOR A FULL SCOPE GRIEVANCE PROCEDURE. ON THE OTHER HAND,
RESPONDENT INITIALLY PROPOSED A LESS THAN FULL SCOPE GRIEVANCE
PROCEDURE, ONE WHICH EXCLUDED MATTERS COVERED BY 32 U.S.C. 709(E). /3/
THE GRIEVANCE PROCEDURE WAS AT ALL TIMES CONTAINED IN ARTICLE 10 OF EACH
PARTY'S PROPOSAL AND THE FINAL CONTRACT.
ON JANUARY 9, 1980, THE PARTIES HELD THEIR FIRST CONTRACT NEGOTIATION
SESSION. RESPONDENT'S POSITION WITH RESPECT TO THE EXCLUSION OF 709(E)
MATTERS WAS THAT, AS A MATTER OF LAW, THEY WERE ENTITLED TO THE
EXCLUSION, THAT THEY WOULD NOT RELINQUISH THOSE LEGAL RIGHTS, BUT THAT
THEY WOULD DISCUSS THE WORDING OF ARTICLE 10.
ON JANUARY 15, 1980, THE UNION PRESENTED RESPONDENT WITH A
COUNTERPROPOSAL ON ARTICLE 10. THAT COUNTERPROPOSAL, HOWEVER, CONTAINED
A PROVISION FOR A FULL SCOPE GRIEVANCE PROCEDURE.
THE SECOND CONTRACT NEGOTIATION SESSION WAS HELD ON FE0RUARY 23,
1980. AT THAT TIME RESPONDENT PRESENTED THE UNION WITH A
COUNTERPROPOSAL ON ARTICLE 10, BUT IT CONTAINED THE SAME LANGUAGE OF THE
INITIAL PROPOSAL WHICH WOULD HAVE EXCLUDED 709(E) MATTERS FROM THE SCOPE
OF THE GRIEVANCE PROCEDURE.
ON MARCH 5, 1980, THE PARTIES MET FOR ANOTHER NEGOTIATION SESSION.
THE UNION PROPOSED THAT SECTIONS 5 THROUGH 13 OF RESPONDENT'S MOST
RECENT PROPOSAL BE ADOPTED IF RESPONDENT WOULD ACCEPT SECTIONS 1 THROUGH
6 OF THE UNION'S PROPOSAL. RESPONDENT REJECTED THIS OFFER.
PROGRESS WAS MADE AT THE MARCH 17 MEETING OF THE PARTIES. THEY
REACHED AGREEMENT ON ALL OF ARTICLE 10 EXCEPT ON THE QUESTIONS OF 709(E)
EXCLUSIONS AND WHETHER EMPLOYEES WOULD HAVE AN ELECTION BETWEEN THE
NEGOTIATED PROCEDURE AND STATUTORY APPEALS WHERE BOTH WERE AVAILABLE.
THE NEXT NEGOTIATION SESSION WAS HELD ON APRIL 2, 1980. THE UNION
PRESENTED A COUNTERPROPOSAL WHICH WOULD EXCLUDE FROM THE GRIEVANCE
PROCEDURE THOSE MATTERS EXCLUDED BY SECTION 7121(C) OF THE STATUTE.
RESPONDENT INDICATED ITS WILLINGNESS TO CONSIDER THE PROPOSAL BUT IT
MADE NO FURTHER RESPONSE.
A FEDERAL MEDIATOR WAS PRESENT AT THE MEETING ON JUNE 13, 1980. AT
THIS TIME, RESPONDENT PRESENTED THE UNION WITH A COUNTERPROPOSAL
CONTAINING 13 EXCLUSIONS FROM THE GRIEVANCE PROCEDURE INCLUDING MATTERS
COVERED BY 709(E). THERE WAS LITTLE OR NO DISCUSSION ON THE
COUNTERPROPOSAL AND THE UNION INDICATED THAT IT WOULD TAKE THE MATTER
UNDER ADVISEMENT.
THE FINAL MEETING WAS HELD ON JUNE 27. AT THAT TIME THERE WERE SEVEN
ITEMS ON WHICH THERE WAS NO AGREEMENT, INCLUDING THE SCOPE OF THE
GRIEVANCE PROCEDURE. SOON AFTER THE MEETING OPENED, THE UNION REQUESTED
TO CAUCUS WITH THE MEDIATOR WHO WAS IN ATTENDANCE. THE UNION ADHERED TO
ITS PROPOSAL OF APRIL 2 WHICH WOULD EXCLUDE FROM THE GRIEVANCE PROCEDURE
ONLY THOSE MATTERS EXCLUDED BY STATUTE. THE UNION REQUESTED THE
MEDIATOR TO APPROACH RESPONDENT TO SEE IF THERE WAS ANY MOVEMENT ON ITS
PART. THE MEDIATOR RETURNED AND INFORMED THE UNION THAT RESPONDENT HAD
GONE AS FAR AS IT WOULD GO. THE PARTIES THEN MET AND THE UNION INFORMED
RESPONDENT THAT IT WOULD TAKE STEPS TO REQUEST THE ASSISTANCE OF THE
FEDERAL SERVICE IMPASSES PANEL. THERE WERE NO FURTHER DISCUSSIONS ON
THE SCOPE OF THE GRIEVANCE PROCEDURE ALTHOUGH RESPONDENT INDICATED ITS
WILLINGNESS TO CONTINUE TO NEGOTIATE ON THE OUTSTANDING ARTICLES.
WITH THE EXCEPTION OF THE SCOPE OF THE GRIEVANCE PROCEDURE, ALL
OUTSTANDING CONTRACT ITEMS WERE SUBMITTED TO THE FSIP WHICH HAS RENDERED
ITS DECISION ON THOSE MATTERS.
DISCUSSION AND CONCLUSIONS
ALTHOUGH THE AMENDED CHARGE OF NOVEMBER 3, 1980, RELATES TO AN UNFAIR
LABOR PRACTICE ALLEGEDLY OCCURRING ON APRIL 2, 1980 (MORE THAN SIX
MONTHS PREVIOUS), THE COMPLAINT IS NOT TIME BARRED SINCE THE ORIGINAL
CHARGE OF JULY 8, 1980, ENCOMPASSES THE SAME CAUSE OF ACTION AND WAS
FILED WITHIN SIX MONTHS OF THE DATE OF ITS ALLEGED OCCURRENCE. THE
MOTION TO DISMISS ON THIS GROUND IS, THEREFORE, DENIED.
THE GENERAL COUNSEL TAKES THE POSITION THAT A PARTY SEEKING A FULL
SCOPE GRIEVANCE PROCEDURE IS ENTITLED TO SUCH A GRIEVANCE PROCEDURE ONCE
IT HAS FULFILLED ITS OBLIGATION TO BARGAIN IN GOOD FAITH, AND THAT A
PARTY SEEKING TO LIMIT THE SCOPE OF THE GRIEVANCE PROCEDURE MAY NOT TAKE
ITS POSITION TO IMPASSE. THE STATUTE, ITS LEGISLATIVE HISTORY, AND THE
DECISIONS OF THE AUTHORITY SUPPORT THIS VIEW.
SECTION 7121 OF THE STATUTE CONCERNS THE SCOPE OF THE GRIEVANCE
PROCEDURE WHICH MAY BE NEGOTIATED BY THE PARTIES AND PROVIDES THAT,
OTHER THAN FOR CERTAIN ENUMERATED EXCLUSIONS FROM THE SCOPE OF A
GRIEVANCE PROCEDURE, THE GRIEVANCE PROCEDURE SHALL INCLUDE ALL LAWFUL
MATTERS EXCEPT THOSE WHICH THE PARTIES AGREE TO EXCLUDE. /4/ STATED
ANOTHER WAY, IF THE PARTIES DO NOT AGREE TO LIMIT THE SCOPE OF THE
GRIEVANCE PROCEDURE, IT COVERS ALL MATTERS NOT SPECIFICALLY EXCLUDED BY
THE STATUTE.
AS THE LEGISLATIVE HISTORY OF THE STATUTE SHOWS, THE SENATE VERSION
WOULD HAVE PROVIDED THAT THE PARTIES MIGHT NEGOTIATE INTO THE SCOPE OF
THE GRIEVANCE PROCEDURE ANY MATTER NOT SPECIFICALLY EXCLUDED BY TERMS OF
THE LEGISLATION. THE HOUSE VERSION, HOWEVER, WOULD NOT AUTHORIZE THE
PARTIES TO NEGOTIATE ANY EXCLUSIONS IN ADDITION TO THOSE SPECIFICALLY
ENUMERATED IN ITS BILL. THE CONFEREES ADOPTED THE APPROACH TAKEN BY THE
HOUSE BUT ADDED AN AMENDMENT WHICH ALLOWED FOR THE EXPANSION OF
EXCLUSIONS WHERE THE PARTIES WERE ABLE TO AGREE ON ADDITIONAL
EXCLUSIONS. AS THE CONFERENCE REPORT STATED:
ALL MATTERS THAT UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED TO
THE GRIEVANCE PROCEDURES
SHALL IN FACT BE WITHIN THE SCOPE OF ANY GRIEVANCE PROCEDURE
NEGOTIATED BY THE PARTIES UNLESS
THE PARTIES AGREE AS PART OF THE COLLECTIVE BARGAINING PROCESS THAT
CERTAIN MATTERS SHALL NOT
BE COVERED BY THE GRIEVANCE PROCEDURES. /5/
ALTHOUGH CONCEDEDLY, POST-ENACTMENT STATEMENTS DO NOT CONSTITUTE
EVIDENCE OF CONGRESSIONAL INTENT, THE FOLLOWING REMARKS OF
REPRESENTATIVE WILLIAM FORD ARE CONSISTENT WITH THE POSITION TAKEN BY
THE CONFEREES AND SUGGEST THAT NOTHING TO THE CONTRARY WAS BEFORE
CONGRESS FOR CONSIDERATION:
. . . ALTHOUGH THE BASIC HOUSE APPROACH OF STATING IN THE STATUTE THE
SCOPE OF THE
PROCEDURE WAS FOLLOWED, THE CONFEREES ALSO ADOPTED A PROVISION AIMED
SOLELY AT ALLOWING THE
EXCLUSIVE REPRESENTATIVE, AT ITS OPTION, TO PROPOSE AND AGREE TO A
REDUCED COVERAGE FOR THE
NEGOTIATED GRIEVANCE PROCEDURE-- PERHAPS FOR FINANCIAL REASONS. OF
COURSE, THE UNION MAY ALSO
NEGOTIATE CHANGES IN THE APPEALS PROCEDURE TO THE EXTENT THAT THE
AGENCY HAS THE AUTHORITY TO
REVISE THAT PROCEDURE, INSTEAD OF REPLACING THE APPEALS WITH A
NEGOTIATED PROCEDURE.
WE CAN ANALOGIZE THIS SITUATION TO MANAGEMENT'S "PERMISSIBLE" AREAS
OF BARGAINING UNDER
SECTION 7106(B)(1), EXCEPT THAT PERMITTING THE REDUCTION IN THE
GRIEVANCE PROCEDURE WAS
INCLUDED IN THE CONFERENCE REPORT AS A MEANS TO INSURE UNION
FLEXIBILITY. THAT IS, THE UNION
IS FREE TO PROPOSE A NARROWED SCOPE OF GRIEVANCES, IS FREE TO
WITHDRAW THAT PROPOSAL AT ANY
TIME, AND IS FREE TO INSIST TO IMPASSE ON THE NARROWED SCOPE IF THE
AGENCY DOES
NOT AGREE. AN AGENCY, HOWEVER, MAY NOT INSIST TO IMPASSE THAT THE
UNION AGREE TO A REDUCED
SCOPE OF GRIEVANCES UNDER THE NEGOTIATED PROCEDURE. THE UNIONS DO
NOT HAVE TO NEGOTIATE IN
THOSE STATUTORY APPEALS THAT WILL BE REPLACED BY A GRIEVANCE AND
ARBITRATION PROCEDURE; THEY
MAY NEGOTIATE OUT CERTAIN OR ALL OF THESE APPEALS. /4/
INDEED, THE AUTHORITY DOES NOT INTERPRET SECTION 7121 AS BROADLY AS
CONGRESSMAN FORD. IN ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 32
(DECEMBER 19, 1979), THE AUTHORITY STRESSED THE CONCEPTS OF NEGOTIATION
AND MUTUALITY AS PRECONDITIONS TO RESTRICTING THE SCOPE OF THE GRIEVANCE
PROCEDURE:
(G)RIEVANCE PROCEDURES NEGOTIATED BY THE PARTIES UNDER SECTION 7121
OF THE STATUTE COVER
ALL MATTERS WHICH MIGHT LAWFULLY BE SUBMITTED TO THOSE PROCEDURES,
UNLESS THE PARTIES IN THEIR
NEGOTIATIONS MUTUALLY AGREE THAT PARTICULAR MATTERS SHALL BE EXCLUDED
FROM THE NEGOTIATED
GRIEVANCE PROCEDURES AS PROVIDED IN SECTION 7121(A)(2) OF THE
STATUTE. /7/
THUS IT IS CLEAR THAT THE AUTHORITY HOLDS THAT, AT A MINIMUM, BOTH
PARTIES MUST NEGOTIATE IN GOOD FAITH OVER ANY PROPOSAL TO RESTRICT THE
SCOPE OF THE GRIEVANCE PROCEDURE. /8/ HOWEVER, AS PREVIOUSLY NOTED, THE
AUTHORITY HAS INTERPRETED SECTION 7121 AS REQUIRING MUTUAL AGREEMENT TO
RESTRICT THE SCOPE OF THE GRIEVANCE PROCEDURE. THE QUESTION IN THIS
CASE IS WHETHER IMPASSE, AND CONSEQUENTLY DISPUTED RESOLUTION BY A THIRD
PARTY, CONSTITUTES MUTUAL AGREEMENT. I THINK NOT. IMPASSE ONLY
CONSTITUTES AN AGREEMENT TO DISAGREE, WITH THE CONSEQUENCE USUALLY BEING
RESOLUTION OF THE DISAGREEMENT BY A THIRD PARTY. "'IMPASSE' WITHIN THE
MEANING OF THE FEDERAL LABOR LAWS PRESUPPOSES A REASONABLE EFFORT AT
GOOD-FAITH BARGAINING WHICH, DESPITE NOBLE INTENTIONS, DOES NOT CONCLUDE
IN AN AGREEMENT BETWEEN THE PARTIES." /9/ AN IMPASSE, BY ITS VERY
NATURE, CONNOTES A DEADLOCK REACHED BECAUSE OF AN INABILITY OR
UNWILLINGNESS TO COMPROMISE. THAT THE DEADLOCK MAY BE BROKEN BY MEANS
OF A THIRD PARTY, CHOOSING ONE OF TWO INCONSISTENT PROPOSALS, DOES NOT
MEAN THAT AN AGREEMENT, A MEETING OF THE MINDS, HAS BEEN ACHIEVED. THAT
TYPE OF "EITHER/OR" RESOLUTION MAY BE PRAGMATIC, BUT IT DOES NOT SIGNIFY
MUTUAL AGREEMENT. MUTUAL AGREEMENT OCCURS WHERE BOTH PARTIES SHARE IN
THE DEVELOPMENT OF THE PRODUCT, WHETHER BY ASSENT OR BY COMPROMISE.
WHERE, AFTER GOOD-FAITH BARGAINING, SUCH A FAILURE TO AGREE RESULTS,
SECTION 7121 MANDATES IMPLEMENTATION OF A FULL SCOPE GRIEVANCE
PROCEDURE.
THE FACT THE EMPLOYEES IN THIS CASE ARE NATIONAL GUARD TECHNICIANS
COVERED BY TITLE 32 OF THE UNITED STATED CODE DOES NOT ALTER THE
CONCLUSION THAT THEY ARE ENTITLED TO A FULL SCOPE GRIEVANCE PROCEDURE.
THAT TITLE OF THE UNITED STATES CODE IS NOT IN CONFLICT WITH TITLE 5 OF
THE CODE. SECTION 7121(E)(1) OF THE STATUTE PROVIDES:
(E)(1) MATTERS COVERED UNDER SECTION 4303 AND 7512 OF THIS TITLE
WHICH ALSO FALL WITHIN THE
COVERAGE OF THE
THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE DISCRETION
OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE
PROCEDURE OF SECTION 7701 OF
THIS TITLE OR UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH.
SIMILAR MATTERS WHICH
ARISE UNDER OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED
BY THIS CHAPTER MAY, IN
THE DISCRETION OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE
APPELLATE PROCEDURE, IF
ANY, APPLICABLE TO THOSE MATTERS, OR UNDER THE NEGOTIATED GRIEVANCE
PROCEDURE, BUT NOT
BOTH. AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED HIS OPTION UNDER
THIS SUBSECTION TO RAISE
A MATTER EITHER UNDER THE APPLICABLE APPELLATE PROCEDURES OR UNDER
THE NEGOTIATED GRIEVANCE
PROCEDURE AT SUCH TIME AS THE EMPLOYEE TIMELY FILES A NOTICE OF
APPEAL UNDER THE APPLICABLE
APPELLATE PROCEDURES OR TIMELY FILES A GRIEVANCE IN WRITING IN
ACCORDANCE WITH THE PROVISIONS
OF THE PARTIES' NEGOTIATED GRIEVANCE PROCEDURE, WHICHEVER EVENT
OCCURS FIRST. /10/
THIS LANGUAGE AS REPORTED OUT OF THE SENATE-HOUSE CONFERENCE
COMMITTEE IN THE FINAL VERSION OF THE BILL ENACTED AND SIGNED INTO LAW
WAS IDENTICAL TO THAT IN THE BILL (S. 2640) REPORTED OUT OF THE SENATE
COMMITTEE ON GOVERNMENT AFFAIRS AND SUBSEQUENTLY PASSED BY THE SENATE.
THE SENATE COMMITTEE REPORTED ON THIS SUBSECTION AS FOLLOWS:
SUBSECTION (E) PROVIDES EMPLOYEES WITH AN OPTION, IN APPEALING
MATTERS COVERED UNDER 5
U.S.C. SECTION 4303 (DEMOTION OR REMOVAL FOR UNACCEPTABLE
PERFORMANCE) OR 5 U.S.C. SECTION
7512 (REMOVAL, SUSPENSION FOR MORE THAN 30 DAYS, REDUCTION IN GRADE,
REDUCTION IN PAY OF AN
AMOUNT EXCEEDING ONE STEP OF AN EMPLOYEE'S GRADE OR THREE PERCENT OF
THE EMPLOYEE'S BASIC PAY,
FURLOUGH FOR 30 DAYS OR LESS), OF USING THE STATUTORY APPEAL
PROCEDURE UNDER 5 U.S.C. SECTION
7701 OR THE NEGOTIATED GRIEVANCE PROCEDURE IF SUCH MATTERS HAVE BEEN
NEGOTIATED INTO COVERAGE
UNDER THE GRIEVANCE PROCEDURE. IT ALSO PROVIDES THAT MATTERS SIMILAR
TO THOSE LISTED ABOVE
WHICH MAY ARISE UNDER OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES
COVERED BY THIS
SUBCHAPTER, SUCH AS THOSE PROVIDED IN TITLE 38, UNITED STATES CODE,
MAY, IN THE DISCRETION OF
THE AGGRIEVED EMPLOYEE, BE RAISED UNDER EITHER THE NEGOTIATED
GRIEVANCE PROCEDURE OR UNDER ANY
APPELLATE PROCEDURES WHICH WOULD OTHERWISE BE AVAILABLE TO THE
EMPLOYEE IF THE MATTERS WEREN'T
COVERED BY THE GRIEVANCE PROCEDURE. /11/
THIS CLEARLY STATES CONGRESS' INTENT THAT DISCIPLINARY MATTERS
ARISING UNDER TITLE 38 WHICH ARE SIMILAR TO THE DISCIPLINARY AND ADVERSE
ACTIONS DESCRIBED IN 5 U.S.C. 4303 AND 5 U.S.C. 7512 BE COVERED BY THE
PROVISIONS OF SECTION 7121 OF THE STATUTE. IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669 AND VETERANS ADMINISTRATION
MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, CASE NO. O-NG-32, 3 FLRA NO. 48
(MAY 30, 1980), THE AUTHORITY STATED THAT:
IF THE AGENCY BELIEVES THAT, AS A MATTER OF LAW, CERTAIN MATTERS ARE
NONGRIEVABLE AND
NONARBITRABLE, GRIEVANCES WHICH MIGHT BE FILED WITH RESPECT TO THEM
MAY BE CHALLENGED BY THE
AGENCY AS NONGRIEVABLE OR NONARBITRABLE, IN THE CONTEXT OF SPECIFIC
FACTUAL CIRCUMSTANCES. IN
THIS REGARD, SECTION 7121(A) OF THE STATUTE REQUIRES THE PARTIES TO
"PROVIDE PROCEDURES FOR
THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY .
. . . " FURTHERMORE, IF
AN ARBITRATOR WERE TO RENDER AN AWARD INVOLVING THE MATTERS WHICH
"UNDER THE PROVISIONS OF THE
LAW" MAY NOT BE COVERED BY NEGOTIATED GRIEVANCE PROCEDURES, THE
AGENCY WOULD HAVE AN
OPPORTUNITY TO CHALLENGE THE AWARD BY FILING EXCEPTIONS THERETO WITH
THE AUTHORITY PURSUANT TO
SECTION 7122 OF THE STATUTE (92 STAT. 1212) ON THE BASIS THAT THE
AWARD IS "CONTRARY TO ANY
LAW, RULE, OR REGULATION."
THIS SAME RATIONALE HAS BEEN APPLIED BY THE AUTHORITY TO HOLD THAT
THE NATIONAL GUARD IS UNDER A STATUTORY DUTY TO BARGAIN NOTWITHSTANDING
THAT PROPOSED GRIEVANCE PROCEDURES FAIL EXPRESSLY TO EXCLUDE CERTAIN
MATTERS FROM SUCH PROCEDURES. NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-87 AND STATE OF KANSAS ARMY NATIONAL GUARD, CASE
NO. O-NG-12; NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCALS
R12-130 AND R12-145 AND STATE OF NEVADA NATIONAL GUARD, CASE NO.
O-NG-15; AND ASSOCIATION OF CIVILIAN TECHNICIANS, NORTH AND SOUTH
ALABAMA CHAPTERS AND STATE OF ALABAMA NATIONAL GUARD, CASE NO. O-NG-84;
3 FLRA NO. 124 (JULY 31, 1980). THUS, RESPONDENT IS FREE TO RAISE ITS
ARGUMENT THAT IT IS INAPPROPRIATE FOR ARBITRATORS, AND ULTIMATELY THE
AUTHORITY, TO BECOME INVOLVED IN INTERNAL MILITARY MATTERS, "IN THE
CONTEXT OF SPECIFIC FACTUAL CIRCUMSTANCES."
THE EVIDENCE AMPLY DEMONSTRATES THAT THE PARTIES BARGAINED TO IMPASSE
ON THE SCOPE OF THE GRIEVANCE PROCEDURE AS WELL AS ON SEVERAL OTHER
ITEMS WHICH WERE REFERRED TO AND RESOLVED BY THE FSIP. HAVING FOUND
THAT RESPONDENT INSISTED TO THE POINT OF IMPASSE ON A LESS THAN FULL
SCOPE GRIEVANCE PROCEDURE DURING NEGOTIATIONS ON A COLLECTIVE BARGAINING
AGREEMENT, I AM CONSTRAINED TO CONCLUDE THAT RESPONDENT HAS VIOLATED
SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE. ACCORDINGLY, I
RECOMMEND THAT THE AUTHORITY ISSUE THE FOLLOWING ORDER PURSUANT TO 5
C.F.R. 2423.29(C):
ORDER
ORDERED, THAT THE RHODE ISLAND NATIONAL GUARD SHALL:
1. CEASE AND DESIST FROM:
(A) INTERFERING WITH, RESTRAINING, OR COERCING EMPLOYEES BY INSISTING
TO IMPASSE ON A LESS
THAN FULL SCOPE GRIEVANCE PROCEDURE DURING NEGOTIATIONS ON A
COLLECTIVE BARGAINING AGREEMENT.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF RIGHTS ASSURED BY 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) UPON REQUEST OF THE UNION, RESUME NEGOTIATIONS ON A COLLECTIVE
BARGAINING AGREEMENT
AND, IN THE ABSENCE OF AN AGREEMENT WITH THE UNION TO LIMIT THE SCOPE
OF THE GRIEVANCE
PROCEDURE TO BE CONTAINED IN THE COLLECTIVE BARGAINING AGREEMENT,
TIMELY EXECUTE A COLLECTIVE
BARGAINING AGREEMENT CONTAINING A FULL SCOPE GRIEVANCE PROCEDURE.
(B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX" ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE
SIGNED BY AN AUTHORIZED REPRESENTATIVE AND SHALL BE POSTED AND
MAINTAINED FOR 60 CONSECUTIVE
DAYS THEREAFTER IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS
AND OTHER PLACES WHERE
INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE
CUSTOMARILY
POSTED. REASONABLE STEPS SHALL BE TAKEN TO ENSURE THAT THE NOTICES
ARE NOT ALTERED, DEFACED,
OR COVERED BY ANY OTHER MATERIAL.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY IN WRITING WITHIN 30
DAYS FROM THE DATE OF
THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY WITH THE ORDER.
ALAN W. HEIFETZ
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 25, 1981
WASHINGTON, DC
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERALLA0OR 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 INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES BY
INSISTING TO IMPASSE ON A LESS THAN FULL SCOPE GRIEVANCE PROCEDURE
DURING NEGOTIATIONS ON A COLLECTIVE BARGAINING AGREEMENT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER, INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST OF THE ASSOCIATION OF CIVILIAN TECHNICIANS,
INC., RESUME NEGOTIATIONS ON A COLLECTIVE BARGAINING AGREEMENT AND, IN
THE ABSENCE OF AGREEMENT WITH THE ASSOCIATION OF CIVILIAN TECHNICIANS,
INC. TO LIMIT THE SCOPE OF THE GRIEVANCE PROCEDURE TO BE CONTAINED IN
THE COLLECTIVE BARGAINING AGREEMENT, TIMELY EXECUTE A COLLECTIVE
BARGAINING AGREEMENT CONTAINING A FULL SCOPE GRIEVANCE PROCEDURE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION I, WHOSE
ADDRESS IS: 441 STUART STREET, 9TH FLOOR, BOSTON, MA 02116 AND WHOSE
TELEPHONE NUMBER IS (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ THE RESPONDENT EXCEPTED TO THE JUDGE'S FINDING THAT THE COMPLAINT
IN THE CASE WAS NOT TIME BARRED CONTENDING THAT THE REGIONAL DIRECTOR
HAD DISMISSED THE INITIAL CHARGE AND THAT THE AMENDED CHARGE ON WHICH
THE COMPLAINT WAS BASED WAS UNTIMELY FILED. IT IS NOTED THAT THE RECORD
REVEALED THAT THE REGIONAL DIRECTOR, IN FACT, REVOKED THE DISMISSAL
LETTER WHICH HE HAD ISSUED ON THE CHARGE. HENCE, THE AUTHORITY, IN
AGREEMENT WITH THE JUDGE, FINDS THAT THE COMPLAINT WAS TIMELY FILED.
/2/ IN VIEW OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY TO
ADDRESS THE RESPONDENT'S CONTENTION THAT SECTION 709(E) OF THE NATIONAL
GUARD TECHNICIANS ACT OF 1968 (32 USC 709(E)) REQUIRES AS A MATTER OF
LAW THE SPECIFIC EXCLUSION OF ADVERSE ACTIONS INVOLVING TECHNICIANS FROM
COVERAGE UNDER NEGOTIATED GRIEVANCE PROCEDURES. (BUT SEE NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA
NATIONAL GUARD, 5 FLRA NO. 25(1981); AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3486 AND NEW JERSEY AIR NATIONAL GUARD, 177TH
FIGHTER INTERCEPTOR GROUP, 5 FLRA NO. 26(1981), REVERSED SUB NOM. NEW
JERSEY AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP AND
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 81-1592
(3RD CIR. APR. 12, 1982).)
/3/ IN GENERAL, 32 U.S.C. 709(E) PROVIDES FOR REMOVAL, DISCHARGE AND
CERTAIN OTHER ADVERSE ACTIONS AGAINST TECHNICIANS BY THE ADJUTANT
GENERAL WITH NO RIGHT OF APPEAL BEYOND THE ADJUTANT GENERAL.
/4/ SECTION 7121 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SEC. 7121. GRIEVANCE PROCEDURES
(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING
AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF
ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS
SECTION, THE PROCEDURES
SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
WITHIN ITS COVERAGE.
(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE
GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
* * * *
(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE
CONCERNING--
(1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
TITLE (RELATING TO
PROHIBITED POLITICAL ACTIVITIES);
(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
(3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE;
(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT; OR
(5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR
PAY OF AN EMPLOYEE.
/5/ JOINT EXPLANATORY STATEMENT OF THE COMMITTEE ON CONFERENCE, H.R.
REP. NO. 1717, 95TH CONG. 2D SESS. 157, REPRINTED IN (1978) U.S. CODE
CONG. & AD. NEWS 2860, 2891.
/6/ 124 CONG.REC. H 13609 (DAILY ED. OCT. 14, 1978).
/7/ 2 FLRA 273, 277(1979).
/8/ ID. AT 278. AND SEE, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, INTERDEPARTMENTAL LOCAL 3723, AFL-CIO, CASE NO. 8-CO-4, OALJ
81-028 (DECISION OF JUDGE NASH, JANUARY 9, 1981).
/9/ NLRB V. BANCROFT MFG. CO., 106 LRRM 2603, 2605 (CA.5 1981)
(CITATION OMITTED).
/10/ 5 U.S.C. 7121(E)(1).
/11/ S. REP. NO. 95-969, 95TH CONG., 2D SESS. 110(1978) REPRINTED IN
(1978) U.S. CODE CONG. & AD. NEW 2723, 2832.