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10:0553(96)CA
The decision of the Authority follows:
10 FLRA No. 96
DEPARTMENTS OF THE ARMY
AND THE AIR FORCE
NATIONAL GUARD BUREAU
AND MONTANA AIR NATIONAL GUARD
Respondents
and
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
MONTANA AIR CHAPTER, CHAPTER #29
Charging Party
Case No. 7-CA-1398
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, 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 Respondent National Guard Bureau
violated section 7116(a)(1), (5) and (8) of the Federal Service
Labor-Management Relations Statute (the Statute) by refusing to approve
certain provisions of a collective bargaining agreement negotiated
between the Charging Party (the Union) and the Montana Air National
Guard. The complaint further alleges that the Respondent Montana Air
National Guard violated section 7116(a)(1) and (5) of the Statute by
failing to implement and give effect to those particular provisions.
At all times material herein, the Union has held exclusive
recognition for a unit consisting of all non-supervisory employees of
the Montana Air National Guard Technician Force. In 1980, the Union and
the Montana Air National Guard commenced negotiations on a successor
collective bargaining agreement. They signed off on the agreement
reached on March 25, 1981, and pursuant to section 7114(c) of the
Statute /1/ forwarded it to the National Guard Bureau for approval. By
memorandum dated April 21, 1981, the National Guard Bureau approved the
contract except for, inter alia, a provision related to the negotiated
grievance procedure. The express reason for the disapproval of this
particular provision was the absence of a specific exclusion from the
grievance procedure of matters relating to section 709(e) of the
National Guard Technicians Act of 1968 (32 USC 709(e)). /2/ The
National Guard Bureau contended that the absence of a specific exclusion
implied that such matters were included within the scope of the
negotiated grievance procedure and subject to arbitration. Subjecting
such matters to arbitration, the National Guard Bureau maintained, was
contrary to law. /3/
The Authority had, prior to the date of the National Guard Bureau's
action, rendered decisions in several cases which addressed the issue of
whether appeals of adverse actions involving National Guard technicians
must, as a matter of law, be specifically excluded from grievance
procedures negotiated pursuant to the Statute. In those decisions,
issued on July 31, 1980, the Authority 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. /4/ Hence, the
National Guard Bureau's declaration that the negotiated provision
relating to the scope of the grievance procedure violated law was
contrary to a previously made determination by the Authority on the same
issue. The National Guard Bureau's action in disapproving a contractual
provision which was not distinguishable from proposals previously found
by the Authority to be within the duty to bargain constituted a breach
of the obligation to negotiate in good faith /5/ and violated section
7116(a)(1) and (5) of the Statute. /6/ Moreover, the National Guard
Bureau's actions constituted a refusal to comply with section 7114(c)(2)
of the Statute and therefore is a violation of section 7116-a)(1) and
(8). However, the Authority does not find that the Montana Air National
Guard violated the Statute by its ministerial actions in implementing
the directives of higher level agency management. Social Security
Administration, Region VI, 10 FLRA No. 9 (1982).
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the National Guard Bureau shall:
1. Cease and desist from:
(a) Failing and refusing to approve a negotiated provision relating
to the scope of the grievance procedure, which the Montana Air National
Guard and the Association of Civilian Technicians, Inc., Montana Air
Chapter, Chapter #29, had agreed to, when the Federal Labor Relations
Authority had previously found contract proposals which were not
distinguishable from the provision disapproved to be within the duty to
bargain and not violative of law.
(b) In any like or related manner interfering with, restraining, or
coercing any employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(c) In any like or related manner failing or refusing to comply with
any provision of 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) Withdraw and rescind its disapproval of the contractual provision
relating to the scope of the negotiated grievance procedure which was
agreed to by the Montana Air National Guard and the Association of
Civilian Technicians, Inc., Montana Air Chapter, Chapter #29, and notify
those two parties of such action in writing.
(b) Post at the facilities of the Montana Air National Guard copies
of the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be signed by
an authorized official of the National Guard Bureau, and shall be posted
and maintained for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region 7, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint in Case No.
7-CA-1398, insofar as it alleges a violation of section 7116(a)(1) and
(5) of the Statute by Respondent Montana Air National Guard be, and it
hereby is, dismissed.
Issued, Washington, D.C., December 3, 1982
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
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 fail and refuse to approve a contract provision relating
to the scope of the negotiated grievance procedure, which the Montana
Air National Guard and the Association of Civilian Technicians, Inc.,
Montana Air Chapter, Chapter #29, had agreed to, when the Federal Labor
Relations Authority had previously found contract proposals which were
not distinguishable from the provision disapproved to be within the duty
to bargain and not violative of law.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL NOT in any like or related manner fail or refuse to comply
with any provisions of the Federal Service Labor-Management Relations
Statute.
WE WILL withdraw and rescind our disapproval of the contractual
provision relating to the scope of the negotiated grievance procedure
which was agreed to by the Montana Air National Guard and the
Association of Civilian Technicians, Inc., Montana Air Chapter, Chapter
#29, and notify those two parties of such action in writing.
(Activity or Agency)
Dated: . . . By: (Signature) (Title)
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 questions concerning this Notice or Compliance
with its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is:
Federal Building & U.S. Customs House, 1531 Stout Street, Suite 301,
Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(c) provides:
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
(2) The head of the agency shall approve the agreement within
30 days from the date the agreement is executed if the agreement
is in accordance with the provisions of this chapter and any other
applicable law, rule, or regulation (unless the agency has granted
an exception to the provision).
(3) If the head of the agency does not approve or disapprove
the agreement within the 30-day period, the agreement shall take
effect and shall be binding on the agency and the exclusive
representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation.
(4) A local agreement subject to a national or other
controlling agreement at a higher level shall be approved under
the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
/2/ The negotiated procedure was silent as to whether such matters
were within its coverage.
/3/ Section 709(e) of the National Guard Technicians Act of 1968 sets
forth provisions relating to adverse actions taken against National
Guard technicians, and appeals thereof.
/4/ National Association of Government Employees, Local R14-87 and
State of Kansas Army National Guard et al., 3 FLRA 852 (1980); American
Federation of Government Employees, AFL-CIO, Local 3004 and
Massachusetts National Guard, Office of the Adjutant General et al., 3
FLRA 893 (1980). But see New Jersey Air National Guard, 177th Fighter
Intercepter Group and Department of Defense v. Federal Labor Relations
Authority, 677 F2d 276 (3rd Cir. 1982), which dealt with a contractual
proposal which explicitly provided for the inclusion of section 709(e)
matters within the scope of the grievance procedure unlike Kansas Army
National Guard and Massachusetts National Guard which involved proposals
which, like the provision in the instant case, were silent as to such
coverage.
/5/ See Department of the Air Force, U.S. Air Force Academy, 6 FLRA
No. 100 (1981), wherein the Authority found that, where the
negotiability of a proposal is established by Authority precedent, it is
a refusal to bargain, and a violation of section 7116(a)(1) and (5) of
the Statute, to maintain that the proposal is non-negotiable.
/6/ See Department of Health and Human Services, Social Security
Administration, Region VI, and Department of Health and Human Services,
Social Security Administration, Galveston, Texas District, 10 FLRA No. 9
(1982), wherein the Authority found that when the obligation to
negotiate is breached by the acts and conduct of agency management, such
a breach may provide the basis for a section 7116(a)(1) and (5)
violation regardless of the location of that agency management in the
chain of command.