[ v09 p737 ]
09:0737(92)CA
The decision of the Authority follows:
9 FLRA No. 92
VERMONT AIR NATIONAL GUARD,
BURLINGTON, VERMONT
Respondent
and
ASSOCIATION OF CIVILIAN
TECHNICIANS, INC.
Charging Party
Case No. 1-CA-466
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, /1/ ACCOMPANYING EXHIBITS, AND BRIEFS SUBMITTED BY
THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY FINDS:
THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE STATUTE /2/ IN THAT IT FAILED AND REFUSED
TO AFFORD THE ASSOCIATION OF CIVILIAN TECHNICIANS, INC., GREEN MOUNTAIN
CHAPTER (ACT), A FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE UNDER SECTION
7121 OF THE STATUTE /3/ BY INSISTING TO IMPASSE ON THE EXCLUSION FROM
THE SCOPE OF THAT PROCEDURE OF ALL ADVERSE ACTIONS DEFINED IN SECTION
709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (32 U.S.C. 709(E)).
AT ALL TIMES MATERIAL HEREIN, ACT HAS HELD EXCLUSIVE RECOGNITION FOR
A UNIT CONSISTING OF ALL NONSUPERVISORY EMPLOYEES OF THE RESPONDENT'S
TECHNICIAN DETACHMENT. ON JULY 24, 1980, THE RESPONDENT AND ACT BEGAN
NEGOTIATIONS FOR A SUCCESSOR COLLECTIVE BARGAINING AGREEMENT. THE
PARTIES REACHED AGREEMENT ON ALL CONTRACT ARTICLES EXCEPT THOSE WHICH
PERTAINED TO THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE. ALTHOUGH
ACT HAD REQUESTED A FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE, IT DID
CONSIDER AND BARGAIN IN GOOD FAITH OVER THE RESPONDENT'S PROPOSALS WHICH
SOUGHT TO EXCLUDE CERTAIN MATTERS FROM THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE. HOWEVER, AS OF AUGUST 21, 1980, ACT AND THE
RESPONDENT HAD REACHED IMPASSE AS TO THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE.
THE GENERAL COUNSEL, CITING THE AUTHORITY'S INTERPRETATION AND
GUIDANCE, 2 FLRA 273 (1979), AND THE APPLICABLE LEGISLATIVE HISTORY OF
SECTION 7121, /4/ CONTENDS THAT ABSENT "MUTUAL AGREEMENT" BY THE PARTIES
TO EXCLUDE SPECIFIC MATTERS FROM THE SCOPE OF THE GRIEVANCE PROCEDURE,
THE PARTY SEEKING A FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE IS
ENTITLED TO IT. THAT IS, THE GENERAL COUNSEL ASSERTS THAT THE PARTY
SEEKING A FULL SCOPE GRIEVANCE PROCEDURE MUST CONSIDER THE OTHER PARTY'S
POSITION AND OTHERWISE FULFILL THE REQUIREMENTS OF GOOD FAITH
BARGAINING, BUT THAT THE PARTY SEEKING TO NARROW THE SCOPE OF THE
GRIEVANCE PROCEDURE MAY NOT INSIST TO IMPASSE ON THE ISSUE AND THEN SEEK
A RESOLUTION OF THE IMPASSE BY THE FEDERAL SERVICE IMPASSES PANEL (THE
PANEL) UNDER SECTION 7119 OF THE STATUTE. SUCH INSISTENCE TO IMPASSE ON
A LESS THAN FULL SCOPE GRIEVANCE PROCEDURE, THE GENERAL COUNSEL ARGUES,
DELAYS THE EXECUTION OF A COLLECTIVE BARGAINING AGREEMENT IN VIOLATION
OF SECTION 7116(A)(1) AND (5), AND CONSTITUTES NONCOMPLIANCE WITH
SECTION 7121 OF THE STATUTE IN VIOLATION OF SECTION 7116(A)(1) AND (8).
THE AUTHORITY DISAGREES.
THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE IS A MATTER AFFECTING
WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES AND, AS A CONDITION OF
EMPLOYMENT, /5/ IS A MANDATORY SUBJECT FOR COLLECTIVE BARGAINING UNDER
THE STATUTE. SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, NATIONAL IMMIGRATION AND NATURALIZATION SERVICE COUNCIL AND
U.S. DEPARTMENT OF JUSTICE, IMMIGRATION AND NATURALIZATION SERVICE, 8
FLRA NO. 75 (1982), AT 29-30. /6/ IN THIS REGARD, AS THE AUTHORITY HAS
PREVIOUSLY HELD, THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION 7121
DEMONSTRATE THAT "CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE
OF A NEGOTIATED GRIEVANCE PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH
'UNDER THE PROVISIONS OF LAW' COULD BE COVERED UNLESS THE PARTIES AGREED
THROUGH THE COLLECTIVE BARGAINING PROCESS TO A PROCEDURE HAVING A
NARROWER COVERAGE." AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3669 AND VETERANS ADMINISTRATION MEDICAL CENTER,
MINNEAPOLIS, MINNESOTA, 3 FLRA 310 AT 314 (1980). SEE ALSO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 547, AFL-CIO AND VETERANS
ADMINISTRATION MEDICAL CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50 (1980),
ENFORCED SUB NOM. VA MEDICAL CENTER (TAMPA) V. FLRA, 675 F.2D 260 (11TH
CIR. 1982). UNDER THE "COLLECTIVE BARGAINING PROCESS" OF THE STATUTE,
THE PARTIES HAVE A MUTUAL OBLIGATION TO BARGAIN IN A GOOD FAITH EFFORT
TO REACH AGREEMENT WITH RESPECT TO THE MATTER, BUT THE STATUTE "DOES NOT
COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A CONCESSION . . .
." /7/ WHERE AN IMPASSE IS REACHED WITH RESPECT TO A PROPOSAL BY EITHER
PARTY TO NARROW THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE,
THEREFORE, EITHER PARTY MAY REQUEST THE ASSISTANCE OF THE PANEL TO
RESOLVE THE IMPASSE UNDER SECTION 7119 OF THE STATUTE. SEE NATIONAL
IMMIGRATION AND NATURALIZATION SERVICE COUNCIL, SUPRA, AT 29-30. /8/
CONSISTENT WITH THE INTENT OF CONGRESS EXPRESSED IN THE STATUTE AND ITS
PERTINENT LEGISLATIVE HISTORY, A PARTY PROPOSING TO NARROW THE SCOPE OF
THE GRIEVANCE PROCEDURE BEARS THE BURDEN IN PANEL PROCEEDINGS TO JUSTIFY
THE PROPOSED REDUCTION IN THE SCOPE OF THE GRIEVANCE PROCEDURE.
ACCORDINGLY, INASMUCH AS THE PARTIES HAD BARGAINED IN GOOD FAITH
BEFORE REACHING AN IMPASSE HEREIN, AND INASMUCH AS SUCH CONDUCT IS
CONSISTENT WITH SECTION 7121 OF THE STATUTE, THE AUTHORITY CONCLUDES
THAT THE RESPONDENT DID NOT VIOLATE SECTION 7116(A)(1), (5) OR (8) AS
ALLEGED IN THE COMPLAINT. /9/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-466 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ THE GENERAL COUNSEL MOVED TO AMEND THE COMPLAINT TO NAME THE
NATIONAL GUARD BUREAU, WASHINGTON, D.C., AS AN ADDITIONAL RESPONDENT.
THE VERMONT AIR NATIONAL GUARD OPPOSED THE MOTION. NOTING PARTICULARLY
THAT THE NATIONAL GUARD BUREAU IS NOT A PARTY TO THE STIPULATION, THE
MOTION IS DENIED.
/2/ SECTION 7116(A) PROVIDES IN PERTINENT PART:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
. . . .
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER;
. . . .
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/3/ SECTION 7121 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.
(B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
OF THIS SECTION
SHALL--
(1) BE FAIR AND SIMPLE,
(2) PROVIDE FOR EXPEDITIOUS PROCESSING, AND
(3) INCLUDE PROCEDURES THAT--
(A) ASSURE AN EXCLUSIVE REPRESENTATIVE THE RIGHT, IN ITS OWN BEHALF
OR ON BEHALF OF ANY
EMPLOYEE IN THE UNIT REPRESENTED BY THE EXCLUSIVE REPRESENTATIVE, TO
PRESENT AND PROCESS
GRIEVANCES;
(B) ASSURE SUCH AN EMPLOYEE THE RIGHT TO PRESENT A GRIEVANCE ON THE
EMPLOYEE'S OWN BEHALF,
AND ASSURE THE EXCLUSIVE REPRESENTATIVE THE RIGHT TO BE PRESENT
DURING THE GRIEVANCE
PROCEEDING; AND
(C) PROVIDE THAT ANY GRIEVANCE NOT SATISFACTORILY SETTLED UNDER THE
NEGOTIATED GRIEVANCE
PROCEDURE SHALL BE SUBJECT TO BINDING ARBITRATION WHICH MAY BE
INVOKED BY EITHER THE EXCLUSIVE
REPRESENTATIVE OR THE AGENCY.
(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.
AS USED HEREIN, THE TERM "FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE"
MEANS A PROCEDURE WHICH EXCLUDES FROM ITS COVERAGE ONLY GRIEVANCES
CONCERNING THOSE MATTERS ENUMERATED IN SECTION 7121(C) OF THE STATUTE.
/4/ WITH RESPECT TO THE SCOPE OF GRIEVANCE PROCEDURES UNDER SECTION
7121, THE CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE BILL
WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO LAW STATES:
THE SENATE PROVIDES THAT THE COVERAGE AND SCOPE OF THE GRIEVANCE
PROCEDURES SHALL BE
NEGOTIATED BY THE PARTIES (SECTION 7221(A)). HOUSE SECTION 7121(A)
DOES NOT AUTHORIZE THE
PARTIES TO NEGOTIATE OVER THE COVERAGE AND SCOPE OF THE GRIEVANCES
THAT FALL WITHIN THE BILL'S
PROVISIONS BUT PRESCRIBES THOSE MATTERS WHICH WOULD HAVE TO BE
SUBMITTED, AS A MATTER OF LAW,
TO THE GRIEVANCE PROCEDURES. THE CONFERENCE REPORT FOLLOWS THE HOUSE
APPROACH WITH AN
AMENDMENT. 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. 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.
/5/ SECTION 7103(A)(14) OF THE STATUTE DEFINES "CONDITIONS OF
EMPLOYMENT" AS:
(P)ERSONNEL POLICIES, PRACTICES, AND MATTERS, WHETHER ESTABLISHED BY
RULE, REGULATION, OR
OTHERWISE, AFFECTING WORKING CONDITIONS, EXCEPT THAT SUCH TERM DOES
NOT INCLUDE POLICIES,
PRACTICES, AND MATTERS--
(A) RELATING TO POLITICAL ACTIVITIES PROHIBITED UNDER SUBCHAPTER III
OF CHAPTER 73 OF THIS
TITLE;
(B) RELATING TO THE CLASSIFICATION OF ANY POSITION; OR
(C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
FEDERAL STATUTE(.)
THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE UNDER SECTION 7121 OF
THE STATUTE IS NOT A MATTER "SPECIFICALLY PROVIDED FOR BY FEDERAL
STATUTE" SO AS TO BE EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF
EMPLOYMENT" PURSUANT TO SECTION 7103(A)(14)(C). COMPARE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL GRAIN
INSPECTION LOCALS AND UNITED STATES DEPARTMENT OF AGRICULTURE, FEDERAL
GRAIN INSPECTION SERVICE, WASHINGTON, D.C., 3 FLRA 529 (1980), ENFORCED
SUB NOM. AFGE, COUNCIL OF FEDERAL GRAIN INSPECTION LOCALS V. FLRA, 653
F.2D 669 (D.C. CIR. 1981). INDEED, IF THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE WERE NOT A CONDITION OF EMPLOYMENT, IT WOULD NOT
COME WITHIN THE STATUTE'S DEFINITION OF COLLECTIVE BARGAINING (SEE N. 7,
INFRA). SUCH A RESULT WOULD BE INCONSISTENT WITH THE CONFERENCE
REPORT'S USE OF THE TERM "COLLECTIVE BARGAINING PROCESS" WITH RESPECT TO
THE SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES.
/6/ THIS CONCLUSION IS FULLY CONSISTENT WITH THE AUTHORITY'S
INTERPRETATION AND GUIDANCE, WHEREIN THE AUTHORITY STATED THAT
"GRIEVANCE 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." 2 FLRA
273, 277 (1979). FURTHER, THE AUTHORITY STATED THEREIN THAT "SECTION
7121 CONCERNS THE SCOPE OF GRIEVANCE PROCEDURES WHICH MAY BE NEGOTIATED
BY THE PARTIES." ID. AT 278 N. 6. OF COURSE, IN THE ABSENCE OF A
PROPOSAL BY EITHER PARTY WHICH SEEKS TO NARROW A FULL SCOPE NEGOTIATED
GRIEVANCE PROCEDURE, THE FULL SCOPE PROCEDURE APPLIES.
/7/ SECTION 7103(A)(12) OF THE STATUTE DEFINES "COLLECTIVE
BARGAINING" AS:
(T)HE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE REPRESENTATIVE OF
AN AGENCY AND THE
EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT IN THE
AGENCY TO MEET AT
REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO
REACH AGREEMENT WITH
RESPECT TO THE CONDITIONS OF EMPLOYMENT AFFECTING SUCH EMPLOYEES AND
TO EXECUTE, IF REQUESTED
BY EITHER PARTY, A WRITTEN DOCUMENT INCORPORATING ANY COLLECTIVE
BARGAINING AGREEMENT REACHED,
BUT THE OBLIGATION REFERRED TO IN THIS PARAGRAPH DOES NOT COMPEL
EITHER PARTY TO AGREE TO A
PROPOSAL OR TO MAKE A CONCESSION(.)
/8/ BY ESTABLISHING THE PANEL IN SECTION 7119(C)(1) "AS AN ENTITY
WITHIN THE AUTHORITY, THE FUNCTION OF WHICH IS TO PROVIDE ASSISTANCE IN
RESOLVING NEGOTIATION IMPASSES BETWEEN AGENCIES AND EXCLUSIVE
REPRESENTATIVES," CONGRESS THUS CREATED THE IMPASSE PROCEDURE AS A
CONTINUING PART OF THE COLLECTIVE BARGAINING PROCESS PRESCRIBED BY THE
STATUTE. IN THIS REGARD, "(I)F THE PARTIES DO NOT ARRIVE AT A
SETTLEMENT AFTER ASSISTANCE BY THE PANEL . . . THE PANEL MAY . . . TAKE
WHATEVER ACTION IS NECESSARY AND NOT INCONSISTENT WITH (THE STATUTE) TO
RESOLVE THE IMPASSE." SECTION 7119(C)(5)(B). MOREOVER, THE PANEL'S
ACTION "SHALL BE BINDING ON SUCH PARTIES DURING THE TERM OF THE
AGREEMENT, UNLESS THE PARTIES AGREE OTHERWISE" (SECTION 7119(C)(5)(C));
AND THE FAILURE OR REFUSAL BY EITHER PARTY "TO COOPERATE IN IMPASSE
PROCEDURES AND IMPASSE DECISIONS AS REQUIRED BY (THE STATUTE)" IS AN
UNFAIR LABOR PRACTICE (SECTION 7116(A)(6); 7116(B)(6)). SEE ALSO
DEPARTMENT OF DEFENSE, ARMY-AIR FORCE EXCHANGE SERVICE (FORT DIX) V.
FLRA, 659 F.2D 1140, 1146 (D.C. CIR. 1981). IT IS NOTED THAT THE PANEL
HAS PROVIDED ASSISTANCE TO PARTIES IN THE PAST WITH REGARD TO IMPASSES
OVER PROPOSED EXCLUSIONS TO FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURES
WHERE NEITHER PARTY RAISED A QUESTION CONCERNING ITS DUTY TO BARGAIN ON
THE MATTER. SEE, E.G., NORTH CAROLINA AIR NATIONAL GUARD, 145TH
TACTICAL AIRLIFT GROUP, CHARLOTTE, NORTH CAROLINA AND LOCAL 3001,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, 81 FSIP 21 (MAY
26, 1981), FSIP RELEASE NO. 190; DEPARTMENT OF THE NAVY, NAVAL WEAPONS
STATION, CONCORD, CALIFORNIA AND LOCAL 1931, AFGE, 81 FSIP 140 AND 82
FSIP 14 (JAN. 27, 1982), FSIP RELEASE NO. 201; DEPARTMENT OF THE AIR
FORCE, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE,
OHIO AND COUNCIL 214, AFGE, 81 FSIP 53 (NOV. 20, 1981), FSIP RELEASE NO.
200. HOWEVER, WHERE A PARTY HAS RAISED A QUESTION CONCERNING ITS DUTY
TO BARGAIN OVER PROPOSED EXCLUSIONS TO A FULL SCOPE GRIEVANCE PROCEDURE,
THE PANEL HAS DEFERRED ACTION "UNTIL THIS THRESHOLD ISSUE IS RESOLVED BY
THE AUTHORITY," WITHOUT PREJUDICE TO A REQUEST FOR FURTHER ASSISTANCE IF
AN IMPASSE REMAINED AFTER SUCH RESOLUTION BY THE AUTHORITY. SEE
DEPARTMENT OF THE ARMY, HEADQUARTERS, U.S. ARMY ARMAMENT MATERIEL
READINESS COMMAND, ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS AND LOCAL
15, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, 80 FSIP 59 (DEC. 23,
1980), FSIP RELEASE NO. 176.
/9/ IN VIEW OF THE FOREGOING CONCLUSION, THE AUTHORITY FINDS IT
UNNECESSARY TO ADDRESS THE RESPONDENT'S CONTENTION THAT SECTION 709(E)
OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 REQUIRES 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, 177 FLIGHT INTERCEPTOR GROUP AND DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 81-1592 (3RD CIR.
APR. 12, 1982).