[ v05 p201 ]
05:0201(25)NG
The decision of the Authority follows:
5 FLRA No. 25
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-132
Union
and
CALIFORNIA NATIONAL GUARD
Activity
Case No. 0-NG-149
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).
DURING THE COURSE OF CONTRACT NEGOTIATIONS BETWEEN THE PARTIES TO
RENFW THEIR EXPIRING AGREEMENT, THE UNION SUBMITTED THE FOLLOWING
PROPOSAL WHICH THE AGENCY DECLARED NONNEGOTIABLE: /1/
UNION PROPOSAL
ARTICLE XXIII
NEGOTIATED GRIEVANCE PROCEDURE
(DELETE) SECTIONS 1, 2, 3, 4, A., 4B., AND 4C.
(INSERT) NEW SECTIONS 1, 2, 3 AND 4:
SECTION 1. THIS ARTICLE ESTABLISHES THE EXCLUSIVE PROCEDURE
AVAILABLE TO THE EMPLOYEES IN
THE UNIT, THE UNION AND THE EMPLOYER FOR RESOLVING ALL GRIEVANCES
WHICH FALL WITHIN ITS
SCOPE. GRIEVANCES TO BE PROCESSED UNDER THIS ARTICLE SHALL APPLY TO
MATTERS OF CONCERN OR
DISSATISFACTION REGARDING THE INTERPRETATION, APPLICATION OR
VIOLATION OF LAW, REGULATIONS OR
THIS AGREEMENT; CONDITIONS OF EMPLOYMENT; OR RELATIONSHIPS WITH
AGENCY SUPERVISORS AND
OFFICIALS, INCLUDING PROHIBITED PERSONNEL PRACTICE CHARGES AND
DISCIPLINARY AND ADVERSE
ACTIONS. IT DOES NOT APPLY TO:
A. A VIOLATION RELATING TO POLITICAL ACTIVITIES;
B. RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;
C. A SUSPENSION OR REMOVAL FOR NATIONAL SECURITY;
D. ANY EXAMINATION, CERTIFICATION OR APPOINTMENT;
E. CLASSIFICATION OF POSITION WHICH DOES NOT RESULT IN THE REDUCTION
IN GRADE OR PAY OF
THE EMPLOYEE; OR
F. EEO COMPLAINTS
SECTION 2. WHERE A MATTER MAY BE RAISED UNDER AN APPLICABLE
APPELLATE PROCEDURE AND THIS
NEGOTIATED GRIEVANCE PROCEDURE THE EMPLOYEE AT HIS DISCRETION MAY
RAISE THE MATTER UNDER THE
APPELLATE PROCEDURE OR THIS NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT
BOTH.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSED GRIEVANCE PROCEDURE,
WHICH INCLUDES WITHIN ITS COVERAGE APPEALS OF ADVERSE ACTIONS OF
NATIONAL GUARD TECHNICIANS, IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
7117 OF THE STATUTE BECAUSE IT IS INCONSISTENT WITH FEDERAL LAW (32
U.S.C. 709(E)), /2/ AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE GRIEVANCE PROCEDURE HERE IN DISPUTE, WHICH
INCLUDES WITHIN ITS COVERAGE MATTERS RELATING TO APPEALS OF ADVERSE
ACTIONS OF NATIONAL GUARD TECHNICIANS, IS WITHIN THE AGENCY'S DUTY TO
BARGAIN UNDER THE STATUTE, AND IS NOT INCONSISTENT WITH 32 U.S.C.
709(E). ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S
RULES AND REGULATIONS (5 CFR 2424.10, AS AMENDED BY 45 FED.REG.
48,575(1980)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST (OR AS
OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE SUBJECT
PROPOSAL. /3/
REASONS: THE NATIONAL GUARD TECHNICIANS COVERED BY THE INSTANT
PROPOSAL ARE EMPLOYED PURSUANT TO THE NATIONAL GUARD TECHNICIANS ACT OF
1968, 32 U.S.C. 709. THIS ACT, WHICH CREATES A SEPARATE PERSONNEL
SYSTEM APPLICABLE ONLY TO SUCH TECHNICIANS, PROVIDES THAT SUCH
TECHNICIANS ARE EMPLOYED IN CIVILIAN POSITIONS TO ADMINISTER AND TRAIN
THE NATIONAL GUARD AND TO MAINTAIN AND REPAIR THE SUPPLIES ISSUED TO THE
NATIONAL GUARD OR THE ARMED FORCES. 32 U.S.C. 709(A). THE ACT ALSO
REQUIRES, GENERALLY, THAT AS A CONDITION OF THEIR CIVILIAN EMPLOYMENT,
TECHNICIANS MUST BECOME AND REMAIN MILITARY MEMBERS OF THE NATIONAL
GUARD. 32 U.S.C. 709(B). IN THIS LATTER REGARD, THE ACT PROVIDES THAT
A TECHNICIAN WHO IS SEPARATED FROM THE GUARD, AS A MILITARY MEMBER, OR
WHO FAILS TO MAINTAIN THE MILITARY GRADE SPECIFIED FOR HIS POSITION,
"SHALL BE PROMPTLY SEPARATED FROM HIS TECHNICIAN EMPLOYMENT." 32 U.S.C.
709(E)(1). IN ADDITION, IF A TECHNICIAN "FAILS TO MEET . . . MILITARY
SECURITY STANDARDS . . . (SUCH TECHNICIAN) MAY BE SEPARATED FROM HIS
EMPLOYMENT AS A TECHNICIAN AND CONCURRENTLY DISCHARGED FROM THE NATIONAL
GUARD. . . . " 32 U.S.C. 709(E)(2). FURTHER, AND AS HERE RELEVANT, IF
A TECHNICIAN REMAINS A MEMBER OF THE NATIONAL GUARD AND IS OTHERWISE
ELIGIBLE FOR CONTINUED TECHNICIAN EMPLOYMENT UNDER 32 U.S.C. 709(E)(1)
AND (3)(2), THE ACT GRANTS ADDITIONAL AUTHORITY IN 32 U.S.C. 709(E)(3)
AND (E)(4) TO ADJUTANTS GENERAL IN THEIR RESPECTIVE JURISDICTIONS TO
TAKE ADVERSE PERSONNEL ACTIONS (E.G., SUSPENSIONS, REDUCTIONS TO PAY OR
GRADE AND REMOVALS) AGAINST TECHNICIANS QUA TECHNICIANS, AND FINALLY, 32
U.S.C. 709(E)(5) AND (3)(6) PROVIDES AN APPELLATE PROCEDURE FOR
TECHNICIANS TO APPEAL ADVERSE PERSONNEL ACTIONS TAKEN AGAINST THEM.
AS TO THE INCLUSION OF MATTERS RELATED TO APPEALS OF ADVERSE
PERSONNEL ACTIONS TAKEN AGAINST TECHNICIANS IN THE PROPOSED GRIEVANCE
PROCEDURE, THE AGENCY TAKES THE POSITION THAT THERE IS NOTHING CONTAINED
IN EITHER THE EXPRESS PROVISIONS OF THE CIVIL SERVICE REFORM ACT OF 1978
OR ITS LEGISLATIVE HISTORY WHICH INDICATES A CONGRESSIONAL INTENT TO
REPEAL, MODIFY OR SUPERSEDE ANY SUBSTANTIVE PROVISIONS OF THE
TECHNICIANS ACT. THEREFORE, THE AGENCY ARGUES, UNDER WELL-RECOGNIZED
PRINCIPLES OF STATUTORY CONSTRUCTION, SECTION 709(E) OF THE TECHNICIANS
ACT, WHICH DESIGNATES THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED
AS THE FINAL ARBITER OF APPEALS OF ADVERSE ACTIONS OF NATIONAL GUARD
TECHNICIANS, REMAINS THE EXCLUSIVE MEANS OF RESOLVING SUCH DISPUTES.
THE AGENCY ALSO CONTENDS THAT, IF SECTION 7121(E)(1) OF THE STATUTE
IS PROPERLY CONSTRUED, IT IS CLEAR THAT NATIONAL GUARD TECHNICIANS WERE
NOT TO BE INCLUDED WITHIN THE DEFINITION OF EMPLOYEES COVERED BY THAT
SECTION. IN THIS REGARD, THE AGENCY ARGUES, SECTION 7121(E)(1)
INTRODUCES ADVERSE ACTION MATTERS (I.E., REDUCTIONS IN PAY OR GRADE,
SUSPENSIONS, REMOVALS, ETC.) INTO THE NEGOTIATED GRIEVANCE PROCEDURES BY
REFERENCE TO CHAPTERS 43 AND 75 OF TITLE 5 OF THE UNITED STATES CODE
WHICH CREATE THE ADVERSE ACTION SYSTEM; AND, SINCE NATIONAL GUARD
TECHNICIANS ARE SPECIFICALLY EXCLUDED BY REGULATIONS OF THE OFFICE OF
PERSONNEL MANAGEMENT FROM COVERAGE UNDER CHAPTERS 43 AND 75 OF TITLE 5,
/4/ SECTION 7121(E)(1) OF THE STATUTE THEREFORE MUST ALSO BE CONSTRUED
TO EXCLUDE NATIONAL GUARD TECHNICIANS FROM ITS COVERAGE.
FINALLY, THE AGENCY CONTENDS THAT INCLUSION OF APPEALS OF ADVERSE
ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS WITHIN THE SCOPE OF
GRIEVANCE PROCEDURES NEGOTIATED UNDER THE STATUTE, WHICH PROCEDURES END
IN BINDING ARBITRATION, WOULD VIOLATE THE PROVISION IN 32 U.S.C.
709(E)(5) THAT SUCH APPEALS "SHALL NOT EXTEND BEYOND THE ADJUTANT
GENERAL OF THE JURISDICTION CONCERNED."
THE AGENCY'S CONTENTIONS CANNOT BE SUSTAINED. THE DEFINITIONS OF
"AGENCY" AND "EMPLOYEE" FOR PURPOSES OF THE STATUTE INCLUDE NATIONAL
GUARD TECHNICIANS UNDER 5 U.S.C. 7103(A)(3) AND (2) RESPECTIVELY. IN
ADDITION, SECTION 7121 OF THE STATUTE PROVIDES FOR BROAD SCOPE GRIEVANCE
PROCEDURES. /5/ AS STATED WITH RESPECT TO SECTION 7121 IN THE
CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE BILL WHICH WAS
SUBSEQUENTLY ENACTED AND SIGNED INTO LAW:
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.
THE LIST OF MATTERS EXCLUDED FROM PERMISSIBLE COVERAGE WITHIN
NEGOTIATED GRIEVANCE PROCEDURES BY SECTION 7121(C) OF THE STATUTE DOES
NOT ADVERT TO ADVERSE ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS.
THUS, ON THEIR FACE, GRIEVANCE PROCEDURES NEGOTIATED UNDER THE STATUTE
COVER SUCH MATTERS UNLESS THE PARTIES EXCLUDE THEM THROUGH BARGAINING.
/6/ MOREOVER, SECTION 7121(E)(1) OF THE STATUTE PROVIDES:
(E)(1) MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
WHICH ALSO FALL WITHIN
THE COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE AGGRIEVED
EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE PROCEDURES 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
PROCEDURES, 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. 5 U.S.C. 7121(E)(1).
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 3 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 MATTER WEREN'T
COVERED BY THE GRIEVANCE PROCEDURE. S. REP. NO. 95-969, 95TH CONG.,
2D SESS. 110(1978)
REPRINTED IN (1978) U.S. CODE CONG. & AD. NEWS 2723, 2832.
THIS CLEARLY STATES CONGRESS' INTENT THAT ADVERSE ACTIONS ARISING
"UNDER OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED BY (THE
STATUTE)" (AS IS THE CASE WITH TITLE 32 EMPLOYEES), WHICH ARE SIMILAR TO
THE DISCIPLINARY AND ADVERSE ACTIONS DESCRIBED IN 5 U.S.C. 4303 AND 5
U.S.C. 7512 CAN BE COVERED BY THE PROVISIONS OF SECTION 7121 OF THE
STATUTE. IT ALSO CLEARLY STATES CONGRESS' INTENT THAT SUCH EMPLOYEES
SUBJECT TO OTHER PERSONNEL SYSTEMS (AS IS THE CASE WITH TITLE 32
EMPLOYEES) HAVE THE SAME OPTION AS EMPLOYEES COVERED BY TITLE 5 TO
UTILIZE A NEGOTIATED GRIEVANCE PROCEDURE (IF THE PROCEDURE COVERS THE
MATTER) OR AN AVAILABLE APPELLATE PROCEDURE WHEN THEY WISH TO CHALLENGE
SUCH ACTIONS. /7/ ACCORDINGLY, THE AGENCY'S CONTENTION THAT APPEALS OF
ADVERSE ACTIONS OF NATIONAL GUARD TECHNICIANS ARE EXCLUDED FROM COVERAGE
OF SECTION 7121(E)(1) OF THE STATUTE BY VIRTUE OF THEIR EXCLUSION FROM
COVERAGE OF CHAPTERS 43 AND 75 OF TITLE 5 (NOTE 4, SUPRA), IS BASED ON
MISINTERPRETATION OF SECTION 7121(E)(1) OF THE STATUTE AND CANNOT BE
SUSTAINED. SIMILARLY, FOR THE REASONS SET FORTH ABOVE, THE AGENCY'S
ASSERTION THAT UNDER WELL-SETTLED PRINCIPLES OF STATUTORY CONSTRUCTION
THE ADJUTANT GENERAL OF THE JURISDICTION INVOLVED REMAINS THE EXCLUSIVE
MEANS OF RESOLVING SUCH DISPUTES UNDER SECTION 709(E) OF THE TECHNICIANS
ACT CANNOT BE SUSTAINED.
FINALLY, THE AGENCY'S CONTENTION THAT INCLUDING APPEALS OF ADVERSE
ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS WITHIN THE COVERAGE OF
NEGOTIATED GRIEVANCE PROCEDURES CULMINATING IN FINAL AND BINDING
ARBITRATION WILL VIOLATE THE PROVISION IN 32 U.S.C. 709(E)(5) (SEE NOTE
2, SUPRA) THAT SUCH APPEALS SHALL NOT EXTEND BEYOND THE ADJUTANT GENERAL
LEVEL CANNOT BE SUSTAINED. WHILE THE NATIONAL GUARD TECHNICIANS ACT OF
1968 ESTABLISHES A STATUTORY APPEAL PROCEDURE COVERING ADVERSE ACTIONS
INVOLVING NATIONAL GUARD TECHNICIANS, WHICH PROCEDURE CULMINATES AT THE
ADJUTANT GENERAL LEVEL, NOTHING CONTAINED IN THAT ACT PRECLUDES THE
AGENCY FROM FULFILLING ITS OBLIGATION UNDER THE STATUTE TO NEGOTIATE A
SEPARATE CONTRACTUAL GRIEVANCE PROCEDURE CULMINATING IN BINDING
ARBITRATION UNDER WHICH ADVERSE ACTIONS INVOLVING BARGAINING UNIT
EMPLOYEES COULD BE PROCESSED AT THE OPTION OF THE EMPLOYEE. AS
PREVIOUSLY STATED, THE EXISTENCE OF SUCH ALTERNATIVE PROCEDURES WAS
EXPRESSLY CONTEMPLATED BY CONGRESS IN ENACTING SECTION 7121(E) OF THE
STATUTE. IN SO CONCLUDING, HOWEVER, THE AUTHORITY EMPHASIZES THAT THE
STATUTORY APPEAL PROCEDURE CONTAINED IN THE NATIONAL GUARD TECHNICIANS
ACT OF 1968 REMAINS THE EXCLUSIVE PROCEDURE COVERING ADVERSE ACTIONS
INVOLVING NATIONAL GUARD TECHNICIANS WHERE SUCH MATTERS HAVE BEEN
SPECIFICALLY EXCLUDED BY THE PARTIES FROM THE SCOPE OF THEIR NEGOTIATED
GRIEVANCE PROCEDURE OR WHERE NATIONAL GUARD TECHNICIANS ARE NOT WITHIN
UNITS OF EXCLUSIVE RECOGNITION.
IN SUMMARY, WE HOLD THAT THE DISPUTED GRIEVANCE PROCEDURE IS WITHIN
THE AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE. ACCORDINGLY, THE
ALLEGATION THAT THE PROPOSED GRIEVANCE PROCEDURE IS NOT WITHIN THE DUTY
TO BARGAIN IS SET ASIDE.
ISSUED, WASHINGTON, D.C., FEBRUARY 20, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ IN ITS NEGOTIABILITY APPEAL FILED WITH THE AUTHORITY PURSUANT TO
SECTION 7117(C) OF THE STATUTE, THE UNION SUBMITTED TWO OTHER PROPOSALS
WHICH IT CLAIMED WERE IN DISPUTE. HOWEVER, THE AGENCY, IN ITS STATEMENT
OF POSITION FILED IN RESPONSE TO THE UNION'S APPEAL, DECLARED THESE TWO
OTHER PROPOSALS NEGOTIABLE. IN A SUBSEQUENT LETTER TO THE AUTHORITY,
THE UNION INDICATED THAT THE TWO PROPOSALS WERE NO LONGER IN DISPUTE AND
THAT IT WAS WITHDRAWING ITS REQUEST FOR NEGOTIABILITY DETERMINATIONS
THEREON. UNDER THE FOREGOING CIRCUMSTANCES, THE UNION'S REQUEST TO
WITHDRAW THE TWO PROPOSALS FROM CONSIDERATION BY THE AUTHORITY IS HEREBY
GRANTED.
/2/ SECTION 709 OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968, 32
U.S.C. 709(E) (1970) PROVIDES AS FOLLOWS:
(E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND UNDER REGULATIONS
PRESCRIBED BY THE
SECRETARY CONCERNED--
(1) A TECHNICIAN WHO IS EMPLOYED IN A POSITION IN WHICH NATIONAL
GUARD MEMBERSHIP IS
REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO IS SEPARATED FROM THE
NATIONAL GUARD OR CEASES
TO HOLD THE MILITARY GRADE SPECIFIED FOR HIS POSITION BY THE
SECRETARY CONCERNED SHALL BE
PROMPTLY SEPARATED FROM HIS TECHNICIAN EMPLOYMENT BY THE ADJUTANT
GENERAL OF THE JURISDICTION
CONCERNED;
(2) A TECHNICIAN WHO IS EMPLOYED IN A POSITION IN WHICH NATIONAL
GUARD MEMBERSHIP IS
REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO FAILS TO MEET THE
MILITARY SECURITY STANDARDS
ESTABLISHED BY THE SECRETARY CONCERNED FOR A MEMBER OF A RESERVE
COMPONENT OF THE ARMED FORCE
UNDER HIS JURISDICTION MAY BE SEPARATED FROM HIS EMPLOYMENT AS A
TECHNICIAN AND CONCURRENTLY
DISCHARGED FROM THE NATIONAL GUARD BY THE ADJUTANT GENERAL OF THE
JURISDICTION CONCERNED:
(3) A TECHNICIAN MAY, AT ANY TIME, BE SEPARATED FROM HIS TECHNICIAN
EMPLOYMENT FOR CAUSE BY
THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
(4) A REDUCTION IN FORCE, REMOVAL, OR AN ADVERSE ACTION INVOLVING
DISCHARGE FROM TECHNICIAN
EMPLOYMENT, SUSPENSION, FURLOUGH WITHOUT PAY, OR REDUCTION IN RANK OR
COMPENSATION SHALL BE
ACCOMPLISHED BY THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
(5) A RIGHT OF APPEAL WHICH MAY EXIST WITH RESPECT TO CLAUSE (1),
(2), (3), OR (4) SHALL
NOT EXTEND BEYOND THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;
AND
(6) A TECHNICIAN SHALL BE NOTIFIED IN WRITING OF THE TERMINATION OF
HIS EMPLOYMENT AS A
TECHNICIAN AND SUCH NOTIFICATION SHALL BE GIVEN AT LEAST THIRTY DAYS
PRIOR TO THE TERMINATION
DATE OF SUCH EMPLOYMENT.
/3/ IN SO DECIDING THAT THE DISPUTED PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF SUCH
PROPOSAL.
/4/ SEE, 5 CFR 432.201(C)(3)(XIII) AND 5 CFR 752.401(C)(13).
/5/ 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.
/6/ SEE, IN THIS REGARD, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3669 AND VETERANS ADMINISTRATION MEDICAL CENTER,
MINNEAPOLIS, MINNESOTA, 3 FLRA NO. 48(1980), AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3354 AND U.S. DEPARTMENT OF
AGRICULTURE, FARMERS HOME ADMINISTRATION, ST. LOUIS, MISSOURI, 3 FLRA
NO. 50(1980).
/7/ SEE, IN THIS REGARD, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3669, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER,
MINNEAPOLIS, MINNESOTA, 4 FLRA NO. 53(1980), WHEREIN THE AUTHORITY FOUND
NEGOTIABLE PROPOSALS RELATING TO DISCIPLINARY AND ADVERSE ACTIONS OF
TITLE 38 EMPLOYEES.