[ v10 p135 ]
10:0135(28)CA
The decision of the Authority follows:
10 FLRA No. 28
DELAWARE NATIONAL GUARD
Respondent
and
ASSOCIATION OF CIVILIAN TECHNICIANS
DELAWARE CHAPTER
Charging Party
Case No. 2-CA-798
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT THE COMPLAINT BE DISMISSED. EXCEPTIONS WERE FILED BY THE GENERAL
COUNSEL AND THE RESPONDENT FILED AN OPPOSITION TO THE EXCEPTIONS.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (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, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS. IN AGREEMENT WITH
THE JUDGE, THE AUTHORITY FINDS THAT RESPONDENT'S REFUSAL TO ACQUIESCE TO
THE CHARGING PARTY'S DEMAND FOR A FULL SCOPE NEGOTIATED GRIEVANCE
PROCEDURE DID NOT, PER SE, CONSTITUTE A VIOLATION OF THE STATUTE. SEE
VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT, 9 FLRA NO. 92(1982).
MOREOVER, NOTING THAT THE RESPONDENT'S INSISTENCE THAT MATTERS COVERED
BY SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (N.1 OF
THE JUDGE'S DECISION) MUST BE EXCLUDED FROM THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE OCCURRED PRIOR TO A TIME AT WHICH IT COULD HAVE HAD
KNOWLEDGE OF THE AUTHORITY'S DECISION IN CALIFORNIA NATIONAL GUARD, 5
FLRA NO. 25(1981), APPEAL DOCKETED, NO. 81-7231 (9TH CIR. APR. 17,
1981), THE AUTHORITY FINDS, IN AGREEMENT WITH THE JUDGE, THAT THE
RESPONDENT'S ACTIONS DID NOT CONSTITUTE BAD FAITH BARGAINING IN
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 2-CA-798 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 24, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
CHARLES GRUVER III, ESQUIRE
FOR THE RESPONDENT
LEE MINGLEDORFF, ESQUIRE
NINA L. SCHWARTZ, ESQUIRE
FOR THE GENERAL COUNSEL
THOMAS J. OWSINSKI
FOR THE CHARGING PARTY
BEFORE: RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DECISION
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF
AN UNFAIR LABOR PRACTICE COMPLAINT FILED ON APRIL 30, 1981, BY THE
REGIONAL DIRECTOR, REGION 2, FEDERAL LABOR RELATIONS AUTHORITY, NEW
YORK, NEW YORK, AGAINST THE DELAWARE NATIONAL GUARD ("RESPONDENT").
THE COMPLAINT ALLEGES A VIOLATION OF SEC. 7116(A)(8) DUE TO
RESPONDENT'S REFUSAL ON FEBRUARY 20, 1981 "TO INCLUDE IN THE COLLECTIVE
BARGAINING AGREEMENT . . . A FULL SCOPE GRIEVANCE PROCEDURE AS DESCRIBED
IN SECTION 7121 OF THE STATUTE." IT FURTHER ALLEGES A VIOLATION OF SEC.
7116(A)(5) AND (1) SINCE (A) RESPONDENT ALLEGEDLY REFUSED TO NEGOTIATE
IN GOOD FAITH ON THAT DATE, AND (B) RESPONDENT'S ACTIONS ON THAT DATE
CONSTITUTED A PATENT BREACH OF THE EXISTING COLLECTIVE BARGAINING
AGREEMENT. RESPONDENT DENIES THE ABOVE ALLEGATIONS.
A HEARING WAS HELD IN THIS MATTER BEFORE THE UNDERSIGNED AT
WILMINGTON, DELAWARE, ON JULY 31, 1981. ALL PARTIES WERE REPRESENTED
AND AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, AND
EXAMINE AND CROSS-EXAMINE WITNESSES. THE PARTIES FILED BRIEFS WHICH
HAVE BEEN DULY CONSIDERED. BASED ON THE ENTIRE RECORD HEREIN, INCLUDING
MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, THE EXHIBITS, AND
OTHER RELEVANT EVIDENCE ADDUCED AT THE HEARING, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED ORDER.
FINDINGS OF FACT
AT ALL TIMES MATERIAL HEREIN, THE ASSOCIATION OF CIVILIAN TECHNICIANS
DELAWARE CHAPTER ("UNION") HAS BEEN THE EXCLUSIVE REPRESENTATIVE OF AN
APPROPRIATE UNIT OF CERTAIN TECHNICIAN EMPLOYEES OF RESPONDENT.
IN APRIL OF 1979, REPRESENTATIVES OF THE RESPONDENT AND THE UNION
COMMENCED FORMAL NEGOTIATIONS FOR THE PURPOSE OF ARRIVING AT A
COLLECTIVE BARGAINING AGREEMENT. ALTHOUGH THE RECORD DOES NOT REFLECT
THE TOTAL NUMBER OF NEGOTIATING SESSIONS, IT IS CLEAR THAT ABOUT TEN OF
THESE SESSIONS INCLUDED NEGOTIATIONS OVER A GRIEVANCE PROCEDURE. ON
JULY 12, 1979, THE PARTIES' NEGOTIATING TEAMS REACHED AN AGREEMENT ON A
GRIEVANCE PROCEDURE. THE SCOPE OF THIS PROCEDURE WAS SET FORTH IN
ARTICLE 26 AS FOLLOWS:
SECTION 4.-- THE PARTIES TO THIS AGREEMENT RECOGNIZE THAT THE
NEGOTIATED AGREEMENT SHALL
NOT APPLY WITH RESPECT TO ANY GRIEVANCE CONCERNING--
A. ANY CLAIMED VIOLATION RELATED TO PROHIBITED POLITICAL ACTIVITIES.
B. RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE.
C. A SUSPENSION OR REMOVAL FOR SECURITY REASONS.
D. THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR
PAY OF AN EMPLOYEE.
E. EXAMINATION, CERTIFICATION, OR APPOINTMENT.
THUS THE PARTIES MERELY RECITED THE FIVE MANDATORY EXCLUSIONS SET
FORTH IN SEC. 7121(C) OF THE STATUTE.
UPON EXECUTION OF THE ENTIRE COLLECTIVE BARGAINING AGREEMENT ON
AUGUST 21, 1979, THE CONTRACT WAS SUBMITTED TO THE NATIONAL GUARD BUREAU
FOR APPROVAL. ON SEPTEMBER 18, 1979, THE BUREAU APPROVED THE AGREEMENT
WITH TWO EXCEPTIONS. IN ONE EXCEPTION THE BUREAU DISAPPROVED THE
ABOVE-QUOTED SECTION 4 OF ARTICLE XXVI BECAUSE "(A)LL ADVERSE ACTIONS
ARE EXCLUDED FROM BINDING ARBITRATION UNDER 32 U.S.C. 709(E)(4)(5). /2/
GENERALLY SPEAKING, SECTION 709(E) PROVIDES THAT A TECHNICIAN'S RIGHT
OF APPEAL FROM CERTAIN FORMS OF SEPARATION, REDUCTION IN FORCE, REMOVAL,
OR ADVERSE ACTION SHALL NOT EXTEND BEYOND THE ADJUTANT GENERAL OF THE
JURISDICTION CONCERNED. SINCE THE PARTIES' AGREEMENT PROVIDED FOR
BINDING ARBITRATION, I.E., AN APPEAL EXTENDING BEYOND THE LEVEL OF THE
ADJUTANT GENERAL, THE NATIONAL GUARD BUREAU AND THE DELAWARE NATIONAL
GUARD TOOK THE POSITION THAT ARBITRATION OF THESE DISPUTES WOULD
CONFLICT WITH FEDERAL LAW UNDER SEC. 709(E).
AT THIS TIME, THE PARTIES WERE AWARE OF TWO NEGOTIABILITY CASES
(O-NG-12 AND O-NG-15) PENDING BEFORE THE AUTHORITY WHICH MIGHT
ULTIMATELY SHED SOME LIGHT ON THE PARTIES' DISPUTE. IN ORDER TO GET THE
ENTIRE AGREEMENT EXECUTED AND APPROVED, THE PARTIES NEGOTIATED THE
FOLLOWING ADDITIONAL PARAGRAPH TO ARTICLE 26:
SECTION 4-- THE PARTIES TO THIS AGREEMENT RECOGNIZE THAT THE
NEGOTIATED AGREEMENT SHALL NOT
APPLY WITH RESPECT TO ANY GRIEVANCE CONCERNING--
. . . .
F. ADVERSE ACTIONS PENDING RESOLUTION OF O-NG-12 AND 15 PRESENTLY
AWAITING DECISION BY
FLRA. UPON RECEIPT OF SUCH DECISION THE PARTIES AGREE TO MEET AND
NEGOTIATE THE EXCLUSION OF
ADVERSE ACTIONS FROM THE GRIEVANCE PROCEDURES.
ON JULY 31, 1980, THE AUTHORITY ISSUED A CONSOLIDATED DECISION
RESOLVING THE NEGOTIABILITY ISSUE POSED BY CASE NOS. O-NG-12, O-NG-15,
AND O-NG-84. /3/ THOSE CASES INVOLVED THE NEGOTIABILITY OF PROPOSALS
SIMILAR TO THE LANGUAGE IN ARTICLE 26, SECTION 4, TENTATIVELY ADOPTED ON
JULY 12, 1979, BY THE INSTANT PARTIES, BUT LATER DISAPPROVED BY THE
AGENCY HEAD. ALTHOUGH THE GUARD HAD ARGUED IN THOSE CASES, INTER ALIA,
THAT SEC. 709(E) OF THE TECHNICIANS ACT OF 1968 PRECLUDED COVERAGE OF
SUCH ADVERSE ACTIONS IN NEGOTIATED GRIEVANCE AND ARBITRATION PROCEDURES
FOR TECHNICIANS, THE AUTHORITY DECLINED TO DECIDE THAT ISSUE. THE
AUTHORITY SIMPLY HELD, IN PART, THAT IT WAS UNNECESSARY FOR AN AGREEMENT
ABOUT THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE TO SPECIFICALLY
PROVIDE FOR THE EXCLUSION OF SUCH ADVERSE ACTIONS. IT REASONED THAT
SEC. 7121 ALREADY PROVIDES THAT NEGOTIATED GRIEVANCE PROCEDURES COVER,
AT A MAXIMUM, MATTERS WHICH UNDER "PROVISIONS OF LAW" COULD BE SUBMITTED
TO THE PROCEDURES. IT WAS FURTHER STATED THAT, "CONGRESS CLEARLY DID
NOT, HOWEVER, MANDATE THAT, TO FALL WITHIN THE DUTY TO BARGAIN, EACH
PROPOSED GRIEVANCE PROCEDURE MUST ENUMERATE ALL OR SOME OF THE MATTERS
WHICH 'UNDER THE PROVISIONS OF LAW' COULD NOT BE SO COVERED." THUS,
WITHOUT DECIDING WHETHER THE GUARD WAS CORRECT IN ITS CONTENTION THAT
APPEALS BY TECHNICIANS OF ADVERSE ACTIONS WERE NONGRIEVABLE AND
NONARBITRABLE BY VIRTUE OF SEC. 709(E), THE AUTHORITY POINTED OUT THAT
GRIEVANCES WHICH MIGHT BE FILED BY TECHNICIANS MAY BE CHALLENGED BY THE
AGENCY AS NONGRIEVABLE OR NONARBITRABLE AND THE LATTER ISSUE WOULD BE
RESOLVED BY AN ARBITRATOR.
BY LETTER DATED DECEMBER 29, 1980, THE UNION'S CHIEF NEGOTIATOR,
THOMAS J. OWSINSKI, WROTE TO THE ADJUTANT GENERAL OF THE DELAWARE
NATIONAL GUARD AND REQUESTED A MEETING TO DISCUSS ARTICLE 26, SECTION
4(F) "IN ORDER TO REACH AGREEMENT ON LANGUAGE PROVIDING BARGAINING UNIT
MEMBERS WITH THE ABILITY TO SUBMIT GRIEVANCES INVOLVING ADVERSE ACTIONS
TAKEN AGAINST THEM." ON JANUARY 5, 1981, RESPONDENT'S PERSONNEL OFFICER
REPLIED THAT SUCH DISCUSSIONS SHOULD AWAIT THE UPCOMING APPOINTMENT OF
THE NEW ADJUTANT GENERAL, BUT THAT IF IT WAS NECESSARY TO EXPEDITE THE
MATTER, RESPONDENT WAS WILLING TO BEGIN DISCUSSIONS AT THE UNION'S
CONVENIENCE.
ON JANUARY 26, 1981, UNION REPRESENTATIVE OWSINSKI WROTE RESPONDENT
THAT IT WOULD ONLY BE NECESSARY TO HAVE A "BRIEF MEETING IN ORDER TO
PROPERLY RESTRUCTURE THE LANGUAGE CONTAINED IN ARTICLE 26, SEC. 4(F), SO
IT WILL COMPORT WITH THE DECISIONS RENDERED IN O-NG-12 AND 15 AND OUR
EARLIER MUTUAL AGREEMENTS REACHED DURING CONTRACT NEGOTIATIONS."
REPRESENTATIVES OF THE UNION AND RESPONDENT MET ON FEBRUARY 20, 1981,
TO NEGOTIATE ON THE SUBJECT OF THE EXCLUSION OF ADVERSE ACTIONS FROM THE
GRIEVANCE PROCEDURE. THE CHIEF SPOKESMEN FOR THE UNION AND RESPONDENT
WERE THOMAS OWSINSKI AND RICHARD GEBELEIN, RESPECTIVELY. AT THE OUTSET
OF THE MEETING, OWSINSKI REITERATED THE POSITION TAKEN BY THE UNION IN
ITS LETTER OF JANUARY 26. HE ASKED GEBELEIN IF HE WOULD ELIMINATE THE
EXCLUSION CONTAINED IN SECTION 4(F) OF ARTICLE 26 AND RETURN TO THE
"FULL SCOPE" LANGUAGE ON WHICH THE PARTIES HAD ORIGINALLY AGREED ON JULY
12, 1979, WHICH WAS SIMILAR TO THE PROPOSALS FOUND NEGOTIABLE IN O-NG-12
AND O-NG-15, KANSAS ARMY NATIONAL GUARD, 3 FLRA NO. 124(1980).
GEBELEIN REJECTED THE UNION'S OFFER AND TOOK THE POSITION THAT ALL
MATTERS COVERED BY SECTION 709(E) OF THE TECHNICIAN'S ACT HAD TO BE
SPECIFICALLY EXCLUDED FROM THE GRIEVANCE AND ARBITRATION PROCEDURES. HE
MADE IT CLEAR THAT THIS POSITION WAS BASED ON RESPONDENT'S LEGAL
CONCLUSION THAT SEC. 709(E) PRECLUDES SUCH MATTERS FROM GOING TO
ARBITRATION SINCE THAT SECTION MANDATES THAT THE ADJUTANT GENERAL SHALL
BE THE FINAL ARBITER. /4/ THE RESPONDENT'S PROPOSAL WOULD HAVE AMENDED
SECTION 4(F) OF ARTICLE 26 TO EXCLUDE THE FOLLOWING:
F. ADVERSE ACTIONS CONCERNING REDUCTION IN FORCE, REMOVAL,
DISCHARGE, SUSPENSION, FURLOUGH
WITHOUT PAY, OR REDUCTION IN RANK OR COMPENSATION.
GEBELEIN MADE IT CLEAR THAT THIS PROPOSAL WOULD EXCLUDE ALL MATTERS
COVERED BY SEC. 709(E). /5/
AFTER CONSIDERING RESPONDENT'S PROPOSAL, THE UNION ASKED RESPONDENT
IF IT WOULD CONSIDER A COMPROMISE IN WHICH SOME, BUT NOT ALL, OF THE
ACTIONS COVERED BY SEC. 709(E) WOULD BE EXCLUDED FROM THE GRIEVANCE
PROCEDURE. THE UNION DID NOT GIVE SPECIFIC EXAMPLES OR OTHERWISE MAKE
ANY SPECIFIC PROPOSALS ON THIS POINT. IN ANY EVENT, IN VIEW OF
RESPONDENT'S LEGAL CONCLUSION THAT ALL SEC. 709(E) MATTERS WERE
PRECLUDED FROM COVERAGE FOR THE SAME REASON, RESPONDENT NECESSARILY
REJECTED THE POSSIBILITY OF SUCH A COMPROMISE.
AT THAT POINT THE UNION REJECTED THE RESPONDENT'S PROPOSAL AND
OFFERED THE FOLLOWING PROPOSAL IN WRITING:
THE ASSOCIATION IN FINALITY DEMANDS THAT THE GRIEVANCE ARTICLE (ART.
XXVI SEC. 4) CONTAIN
NO EXCLUSIONS WHICH WOULD PREVENT THE FILING OF A GRIEVANCE IN THE
AREAS CITED IN YOUR
PROPOSAL.
RESPONDENT REJECTED THIS PROPOSAL AND AGAIN STATED THAT ALL SEC.
709(E) MATTERS SHOULD BE EXCLUDED. OWSINSKI STATED THAT HE UNDERSTOOD
THE PARTIES' RESPECTIVE POSITIONS AND THAT HE INTENDED TO FILE AN UNFAIR
LABOR PRACTICE CHARGE. THE UNION FILED THE CHARGE ON THE DAY OF THE
ABOVE MEETING, FEBRUARY 20, 1981. NEITHER PARTY REQUESTED FURTHER
NEGOTIATIONS AND NO ATTEMPT WAS MADE TO SECURE THE SERVICES OF A
MEDIATOR OR THE FEDERAL SERVICE IMPASSES PANEL.
CONCLUSIONS OF LAW
COUNSEL FOR THE GENERAL COUNSEL ALLEGES THAT ON FEBRUARY 20, 1981 THE
FOLLOWING EVENTS OCCURRED: (A) THE UNION MADE A GOOD FAITH EFFORT TO
NEGOTIATE SOMETHING LESS THAN A FULL-SCOPE /6/ GRIEVANCE PROCEDURE
REGARDING ADVERSE ACTIONS FOR TECHNICIANS, (B) RESPONDENT ALWAYS
INSISTED ON LIMITING THE SCOPE OF THE PROCEDURE BY SPECIFICALLY
EXCLUDING ADVERSE ACTIONS, AND (C) AT THE CONCLUSION OF THE MEETING
RESPONDENT REFUSED TO ACQUIESCE IN THE UNION'S FINAL DEMAND FOR A FULL
SCOPE PROCEDURE. THE GENERAL COUNSEL ARGUES THAT THE LATTER REFUSAL BY
RESPONDENT CONSTITUTED A VIOLATION OF SEC. 7116(A)(1), (5) AND (8) OF
THE STATUTE. /7/ THIS POSITION IS FOUND ON HIS BELIEF THAT THE UNION
HAS AN ABSOLUTE RIGHT TO A FULL SCOPE GRIEVANCE PROCEDURE IN THE EVENT
THAT THE PARTIES ARE UNABLE TO "MUTUALLY AGREE" ON SPECIFIC EXCLUSIONS
AFTER A LIMITED AMOUNT OF BARGAINING. RESPONDENT TAKES THE POSITION
THAT IT ENGAGED IN GOOD FAITH BARGAINING AND THAT IT WAS UNDER NO
OBLIGATION TO ACQUIESCE IN THE UNION'S DEMAND OR MAKE ANY CONCESSIONS.
SECTION 7121 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:
(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 . . . .
(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE
GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.
THE CONFERENCE REPORT ACCOMPANYING THE FINAL VERSION OF THE BILL
WHICH WAS SUBSEQUENTLY ENACTED AND SIGNED INTO LAW PROVIDED:
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. AND AD. NEWS 2860, 2891.
THEREAFTER, THE AUTHORITY MADE THE FOLLOWING STATEMENT REGARDING SEC.
7121(A)(2) IN INTERPRETATION AND GUIDANCE, 2 FLRA 273, 277(1979);
(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.
THUS THE GENERAL COUNSEL ARGUES THAT THE UNION HAS A RIGHT TO A
FULL-SCOPE GRIEVANCE PROCEDURE UNLESS MANAGEMENT AND THE UNION "MUTUALLY
AGREE" TO EXCLUDE ANY PARTICULAR MATTERS FROM COVERAGE. SINCE NO SUCH
MUTUAL AGREEMENT WAS REACHED IN THE INSTANT CASE, HE CONTENDS THAT THE
UNION'S ALLEGED RIGHT MATURED AT THE CONCLUSION OF THE FEBRUARY 20
NEGOTIATIONS. UNDER THE GENERAL COUNSEL'S VIEW, THERE WOULD BE NO NEED
FOR THE UNION TO SEEK THE AID OF THE FEDERAL SERVICE IMPASSES PANEL.
THIS VIEW IS BASED IN PART ON A POST-ENACTMENT STATEMENT BY CONGRESSMAN
FORD /8/ WHICH DOES NOT CONSTITUTE EVIDENCE OF LEGISLATIVE INTENT.
I DISAGREE WITH THE GENERAL COUNSEL'S POSITION. IN THE FIRST PLACE,
THE RELEVANT PORTION OF THE STATUTE STATES THAT "(A)NY COLLECTIVE
BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM THE APPLICATION OF THE
GRIEVANCE PROCEDURES . . . ." THIS LANGUAGE DOES NOT LIMIT EXCLUSIONS TO
THOSE "MUTUALLY AGREED" BY THE PARTIES. THIS IS SO BECAUSE IN THE
NORMAL COLLECTIVE BARGAINING PROCESS PARTIES WHO DO NOT REACH AGREEMENT
CAN HAVE AN "AGREEMENT" IMPOSED UPON THEM BY THE IMPASSES PANEL. THERE
IS NO REASON WHY THE UNION SHOULD NOT BE REQUIRED TO COMPLETE THE NORMAL
COLLECTIVE BARGAINING PROCESS BY REQUESTING THE SERVICES OF THE IMPASSES
PANEL WHEN AN IMPASSE HAS ARISEN OVER THE SCOPE OF THE GRIEVANCE
PROCEDURE. TO HOLD OTHERWISE WOULD BE TO DEPRIVE THE PANEL OF
JURISDICTION IN THIS AREA-- CONGRESS WOULD HAVE MADE THIS CLEAR IN THE
STATUTE IF SUCH A RESULT HAD BEEN INTENDED. /9/
IN ADDITION, CONGRESS SPECIFICALLY CHANGED THE LAW REGARDING THE
NEGOTIATION OF THE SCOPE OF GRIEVANCE PROCEDURES WHEN IT ENACTED SEC.
7121. PREVIOUSLY, UNDER SEC. 13 OF E.O. 11491, THE PARTIES WERE
REQUIRED TO NEGOTIATE IN ALL MATTERS THAT WERE TO BE COVERED. ON THE
OTHER HAND, SEC. 7121 AUTOMATICALLY PROVIDES FOR A FULL SCOPE PROCEDURE
(WITH CERTAIN MANDATORY EXCEPTIONS) UNLESS THE PARTIES' AGREEMENT
PROVIDES FOR THE EXCLUSION OF A MATTER. THIS CHANGE CONSTITUTED A
SPECIFIC BENEFIT FOR UNIONS BY MAKING A BROAD SCOPE PROCEDURE EASIER TO
ATTAIN. HOWEVER, THERE IS NOTHING IN THE LEGISLATIVE HISTORY THAT
INDICATES THAT CONGRESS INTENDED TO GRANT UNIONS THE ADDITIONAL RIGHT TO
DEMAND AND SECURE A FULL SCOPE PROCEDURE OVER THE AGENCY'S OBJECTION
WITHOUT HAVING TO GO TO THE IMPASSES PANEL FOR RELIEF. AGAIN, IT IS
UNLIKELY THAT CONGRESS WOULD HAVE INTENDED SUCH A RESULT WITHOUT CLEARLY
MAKING FULL-SCALE NEGOTIATIONS "AT THE ELECTION OF" THE UNION. /10/ IN
SHORT, CONGRESS WOULD NOT HAVE CREATED THE UNUSUAL, HYBRID FORM OF
BARGAINING ARGUED BY THE GENERAL COUNSEL IN THIS MATTER WITHOUT CLEARLY
PROVIDING FOR IT IN THE STATUTE. SINCE RESPONDENT DID NOT VIOLATE SEC.
7121, I MUST CONCLUDE THAT NO VIOLATION OF SEC. 7116(A)(8) OCCURRED.
CLEARLY RESPONDENT'S MERE REFUSAL TO ACQUIESCE IN THE UNION'S DEMAND
FOR A FULL SCOPE PROCEDURE IN THIS CASE DID NOT, BY ITSELF, CONSTITUTE
BAD FAITH BARGAINING IN VIOLATION OF SEC. 7116(A)(5). IT IS NECESSARY
TO VIEW THE TOTALITY OF RESPONDENT'S CONDUCT IN ORDER TO DETERMINE
WHETHER IT BARGAINED IN BAD FAITH. THE GENERAL COUNSEL ADVERTS TO THE
FACT THAT RESPONDENT'S NEGOTIATORS ADMITTEDLY DID NOT HAVE AUTHORITY TO
NEGOTIATE A GRIEVANCE PROCEDURE FOR ADVERSE ACTIONS UNLESS THE ADJUTANT
GENERAL (RATHER THAN AN ARBITRATOR) WOULD BE THE FINAL ARBITER OF SUCH
DISPUTES. BUT RESPONDENT HAD BASED ITS POSITION ON ITS LEGAL CONCLUSION
THAT THIS RESULT WAS COMPELLED BY SEC. 709(E) OF THE TECHNICIANS ACT OF
1968. AT THE TIME OF THE NEGOTIATIONS IN QUESTION, THE PARTIES WERE
ONLY AWARE OF THE AUTHORITY'S DECISION IN STATE OF KANSAS ARMY NATIONAL
GUARD, 3 FLRA NO. 124(1980), IN WHICH THE AUTHORITY SPECIFICALLY
REFRAINED FROM RESOLVING THAT QUESTION OF LAW. THUS THE MATTER WAS NOT
FREE FROM DOUBT AND REASONABLE ARGUMENTS COULD BE MADE ON BOTH SIDES OF
THE ISSUE. IN A DECISION ISSUED ON THE SAME DAY AS THE PARTIES'
NEGOTIATIONS HEREIN, THE AUTHORITY HELD, IN PART, THAT SEC. 709(E) DID
NOT PRECLUDE THE GRIEVABILITY AND ARBITRABILITY OF ADVERSE ACTIONS FOR
TECHNICIANS. THAT DECISION IS CURRENTLY ON APPEAL TO THE NINTH CIRCUIT.
CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25 (FEB. 20, 1981), APPEAL
DOCKETED, NOS. 81-7231, 81-7336 (9TH CIR. 1981). THE DECISION WAS
UNKNOWN TO THE PARTIES WHEN THEY NEGOTIATED, AND IT IS CLEAR THAT IT WAS
NOT "UNREASONABLE" FOR RESPONDENT TO HAVE INSISTED AT THAT TIME ON THE
EXCLUSION OF ADVERSE ACTIONS FROM THE GRIEVANCE PROCEDURE FOR
TECHNICIANS. FURTHER, IN LIGHT OF ITS LEGAL POSITION, IT WAS ALSO NOT
UNREASONABLE FOR RESPONDENT TO REFUSE TO COMPROMISE AS REQUESTED BY THE
UNION. THE LATTER ASKED RESPONDENT TO CONSIDER PROVIDING GRIEVANCE
PROCEDURE COVERAGE FOR SOME, BUT NOT ALL, TYPES OF SEC. 709(E) ADVERSE
ACTIONS. OBVIOUSLY, IF RESPONDENT'S LEGAL POSITION WAS CORRECT, THEN
ALL SUCH ACTIONS WOULD BE NONARBITRABLE. ALTHOUGH COMPROMISE IS
GENERALLY DESIRABLE, GOOD FAITH BARGAINING DOES NOT REQUIRE A PARTY TO
TAKE INCONSISTENT POSITIONS. IT CANNOT BE SAID THAT RESPONDENT'S
REFUSAL UNDER THESE CIRCUMSTANCES CONSTITUTED BAD FAITH BARGAINING. THE
UNION SHOULD HAVE PURSUED ITS CAUSE BEFORE THE IMPASSES PANEL INSTEAD OF
CUTTING SHORT THE NEGOTIATING PROCESS BY FILING AN UNFAIR LABOR PRACTICE
CHARGE. I CONCLUDE THAT RESPONDENT DID NOT VIOLATE SEC. 7116(A)(1),
(5), AND (8).
FOR THE FOREGOING REASONS, I RECOMMEND THAT THE AUTHORITY ADOPT THE
FOLLOWING ORDER:
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 2-CA-798 BE, AND
IT HEREBY IS, DISMISSED.
RANDOLPH D. MASON
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 5, 1982
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ COMPARE DEPARTMENT OF THE AIR FORCE, U.S. AIR FORCE ACADEMY, 6
FLRA NO. 100(1981), WHEREIN A VIOLATION WAS FOUND BASED ON AN AGENCY'S
ACTION IN DECLARING NON-NEGOTIABLE A PROPOSAL WHICH WAS, IN ALL MATERIAL
RESPECTS, IDENTICAL TO A PROPOSAL WHICH THE AUTHORITY HAD PREVIOUSLY
DETERMINED TO BE NEGOTIABLE.
/2/ SECTION 709(E) OF THE TECHNICIANS ACT OF 1968, 32 U.S.C.
709(E)(1970) PROVIDES AS FOLLOWS:
(E) NOTWITHSTANDING ANY OTHER PROVISIONS 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/ NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND
STATE OF KANSAS ARMY NATIONAL GUARD, 3 FLRA NO. 124(1980).
/4/ GEBELEIN WAS NOT AUTHORIZED BY RESPONDENT TO TAKE ANY POSITION
THAT WOULD BE CONTRARY TO THIS LEGAL CONCLUSION.
/5/ THIS INCLUDED SEPARATIONS FOR FAILURE TO MEET NATIONAL GUARD
MEMBERSHIP, GRADE, AND SECURITY REQUIREMENTS, AND SEPARATIONS "FOR
CAUSE" UNDER SEC. 709(E)(1), (2), AND (3), RESPECTIVELY.
/6/ AS REFERRED TO HEREIN, A "FULL-SCOPE" GRIEVANCE PROCEDURE IS ONE
THAT SPECIFIES ONLY THOSE MANDATORY EXCLUSIONS SET FORTH IN SEC.
7121(C).
/7/ THE GENERAL COUNSEL ORIGINALLY ARGUED THAT THESE ACTIONS BY
RESPONDENT CONSTITUTED A VIOLATION OF SEC. 7116(A)(5) BECAUSE THEY
REPRESENTED AN ALLEGED PATENT BREACH OF THE CONTRACT PROVISION WHEREIN
THE PARTIES AGREED TO NEGOTIATE THE EXCLUSION OF ADVERSE ACTIONS. THIS
CONTENTION WAS NOT MENTIONED ON BRIEF AND IS THEREFORE DEEMED ABANDONED.
IN ANY EVENT, THE GENERAL COUNSEL FAILED TO SUSTAIN HIS BURDEN OF PROOF
ON THAT ISSUE.
/8/ FORD STATED, IN PART, THAT THE UNION'S ALLEGED "RIGHT" TO INSIST
ON A FULL SCOPE PROCEDURE WAS ANALOGOUS TO MANAGEMENT'S PERMISSIBLE
AREAS OF BARGAINING UNDER SEC. 7106(B)(1), 124 CONG.REC.H 13609 (DAILY
ED. OCT. 14, 1978).
/9/ SEC. 7119 ALSO PROVIDES MACHINERY WHEREBY THE PARTIES CAN REACH
MUTUAL AGREEMENT AFTER FIRST SEEKING THE ASSISTANCE OF A MEDIATOR AND,
IF THAT IS NOT SUCCESSFUL, AFTER GOING TO THE IMPASSES PANEL. THE
LATTER IMPOSES ITS WILL ON THE PARTIES BY MAKING A DECISION BETWEEN
COMPETING PROPOSALS ONLY AS A LAST RESORT.
/10/ MANAGEMENT'S PERMISSIVE SUBJECTS OF BARGAINING ARE DEFINED IN
THIS MANNER IN SEC. 7106(B)(1).