[ v10 p381 ]
10:0381(63)CA
The decision of the Authority follows:
10 FLRA No. 63
182ND TACTICAL AIR SUPPORT
GROUP, ILLINOIS AIR NATIONAL GUARD,
THE ADJUTANT GENERAL OF
ILLINOIS, SPRINGFIELD, ILLINOIS
Respondent
and
ILLINOIS AIR CHAPTER 34,
ASSOCIATION OF CIVILIAN
TECHNICIANS
Charging Party
Case Nos. 5-CA-86
5-CA-532
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED THE ATTACHED DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED
IN UNFAIR LABOR PRACTICES AS ALLEGED IN THE CONSOLIDATED COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED. EXCEPTIONS WERE FILED BY
THE GENERAL COUNSEL AND THE CHARGING PARTY (THE UNION).
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 RECOMMENDATION. IN THIS REGARD, AND
FOR THE REASONS SET FORTH IN VERMONT AIR NATIONAL GUARD, BURLINGTON,
VERMONT, 9 FLRA NO. 92 (1982) THE AUTHORITY FINDS THAT THE RESPONDENT'S
REFUSAL TO AGREE TO A FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE WAS NOT,
PER SE, A VIOLATION OF THE STATUTE. MOREOVER, THE AUTHORITY FINDS, IN
AGREEMENT WITH THE JUDGE, THAT THE RESPONDENT'S ACTIONS IN DECLARING
NON-NEGOTIABLE THE UNION'S PROPOSAL THAT MATTERS GOVERNED BY SECTION
709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 BE INCLUDED WITHIN
THE SCOPE OF THE NEGOTIATED PROCEDURE DID NOT CONSTITUTE BAD FAITH
BARGAINING IN VIOLATION OF THE STATUTE /1/ SINCE AT THE TIME OF THE
RESPONDENT'S DECLARATION OF NON-NEGOTIABILITY, NO ESTABLISHED PRECEDENT
EXISTED WHICH WAS DISPOSITIVE OF THE ISSUE OF THE NEGOTIABILITY OF THE
PROPOSAL INVOLVED. /2/
FOR THESE REASONS, AND IN AGREEMENT WITH THE JUDGE'S CONCLUSION, THE
AUTHORITY FINDS THAT THE RESPONDENT'S ACTIONS IN REFUSING TO AGREE TO A
FULL SCOPE NEGOTIATED GRIEVANCE PROCEDURE DID NOT VIOLATE SECTION
7116(A)(1), (5) OR (8) OF THE STATUTE. /3/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NOS. 5-CA-86 AND
5-CA-532 BE AND IT HEREBY IS DISMISSED.
ISSUED, WASHINGTON, D.C., OCTOBER 15, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
DONALD R. BRENEMAN
FOR THE RESPONDENT
SHARON A. BAUER, ESQUIRE
ARLANDER KEYS, ESQUIRE
FOR THE GENERAL COUNSEL
THOMAS J. OWSINSKI
FOR THE CHARGING PARTY
BEFORE: GAVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., (THE STATUTE), AS A RESULT OF
CONSOLIDATED UNFAIR LABOR PRACTICE COMPLAINT FILED BY THE REGIONAL
DIRECTOR, REGION FIVE, FEDERAL LABOR RELATIONS AUTHORITY, CHICAGO,
ILLINOIS, AGAINST THE 182ND TACTICAL AIR SUPPORT GROUP, ILLINOIS AIR
NATIONAL GUARD, THE ADJUTANT GENERAL OF ILLINOIS, SPRINGFIELD, ILLINOIS
(RESPONDENT), BASED ON CHARGES FILED BY THE ILLINOIS AIR CHAPTER 34,
ASSOCIATION OF CIVILIAN TECHNICIANS (CHARGING PARTY OR UNION).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT RESPONDENT VIOLATED
SECTIONS 7116(A)(1), (5), AND (8) OF THE STATUTE BY REFUSING TO AGREE TO
THE FULL SCOPE FOR A NEGOTIATED GRIEVANCE PROCEDURE AS REQUESTED BY THE
UNION PURSUANT TO SECTION 7121 OF THE STATUTE IN MARCH 1979 AND APRIL
1980.
A HEARING WAS HELD IN THIS MATTER IN SPRINGFIELD, ILLINOIS. /4/ THE
RESPONDENT, GENERAL COUNSEL, AND CHARGING PARTY WERE REPRESENTED AND
AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE, EXAMINE
AND CROSS-EXAMINE WITNESSES, AND FILE POST-HEARING BRIEFS.
BASED ON THE ENTIRE RECORD HEREIN, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, THE EXHIBITS, STIPULATIONS, AND OTHER
RELEVANT EVIDENCE ADDUCED AT THE HEARING, AND THE BRIEFS, I MAKE THE
FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDATIONS.
FINDINGS OF FACT
1. SINCE JULY 1970 RESPONDENT HAS RECOGNIZED THE UNION AS THE
EXCLUSIVE REPRESENTATIVE OF ALL NON-SUPERVISORY, NON-MANAGERIAL
EMPLOYEES OF THE 182ND TACTICAL AIR SUPPORT GROUP, PEORIA, ILLINOIS.
RESPONDENT AND THE UNION HAVE BEEN PARTIES TO A COLLECTIVE BARGAINING
AGREEMENT, APPROVED ON MAY 14, 1976, WHICH EXPIRED ON MAY 14, 1978.
(JOINT EX. 1).
2. COMMENCING IN MARCH 1978 AND CONTINUING TO DATE RESPONDENT AND
THE UNION HAVE BEEN ENGAGED IN NEGOTIATIONS TOWARD A NEW COLLECTIVE
BARGAINING AGREEMENT. (JOINT EX. 1). ON SEPTEMBER 13, 1978 THE
PARTIES INITIALLED A MEMORANDUM OF UNDERSTANDING IN WHICH THEY REACHED
AGREEMENT ON SEVERAL ITEMS. ONE OF THEM EXCLUDED FROM THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURES ALL MATTERS FOR WHICH STATUTORY APPEALS
PROCEDURES EXISTED, INCLUDING THOSE SET FORTH IN 32 U.S.C. 708(E). /5/
(TR. 27, 78-79; RESPONDENT'S EX. 6).
3. SUBSEQUENT TO THE EFFECTIVE DATE OF THE STATUTE THE UNION
CONCLUDED THAT THE STATUTE PROVIDED FOR A BROADER SCOPE GRIEVANCE
PROCEDURE. (TR. 27). SINCE MARCH 1979 AND CONTINUING TO THE DATE OF
THE HEARING, AND IN THE COURSE OF BARGAINING, THE UNION HAS DEMANDED
THAT THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE, TO BE INCLUDED IN
THE COLLECTIVE BARGAINING AGREEMENT, BE EXPANDED PURSUANT TO SECTION
7121 OF THE STATUTE. DURING THE SAME PERIOD RESPONDENT HAS REFUSED TO
AGREE TO A FULL SCOPE GRIEVANCE PROCEDURE WHICH WOULD INCLUDE APPEALS OF
THOSE PERSONNEL ACTIONS LISTED IN 32 U.S.C. 709(E). (JOINT EX. 1).
4. IN LATE MARCH OF 1979, AT A MEETING WITH RESPONDENT TO FINALIZE
REMAINING AGREEMENT ISSUES, THE UNION INFORMED RESPONDENT THAT THE
SEPTEMBER 1978 AGREEMENT CONCERNING THE SCOPE OF THE GRIEVANCE
PROCEDURE
SHOULD NOT BE PUT INTO THE FINAL CONTRACT AS THE AGREEMENT WAS NOT
ILLEGAL UNDER THE NEW STATUTE, AND THE UNION WAS ENTITLED TO A FULL
SCOPE GRIEVANCE PROCEDURE AS OUTLINED IN THE STATUTE. (TR. 28-29, 55,
59, 81-82). RESPONDENT REPLIED THAT THE SEPTEMBER 1978 AGREEMENT WAS
VALID, AND THE STATUTE DID NOT MAKE THE PREVIOUS AGREEMENT ILLEGAL.
(TR. 82, 94). RESPONDENT STATED THAT IT COULD NOT AGREE TO ANY SCOPE
POLICY THAT INCLUDED SECTION 709(E) APPEALS. (TR. 55, 94). THE UNION
REQUESTED THAT RESPONDENT DRAFT A PROPOSAL OUTLING THE PARTICULAR
SUBJECT MATTERS WHICH IT FELT SHOULD BE EXCLUDED FROM THE SCOPE OF THE
GRIEVANCE MACHINERY. (TR. 29, 56, 59). RESPONDENT REFUSED TO DO SO,
STATING THAT IT WOULD STAND ON THE SEPTEMBER 1978 AGREEMENT. (TR. 29,
56, 59, 94).
5. RESPONDENT AND THE UNION MET AGAIN IN APRIL 1979. RESPONDENT
REITERATED THAT IT WAS READY TO SIGN THE SEPTEMBER 1978 AGREEMENT. THE
UNION MAINTAINED THAT IT WOULD NEVER SIGN A CONTRACT THAT DID NOT PERMIT
THE FULL SCOPE ALLOWED UNDER THE STATUTE. RESPONDENT STATED THAT THE
SCOPE OF THE GRIEVANCE ARTICLE SHOULD EXCLUDE STATUTORY APPEAL MATTERS
AND SECTION 709(E) MATTERS. THE UNION WOULD NOT DISCUSS A TOTAL
EXCLUSION OF SECTION 709(E), CONTENDING SUCH WAS ILLEGAL UNDER THE
STATUTE, BUT ASKED FOR PARTICULAR ISSUES MANAGEMENT WISHED TO EXCLUDE.
RESPONDENT MAINTAINED THAT IT COULD NOT BARGAIN 709(E) ITEMS AND
EVERYTHING WITHIN 709(E) MUST BE EXCLUDED. (TR. 30-31, 56-57, 90-91,
112; GENERAL COUNSEL'S EX. 2).
6. ON JUNE 13 AND 20, 1979 THE UNION OFFERED RESPONDENT A PROPOSAL
TO ACCEPT THE SEPTEMBER 1978 AGREEMENT WITH THE UNDERSTANDING THAT THE
PARTIES WOULD SUBSEQUENTLY ADOPT AUTHORITY DECISIONS RENDERED IN TWO
NEGOTIABILITY CASES. (GENERAL COUNSEL'S EX. 3 AND 4). ON JUNE 21, 1979
A RESPONDENT COUNTER-PROPOSAL AND AN ADDITIONAL UNION PROPOSAL WERE
EXCHANGED RELATIVE TO ACCEPTANCE OF THE 1978 AGREEMENT WITH
RENEGOTIATION POSSIBLE UNDER CERTAIN CIRCUMSTANCES AFTER AUTHORITY
NEGOTIABILITY DECISIONS IN OTHER CASES. (GENERAL COUNSEL'S EX. 5 AND
6).
7. ON SEPTEMBER 27, 1979 THE UNION AGAIN PROPOSED THAT THE PARTIES
ACCEPT THE 1978 AGREEMENT AND AGREE TO LATER AMEND IT TO REFLECT THE
MAXIMUM SCOPE AUTHORIZED IN PENDING NEGOTIABILITY CASES. (GENERAL
COUNSEL'S EX. 7). RESPONDENT REPLIED THAT IT STOOD BY THE SEPTEMBER
1978 AGREEMENT REGARDING THE SCOPE OF THE GRIEVANCE PROCEDURE. (GENERAL
COUNSEL'S EX. 8).
8. ON NOVEMBER 23, 1979 THE UNION ADVISED RESPONDENT, IN PART, "THE
UNION POSITION IN THE PAST AS WELL AS THE PRESENT IS THAT WE ARE
PERFECTLY WILLING TO ACCEPT THOSE ITEMS EXCLUDED FROM THE GRIEVANCE
PROCESS BY THE ACT AND TOTALLY COMMITTED TO ACCEPTING CONTRACTUAL
LANGUAGE THAT ALLOWS FOR THAT SCOPE." (GENERAL COUNSEL'S EX. 9).
9. FOLLOWING ISSUANCE OF THE AUTHORITY'S INTERPRETATION AND
GUIDANCE, 2 FLRA NO. 32 (DECEMBER 19, 1979), BOTH PARTIES REQUESTED TO
RETURN TO THE BARGAINING TABLE AND BARGAIN FURTHER. THE UNION ADVISED
RESPONDENT, IN PART, "THAT WE DESIRE THE FULL SCOPE OF GRIEVANCE
COVERAGE UNDER SECTION 7121 OF THE STATUTE WHICH WOULD COVER ALL
MATTERS, EXCEPT THOSE EXPRESSLY EXCLUDED BY STATUTE, AS CONTRACTUAL
LANGUAGE AND FOR BINDING ARBITRATION TO INCLUDE ALL MATTERS THAT ARE
WITHIN THE SCOPE OF THE GRIEVANCE PROCEDURE." IN SETTING FORTH ITS
POSITION, RESPONDENT STATED, IN PART, "(T)HE EMPLOYER'S POSITION WOULD
ALLOW FOR FURTHER BARGAINING, BUT THAT THE UNION'S POSITION WAS FIRM IN
DEMANDING THE WIDEST SCOPE POSSIBLE UNDER THE LAW AND WOULD NOT ALLOW
FOR FURTHER BARGAINING." (GENERAL COUNSEL'S EX. 10 AND 11).
10. THE PARTIES MET ON APRIL 23, 1980. THE UNION REQUESTED THAT
MANAGEMENT RESENT A PROPOSAL. RESPONDENT PRESENTED THE FOLLOWING
PROPOSAL:
1. THE PARTIES AGREE TO A SCOPE OF GRIEVANCE AND ARBITRATION
PROCEDURES WHICH WOULD
INCLUDE ALL MATTERS WITH ONLY THE FOLLOWING EXCLUSIONS:
A. THOSE MATTERS INCLUDED IN 32 USC 709(E) WHICH LIMIT THE RIGHT OF
APPEAL TO THE ADJUTANT
GENERAL OF THE JURISDICTION CONCERNED, AND
B. EEO COMPLAINTS, AND
C. CLASSIFICATION MATTERS FOR WHICH THE ADJUTANT GENERAL HAS NO
AUTHORITY, AND
D. PERFORMANCE RATING COMPLAINTS.
2. IT IS FURTHER AGREED THAT EITHER PARTY MAY UNILATERALLY DEMAND TO
RENEGOTIATE THE SCOPE
OF GRIEVANCE AND ARBITRATION COVERAGE UPON A FLRA DECISION WHICH
WOULD ESTABLISH THAT ANY
MATTERS INCLUDED IN 32 USC 709(E) ARE NEGOTIABLE AND CAN BE PROPERLY
INCLUDED IN NEGOTIATED
GRIEVANCE AND ARBITRATION PROCEDURES. (GENERAL COUNSEL'S EX. 12)
THE UNION PRESENTED THE FOLLOWING COUNTER-PROPOSAL:
THE UNION IS WILLING TO EXCLUDE MATTERS PERTAINING TO EEO AND THOSE
ITEMS EXPRESSLY
EXCLUDED BY THE STATUTE WITH ALL OTHER MATTERS TO BE INCLUDED IN THE
GRIEVANCE
PROCESS. (GENERAL COUNSEL'S EX. 13).
RESPONDENT REPLIED THAT THE UNION'S PROPOSAL TO INCLUDE SECTION
709(E) MATTERS WAS UNACCEPTABLE AS 709(E) DID NOT PERMIT ANY DISCRETION
ON THE PART OF THE ADJUTANT GENERAL OR HIS REPRESENTATIVES TO NEGOTIATE
OR ARBITRATE SUCH MATTERS AS ARE INCLUDED UNDER 709(E), AND RESPONDENT
WOULD PREPARE A LETTER OF NON-NEGOTIABILITY. (TR. 113, 115).
RESPONDENT SUGGESTED THAT THE PARTIES BREAK FOR LUNCH SO THAT IT COULD
PREPARE THE LETTER OF NON-NEGOTIABILITY. (TR. 113, 115).
11. DURING THE LUNCHEON RECESS, THE UNION DECIDED THAT IT SHOULD
WITHDRAW THAT PORTION OF ITS PROPOSAL DEALING WITH THE EXCLUSION OF EEO
MATTERS. (TR. 40, 63). UPON RETURN FROM LUNCH, RESPONDENT OFFERED THE
LETTER OF NON-NEGOTIABILITY TO THE UNION, WHICH STATED, IN PART, AS
FOLLOWS:
YOUR COUNTER-PROPOSAL IS INCONSISTENT WITH LAW AND THE EMPLOYER'S
DUTY TO BARGAIN IN GOOD
FAITH DOES NOT EXTEND TO SUCH MATTERS AND THEREFORE, YOUR PROPOSAL IS
DETERMINED
NON-NEGOTIABLE TO THE EXTENT OF ITS INCONSISTENCY WITH 32 U.S.C.
709(E). (GENERAL COUNSEL'S
EX. 14).
AT THE SAME TIME, THE UNION WITHDREW ITS PROPOSAL ON THE EEO
EXCLUSION. (TR. 41, 63, 113). THE FINAL POSITION OF THE UNION WAS THAT
IT MUST HAVE THE FULL SCOPE OF GRIEVANCE AND ARBITRATION CONTAINED IN
THE STATUTE AND ANYTHING LESS WOULD HINDER ITS RIGHT TO REPRESENT
EMPLOYEES. (TR. 42). THE FINAL POSITION OF RESPONDENT WAS THAT 32
U.S.C. 709(E) PRECLUDED ANY DISCRETION ON THE PART OF THE ADJUTANT
GENERAL OR HIS REPRESENTATIVES TO NEGOTIATE OR AGREE TO ARBITRATE SUCH
MATTERS AS ARE INCLUDED UNDER 709(E). (TR. 115).
DISCUSSION, CONCLUSIONS, AND RECOMMENDATIONS
THE COMPLAINT ALLEGES THAT RESPONDENT VIOLATED SECTIONS 7116(A)(1),
(5), AND (8) OF THE STATUTE BY REFUSING TO AGREE TO THE FULL SCOPE FOR
THE NEGOTIATED GRIEVANCE PROCEDURE AS REQUESTED BY THE UNION PURSUANT TO
SECTION 7121 OF THE STATUTE IN OR ABOUT MARCH 1979 AND ON OR ABOUT APRIL
23, 1980. THE GENERAL COUNSEL ASSERTS THAT THE UNION CONSIDERED AND
BARGAINED IN GOOD FAITH WITH REGARD TO RESPONDENT'S PROPOSALS TO EXCLUDE
CERTAIN MATTERS FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE AND
THAT RESPONDENT'S CONDUCT IN REFUSING TO AGREE TO A FULL SCOPE GRIEVANCE
PROCEDURE THROUGHOUT 1979 AND IN APRIL 1980 AND IN ISSUING A
NON-NEGOTIABILITY DETERMINATION IN APRIL 1980 VIOLATED THE STATUTE.
THE GENERAL COUNSEL'S POSITION THAT (1) THE STATUTE MANDATES THE
UNION'S ENTITLEMENT TO THE FULL SCOPE PERMISSIBLE BY LAW ONCE IT
FULFILLED ITS OBLIGATION TO BARGAIN OVER RESPONDENT'S REQUESTED
EXCLUSIONS, AND (2) FAILURE BY THE PARTIES TO AGREE ON THE SCOPE WILL
NOT RESULT IN IMPASSE CANNOT BE ACCEPTED. THE LANGUAGE OF THE STATUTE,
ITS LEGISLATIVE HISTORY, /6/ AND PRECEDENT AUTHORITY DECISIONS AND
INTERPRETATIONS TO DATE DO NOT, IN MY OPINION, COMPEL THIS VIEW.
SECTION 7121 OF THE STATUTE CONCERNS THE SCOPE OF GRIEVANCE
PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES. /7/ THE GRIEVANCE
PROCEDURE IS A MANDATORY SUBJECT OF BARGAINING WITHIN THIS STRICTURE.
AS STATED WITH RESPECT TO SECTION 7121 IN THE CONFERENCE REPORT
ACCOMPANYING THE FINAL VERSION OF THE BILL WHICH 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.
AS THE AUTHORITY STATED IN INTERPRETATION AND GUIDANCE, CASE NO.
O-PS-2, 2 FLRA NO. 32 (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.
AND, AS STATED IN FOOTNOTE 6 OF THAT DECISION:
CONTRARY TO THE POSITION OF SEVERAL RESPONDING ORGANIZATIONS, MERE
OBJECTION BY A PARTY TO
THE CONTINUATION OF EXISTING NEGOTIATED GRIEVANCE PROCEDURES WOULD
NOT, PER SE, EXTEND THE
SCOPE OF THE EXISTING PROCEDURES, SINCE SECTION 7121 CONCERNS THE
SCOPE OF GRIEVANCE
PROCEDURES WHICH MAY BE NEGOTIATED BY THE PARTIES.
AND AS THE AUTHORITY SUMMARIZED 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):
IN SUM, 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.
THE "COLLECTIVE BARGAINING PROCESS," REFERRED TO IN THE CONFERENCE
REPORT AND BY THE AUTHORITY, MEANS THAT PROCESS PROVIDED BY THE STATUTE
FOR COLLECTIVE BARGAINING. IT INCLUDES "COLLECTIVE BARGAINING" AS
DEFINED IN SECTION 7103(A)(12) AS FOLLOWS:
(12) 'COLLECTIVE BARGAINING' MEANS THE 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.
AS NOTED "THE OBLIGATION REFERRED TO IN THIS PARAGRAPH DOES NOT
COMPEL EITHER PARTY TO AGREE TO A PROPOSAL OR TO MAKE A CONCESSION." THE
"COLLECTIVE BARGAINING PROCESS" ALSO INCLUDES THE SERVICES OF THE
AUTHORITY TO RESOLVE NEGOTIABILITY QUESTIONS AT THE REQUEST OF THE
EXCLUSIVE REPRESENTATIVE PURSUANT TO SECTION 7117 OF THE STATUTE AND THE
SERVICES OF THE FEDERAL MEDIATION AND CONCILIATION SERVICE AND THE
FEDERAL SERVICES IMPASSES PANEL ARE AVAILABLE TO AGENCIES AND EXCLUSIVE
REPRESENTATIVES TO RESOLVE NEGOTIATION IMPASSES PURSUANT TO SECTION 7119
OF THE STATUTE.
THE FEDERAL SERVICES IMPASSES PANEL HAS BEEN GIVEN BROAD AUTHORITY TO
RESOLVE NEGOTIATION IMPASSES. UNDER SECTION 7119 OF THE STATUTE, THE
PANEL CAN RECOMMEND PROCEDURES FOR RESOLVING AN IMPASSE OR ASSIST THE
PARTIES THROUGH ANY METHOD IT DEEMS APPROPRIATE. IF A SETTLEMENT IS NOT
ACHIEVED IN THIS MATTER IT HAS THE POWER TO "TAKE WHATEVER ACTION IS
NECESSARY AND NOT INCONSISTENT WITH THE CHAPTER TO RESOLVE THE IMPASSE",
5 U.S.C. 7119(C)(5)(B) (III). SEE 5 C.F.R. PART 2470 (1980). THE PANEL
HAS EXERCISED SUCH POWER IN THE PAST TO REQUIRE THAT THE PARTIES
EXCLUDE, OR NOT EXCLUDE, MATTERS FROM THE APPLICATION OF THEIR GRIEVANCE
PROCEDURE. SEE LOUISIANA ARMY AND AIR NATIONAL GUARD, JACKSON BARRACKS,
NEW ORLEANS, LOUISIANA AND LOCALS 1707, 1708, AND 1737, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES, CASE NO. 79 FSIP 51 AND 79 FSIP 81
(APRIL 22, 1980); VETERANS ADMINISTRATION MEDICAL CENTER, IRON
MOUNTAIN, MICHIGAN AND LOCAL 2280, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, CASE NO. 80 FSIP 41 (AUGUST 27, 1980); EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, WASHINGTON, D.C., AND EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION COUNCIL 216, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, CASE NO. 80 FSIP 38 (JANUARY 26, 1981).
IN MY VIEW, SUCH ACTION IS CONSISTENT WITH SECTION 7121(A)(2) WHICH
PROVIDES THAT, "ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY
MATTER FROM THE APPLICATION OF THE GRIEVANCE PROCEDURE WHICH ARE
PROVIDED FOR IN THE AGREEMENT."
EVEN ASSUMING THAT THE GENERAL COUNSEL'S LEGAL POSITION IS CORRECT, A
PREPONDERANCE OF THE EVIDENCE DOES NOT SHOW THAT THE UNION BARGAINED IN
GOOD FAITH WITH RESPECT TO RESPONDENT'S EXCLUSIONARY PROPOSALS, OR THAT
RESPONDENT'S REFUSAL TO AGREE TO A FULL SCOPE GRIEVANCE PROCEDURE IN
1979 AND ON APRIL 23, 1980 VIOLATED THE STATUTE AS ALLEGED.
THE RECORD REFLECTS THAT IN 1979 THE UNION FAILED TO DISCUSS A TOTAL
EXCLUSION OF SECTION 709(E) MATTERS, CONTENDING THAT SUCH WAS ILLEGAL
UNDER THE STATUTE AND THAT IT WOULD NEVER SIGN A CONTRACT THAT DID NOT
PERMIT FULL SCOPE. THE AUTHORITY HAS MADE IT CLEAR THAT "THE STATUTORY
APPEAL PROCEDURE CONTAINED IN THE NATIONAL GUARD TECHNICIANS 'ACT OF
1968 CAN BE 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 THROUGH BARGAINING." NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25
(1981). CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3559,
AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
MINNESOTA, 4 FLRA NO. 53 (1980). THUS, THE UNION'S REFUSAL TO DISCUSS
THE TOTAL EXCLUSION OF SECTION 709(E) MATTERS WAS NOT BARGAINING IN GOOD
FAITH WITH RESPECT TO RESPONDENT'S PROPOSALS, BECAUSE IT LIMITED THE
AREA OF NEGOTIATION BY MANDATING THE FORM THAT AN AGREEMENT MAY TAKE.
THE RECORD ALSO REFLECTS THAT DURING 1979 THE UNION MAINTAINED THAT
THE PARTIES' SEPTEMBER 1978 AGREEMENT CONCERNING THE SCOPE OF THE
GRIEVANCE PROCEDURE HAD BEEN MADE ILLEGAL BY THE STATUTE, WHILE
RESPONDENT INSISTED THAT IT CONTINUED TO BE LEGAL AND VALID UNDER THE
STATUTE. ON MAY 14, 1979 THE AUTHORITY, IN RESPONSE TO A REQUEST FOR A
MAJOR POLICY DETERMINATION, ANNOUNCED IN THE FEDERAL REGISTER THAT AN
INTERPRETATION OF THE STATUTE WAS WARRANTED ON THE PROPER INTERPRETATION
AND APPLICATION OF SECTION 7121 OF THE STATUTE AS IT RELATES TO THE
SCOPE OF NEGOTIATED GRIEVANCE PROCEDURES IN EXISTING AGREEMENTS. THE
AUTHORITY ISSUED ITS INTERPRETATION AND GUIDANCE, 2 FLRA NO. 32 ON
DECEMBER 19, 1979. THE AUTHORITY CONCLUDED IN ITS INTERPRETATION AND
GUIDANCE:
1. SECTION 7121 OF THE STATUTE, UNDER WHICH THE SCOPE OF NEGOTIATED
GRIEVANCE PROCEDURES
SHALL COVER ALL MATTERS WHICH MIGHT LAWFULLY BE SUBMITTED TO THOSE
PROCEDURES EXCEPT FOR
PARTICULAR MATTERS MUTUALLY AGREED BY THE PARTIES TO BE EXCLUDED,
DOES NOT APPLY IN SITUATIONS
WHERE THE PARTIES TO AN EXISTING AGREEMENT CONTAINING GRIEVANCE
PROCEDURES NEGOTIATED UNDER
SECTION 31 OF THE ORDER WISH TO MAINTAIN THOSE NEGOTIATED GRIEVANCE
PROCEDURES.
2. HOWEVER, WHERE EITHER PARTY TO AN EXISTING NEGOTIATED AGREEMENT
OBJECTS TO THE RENEWAL
OR CONTINUATION OF THE EXISTING NEGOTIATED GRIEVANCE PROCEDURES,
SECTION 7121 OF THE STATUTE
REQUIRES THAT THE PARTIES RENEGOTIATE THE SCOPE OF THEIR GRIEVANCE
PROCEDURES IN COMPLIANCE
WITH THE PROVISIONS OF THAT SECTION. UNDER SECTION 7121, THE
GRIEVANCE PROCEDURES SO
RENEGOTIATED WOULD COVER ALL MATTERS WHICH MIGHT LAWFULLY BE
SUBMITTED TO THE NEGOTIATED
GRIEVANCE PROCEDURES, EXCEPT THOSE MATTERS EXPRESSLY EXCLUDED BY
AGREEMENT OF THE
PARTIES. PENDING SUCH RENEGOTIATION, THE CURRENT AGREEMENT MUST
REMAIN IN EFFECT.
NEITHER PARTY'S BARGAINING POSITION IN 1979 WAS TOTALLY CONSISTENT
WITH THE AUTHORITY'S INTERPRETATION OF THE STATUTE. PREVIOUS AGREEMENTS
WERE NOT TOTALLY INVALID, AS CONTENDED BY THE UNION, AND NEITHER WERE
THEY TOTALLY BINDING, AS CONTENDED BY RESPONDENT. I FIND THESE
POSITIONS OF THE PARTIES IN 1979 AND THE FACT THAT THIS MAJOR POLICY
STATEMENT WAS PENDING DURING MUCH OF 1979 ADDITIONAL PERSUASIVE REASON
NOT BE FIND THAT IN EARLY 1979 RESPONDENT VIOLATED SECTIONS 7116(A)(1),
(5), AND (8) OF THE STATUTE BY REFUSING TO AGREE TO THE UNION'S
PROPOSAL.
THE RECORD REFLECTS THAT RESPONDENT, UPON RECEIPT OF THE AUTHORITY'S
INTERPRETATION AND GUIDANCE, PROMPTLY RECOGNIZED THE UNION'S RIGHT TO
RENEGOTIATE THE SEPTEMBER 1978 AGREEMENT. DURING THE COURSE OF A APRIL
23, 1980 NEGOTIATING SESSION RESPONDENT DECLARED THE UNION'S PROPOSAL TO
BE INCONSISTENT WITH LAW, NAMELY 32 U.S.C. 709(E). THIS DECLARATION OF
NON-NEGOTIABILITY BY THE RESPONDENT DID NOT VIOLATE THE DUTY TO
NEGOTIATE UNDER THE STATUTE AS NO PRIOR DETERMINATION OF THE
NEGOTIABILITY OF THE MATTER HAD BEEN MADE BY THE FEDERAL LABOR RELATIONS
AUTHORITY UP TO THIS TIME. /8/ CF. DEPARTMENT OF THE TREASURY, BUREAU
OF ALCOHOL, TOBACCO AND FIREARMS, MIDWEST REGION, CHICAGO, ILLINOIS AND
NATIONAL TREASURY EMPLOYEES UNION AND NTEU CHAPTER 94, 2 FLRA NO. 74
(1980). THE PROPER RESOLUTION OF THE MATTER AT THE TIME WAS UNDER THE
PROCEDURES SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
AUTHORITY'S RULES AND REGULATIONS SINCE THE MATTER PROPOSED TO BE
BARGAINED DID NOT INVOLVE ACTUAL OR CONTEMPLATED CHANGES IN CONDITIONS
OF EMPLOYMENT. SEE, E.G., NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5 FLRA NO. 25 (1981);
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-87 AND STATE OF
KANSAS ARMY NATIONAL GUARD, ET AL, 3 FLRA NO. 124 (1980); DECISION ON
REQUEST FOR GENERAL STATEMENT OF POLICY OR GUIDANCE, 4 FLRA NO. 86
(1980). ACCORDINGLY, RESPONDENT ALSO DID NOT VIOLATE SECTIONS (1), (5),
AND (8) OF THE STATUTE BY ISSUING A NON-NEGOTIABILITY DETERMINATION AND
IN REFUSING TO AGREE TO THE UNION'S PROPOSAL ON APRIL 23, 1980.
IN VIEW OF MY DISPOSITION OF THE CASE ON THE ABOVE GROUNDS, IT IS
UNNECESSARY TO REACH OTHER ISSUES POSED BY THE PARTIES IN JOINT EXHIBIT
1 AND IN THEIR BRIEFS. (SEE. TR. 14).
BASED ON THE FOREGOING FINDINGS AND CONCLUSIONS, I RECOMMEND THAT THE
AUTHORITY ISSUE THE FOLLOWING:
ORDER
IT IS HEREBY ORDERED THAT THE CONSOLIDATED COMPLAINT IN CASE NO.
5-CA-86 AND 5-CA-532 BE, AND IT HEREBY IS, DISMISSED.
GARVIN LEE OLIVER
ADMINISTRATIVE LAW JUDGE
DATED: APRIL 29, 1981
WASHINGTON, DC
--------------- FOOTNOTES$ ---------------
/1/ SEE SECTION 2424.5 OF THE AUTHORITY'S RULES AND REGULATIONS,
DEALING WITH NEGOTIABILITY APPEALS, WHICH PROVIDES AS FOLLOWS:
SECTION 2424.5 SELECTION OF THE UNFAIR LABOR PRACTICE PROCEDURE OR
THE NEGOTIABILITY
PROCEDURE.
WHERE A LABOR ORGANIZATION FILES AN UNFAIR LABOR PRACTICE CHARGE
PURSUANT TO PART 2423 OF
THIS SUBCHAPTER WHICH INVOLVES A NEGOTIABILITY ISSUE, AND THE LABOR
ORGANIZATION ALSO FILES
PURSUANT TO THIS PART A PETITION FOR REVIEW OF THE SAME NEGOTIABILITY
ISSUE, THE AUTHORITY AND
THE GENERAL COUNSEL ORDINARILY WILL NOT PROCESS THE UNFAIR LABOR
PRACTICE CHARGE AND THE
PETITION FOR REVIEW SIMULTANEOUSLY. UNDER SUCH CIRCUMSTANCES, THE
LABOR ORGANIZATION MUST
SELECT UNDER WHICH PROCEDURES TO PROCEED . . . CASES WHICH SOLELY
INVOLVE AN AGENCY'S
ALLEGATION THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO
THE MATTER PROPOSED TO BE
BARGAINED AND WHICH DO NOT INVOLVE ACTUAL OR CONTEMPLATED CHANGES IN
CONDITIONS OF EMPLOYMENT
MAY ONLY BE FILED UNDER THIS PART.
/2/ 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.
/3/ THE AUTHORITY FINDS IT UNNECESSARY TO, AND SPECIFICALLY DOES NOT,
PASS UPON THE JUDGE'S STATEMENTS AND FINDINGS REGARDING THE UNION'S LACK
OF GOOD FAITH WITH RESPECT TO BARGAINING OVER THE RESPONDENT'S PROPOSALS
TO EXCLUDE SECTION 709(E) MATTERS FROM THE SCOPE OF THE NEGOTIATED
GRIEVANCE PROCEDURE.
/4/ THE TRANSCRIPT IS HEREBY CORRECTED AS REQUESTED IN THE GENERAL
COUNSEL'S UNOPPOSED MOTION.
/5/ SECTION 709(E) 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 OR 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.
/6/ THE POST-ENACTMENT STATEMENTS OF REPRESENTATIVE WILLIAM FORD, 124
CONG. REC. H13609 (DAILY ED. OCT. 14, 1978) REGARDING HIS INTERPRETATION
OF SECTION 7121(A)(2) DO NOT CONSTITUTE EVIDENCE OF CONGRESSIONAL
INTENT. OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY
ADMINISTRATION, SAN FRANCISCO REGION, 5 FLRA NO. 45 (1981).
/7/ SECTION 7121 OF THE STATUTE PROVIDES, IN PERTINENT PART, AS
FOLLOWS:
SECTION 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.
/8/ ON FEBRUARY 20, 1981 THE AUTHORITY IN NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5
FLRA NO. 25 (1981) DETERMINED THAT A UNION'S PROPOSED GRIEVANCE
PROCEDURE, WHICH INCLUDED WITHIN ITS COVERAGE 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).