American Federation of Government Employees, Local 3486, AFL-CIO (Union) and New Jersey Air National Guard, 177th Fighter Interceptor Group, Pomona, New Jersey (Activity) (Authority decision, February 20, 1981)

Final FLRA decision. This negotiability decision resolves the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union proposed to let New Jersey Air National Guard technicians use a negotiated grievance procedure for reduction-in-force and disciplinary disputes. The Guard argued that the technicians’ statutory appeal route barred bargaining over the proposals. The Authority held the reduction-in-force and adverse-discipline proposals negotiable. It excluded the grievance proposal’s clauses allowing a discrimination complaint in both statutory and negotiated processes and requiring union concurrence before an employee files a grievance.

Decision snapshot

• Authority: 5 U.S.C. § 7117, 5 U.S.C. § 7121(d), 5 U.S.C. § 7121(b)(3)(B).
• Outcome: Two proposals negotiable in full; specified parts of the third outside the duty to bargain.
• Key point: Employees must choose one route for a discrimination complaint and may file grievances without union concurrence.

Full text (FLRA public release)

[ v05 p209 ]

05:0209(26)NG

The decision of the Authority follows:

5 FLRA No. 26

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3486
Union

and

NEW JERSEY AIR NATIONAL GUARD,
177TH FIGHTER INTERCEPTOR GROUP,
POMONA, NEW JERSEY
Activity

Case No. 0-NG-119

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.).

A DISPUTE AROSE BETWEEN THE PARTIES AS TO THE NEGOTIABILITY OF THE
FOLLOWING THREE PROPOSALS:

UNION PROPOSALS

REDUCTION-IN-FORCE

SECTION 8. AN EMPLOYEE WILL BE PERMITTED TO GRIEVE ANY VIOLATION OF
THIS ARTICLE UNDER THE

DISPUTES PROVISION OF THIS CONTRACT.

GRIEVANCE PROCEDURE

SECTION 4. AN AGGRIEVED EMPLOYEE AFFECTED BY DISCRIMINATION,
REMOVAL, REDUCTION IN GRADE

OR PAY BASED ON AN UNACCEPTABLE PERFORMANCE OR ANY OTHER ADVERSE
ACTION MAY RAISE THE MATTER

UNDER ANY STATUTORY APPELLANT (SIC) PROCEDURE OR WITH THE CONCURRENCE
OF THE UNION UNDER THE

NEGOTIATED PROCEDURE BUT NOT BOTH; EXCEPT FOR A DISCRIMINATION
COMPLAINT WHICH MAY BE A MIXED

PROCEDURE AND FILED UNDER BOTH PROCESSES. (UNDERSCORING ADDED.)

ADVERSE DISCIPLINARY ACTION

SECTION 4(B) THE PARTIES AGREE THAT THE GRIEVANCE PROCEDURE
NEGOTIATED HEREIN (ARTICLE XI(

MAY BE USED TO ADJUDICATE ANY MISUNDERSTANDING OR DISAGREEMENT
RELATING TO "JUST CAUSE" AND

WHAT IS CONSIDERED "FAIR AND EQUITABLE".

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSALS, WHICH ESSENTIALLY
PERTAIN TO THE SCOPE AND COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE,
ARE MATTERS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7117 OF THE
STATUTE BECAUSE THEY ARE INCONSISTENT WITH FEDERAL LAW (32 U.S.C.
709(E)) /1/ AND THE STATUTE, AS ALLEGED BY THE AGENCY.

OPINION

CONCLUSION AND ORDER: THE UNION'S PROPOSALS CONCERN MATTERS WHICH
ARE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE, ALTHOUGH CERTAIN
PORTIONS THEREOF (UNDERSCORED ABOVE) ARE INCONSISTENT WITH THE STATUTE.
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 PROPOSALS ENTITLED
"REDUCTION-IN-FORCE" AND "ADVERSE DISCIPLINARY ACTION" IN THEIR ENTIRETY
AND THE ONE ENTITLED "GRIEVANCE PROCEDURE" TO THE EXTENT INDICATED
HEREIN. /2/

REASONS: AS NOTED ABOVE, THE AGENCY ALLEGES THAT 32 U.S.C. 709(E)
PRECLUDES NEGOTIATIONS OVER THOSE PORTIONS OF THE UNION'S PROPOSALS
WHICH WOULD INCLUDE WITHIN THE SCOPE OF THE NEGOTIATED GRIEVANCE
PROCEDURE MATTERS SUCH AS REDUCTIONS-IN-FORCE, REDUCTIONS IN GRADE OR
PAY BASED ON UNACCEPTABLE PERFORMANCE, OR ANY OTHER ADVERSE ACTION
INVOLVING NATIONAL GUARD TECHNICIANS. SPECIFICALLY, THE AGENCY ALLEGES
THE APPEALS OF SUCH ACTIONS CANNOT BY LAW EXTEND BEYOND THE ADJUTANT
GENERAL OF THE JURISDICTION CONCERNED. FOR THE SAME REASON, THE AGENCY
FURTHER ALLEGES, ADJUDICATION OF SUCH TERMS AS "JUST CAUSE" AND "FAIR
AND EQUITABLE" AS THEY ARE APPLIED TO ADVERSE DISCIPLINARY ACTIONS
IMPOSED BY THE ADJUTANT GENERAL WOULD BE CONTRARY TO 32 U.S.C. 709(E)
SINCE ANY RULING BY AN ARBITRATOR WITH REGARD TO SUCH TERMS WOULD
INFRINGE ON THE EXERCISE OF THE ADJUTANT GENERAL'S AUTHORITY IN SUCH
MATTERS.

THESE PROPOSALS WHICH ESSENTIALLY PERTAIN TO THE SCOPE AND COVERAGE
OF THE NEGOTIATED GRIEVANCE PROCEDURE BEAR NO MATERIAL DIFFERENCE FROM
THE DISPUTED PROPOSAL WHICH WAS BEFORE THE AUTHORITY IN NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA
NATIONAL GUARD, 5 FLRA NO. 25(1980), AND WHICH WAS HELD TO BE WITHIN THE
DUTY TO BARGAIN UNDER THE STATUTE. IN THAT CASE, THE AUTHORITY
DETERMINED THE PROPOSED GRIEVANCE PROCEDURE WHICH INCLUDED WITHIN ITS
COVERAGE MATTERS RELATING TO APPEALS OF ADVERSE ACTIONS INVOLVING
NATIONAL GUARD TECHNICIANS WAS WITHIN THE DUTY TO BARGAIN UNDER SECTION
7117 OF THE STATUTE. /3/ THEREFORE, BASED ON THE REASONS SET FORTH IN
GREATER DETAIL IN CALIFORNIA NATIONAL GUARD, THE PROPOSALS HERE IN
DISPUTE, EXCEPT TO THE EXTENT SPECIFIED BELOW, MUST ALSO BE HELD TO BE
WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.

THE PORTION OF THE UNION'S PROPOSAL ENTITLED "GRIEVANCE PROCEDURE"
WHICH WOULD PERMIT THE FILING OF A DISCRIMINATION COMPLAINT UNDER BOTH A
STATUTORY APPEAL PROCEDURE AND THE NEGOTIATED GRIEVANCE PROCEDURE IS
NONNEGOTIABLE INASMUCH AS THE STATUTE PRECLUDES AN EMPLOYEE SO AFFECTED
FROM UTILIZING BOTH PROCEDURES, BUT INSTEAD REQUIRES THE EMPLOYEE TO
ELECT ONE PROCEDURE OR THE OTHER.

SECTION 7121(D) OF THE STATUS PROVIDES, IN PERTINENT PART, AS
FOLLOWS:

(D) AN AGGRIEVED EMPLOYEE AFFECTED BY A PROHIBITED PERSONNEL PRACTICE
UNDER SECTION

2302(B)(1) OF THIS TITLE WHICH ALSO FALLS UNDER THE COVERAGE OF THE
NEGOTIATED GRIEVANCE

PROCEDURE MAY RAISE THE MATTER UNDER A STATUTORY PROCEDURE OR THE
NEGOTIATED PROCEDURE, BUT

NOT BOTH. . . .

BY THE EXPRESS LANGUAGE OF SECTION 7121(D), IT IS CLEAR THAT AN
EMPLOYEE AFFECTED BY A DISCRIMINATION MATTER AS DEFINED IN 5 U.S.C.
2302(B)(1), /4/ WHICH MATTER ALSO FALLS UNDER THE COVERAGE OF A
NEGOTIATED GRIEVANCE PROCEDURE, MAY RAISE THE MATTER UNDER EITHER A
STATUTORY APPEAL PROCEDURE OR THE NEGOTIATED PROCEDURE, BUT MAY NOT
RAISE THE MATTER UNDER BOTH PROCEDURES. THE LEGISLATIVE HISTORY IN THIS
REGARD INDICATES THAT THE LANGUAGE OF SECTION 7121(D) OF THE STATUTE AS
ENACTED AND SIGNED INTO LAW IS IDENTICAL TO THAT CONTAINED IN SECTION
7221(F) OF THE BILL (S. 2640) REPORTED OUT OF THE SENATE COMMITTEE ON
GOVERNMENTAL AFFAIRS AND SUBSEQUENTLY PASSED BY THE SENATE. THE SENATE
COMMITTEE REPORTED ON THIS SUBSECTION, IN PERTINENT PART, AS FOLLOWS:
/5/

WHERE THE NEGOTIATED PROCEDURE COVERS . . . DISCRIMINATION
COMPLAINTS, UNDER SECTION

. . . 7221(F) THE EMPLOYEE WILL HAVE AN OPTION TO USE THE NEGOTIATED
GRIEVANCE PROCEDURE OR

THE STATUTORY APPEAL PROCEDURE, BUT NOT BOTH.

ACCORDINGLY, WHILE IT IS CLEARLY NEGOTIABLE TO INCLUDE DISCRIMINATION
MATTERS AS SET FORTH IN 5 U.S.C. 2302(B)(A) WITHIN THE SCOPE OF
NEGOTIATED GRIEVANCE PROCEDURES, /6/ TO THE EXTENT THAT THE UNION'S
PROPOSAL IN THE INSTANT CASE WOULD PERMIT AN EMPLOYEE TO PURSUE "A
DISCRIMINATION COMPLAINT . . . UNDER BOTH PROCESSES," THE PROPOSAL
CONFLICTS WITH SECTION 7121(D) OF THE STATUTE AND IS, THEREFORE, OUTSIDE
THE DUTY TO BARGAIN.

FURTHERMORE, AS THE AGENCY CONTENDS, IF THE INTENT OF THE PROPOSED
"GRIEVANCE PROCEDURE" WERE TO REQUIRE AN AGGRIEVED EMPLOYEE TO OBTAIN
THE CONCURRENCE OF THE UNION PRIOR TO THE INITIATION OF A GRIEVANCE,
THEN THE PROPOSAL WOULD CONFLICT WITH SECTION 7121(B)(3)(B) OF THE
STATUTE /7/ AND WOULD THEREFORE BE OUTSIDE THE DUTY TO BARGAIN. THE
UNION, IN ITS RESPONSE TO THE AGENCY'S STATEMENT OF POSITION, STATED, IN
THIS REGARD, THAT, "THE LANGUAGE WAS NOT INTENDED TO DEPRIVE ANY
EMPLOYEE(S) OF THEIR RIGHTS UNDER THE (S)STATUTE (BUT) WAS PROPOSED WITH
THE INTENT THAT ONLY THE UNION MAY INVOKE ARBITRATION." HOWEVER, THE
PROPOSAL STATES THAT "AN AGGRIEVED EMPLOYEE AFFECTED BY DISCRIMINATION .
. . MAY RAISE THE MATTER . . . WITH THE CONCURRENCE OF THE UNION UNDER
THE NEGOTIATED PROCEDURE." THUS, ON ITS FACE, THE PROPOSAL WOULD REQUIRE
CONCURRENCE OF THE UNION PRIOR TO THE FILING OF A GRIEVANCE. TO THAT
EXTENT, THE PROPOSAL IS INCONSISTENT WITH SECTION 7121(B)(3)(B) OF THE
STATUTE WHICH GUARANTEES TO EMPLOYEES THE RIGHT TO PRESENT GRIEVANCES ON
THEIR OWN BEHALF AND IS, THEREFORE, OUTSIDE THE DUTY TO BARGAIN.

IN SUMMARY, THE PROPOSALS ENTITLED "REDUCTION-IN-FORCE" AND "ADVERSE
DISCIPLINARY ACTION," IN THEIR ENTIRETY, AND THE PROPOSAL ENTITLED
"GRIEVANCE PROCEDURE," EXCEPT AS SPECIFIED HEREIN, ARE WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.
ACCORDINGLY, THE AGENCY'S ALLEGATIONS THAT THE UNION'S PROPOSALS ARE NOT
WITHIN THE DUTY TO BARGAIN ARE, TO THAT EXTENT, 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/ 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 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.

/2/ IN DECIDING THAT PORTIONS OF THE UNION'S PROPOSALS ARE WITHIN THE
DUTY TO BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF
SUCH PROPOSALS.

/3/ SEE ALSO, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
3669, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS,
MINNESOTA, 4 FLRA NO. 53(1980).

/4/ 5 U.S.C. 2302(B)(1) PROVIDES AS FOLLOWS:

SEC. 2302. PROHIBITED PERSONNEL PRACTICES

(B) ANY EMPLOYEE WHO HAS AUTHORITY TO TAKE, DIRECT OTHERS TO TAKE,
RECOMMEND, OR APPROVE

ANY PERSONNEL ACTION, SHALL NOT, WITH RESPECT TO SUCH AUTHORITY--

(1) DISCRIMINATE FOR OR AGAINST ANY EMPLOYEE OR APPLICANT FOR
EMPLOYMENT--

(A) ON THE BASIS OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN,
AS PROHIBITED UNDER

SECTION 717 OF THE CIVIL RIGHTS ACT OF 1964 (42 U.S.C. 2000E-16);

(B) ON THE BASIS OF AGE, AS PROHIBITED UNDER SECTIONS 12 AND 15 OF
THE AGE DISCRIMINATION

IN EMPLOYMENT ACT OF 1967 (29 U.S.C. 631, 633A);

(C) ON THE BASIS OF SEX, AS PROHIBITED UNDER SECTION 6(D) OF THE FAIR
LABOR STANDARDS ACT

OF 1938 (29 U.S.C 206(D));

(D) ON THE BASIS OF HANDICAPPING CONDITION, AS PROHIBITED UNDER
SECTION 501 OF THE

REHABILITATION ACT OF 1973 (29 U.S.C. 791); OR

(E) ON THE BASIS OF MARITAL STATUS OR POLITICAL AFFILIATION, AS
PROHIBITED UNDER ANY LAW,

RULE, OR REGULATION. . . .

/5/ S. REP. NO. 95-969, 95TH CONG., 2D SESS. 110(1978).

/6/ SEE, IN THIS REGARD, NATIONAL TREASURY EMPLOYEES UNION AND
INTERNAL REVENUE SERVICE, 3 FLRA NO. 112(1980), WHEREIN THE AUTHORITY
HELD, IN PART, THAT A PROPOSAL WHICH SOUGHT TO INCORPORATE THE
PROVISIONS OF 5 U.S.C. 2302(B) INTO THE NEGOTIATED GRIEVANCE PROCEDURE
WAS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.

/7/ SECTION 7121(B)(3)(B) OF THE STATUTE PROVIDES AS FOLLOWS:

SEC. 7121. GRIEVANCE PROCEDURES

. . . .

(B) ANY NEGOTIATED GRIEVANCE PROCEDURE REFERRED TO IN SUBSECTION (A)
OF THIS SECTION

SHALL--

. . . .

(3) INCLUDE PROCEDURES THAT--

. . . .

(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. . . .