American Federation of Government Employees, Local 3098 and Indiana Air National Guard (Authority decision, February 4, 1982)

Final FLRA decision. The Authority held the grievance procedure proposal negotiable except for its provision allowing a discrimination complaint under both statutory and negotiated procedures. It also held the proposed stay of personnel actions negotiable. An aggrieved person may petition an appropriate United States court of appeals for review within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 3098 proposed employee appeal and grievance options and a stay of personnel actions while a grievance or arbitration was pending. The Authority held that National Guard technicians' adverse action appeals could fall within a negotiated grievance procedure. It rejected the part that would allow a discrimination complaint to proceed under both a statutory appeal procedure and the negotiated procedure. It also held the proposed stay of personnel action to be a negotiable procedure. The Authority ordered the Indiana Air National Guard to bargain over the grievance provision within that limit and over the entire stay provision.

Decision snapshot

• Authority: Negotiability under 5 U.S.C. §§ 7105(a)(2)(E), 7106(b)(2), and 7121(e)(1).
• Outcome: One proposal negotiable in part; the proposed stay negotiable in full.
• Key point: Bargaining could cover adverse action grievance options and a stay, but could not allow a discrimination complaint in both procedural tracks.

Full text (FLRA public release)

[ v08 p7 ]

08:0007(2)NG

The decision of the Authority follows:

8 FLRA No. 2

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3098
Union

and

INDIANA AIR NATIONAL GUARD
Agency

Case No. 0-NG-301

DECISION AND ORDER ON NEGOTIABILITY ISSUES

THE PETITION FOR REVIEW IN 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),
AND RAISES AN ISSUE AS TO THE NEGOTIABILITY OF THE FOLLOWING TWO UNION
PROPOSALS:

SECTION 4: APPEALS AND GRIEVANCE OPTIONS

AN AGGRIEVED EMPLOYEE AFFECTED BY DISCRIMINATION, A REMOVAL OR
REDUCTION IN GRADE BASED ON

UNACCEPTABLE PERFORMANCE, OR ADVERSE ACTION MAY AT HIS/HER OPTION
RAISE THE MATTER UNDER A

STATUTORY APPELLATE PROCEDURE OR THE NEGOTIATED GRIEVANCE PROCEDURE,
BUT NOT BOTH (EXCEPT FOR

DISCRIMINATION COMPLAINTS). FOR THE PURPOSES OF THIS SECTION AND
PURSUANT TO SECTION

7121(E)(1) OF THE ACT, AN EMPLOYEE SHALL BE DEEMED TO HAVE EXERCISED
HIS OPTION UNDER THIS

SECTION ONLY WHEN THE EMPLOYEE FILES A TIMELY GRIEVANCE IN WRITING
UNDER THE APPELLATE

PROCEDURE OR FILES A TIMELY GRIEVANCE IN WRITING UNDER THE NEGOTIATED
GRIEVANCE PROCEDURE.

SECTION 11: STAYS OF PERSONNEL ACTION

A PENDING OR PROPOSED PERSONNEL ACTION WHICH HAS BEEN MADE THE
SUBJECT OF A GRIEVANCE OR

ARBITRATION WILL BE STAYED PENDING THE FINAL DECISION OF THE MATTER.

UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.

INSOFAR AS SECTION 4 WOULD INCLUDE WITHIN THE SCOPE AND COVERAGE OF
THE NEGOTIATED GRIEVANCE PROCEDURE MATTERS RELATING TO APPEALS OF
ADVERSE ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS AS WELL AS PROVIDE
THE EMPLOYEE AN OPTION TO APPEAL AN ADVERSE ACTION THROUGH THE STATUTORY
OR NEGOTIATED PROCEDURE, IT BEARS NO MATERIAL DIFFERENCE FROM THE
DISPUTED PROPOSAL WHICH WAS HELD NEGOTIABLE IN NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5
FLRA NO. 25(1981), APPEAL DOCKETED, NO. 81-7231 (9TH CIR.APR. 17,
1981). HOWEVER, INSOFAR AS SECTION 4 WOULD PERMIT THE FILING OF A
DISCRIMINATION COMPLAINT UNDER BOTH A STATUTORY APPEAL PROCEDURE AND THE
NEGOTIATED GRIEVANCE PROCEDURE, IT BEARS NO MATERIAL DIFFERENCE FROM
THAT PORTION OF THE "GRIEVANCE PROCEDURE" PROPOSAL FOUND NON-NEGOTIABLE
IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3486 AND
NEW JERSEY AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP, POMONA,
NEW JERSEY, 5 FLRA NO. 26(1981), APPEAL DOCKETED, NO. 81-1592 (3RD
CIR.APR. 17, 1981). THEREFORE, BASED ON THE REASONS SET FORTH IN DETAIL
IN THE AFOREMENTIONED DECISIONS, THE PRESENT PROPOSAL MUST ALSO BE HELD
TO BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE EXCEPT TO THE EXTENT
NOTED.

INSOFAR AS SECTION 11 IS CONCERNED, IT IS IDENTICAL TO PROPOSAL 3
WHICH WAS HELD NEGOTIABLE IN AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 547, AFL-CIO AND VETERANS ADMINISTRATION MEDICAL
CENTER, TAMPA, FLORIDA, 4 FLRA NO. 50(1981), APPEAL DOCKETED, NO.
80-5938 (5TH CIR. NOV. 25, 1981). CONSEQUENTLY, FOR THE REASONS STATED
IN THAT CASE, SECTION 11 MUST ALSO BE HELD TO BE A NEGOTIABLE PROCEDURE
UNDER SECTION 7106(B)(2) OF THE STATUTE. /1/

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN ON
SECTION 4 OF THE PROPOSAL EXCEPT TO THE EXTENT INDICATED HEREIN AND ON
SECTION 11 OF THE PROPOSAL IN ITS ENTIRETY. /2/

ISSUED, WASHINGTON, D.C., FEBRUARY 4, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES: ---------------

/1/ IN SO CONCLUDING, THE AUTHORITY REJECTS AS UNSUPPORTED THE
AGENCY'S CONTENTIONS THAT THE PROPOSAL WOULD PREVENT THE AGENCY FROM
ACTING AT ALL TO EXERCISE ITS RIGHTS. FURTHER, IN THIS REGARD, THE FACT
THAT THIS PROPOSAL CONCERNS NATIONAL GUARD TECHNICIANS PROVIDES NO BASIS
FOR REACHING A DIFFERENT RESULT FROM THAT CONCERNING PROPOSAL 3 IN
VETERANS ADMINISTRATION MEDICAL CENTER, SUPRA. SEE DEPARTMENT OF THE
AIR FORCE, U.S. AIR FORCE ACADEMY, 6 FLRA NO. 100(1981).

/2/ IN FINDING THE UNION PROPOSALS NEGOTIABLE TO THE EXTENT INDICATED
ABOVE, THE AUTHORITY MAKES NO JUDGMENT AS TO THEIR MERITS.