Decision on Request for General Statement of Policy or Guidance (Authority decision, November 12, 1980)

Final FLRA decision. The Authority denied a request for a general policy statement and ended this guidance request. It did not decide the negotiability of a specific grievance proposal or resolve an employee’s adverse action.

Plain-English summary

The National Federation of Federal Employees asked for broad guidance on whether National Guard technician adverse actions must be excluded from negotiated grievance procedures. The Authority concluded the issue could be addressed through a specific negotiability case under 5 U.S.C. § 7117. It denied the general policy request without deciding whether any particular proposed grievance clause was lawful.

Decision snapshot

• Authority: 5 U.S.C. § 7117, 32 U.S.C. § 709(e).
• Outcome: Request for general policy guidance denied; specific negotiability route left available.
• Key point: A concrete proposal could be tested through the negotiability procedure.

Full text (FLRA public release)

[ v04 p664 ]

04:0664(86)PS

The decision of the Authority follows:

4 FLRA No. 86

Case No. 0-PS-19

DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
GUIDANCE

THE AUTHORITY RECEIVED A REQUEST FROM THE NATIONAL FEDERATION OF
FEDERAL EMPLOYEES (NFFE) THAT THE AUTHORITY ISSUE A MAJOR POLICY
DETERMINATION CONCERNING, IN EFFECT, WHETHER APPEALS OF ADVERSE ACTIONS
INVOLVING NATIONAL GUARD (NG) TECHNICIANS MUST BE EXPRESSLY EXCLUDED
FROM COVERAGE OF NEGOTIATED GRIEVANCE PROCEDURES BECAUSE OF THE
OPERATION OF SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF
1968 (32 U.S.C. 709(E)) WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND UNDER REGULATIONS
PRESCRIBED BY THE

SECRETARY 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 (A REDUCTION IN
FORCE, REMOVAL OR AN

ADVERSE ACTION AGAINST A TECHNICIAN) SHALL NOT EXTEND BEYOND THE
ADJUTANT GENERAL OF THE

JURISDICTION CONCERNED(.)

ACCORDING TO NFFE'S SUBMISSION, THE REQUEST ARISES OUT OF A SITUATION
PRESENTLY FACED BY SOME NFFE LOCALS WHEREIN SUCH LOCALS ARE
CONTEMPLATING THE RENEGOTIATION OF BROAD-SCOPE GRIEVANCE PROCEDURES AND
THE NATIONAL GUARD BUREAU IS CLAIMING THAT MATTERS INVOLVING APPEALS OF
ADVERSE ACTIONS AGAINST NG TECHNICIANS CANNOT BE SENT TO ARBITRATION.

THE AUTHORITY HAS CAREFULLY CONSIDERED THIS REQUEST AND HAS
DETERMINED THAT IT DOES NOT SATISFY THE STANDARDS GOVERNING THE ISSUANCE
OF GENERAL STATEMENTS OF POLICY AND GUIDANCE SET FORTH IN SECTION 2427.5
OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2427.5) WHICH PROVIDES
IN PERTINENT PART:

SEC. 2427.5 STANDARDS GOVERNING ISSUANCE OF GENERAL STATEMENT OF
POLICY AND GUIDANCE.

IN DECIDING WHETHER TO ISSUE A GENERAL STATEMENT OF POLICY OR
GUIDANCE, THE AUTHORITY SHALL

CONSIDER:

(A) WHETHER THE QUESTION PRESENTED CAN MORE APPROPRIATELY BE RESOLVED
BY OTHER MEANS(.)

THE QUESTION PRESENTED IN THIS REQUEST FOR A MAJOR POLICY
DETERMINATION CAN BE MORE APPROPRIATELY RESOLVED BY OTHER MEANS. IN
THIS REGARD, THE ESSENCE OF THE QUESTION PRESENTED APPEARS TO BE WHETHER
UNION PROPOSED GRIEVANCE PROCEDURES WHICH FAIL TO EXPRESSLY EXCLUDE
APPEALS OF ADVERSE ACTIONS OF NG TECHNICIANS FROM INCLUSION WITHIN THE
SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURES WOULD BE NONNEGOTIABLE,
I.E., INCONSISTENT WITH LAW, RULE OR REGULATIONS, IN THIS CASE, SECTION
709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968. THUS, THE
QUESTION PRESENTED IS APPROPRIATE FOR RESOLUTION UNDER THE PROCEDURES
SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.1 ET SEQ.). /1/

ACCORDINGLY, THE INSTANT REQUEST FOR A MAJOR POLICY DETERMINATION IS
DENIED.

ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

CERTIFICATE OF SERVICE

A COPY OF THE DECISION ON REQUEST FOR GENERAL STATEMENT OF POLICY OR
GUIDANCE OF THE FEDERAL LABOR RELATIONS AUTHORITY IN THE SUBJECT
PROCEEDING HAS THIS DAY BEEN MAILED TO THE PARTIES LISTED BELOW:

MR. JAMES M. PEIRCE

PRESIDENT

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

1016 16TH STREET, N.W.

WASHINGTON, D.C. 20036

MR. KENNETH T. BLAYLOCK

NATIONAL PRESIDENT

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

1325 MASSACHUSETTS AVE., N.W.

WASHINGTON, D.C. 20005

--------------- FOOTNOTES$ ---------------

/1/ SEE, E.G., NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL
R14-87 AND STATE OF KANSAS ARMY NATIONAL GUARD (AND OTHER CASES
CONSOLIDATED THEREWITH), 3 FLRA NO. 124 (1980); AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669 AND VETERANS ADMINISTRATION
MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3 FLRA NO. 48 (1980).