New York National Guard and Civilian Technicians Association (Authority decision, August 5, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving an unfair labor practice complaint under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The New York National Guard and the civilian technicians’ union disagreed over the scope of their negotiated grievance procedure. The Authority held that grievance scope was a mandatory bargaining subject and that an impasse could be addressed through impasse procedures. It dismissed the unfair labor practice complaint; there was no judge’s decision under review.

Decision snapshot

• Authority: 5 U.S.C. § 7121(a)(2).
• Outcome: Complaint dismissed on the merits.
• Key point: Bargaining to impasse over grievance coverage did not establish a violation.

Full text (FLRA public release)

[ v09 p842 ]

09:0842(110)CA

The decision of the Authority follows:

9 FLRA No. 110

DIVISION OF MILITARY AND
NAVAL AFFAIRS, NEW YORK
NATIONAL GUARD, ALBANY,
NEW YORK
Respondent

and

NEW YORK STATE ASSOCIATION
OF CIVILIAN TECHNICIANS
Charging Party

Case No. 1-CA-554

DECISION AND ORDER

THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS.

UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
STIPULATION OF FACTS AND THE PARTIES' CONTENTIONS, /1/ THE AUTHORITY
FINDS:

THE COMPLAINT ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1), (5) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) WHEN IT INSISTED TO IMPASSE ON EXCLUDING
FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE ADVERSE ACTIONS
COVERED BY SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968.
/2/

THE CHARGING PARTY (THE UNION) IS THE EXCLUSIVE REPRESENTATIVE OF
CERTAIN TECHNICIANS EMPLOYED BY THE RESPONDENT. BY NOVEMBER 13, 1980
THE UNION AND THE RESPONDENT HAD REACHED IMPASSE DURING COLLECTIVE
BARGAINING ON THE SUBJECT OF THE SCOPE OF THE GRIEVANCE PROCEDURE. THE
UNION HAD REQUESTED A FULL SCOPE GRIEVANCE PROCEDURE WHILE THE
RESPONDENT INSISTED THAT CERTAIN MATTERS BE EXCLUDED FROM THE SCOPE OF
THAT PROCEDURE.

THE POSITIONS OF THE PARTIES ARE SUBSTANTIALLY SIMILAR TO THOSE OF
THE PARTIES IN VERMONT AIR NATIONAL GUARD, BURLINGTON, VERMONT, 9 FLRA
NO. 92(1982), WHEREIN WE HELD THAT THE SCOPE OF THE GRIEVANCE PROCEDURE
IS A MANDATORY SUBJECT FOR BARGAINING AND, IF IMPASSE IS REACHED, IS
SUBJECT TO IMPASSE RESOLUTION PROCEDURES. BASED ON THE REASONS SET
FORTH IN THAT DECISION, THE AUTHORITY FINDS THAT THE RESPONDENT'S
ACTIONS HEREIN DID NOT VIOLATE THE STATUTE AS ALLEGED IN THE COMPLAINT.
/3/

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-554 BE, AND
IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., AUGUST 5, 1982

RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ AS PART OF THE STIPULATION, THE GENERAL COUNSEL MOVED TO AMEND
THE COMPLAINT TO NAME THE NATIONAL GUARD BUREAU, WASHINGTON, D.C., AS AN
ADDITIONAL RESPONDENT. THE NATIONAL GUARD BUREAU OPPOSED THE MOTION.
NOTING PARTICULARLY THAT THE NATIONAL GUARD BUREAU IS NOT A PARTY TO THE
STIPULATION, THE MOTION IS DENIED.

/2/ SECTION 709(E) 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.

/3/ IN VIEW OF THIS CONCLUSION, THE AUTHORITY FINDS IT UNNECESSARY TO
ADDRESS THE RESPONDENT'S CONTENTION THAT SECTION 709(E) OF THE NATIONAL
GUARD TECHNICIANS ACT OF 1968 REQUIRES AS A MATTER OF LAW THE SPECIFIC
EXCLUSION OF MATTERS GOVERNED BY THAT SECTION FROM COVERAGE UNDER THE
NEGOTIATED GRIEVANCE PROCEDURE. (BUT SEE NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA NATIONAL GUARD, 5
FLRA NO. 25(1981); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3486 AND NEW JERSEY AIR NATIONAL GUARD, 177TH FIGHTER
INTERCEPTOR GROUP, 5 FLRA NO. 26(1981), REVERSED SUB NOM. NEW JERSEY AIR
NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP AND DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, NO. 81-1592 (3RD CIR.
APR. 12, 1982).)