Hawaii Air National Guard and AFGE Local 882 (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

AFGE Local 882 and the Hawaii Air National Guard disputed whether performance-related matters would be covered by their grievance procedure. They bargained without reaching agreement. The Authority held that a party could bargain to impasse over grievance scope and 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: Impasse over grievance coverage did not itself prove bad faith bargaining.

Full text (FLRA public release)

[ v09 p852 ]

09:0852(113)CA

The decision of the Authority follows:

9 FLRA No. 113

154TH TACTICAL FIGHTER GROUP,
HAWAII AIR NATIONAL GUARD
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 882
Charging Party

Case No. 8-CA-836

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, THE AUTHORITY FINDS:

THE CHARGING PARTY (THE UNION) IS THE EXCLUSIVE REPRESENTATIVE OF A
UNIT CONSISTING OF CERTAIN OF THE RESPONDENT'S EMPLOYEES. IN MAY 1980
THE PARTIES BEGAN NEGOTIATION OF A SUCCESSOR COLLECTIVE BARGAINING
AGREEMENT. FOLLOWING NUMEROUS NEGOTIATION SESSIONS AND TENTATIVE
AGREEMENT ON CERTAIN ARTICLES, IN NOVEMBER 1980 THE UNION SUBMITTED A
NEW PROPOSAL ON A "PERFORMANCE APPRAISALS" ARTICLE WHICH, AMONG OTHER
THINGS, PROVIDED FOR ARBITRATION OF ANY DISPUTE RELATING TO THAT
ARTICLE. /1/ THE RESPONDENT COUNTER PROPOSED THAT ACTIONS BASED ON
UNACCEPTABLE PERFORMANCE AND APPEALS OF PERFORMANCE APPRAISALS BE
EXCEPTED FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE.
ADDITIONALLY, THE RESPONDENT TOOK THE POSITION THAT THE TENTATIVELY
AGREED TO "CONTRACT REOPENER" ARTICLE SHOULD REMAIN IN THE AGREEMENT.
/2/ ALTHOUGH THE PARTIES FULLY CONSIDERED EACH OTHER'S POSITIONS ON THE
"CONTRACT REOPENER" AND "PERFORMANCE APPRAISAL" ARTICLES, THEY WERE
UNABLE TO REACH AGREEMENT.

THE GENERAL COUNSEL CONTENDS THAT RESPONDENT'S ACTIONS IN FAILING TO
ACCEDE TO A FULL-SCOPE NEGOTIATED GRIEVANCE PROCEDURE BY BARGAINING TO
IMPASSE, CONSTITUTED BAD FAITH BARGAINING IN VIOLATION OF SECTION
7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE). THE RESPONDENT ARGUES THAT ITS INSISTENCE THAT
CERTAIN MATTERS BE EXCLUDED FROM THE SCOPE OF THE NEGOTIATED GRIEVANCE
PROCEDURE DID NOT CONSTITUTE BAD FAITH BARGAINING.

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. FOR 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. 8-CA-836 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/ PREVIOUSLY, THE PARTIES HAD TENTATIVELY AGREED TO A "PERFORMANCE
APPRAISALS" ARTICLE WHICH CONTAINED NO REFERENCE TO AVENUES OF APPEAL.

/2/ EARLIER IN THE NEGOTIATIONS, THE PARTIES HAD TENTATIVELY AGREED
TO A "CONTRACT REOPENER" ARTICLE WHICH ESSENTIALLY DECLARED ACTIONS
TAKEN PURSUANT TO SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT
OF 1968 TO BE OUTSIDE THE SCOPE OF THE GRIEVANCE PROCEDURE ARTICLE UNTIL
SUCH TIME AS THE RESPONDENT WITHDREW ITS CLAIM ON NONNEGOTIABILITY, OR
THE AUTHORITY MADE A DISPOSITIVE DETERMINATION ON SUCH ISSUE.

/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 ADVERSE ACTIONS INVOLVING TECHNICIANS FROM COVERAGE UNDER
NEGOTIATED GRIEVANCE PROCEDURES. (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).)