American Federation of Government Employees, Local 2953 and Nebraska Military Department, Office of the Adjutant General (Authority decision, January 22, 1982)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. 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 2953 proposed grievance procedures for disciplinary actions involving National Guard technicians and a rule for ranking technicians during reductions in force. The Authority held that the three grievance proposals were within the duty to bargain despite the agency's argument about the Adjutant General's review authority. It rejected the fourth proposal because the union's civilian-only appraisal measure conflicted with a National Guard Bureau rule requiring both civilian and military performance to be considered. The agency was ordered to bargain on proposals I through III upon request, while the petition was dismissed as to proposal IV.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E), 5 U.S.C. § 7117(a)(2), 5 U.S.C. § 7121(e)(1), 32 U.S.C. § 709(e).
• Outcome: Proposals I through III negotiable; proposal IV nonnegotiable and dismissed.
• Key point: A compelling need for the combined civilian and military appraisal rule barred the union’s reduction-in-force proposal.

Full text (FLRA public release)

[ v07 p712 ]

07:0712(111)NG

The decision of the Authority follows:

7 FLRA No. 111

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2953
Union

and

STATE OF NEBRASKA,
MILITARY DEPARTMENT,
OFFICE OF THE ADJUTANT GENERAL,
LINCOLN, NEBRASKA
Agency

Case No. O-NG-302

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)(D)
AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) (5 U.S.C. 7101 ET SEQ.). THE ISSUES PRESENTED ARE THE
NEGOTIABILITY OF FOUR UNION PROPOSALS AS FOLLOWS:

UNION PROPOSALS I THROUGH III

UNION PROPOSAL I

(ARTICLE 8, SECTION 8-5) DISCIPLINARY ACTION

WHERE INFORMAL DISCIPLINARY ACTIONS FAIL TO CORRECT A DISCIPLINARY
PROBLEM, THE SUPERVISOR MAY ELECT TO TAKE FORMAL DISCIPLINARY ACTION.
FORMAL DISCIPLINARY ACTIONS ARE THOSE THAT ARE REDUCED TO WRITING.
DISCIPLINARY ACTION PROPOSING SUSPENSION, REMOVAL, OR REDUCTION IN GRADE
OR PAY, WILL BE PROCESSED AS FOLLOWS:

A. AT LEAST 30 DAYS ADVANCE WRITTEN NOTICE OF THE PROPOSED ACTION
WILL BE PROVIDED THE EMPLOYEE AND HIS/HER REPRESENTATIVE. THIS NOTICE
WILL EXPLAIN THE ACTION PROPOSED AND THE SPECIFIC REASONS FOR IT.

B. THE EMPLOYEE WILL BE GIVEN A REASONABLE TIME BUT NOT LESS THAN 7
DAYS TO ANSWER ORALLY OR IN WRITING AND FURNISH DOCUMENTARY EVIDENCE.

C. A WRITTEN NOTICE OF ORIGINAL DECISION AND THE SPECIFIC REASONS
THEREFORE WILL BE ISSUED TO THE EMPLOYEE AND HIS/HER REPRESENTATIVE AT
THE EARLIEST PRACTICAL DATE. THIS FINAL NOTICE WILL SPECIFY THE ACTION
DECIDED UPON AND THE EFFECTIVE DATE. FINAL NOTICE WILL ADVISE THE
EMPLOYEE OF THE RIGHT OF APPEAL, IN WRITING, THE TIME LIMIT FOR FILING
THE APPEAL, AND WHERE HE/SHE MAY OBTAIN FURTHER INFORMATION ABOUT APPEAL
RIGHTS.

D. WHEN A EMPLOYEE, REPRESENTED BY THE UNION, IS AFFECTED BY
DISCIPLINARY ACTION UNDER THIS ARTICLE, THE UNION MAY INVOKE BINDING
ARBITRATION THROUGH THE PROCESS DESCRIBED IN ARTICLE 24, GRIEVANCE
PROCEDURE AND ARTICLE 25 ARBITRATION.

UNION PROPOSAL II

(ARTICLE 24, SECTION 24-3) GRIEVANCE PROCEDURE

A GRIEVANCE MEANS ANY COMPLAINT:

A. (1) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE
EMPLOYMENT OF THE EMPLOYEE;

(2) BY THE UNION CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT OF
ANY EMPLOYEE; OR

(3) BY ANY EMPLOYEE, THE UNION OR THE EMPLOYER CONCERNING:

A. THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH OF A
COLLECTIVE BARGAINING

AGREEMENT;

B. ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
ANY LAW, RULE, OR

REGULATION AFFECTING CONDITIONS OF EMPLOYMENT.

B. EXCEPT THAT IT SHALL NOT INCLUDE A GRIEVANCE CONCERNING:

(1) ANY CLAIMED VIOLATION RELATING TO PROHIBITED POLITICAL
ACTIVITIES; OR

(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;

(3) A SUSPENSION OR A REMOVAL UNDER 5 USC 7532 (NATIONAL SECURITY);

(4) ANY EXAMINATION, CERTIFICATION OR APPOINTMENT; OR

(5) RECLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR PAY

OF AN EMPLOYEE.

UNION PROPOSAL III

(ARTICLE 24, SECTION 24-4) GRIEVANCE PROCEDURE

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

BASED ON UNACCEPTABLE PERFORMANCE OR ADVERSE ACTION MAY AT HIS/HER
OPTION RAISE THE MATTER

UNDER THIS NEGOTIATED GRIEVANCE PROCEDURE. THE UNION MAY INVOKE
BINDING ARBITRATION THROUGH

THE PROCESS PRESENTED IN ARTICLE 25.

ANY GRIEVANCE COVERED BY THIS SECTION SHALL FIRST BE TAKEN UP BY THE
CONCERNED EMPLOYEE AND

UNION REPRESENTATIVE WITH THE APPROPRIATE EMPLOYER REPRESENTATIVE
WITHIN 5 (5) WORK DAYS OF

THE FINAL NOTICE OF ACTION. THE EMPLOYEE WILL HAVE FIVE (5) WORKING
DAYS WITHIN WHICH TO

ANSWER THE GRIEVANCE IN WRITING. IF THE MATTER IS NOT SATISFACTORILY
SETTLED AT THIS POINT,

THE UNION MAY INVOKE ARBITRATION WITHIN TWENTY (20) DAYS OF RECEIPT
OF THE EMPLOYER'S REPLY.

QUESTION BEFORE THE AUTHORITY

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

OPINION

CONCLUSION AND ORDER: UNION PROPOSALS I THROUGH III DO NOT CONCERN
MATTERS WHICH ARE INCONSISTENT WITH FEDERAL LAW (32 U.S.C. 709(E)) AND,
THEREFORE, SUCH PROPOSALS ARE WITHIN THE DUTY TO BARGAIN UNDER THE
STATUTE. 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 CONCERNING UNION PROPOSALS I THROUGH III. /2/

REASONS: THE AGENCY ALLEGES THAT NEGOTIATION OF THOSE PORTIONS OF
UNION PROPOSALS I THROUGH III PERMITTING THE ARBITRATION OF DISCIPLINARY
ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS IS PRECLUDED BY SECTION
709(E) OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (32 U.S.C. 709(E))
WHICH SECTION ESTABLISHES THAT APPEALS OF SUCH DISCIPLINARY ACTIONS
CANNOT EXTEND BEYOND THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED.
FURTHER, THE AGENCY ALLEGES, SINCE SECTION 7121(E)(1) OF THE STATUTE
/3/ CANNOT BE APPLIED TO NATIONAL GUARD TECHNICIANS, UNION PROPOSAL III,
WHICH IS BASED ON THE LANGUAGE OF SECTION 7121(E)(1), IS ADDITIONALLY
NONNEGOTIABLE FOR THAT REASON. SPECIFICALLY, THE AGENCY ARGUES, SECTION
7121(E)(1) IS ITSELF BASED ON TWO OTHER SECTIONS OF TITLE 5, NAMELY 5
U.S.C. 4303 AND 5 U.S.C. 7512, BOTH OF WHICH EXCLUDE NATIONAL GUARD
TECHNICIANS FROM THEIR COVERAGE. /4/ THUS, THE AGENCY CONCLUDES, SINCE
SECTION 7121(E)(1) CANNOT BE APPLIED TO NATIONAL GUARD TECHNICIANS, IT
FOLLOWS THAT UNION PROPOSAL III ALSO CANNOT BE APPLIED AND IS,
THEREFORE, NONNEGOTIABLE.

THE AGENCY'S ALLEGATIONS CANNOT BE SUSTAINED. UNION PROPOSALS I
THROUGH III WHICH, AS NOTED, ESSENTIALLY PERTAIN TO THE SCOPE AND
COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE, BEAR 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,
CALIFORNIA NATIONAL GUARD AND DEPARTMENT OF DEFENSE V. FEDERAL LABOR
RELATIONS AUTHORITY, NO. 81-7231 (9TH CIR. APRIL 17, 1981). IN THAT
CASE, THE AUTHORITY DETERMINED THAT THE DISPUTED PROPOSAL, WHICH
INCLUDED WITHIN THE SCOPE AND COVERAGE OF THE NEGOTIATED GRIEVANCE
PROCEDURE MATTERS RELATING TO APPEALS OF ADVERSE ACTIONS INVOLVING
NATIONAL GUARD TECHNICIANS AS WELL AS THE EMPLOYEE OPTION TO APPEAL AN
ADVERSE ACTION THROUGH THE STATUTORY OR NEGOTIATED PROCEDURE, WAS WITHIN
THE DUTY TO BARGAIN UNDER THE STATUTE. THEREFORE, BASED ON THE REASONS
SET FORTH IN DETAIL IN THE CALIFORNIA NATIONAL GUARD CASE, UNION
PROPOSALS I THROUGH III MUST ALSO BE HELD TO BE WITHIN THE DUTY TO
BARGAIN UNDER THE STATUTE.

UNION PROPOSAL IV

(ARTICLE 2, SECTION 32-5) REDUCTION IN FORCE

FOR THE PURPOSE OF DETERMING RETENTION STANDING IN A REDUCTION IN
FORCE, THE CURRENT

APPRAISAL WILL BE USED. FOR AN EMPLOYEE WITH NO APPRAISALS ON
RECORD, THE SATISFACTORY RATING

WILL BE USED.

QUESTION BEFORE THE AUTHORITY

THE QUESTION PRESENTED IS WHETHER UNION PROPOSAL IV IS OUTSIDE THE
DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT WITH AN AGENCY REGULATION FOR
WHICH A COMPELLING NEED EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE
/5/ AND SECTION 2424.11(C) OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.11(C)(1981)), /6/ AS ALLEGED BY THE AGENCY.

OPINION

CONCLUSION AND ORDER: A COMPELLING NEED EXISTS UNDER SECTION
7117(A)(2) OF THE STATUTE AND SECTION 2424.11(C) OF THE AUTHORITY'S
RULES AND REGULATIONS FOR THE AGENCY REGULATION SO AS TO BAR NEGOTIATION
OF UNION PROPOSAL IV. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE PORTION OF THE UNION'S PETITION FOR REVIEW RELATING TO UNION
PROPOSAL IV BE, AND IT HEREBY IS, DISMISSED.

REASONS: THE RECORD IN THIS CASE INDICATES THAT THE UNION INTERPRETS
THE TERM "CURRENT APPRAISAL" IN PROPOSAL IV AS MEANING A CURRENT
APPRAISAL OF THE TECHNICIAN'S CIVILIAN PERFORMANCE AND NOT A COMBINED
CURRENT APPRAISAL OF THE TECHNICIAN'S CIVILIAN AND MILITARY PERFORMANCE
AS IS REQUIRED BY THE AGENCY'S REGULATIONS. /7/ AS TO THE APPRAISAL OF
THE TECHNICIAN'S MILITARY PERFORMANCE, THE UNION ARGUES THAT SUCH
APPRAISAL SHOULD BE LIMITED TO SITUATIONS WHERE THE AGENCY WISHES TO
EFFECTUATE A MILITARY REDUCTION-IN-FORCE (RIF). IN OTHER WORDS, UNION
RIF WOULD BE BASED SOLELY ON THE TECHNICIAN'S CURRENT CIVILIAN
PERFORMANCE APPRAISAL.

IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2953
AND NATIONAL GUARD BUREAU, OFFICE OF THE ADJUTANT GENERAL, NEBRASKA, 7
FLRA NO. 12(1981), APPEAL DOCKETED, AFGE, LOCAL 2953 V. FLRA, NO.
81-2384 (D.C. CIR. DEC. 28, 1981), THE AUTHORITY HELD TO BE OUTSIDE THE
DUTY TO BARGAIN A UNION PROPOSAL THAT WOULD REQUIRE THE AGENCY TO
ESTABLISH, WITH RESPECT TO A RIF OF NATIONAL GUARD TECHNICIANS, A
RETENTION WITH RESPECT TO A RIF OF NATIONAL GUARD TECHNICIANS, A
RETENTION REGISTER RANKING SUCH TECHNICIANS ACCORDING TO A NUMBER OF
FACTORS RELATED TO THEIR CIVILIAN TECHNICIAN SERVICE, INCLUDING THEIR
CIVILIAN APPRAISAL SCORES, BUT WITHOUT REFERENCE TO THE APPRAISALS OF
THEIR MILITARY SUPERVISORS. IN SO HOLDING, THE AUTHORITY CONCLUDED THAT
A COMPELLING NEED EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE AND
SECTION 2424.11(C) OF THE AUTHORITY'S RULES AND REGULATIONS FOR A
NATIONAL GUARD BUREAU REGULATION, I.E., TECHNICIAN PERSONNEL MANUAL
(TPM) 351, SUBCHAPTER 5, PARAGRAPH 5-3E, WHICH PROVIDES IN ESSENCE THAT
RIF RETENTION STANDING WILL BE DETERMINED BY A COMPOSITE MEASUREMENT OF
BOTH CIVILIAN TECHNICIAN PERFORMANCE AND RELATED MILITARY PERFORMANCE.
THE AUTHORITY RULED THAT THE PROPOSAL, WHICH WOULD PRECLUDE MANAGEMENT
FROM CONSIDERING MILITARY PERFORMANCE AT ALL IN RANKING TECHNICIANS ON
THE RETENTION REGISTER FOR RIF PURPOSES, WAS INCONSISTENT WITH AND
THEREFORE BARRED FROM NEGOTIATION BY THE REGULATION.

IN THIS CASE, WHICH INVOLVES THE SAME PARTIES, UNION PROPOSAL IV, AS
INTERPRETED BY THE UNION, WOULD HAVE THE SAME EFFECT AND HENCE BEARS NO
MATERIAL DIFFERENCE FROM THE UNION PROPOSAL HELD NONNEGOTIABLE IN THE
NATIONAL GUARD BUREAU, OFFICE OF THE ADJUTANT GENERAL, NEBRASKA CASE.
FOR THE REASONS FULLY SET FORTH IN THAT CASE, THIS PROPOSAL MUST ALSO BE
HELD NOT TO BE WITHIN THE DUTY TO BARGAIN.

ISSUED, WASHINGTON, D.C., JANUARY 22, 1982

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), PROVIDES, INTER ALIA, THAT APPEALS BY NATIONAL GUARD
TECHNICIANS OF ADVERSE ACTIONS "SHALL NOT EXTEND BEYOND THE ADJUTANT
GENERAL OF THE JURISDICTION CONCERNED(.)"

/2/ IN DECIDING THAT UNION PROPOSALS I THROUGH III ARE WITHIN THE
DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE
MERIT OF SUCH PROPOSALS.

/3/ SECTION 7121(E)(1) PROVIDES IN PERTINENT PART:

SEC. 7121. GRIEVANCE PROCEDURES

. . . .

(E)(1) MATTERS COVERED UNDER SECTIONS 4303 AND 7512 OF THIS TITLE
WHICH ALSO FALL WITHIN

THE COVERAGE OF THE NEGOTIATED GRIEVANCE PROCEDURE MAY, IN THE
DISCRETION OF THE AGGRIEVED

EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE PROCEDURES OF SECTION
7701 OF THIS TITLE OR

UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT NOT BOTH. SIMILAR
MATTERS WHICH ARISE UNDER

OTHER PERSONNEL SYSTEMS APPLICABLE TO EMPLOYEES COVERED BY THIS
CHAPTER MAY, IN THE DISCRETION

OF THE AGGRIEVED EMPLOYEE, BE RAISED EITHER UNDER THE APPELLATE
PROCEDURES, IF ANY, APPLICABLE

TO THOSE MATTERS, OR UNDER THE NEGOTIATED GRIEVANCE PROCEDURE, BUT
NOT BOTH . . . .

/4/ WITH RESPECT TO PERFORMANCE RELATED ADVERSE ACTIONS, THE AGENCY
RELIES ON 5 CFR 432.201(C)(3)(XIV) WHICH PROVIDES THAT REGULATIONS
CONCERNING PERFORMANCE RELATED ADVERSE ACTIONS DO NOT APPLY TO "(ACTIONS
TAKEN) AGAINST A NATIONAL GUARD TECHNICIAN." WITH REGARD TO OTHER
ADVERSE ACTIONS, THE AGENCY CITES 32 U.S.C. 709(F) WHICH PROVIDES THAT
SECTIONS 7511 AND 7512 OF TITLE 5 "DO NOT APPLY TO (NATIONAL GUARD
TECHNICIANS)."

/5/ SECTION 7117(A)(2) PROVIDES:

SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT

. . . .

(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL

LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY

AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
SUBSECTION ONLY IF THE

AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
COMPELLING NEED (AS

DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
THE RULE OR REGULATION.

/6/ SECTION 2424.11(C) PROVIDES:

SEC. 2424.11 ILLUSTRATIVE CRITERIA.

A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
ANY CONDITION OF

EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT . . .

. . . .

(C) THE RULE RO REGULATION IMPLEMENTS A MANDATE TO THE AGENCY OR
PRIMARY NATIONAL

SUBDIVISION UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
IMPLEMENTATION IS ESSENTIALLY

NONDISCRETIONARY IN NATURE.

/7/ TECHNICIAN PERSONNEL MANUAL 351, SUBCHAPTER 5, PARAGRAPH 5-3E.