Appendix — American Federation of Government Employees, Local 3486 v. New Jersey Air National Guard

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

OcTosEer TERM, 1982

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO, Loca. 3486,

Petitioner,

New JERSEY Ain NATIONAL GUARD,

177TH FIGHTER INTERCEPTOR GrouP and

DEPARTMENT OF DEFENSE,

Respondent.

-_—— -—— —

APPENDICES TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

0.c. 20001

INDEX TO APPENDICES

Appendix A— Decision and Order of the Federal Labur

Relations Authority in American Fed-

eration of Government Employees, AF L-

CIO, Local 3486 and New Jersey Air

National Guard, 17.th Fighter Inter-

ceptor Greup, 6 FLRA No. 26 (1981) ....

Appendix B—Decision of Court of Appeals in New

Jersey Air National Guard, 177th

Fighter Interceptor Group and Depart-

ment of Defense v. Federal Labor Ret>-

tions Authority and American F edera-

tion of Government Employees, AFL-

CIO, Local 8486, 677 F.2d 276 “ane

a TE Sle ce

Appendix C—Judgment of Court of Appeals in New

Jersey Air National Guard, 177th

Fighter Interceptor Group and Depart-

ment of Defense v. Federal Labor Rela-

CIO, Local 8486, 677 F.2d 276 (8rd

Page

SIN, I te. Actetiwancatlienali Seleecentincenncsinntd 3la-32a

Appendix D—Order of Court of Appeals Denying Re-

quest for Rehearing with Suggestion for

Rehearing En Banc (May 11, 1982). 38a-84a

APPENDIX A

5 FLRA No. 26

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

This case comes before the Federal Labor Rela-

tions Authority (the Authority) pursuant to section

7105 (a) (2)(E) of the Federal Service Labor-Manage-

ment Relations Statute (the Statute) (5 U.S.C. § 7101,

et seq.).

they

§ 709(e))* and the Statute, as alleged by the Agency.

1 Section 709(e) of the National Guard Technicians Act of 1968,

82 U.S.C. § 709(e) (1970) provides as follows:

| I; rid ead! i % 33

laa at ee

a 122 al i es 7p rH ili i

ei it ot tia : a i

ae iil i ih aE |

ult AL te iti a ee

Wit: Hie AEH fc

itil tae 43

sanganysversey geengtiapeen

i ith tHUTLTT a

Hii ay lis LE ash 3

. i hip Hi penentnitea, We

itt i i ee te ie

bt ie i ith i :

the express language of section 7121(d), it is clear

employee affected by a discrimination matte~ as

defined in 5 U.S.C. § 2802(b) (1),* which matter also falls

*5 U.S.C. § 2302(b)(1) provides as follows:

national origin, as prohibited under section 717 of the

Civil Rights Act of 1964 (42 U.S.C. 2000« -16) ;

(B) om the hasis of age, as prohibited under sec-

tions 12 and 15 of the Age Diourmination in Employ-

ment Act of 1967 (29 U.S.C. 681, 685a) ;

6(d) of the Fair Labor Standards Act of 1938 (29

U.S.C. 206(d));

[Footnote continued on page 6a]

}

yo Ota : < ‘

‘ ya aw aby en a » tales “yt we M

BND SS fe Bee RL SS ere ee On

Sha eee, ee Oe eee Bay eeg s,” Sone ee, SRE SO ea

flict

fore, the duty to burgain.

of 1973 (29 U.S. 791); or

(E) on the basis of marital status or political affili-

— as prohibited under any law, rule, or regula-

* S. Rep. No. 95-969, 96th Cong. 2d Sess. 110 (1978).

* See, in this regard, National Treasury Employees Union and

Internal Revenue Service, 3 FLRA 112° (1980), wherein the

Raa aI

i uit ne Hit

Tei

acc

ARIAL ty

§ 7121. Grievance procedures

(b) Any negotiated grievance procedure referred to in sub-

section (a) of this section shali—

* Sect’-u 7121(b)(8)(B) of the Statute provides us follows:

(3) inelude procedures that—

3 EY

4 %

UNITED STATES COURT OF APPEALS 4

FOR THE THIRD CIRCUIT :

6 dager b

No. 81-1592 :

NEW JERSEY AIR NATIONAL GUARD, A

177TH FIGHTER INTERCEPTOR GROUP :

and DEPARTMENT OF DEFENSE, :

Petitioners :

Vv.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 3

AFL-CIO, Loca. 3486, ;

Intervenor

ON PETITION ror REVIEW FROM, AND

CROSS-APPLICATION FOR ENFORCEMENT OF, AN

ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY ,

FLRA No. 0-NG-119, 5 FLRA No. 26 |

Argued February 19, 1982 , :

Before: ADAMS and SLovirER, Circuit Judges, .

and STERN, District Judge ° :

(Filed April 12, i982)

. Herbert J. Stern, United States District Judge for the

District of New Jersey, sitting by designation.

bal i

sil : +

ill aan

lla

OPINION OF THE COURT

ADAMS, Circuit Judge.

On this appeal from an order of the Federal Labor

Relations Authority (FLRA) we must decide whether

Civil Service Reform Act of 1978 (hereinafter referred to

Although this case arises in a statutory framework

that is somewhat complex, the facts that give rise to the

dispute are uncontested and fairly straightforward.

In 1979, the Guard was engaged in collective bargain-

ing with Local 3486 of the American Federation of Gov-

ah = x ‘ ; hie + ie

ee OR Pe) ae nee aan a ‘it. Lage

pellal i

i if iT ;

g555°8R 3

“lie lice

fi i ty | Hil

Fat tai

(ap

; Ht

nue

hes

‘i

v4 y" a.

S| pee

, * wu

re? ee

- :

_ at ee

Hlpcis [gst

ait Nigel

i THT f fri.

shereatse) «(UE etEay

7 We * §Fay sds tsky

Hebe: he : aly

tith hail

ee b

tle )

ti ligt

Hi *,

—

atl

Hut

j he ; Ibe Be ni ti it

No.

584

j tlle nl

Hire ee Hie

bow

A = . ;

wees + Rig ae eae

LR gape Sy. ae es

ween” Pee,

;

iy:

til

ahi

teak

fr fl ‘

— ee | Oe

HME Eat

eile: :

§3 + il be +H

AMUSE AH ITT

: ttl iy ls

: ep He Hahy

i Ht if rf Tt fl Hie i!

3 #9 ‘4

: THT eli mT (ES :

var

©.

* rs

17s

“

war

Cory 4

i Ht ? eli fife Lane fun r EEL

wien iM fy

HE ; ae ihe a :

alli lh i A i; HE

HGH sli

Mtn! Gi Ger

Fer MBL

tea ral

<P: AE i Hh

TFs Ee LTE ie

HR SG HA

ployee may raise his complaint under either the negotiated

procedure or the procedure set forth in the other statute.

Id. at § 7121 (d)-(e). Where an employee has selected the

negotiated over

cedure, review the FLRA under section 7122 is fore-

closed. Id, § 7121(f).

The

which

Exempted from the coverage of the Act are the em-

Ing Oca, the Federal bane in omaarsl Acoma

ing Office, the Federal Bureau of vestigation, the

tral Intelligence Agency, the National Security Agency,

the Tennessee Valley Authority, the Federal Labor Rela.

tions Authority, and the Federal Service Impasses Panel

Id. § 7108(a) (3) The Act makes no reference whatso-

aver to the National Guard or National Guard techni-

cians, and the technicians therefore fall within the im-

plicit coverage of the Act.*

* The Act extends to of “Executive agenc[ies}.” 5

patel aeeEs Bey

nr , F Hit :

tH FH lif

A be ie bead egies]

ee tehl lnelo

Haat Ulutiess

TP eg

Wank! belgie

alt: aa |!

je He

) (quoting

In this case,

a question of construing the

440 U.S. 125, 145 n.25 (1979) )

with

we must

Technician

are not

Act, or

Secretary of

it rests

ingore

are not

file

Pamsveed of Defense, Army-Air Force Exch. Serv. v. Federal Labor

apy of ore 659 F.2d 1140, 1161-62 (D.C. Cir. 1981

iil

21a

Section 709(e) (5) of the Technician Act cuts off any

complainants with an opportunity to seek reversal of the

adjutant general's decisione. In short, the Labor-Manage-

ment Act creates an appeal procedure—precisely the

procedure forbidden by the Technician Act.

statutes can be harmonized if they are seen as creating

alternative routes—the chain of command leading to the

adjutant general on the one hand and the negotiated

come, however, rests upon a premise with which we

cannot agree: that the Technician Act merely creates a

procedure for handling grievances. Nothing in section

709(e) sets out vehicles or guidelines by whici griev-

ances can be resolved, or creates anything that

fairly be termed a “statutory procedure” within

FEE

FLRA—a negotiated procedure, which may reject the

adjutant general’s final decision, 2s an alternative to a

statute limiting grievance procedures to that final deci-

sion—therefore, is no accommodation at all; rather, it is

a negation of the Technician Act.

as a narrow exception to the Labor-Management Act,

preserving the procedural limitations of section 709(e)

for Guard technicians. Cf. Morton v. Mancari, 417 U.S.

535, 550-51 (1974) (employment preference for Indians

of 1972, 42 U.S.C. § 2000e et seg.); Wright v. Alabama

Army National Guard, 437 F. Supp. 54 (M.D. Ala. 1977)

(Technician Act constitutes specific exception to suvsequent

Fair Labor Standards Act, 29 U.S.C. $207); affd 605

F.2d 948 (5th Cir. 1979) (per curiam). In essence, our

—

: a

iti

Hei

fia!

;

ee OE

™6 U.S.A. § 7121(a), which imposes the duty to bargain over

grievance procedures, augments the more general duty to bargain

set out in § 7117(a) (1), and therefore may be interpreted to apply

even in circumsances where § 7117(a)(1) would not otherwise re-

quire bargaining.

Vepnapegieisany

telat sl REE

ii it sili if

ftir tt tinh ie

He ala et ee

AC BATH Te iaattiael hei

=?” a

eae oe ee

a ge) See eee Be

aie

§ is Set He

HS Ba 24 Hive iit Hy |

aevi ae HS. i: F S35

§ 2 + 343 :

i i fi r ili

al 71 Z

. 4 iid rll

it i siti HELM

Id, at 14-15 [emphasis added).

Scpeesgzeagiae zie siti

ule op a at 1 i ue Hee

TMI PET of HPL ifiye

sity Hea rshipayayttay eee

dt eet He

el ibis hihi tt

ERT UTAH Tae

ofall. eed

i i fut bite il i

aap Tine eile

5 avg enti tis : ae y3 pal HH 3

Ue Hn

Rl ah i

ne HE ; +H ‘et sti {

wf b iF

426 US. at 158, (quoting T. Sedgwick, The Interpreta-

tion and Construction of and Constitutional

Law 98 (2d ed. 1874)). See also Bulova Watch Co. v.

United States, 365 U.S. 753, 768 (1961). To be sure,

“4 g

re ne

ARE

iat

Hag

TT LE

fetal

;

felis

Hie!

£5433 13)

ine AE:

Paes:

fate, he

APPENDIX .C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-1592

New Jersey Am NATIONAL Guarp,

177th FIGHTER INTERCEPTOR GRoUP and

DEPARTMENT OF DEFENSE,

7 " District Judge *

This cause came on to be heard on the record from

x the Federal Labor Relations Authority and was argued

dy counsel on February 19, 1982.

On consideration whereof, it is now here ordered and

adjudged by this Court that the Guard’s petition for re-

, View be, and the same is hereby granted and the Au-

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 81-1592

NEw JERSEY Amr NATIONAL GUARD,

177th FIGHTER INTERCEPTOR GROUP

DEPARTMENT OF DEFENSE,

Petitioners

FEDERAL LABOR RELATIONS AUTHORITY,

Np Fn, OE ge i ees NY

‘ APs ay

APPENDIX E

THE FEDERAL SERVICE LABOR-MANAGEMENT

RELATIONS STATUTE

(Chapter 71 of Title 5 of the U.S. Code)

“Subpart F—Labor-Management and Employee Relations

“Chapter 71—Labor-Management Relations

“SUBCHAPTER I—GENERAL PROVISIONS

“Sec.

“7101. Findings and purpose.

“7102. Employees’ righta.

“7108. Definitions; application.

“7104. Federal Labor Reiations Authority.

“7105. Powers and duties of the Authority.

“7106, Management rights.

“SUBCHAPTER iIl—RIGHTS AND DUTIES OF

AGENCIES AND LABOR ORGANIZATIONS

“Bec. .

“7111. Exclusive recognition of labor organizations.

“7112. Determination of appropriate unite for labor

organization representation.

“7118. National consultation rights.

“7114. Representation rights and duties.

“7115. Allotments to representatives.

“7116. Unfair labor practices.

“T7117. Duty to bargain in good faith; compelling need;

duty to consult.

“7118. Prevention of unfair labor practices.

“7119. Negotiation impasses; Federal Service Impasses

Panel.

“7120. Standards of conduct for labor organizations.

“SUBCHAPTER III—GRIEVANCES, APPEALS,

AND REVIEW

“Sec.

“7121. Grievance procedures.

“7122. Exceptions to arbitral awards.

“7123. Judicial review ; enforcement.

“SUBCHAPTER IV—ADMINISTRATIVE AND

OTHER PROVISIONS

“See.

“7131. Official time.

“7182. Subpenas.

“7183. Compilation and publication of data.

“7134. Regulations.

“7135. Continuation.of existing laws, recognitions, agree-

ments, and procedures.

“SUBCHAPTER I—GENERAL PROVISIONS

“§ 7101. Findings and purpose

“\a) The Congress finds that—

“(1) Experience in both private and public

employment indicates that the statutory protec-

> 7

“§ 7108. Definitions; application

“(a) For the purpose of this chapter—

“(1) ‘person’ means an individual, labor or-

ganization, or agency;

“(2) ‘employee’ means an individual—

“(A) employed in any agency; or

“(B) whose employment in an agency

has ceased because of any unfair labor prac-

tice under section 7116 of this title and who

“(i) an alien or noncitizen of the

. United States who occupies a position

outside the United States;

“(ii) a member of the uniformed

services ;

“a Tas Z q

te Ty, f« ~~ $

0 a ae ath

the

fesse oe a Meliieiat Coneeee

tion Agency; or

(including a nonappropriated fund instru-

“(A) the Goneral Accounting Office;

“(B) the Federal Bureau of Investiga-

tion ;

“(C) the Ceneral Intelligence Agency ;

“(D) the Nationa! Security Agency;

“(E) the Tennessee Valley Authority;

“(F) the Federal Labor Relations Au-

thority ;

hi Pago pelea pti

stitution, bylaws, agreement a-nong

members, or otherwise, denies membership

“(B) an organization which advocates

the overthrow of the constitutional form of

government of the United States;

“(C) an organization sponsored by an

agency ; or

“(D) an organization which participates

in the conduct of a strike against the Gov-

ernment or any agency thereof or imposes

a duty or obligation to conduct, assist, or

participate in such a strike;

“(5) ‘dues’ means dues, fees, and assess-

ments;

“(6) ‘Authority’ means the Federal Labor

Relations Authority described in section 7104 (a)

of this title;

“(7) ‘Panel’ means the Federal Service Im-

passes Panel described in section 7119(c¢) of “his

title;

“(8) ‘collective vargaining agreement’ means

an agreement entered into as a result of collec-

tive bargaining pursuant to the provisions of

this chapter;

“(9). ‘grievance’ means any complaint—

“(A) " any concerning any

matter to employment of the

employee ;

at A hae eh et -

“(14) ‘conditions of employment’ means

sonnel policies, practices, and matters, whether

i oe

Ht 1 i 7 Se 3 Hf

i Hall if | iE i i

“(ij) om any basis other than an

a3 Gave g¥gp ‘es "hi adg 8

ih ig Wd 1 HI H

EL el i if 2 Hi

H Hin a Hs

att ey tae. i

{ij lait is: : Hi '

afi eettt of! al’ aU ai! :

HGH ES: Meee)

eas |)

“(a) The Federal Labor Relations Authority

composed of three members, not more than 2

whom may be adherents of the same political party.

“(B) the last day of the Congress be

ginning after the date on which the mem-

ber’s term of office would (It for this sub-

paragraph) expire.

Hi i: ais :

> a3 ai il

Hi sali

Pe han:

PEE

223s 249] 34h?

, and

“(B) file and prosecute complaints under

this

“(C) exercise such other powers of the

Authority as the Authority may prescribe.

“(3) The General Counsel shall have

i of General

General

Authority.

of the

shall

except as

authority cover,

in the

employees

offices

iay2 i |

vided, shall be responsible for carrying out the pur-

pose of this chapter.

“(2) The Authority shall, to the extent pro-

vided in this chapter ai in accordance with

regulations prescribed by the Authority—

“(A) determine the appropriateness of

umts for lak,+ organization representation

under section 7112 of this title;

section 7117(b) of this title;

“(E) resolves issues relating to the duty

to bargain in good faith under section

7117 (¢) of this title;

Re etl & ol

> 7

“(H) resolve exceptions to arbitrator’s

awards under section 7122 of this titie; and

“(A) to determine whether a group of

eu.ployees is an appropriate unit;

“(B) to conduct investigations and to

provide for hearings ;

“(1) the date of the action; or

“(2) the date of the filing of any application

under this subsection for review of the action;

lit rs el ee aie

HI ne mai Lf dg fs

ae eal ti ai igi Tt

cfu at tee Bo

iy : E He iat] ¥ avs ji ;

yang |

‘ital aie

make selections for appointments from—

\ necessary to carry out the agency mission

“SUBCHAPTER II—RIGHTS AND DUTIES OF

raged

*(b) petition

If Authority—

: a

(1) by person alleging—

or is filed with

the case of —

appropriate

unit

(

) been

1 designated

least

“(2) has submitted a valid copy of a current

or recently expired collective bargaining agree-

ment for the unit, or

“(8) has submitted other evidence that it is

the exclusive representative of the employees

involved ;

“(d) The Authority shall determine who is eligi-

ble to vote in any election under this section and

shall establish rules governing any such election,

ceiving the highest number of votes. A labor or-

ganization which receives the majority of the votes

cast in an election shall be certified by the Authority

as the exclusive representative.

“(e) A labor organization seeking exclusive recog-

nition shall submit to the Authority and the agency

involved @ roster of its officers and representatives,

@ copy of its constitution and bylaws, and « state-

ment of its objectives. ,

“(f) Exclusive recognition shali not be accorded

4 1p

Tet

£23

“(1) if the a

agency involved and an exclusive representative

Neat Se pe oe

2 pt

: H al !

iit dite i

oa pul &

ita iat i

i gh Pi uh

B25

Wit,

aman

ilasiteaale ti

Mane

4 Hf

. baie eee

“(4) an employee engaged in administering

majority of

inclusion in

engage’

affects ~

“(1) except as

the provisions of this chapter ;

unlese a

vote for

employee er

directly

a4 ep ‘

ie ae | Hiatt

afte Tigi tea

Hee aly : free cay | (ie ptbagy

He tea

ri | alae sn aut

5 A eh

¥ 4 at

peal)

“(b) (1) Any labor organization having national

consultation rights in connection with any agency

under subsection (a) of this section shall—

“(A) be informed of any substantive change

by the

to limit the right of any agency or exclusive rep-

resentative to engage in collective bargaining.

“$7114. Representation rights and duties

“(a)(1) A labor organization which has been ac-

bargaining agreements covering, all employees in

the unit. An exclusive representative is responsible

for representing the interests of all employees in the

7 ba ses et i TE ee sb ig “PR Koa Sas a aid eee

; >

“(b) The duty of an agency and an exclusive rep-

resentative to negotiate in good faith under sub-

section (a) of this section shall include the

Lm) Sich Sa senoenalty evaitahio ond

necessary proper discussion,

understanding, and

—

ment such agreement.

“(e)(1) An agreement between any agency

an exclusive representative shall be subject to

“(2) The head of the agency shall approve

the

agzeement within 80 days from the date the agree-

ment is executed if the greement is in accordance

with the provisions of this chapter and any other

applicable law, rule, or regulation (unless the agency

has granted an exception to the provision).

, J + ve

pity ee

Ls = Sa

Pur Mae Gest

“(1) the agree.went between the agency and

the exclusive representative involved ceases to

be applicable to the employee; or

“(2) the employee is suspended or expelled

from membership in the exclusive representa-

tive.

$288 if a358

it + TH

=e:

Seed

HGH Ht

“(2) (A)

sentative.

“(B} Any agreement under paragraph (1) of this

subsection between a labor organization and an

£ -

dle

“§ 7116. Unfair labor practices

“(a) For the purpose of this chapter, it shall be

an unfair labor practice for an agency—

“(1) to interfere with, restrain, or coerce any

in the exercise by the employee of any

under this chapter;

“(2) to encourage or discourage

upon request, customary and routine services

and facilities if the services and facilities are

also furnished on an impartial basis to other

labor organizations having equivalent status;

“(4) to discipline or otherwise discriminate

against an employee because the employee has

filed a complaint, affidavit, or petition, or has

given any information or testimony under this

“(5) to refuse to consult or negotiate in good

faith with a labor organization as required by

this chapter ;

“(6) to fail or refuse to cooperate in im-

passe procedures and impasse decisions as re-

quired by this chapter ;

“(7) to enforce any rule or regulation (other

than a rule or regulation implementing section

2302 of this title) which is in conflict with any

applicable collective bargaining agreement if the

agreement was in effect before the date the rule

or regulation was prescribed ; or

“(8) to otherwise fail or cefuse to comply

with any provision cf this chapter.

“(b) For the purpose of this chapter, it shall be

an unfair labor practice for a labor organization—

“(1) to interfere with, restrain, or coerce

any employee in the exercise by the employee of

any right under this chapter; |

“(2) to cause or attempt to cause an agency

to discriminate against any employee in the exer-

cise by the employee of any right under this

chapter ;

“(8) to coerce, discipline, fine, or attempt to

coerce a member of the labor organization as

punishment, reprisal, or for the purpose of

discharge of the member’s duties as an employee;

“(4) to discriminate against an employee with

“(5) to refuse to consult or negotiate in good

faith with an agency as required by this chap-

ter;

“(6) to fail or refuse to cooperate in impasse ©

procedures and impasse decisions as required by

this chapter ;

“(7) (A) to call, or participate in, a strike,

work stoppage, or slowdown, or picketing of an

agency in a labor-management dispute if such

picketing interferes with an agency’s operations,

“(B) to condone any activity described in

subparagraph (A) of this paragraph by failing

to take action to prevent or stop such activity;

“(8) to otherwise fail or refuse to comply

w‘th any provision of this chapter.

Nothing-in paragraph (7) of this subsection shall

act

‘

rere é

eds 3;

en ae al a

aa ea A |

; gg6 piyies Ess azfy 3 #92) 33

g #4: TK. , ate ait} isc! s

eit engi: fat §

‘is i tH +h 1A } Hl ' sid: i:

seth tal ati

bagedh Sax s24.5 "9a 23029 S24 =

Hi ATE Th it alte t ” 8 3

ae ee ee Tee yy aN ae On re

. are é “3 oo

(b) of this section applies, if an agency involved in

“(3) On or before the 30th day after the date of

the receipt by the head of the agency of the copy of

the petition under paragraph (2)(B) of this sub-

section, the agency shall—

“(A) file with the Authority a statement—

“(i) withdrawing the allegation; or

“(ii) setting forth in full its reasons

supnorting the allegation; and

“(B) furnish a copy of such statement to the

exclusive representative,

clude the General Counsel as a party.

“(2) A labor organization havirg consultation

rights under paragraph (1) of this subsection shall—

“(A) be informed of any substantive change

in conditions of employment proposed by the

agency, and

“(B) shall be permitted reasonable time to

present its views and recommendations regard-

ing the changes.

“(2) Any complaint under paragraph (1)

subsection shall contain a notice—

“(A) of the charge;

Authority (or any member thereof or

or otherwise and give testimony at the time and

place fixed in the complaint for the hearing.

“(4° (A) Except as provided in subparagraph (B)

“(i) any failure of the agency or labor or-

ganization against which the charge is made to

perform a duty owed to the person, or

“(ii) any concealment which prevented dis-

rey,

HE fal:

ALE

He a

£33

es |

ne til

ow! ht it ne “il He;

wiht i ets

Enea ell ea

Mites Ea laf titey

nib i Pua: ANG?

= qicpss TEE. q3ttt

4 as AH oEes GaBs i a! I

hdd! Stall ain eg

: “Et |e Hie EE 33 it Hid

saab i ll ily

Heal Wa tals ie atte

Cie Ra

T4a

titled to travel expenses as provided under sertion

5708 of this title.

“(5) (A) Tho Pane ot ite dedignee dal peat

investigate any impasse presented under

section (b) of this section. The Panel shall consider

the impasse ard shall either—

“(i) recommend to the parties procedures for:

the resolution of the impasse; or

“(ii) assist the parties in reso.ving the im-

s GE FE

served the

pommpege ode re qa ratip

75a

principles. Except as provided in subsection (b) of

this section, an organization is not required to prove

that it is free from such influences if it is subject

to governing requirements adopted by the organiza-

tion or by a national or international labor organiza-

tion or federation of labor organizations with which

it is affiliated, or in which it participates, containing

explicit and detailed provisions to which ii subscribes

organizations with which it had been affiliated,

because it has demonstrated an unwillingness or

inability to comply with governing requirements

in purpose to those required by sub-

section (a) of this section; or

Ss R

% t ‘ ae oat Ns ‘

i a a. ae

“SUBCHAPTER III—GRIEVANCES,

APPEALS, AND REVIEW

“(b) Any neguideiad igkkn mah preentiare seteived

to in subsection (a) of this section shall—

“(1) be fair and simple,

“(2) provide for expeditious processing, and

“(3) include procedures that—

“(A) assure an exclusive representative

the right, in its own behalf or on behalf of

any employee in the unit represented by the

exclusive representative, to present and

process grievances ;

“(B) assure such an employee the right

to present a grievance on the employee's

own belialf, and assure the exclusive rep-

resentative the right to be present during

the grievance proceeding ; and

“(C) provide that any grievance not sat-

isfactorily settled under the negotiated

grievance procedure be subject to

aibitration which may be invoked

by either the exclusive representative or

the agency.

“(e) The preceding subse.tions of this section

shall not apply with respect to any grievance

concerning—

“(1) any claimed violation of subchapter III

of chapter 78 of this title (relating to prohibited

political activities) ;

“(2) retirement, life insurance or health in-

surance;

“(8) a suspension or removal under section

7532 of this title;

“(4) any examination, certification, or ap-

“(5) the classification of any position which

dee wit renuit Yar the iedlestion in grade or

Seetibaaihen so"

fee ee 2 oe .

3 |

SHEER IDET fans

ai 3 HH rie 43 Ane {: ib

Ail

iy rif Hehe

;

. am Fie3 sf +

TRH UAT Re ea

i gid, ie HT i ca

acai HEHE StL bet BABY

: & Ss

aig

HiT igh Wage

Me ail

ulti Ht Hh oh H it

ni ! i: Harllee i as

+t il 7 ili is ATH AE a if +

iit us oR +e 53 ites bath H Hie | :

$3585 "2935" HE Hi te Ee i :

—

8la

“(1) because it is contrary to any law, rule,

or regulation ; or

“(2) on other grounds similar to those ap-

recommendations concerning the award as it con-

filed under subsection (a) of this section during

“§ 7128. Judicial review; enforcement

“(a) Any person aggrieved by eny final order of

the Authority other than an order under—

“(1) section 7122 of this title (involving an

award by an arbitrator), unless the order in-

volves an unfair labor practice under section

7118 of this title, or

: iia

Pee EH TE 423

Tet eis Et

Heat at Hitialt i

e . ss] dae ‘ilies

if fa

anil lig Wiis nel

“(e) apc nfl + yp ama

judicial review

for

court the

wong: A

82a

of any order of the Auihority and for appropriate

temporary relief or restraining order.

FF 2; sees | tip ie Raat apy

nll : ib ii Ha Ht if i |

Ped LEE ; EE EP big :

. TRA HL Hike H ntl

: ul fa ae Tut ts

i: Bae x & ‘

AHH uit, zr HHH i Hu

Pa 528

. |

fil | Hie iE

BAH i

ial

lst

Tae | Hi Ht ante a |

ii ik i i Hh iL ee

eno

el) ie el

Pee rt

ii tf

Bese TE tH

Ht Haat iH |

age allowances which are paid subpenaed

in the courts of the United States.

“$7182. Compilation and publication of data

“(a) The Authority shall maintain a file of

i tereh

oly

NATIONAL GUARD TECHNICIANS ACT

82 U.S.C. § 709. Technicians: employment, use, status

may be, and subject to subsection {b) of this section pec-

sons may be employed as technicians in—

(1) the administration and training of the Na-

tional Guard; and

(2) the maintenance and repair of supplies iss 1ed

to the National Guard or the armed forces.

for that position.

(1) a technician who is emplcyed in a position in

which Nationa] Guard membership .

‘5) a right of appeal which may exist with re-

spec’; to clause (1), (2), (3), or (4) shall not extend

(g) (1) Notwithstanding sections 5544(a) ar

(a) of title 5, or any other provision of law, the Secre-

90a

tary concerned may, in the case of technicians assigned

to perform operational duties at air defense sites—

(A) prescribe the hours of: duties;

(B) fix the rates of basic compensation; and

to reflect unusual tours of duty, irregular additional duty,

and work on days that are ordinarily nonworkdays. Addi-

tional compensation under this subsection may be fixed on

an annual basis and is determined as an appropriate

~ aT he, SF FS —

= TEA RSS sual ah 6 bala

Sla

APPENDIX G

5 FLRA No. 25

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

Case No. 0-IG-149

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R12-132

thority (the Authority) pursuant to section 7105 (a) (2)

(E) of the Federal Service Labor-Management Relations

Statui, (the Statute) (5 U.S.C. § 7101 et seq.).

During the course of contract negotiations between the

parties to renew their expiring agreement, the Union sub-

mitted the following proposa] which the Agency

negotiability the Authority

hit

ili

;

. ad "9 y ¢ a

« re Age + ey

Bet of tgs eee

Union Proposal

ARTICLE XXIII

NEGOTIATED GRIEVANCE PROCEDURE

(DELETE) Sections 1, 2, 3, 4a., 4b., and 4c.

(INSERT) NEW Sections 1, 2, 3 and 4:

Fac 3

‘

——

te Sea ee

93a

Question Here Before the Authority

The question is whether the Union’s proposed grievance

procedure, which includes within its coverage appeals of

adverse actions of National Guard technicians, is outside

the duty to bargain under section 7117 of the Statute

because it is inconsistent with Federal law (32 U.S.C.

§ 709(e)),* as alleged by the Agency.

* Section 709 of the Nationa: Guard Technicians Act of 1968, 32

U.S.C. § 709(e) (1970) provides as follows:

(2) a technician who is employed in a position in which

National Guard membership is required as a condition of

;

of the jurisdiction concerned;

(4) a reduction in force, removal, or ap adverse action

from technician employment, suspen-

——- asl Uh ~~ Gow a

aides 33g F aE Hp i aati? ate

i in bei ty ali el i

LAH A i a3, ° 403 sf 7 i

i aie :

ii a TREE Gt sphies J

HIF tek “tall! ATH ITE A rity

i Hil area tebe oe 133 AE it

National Guard and is otherwise eligible for continued

technician employment under 82 U.S.C, § 709(e) (1) and

(e) (2), the Act grants additional authority in 32 U.S.C.

movals) against technicians qua technicians, and finally,

82 U.S.C. § *09(e) (5) and (e) (6) provides an appellate

procedure for technicians to appeal adverse personnel

actions taken against them.

As to the inclusion of matters related to appeals of

adverse personnel actions taken against technicians in the

proposed grievance procedure, the Agency takes the posi-

tion that there is nothing contained in either the express

provisions of the Civi! Service Reform Act of 1978 or its

tive history which indicates a Congressional intent

iit

7 4 \ San 2

oe, te

SAS: o

we ’ 4 we eo

* section 7121(¢) (1) of the Statute

also be construed to exclude National

technicians from its coverage.

ine

EE 4

b Ten

;

(2) retirement, life insurance, or health insurance;

[Footuote continued on page 99a)

Conference, H.R. Rep. No. 1717, 95th Cong., 2¢ Sess.

157, reprinted in [1978] U.S. Code Cong. &

News 2860, 2891.

The list of matters excluded from permissible coverage

within negotiated grievance procedures by section 7121

volving National Guard technicians. Thus, on their face,

grievance procedures negotiated under the Statute cover

such matiers uniess the parties exclude them through

bargaining.* Moreover, section 7121(e) (1) of the Statute

(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

* (Continued)

mae Coe wn ee ee

;

(6) the classification of any position which does not

balay

aL.

iii

sit

procedure,

5 USC. §7121(e) (1).

aul

Anil

mith)

ea utteat

af gcd.

lala

: fae

aff: z eis ae SELTEH ay

Hi ls re il at sib i ti

HLT ELS Rap E ae :

- (teh TE iii tt Hy

Ee Bp

oe Ee Aaa

"Ml, he Are cnntin tt iting spn

Sn ee Se See ee ee

Ter

Hie

met

nal

mai

Hat

a2:

Hib

ha aE Sle eae Mlle ay: Re ae Ie ee Ee

+ pe i te

HHT Hae

bgtallis ?al aha:

88 U.S.C. § 4110.

appoint

eH ee

ii He :

iF TE

3 <r

RTT iit

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.