# Appendix — American Federation of Government Employees, Local 3486 v. New Jersey Air National Guard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0567%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 988 ## Text OcTosEer TERM, 1982 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Loca. 3486, Petitioner, v. 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 if 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) ; (C) on the basis of sex, as prohi’yited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)); [Footnote continued on page 6a] } J ea yo Ota : 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 He 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. Bi 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 P| 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 ts *(b) petition If Authority— : a (1) by person alleging— or is filed with in the case of — an appropriate unit ( ) been 1 designated by least 1 “(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, | | e i 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 ah uk ii 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 Hs 1H “(4) an employee engaged in administering em majority of inclusion in engage’ affects ~ “(1) except as the provisions of this chapter ; unlese a vote for employee er directly Se a4 ep ‘ ie ae | Hiatt afte Tigi tea Hee aly : free cay | (ie ptbagy He tea ri | alae sn aut Oe 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 aa ; > “(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 . ie — 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). Wg , 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. i “(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, or “(B) to condone any activity described in subparagraph (A) of this paragraph by failing to take action to prevent or stop such activity; or “(8) to otherwise fail or refuse to comply w‘th any provision of this chapter. Nothing-in paragraph (7) of this subsection shall a ee An 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 i 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 ee a. at 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- : | | fi s GE FE served the pommpege ode re qa ratip js 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 wa is 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 ce 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 (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 ae Pa 528 . | He fil | Hie iE 5 fu BAH i ial lst 1 ef as 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 | ee 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 (C) fix the rates of additional compensation; 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 if | 1 if ui hit i 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 il L e | ii si 1A i 3 iit i 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. i 1 Th ine EE 4 uh it ie 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 (c) of the Statute dues not advert to adverse actions in- 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 Hn Hi aL. f iii sit #3 procedure, 5 USC. §7121(e) (1). aul Anil mith) ea utteat af gcd. lala i HH Na : fae é 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 iH "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 r + pe i te HHT Hae bgtallis ?al aha: 88 U.S.C. § 4110. appoint eH ee ii He : PH iF TE 3