117 STAT. 1626
PUBLIC LAW 108–136—NOV. 24, 2003
organization has been accorded exclusive recognition under chapter 71. ‘‘(2) For any bargaining unit so included under paragraph (1), the Secretary may bargain with a labor organization at an organizational level above the level of exclusive recognition. The decision to bargain at a level above the level of exclusive recognition shall not be subject to review or to statutory third-party dispute resolution procedures outside the Department of Defense. Any such bargaining shall— ‘‘(A) be binding on all subordinate bargaining units of the labor organization at the level of recognition and their exclusive representatives, and the Department of Defense and its subcomponents, without regard to levels of recognition; ‘‘(B) supersede all other collective bargaining agreements of the labor organization, including collective bargaining agreements negotiated with an exclusive representative at the level of recognition, except as otherwise determined by the Secretary; ‘‘(C) not be subject to further negotiations with the labor organizations for any purpose, including bargaining at the level of recognition, except as provided for by the Secretary; and ‘‘(D) be subject to review by an independent third party only to the extent provided and pursuant to procedures established under paragraph (6) of subsection (m). ‘‘(3) The National Guard Bureau and the Army and Air Force National Guard are excluded from coverage under this subsection. ‘‘(4) Any bargaining completed pursuant to this subsection with a labor organization not otherwise having national consultation rights with the Department of Defense or its subcomponents shall not create any obligation on the Department of Defense or its subcomponents to confer national consultation rights on such a labor organization. ‘‘(h) PROVISIONS RELATING TO APPELLATE PROCEDURES.—(1) The Secretary— ‘‘(A) may establish an appeals process that provides employees of the Department of Defense organizational and functional units that are included in the National Security Personnel System fair treatment in any appeals that they bring in decisions relating to their employment; and ‘‘(B) shall in prescribing regulations for any such appeals process— ‘‘(i) ensure that employees in the National Security Personnel System are afforded the protections of due process; and ‘‘(ii) toward that end, be required to consult with the Merit Systems Protection Board before issuing any such regulations. ‘‘(2) Regulations implementing the appeals process may establish legal standards and procedures for personnel actions, including standards for applicable relief, to be taken on the basis of employee misconduct or performance that fails to meet expectations. Such standards shall be consistent with the public employment principles of merit and fitness set forth in section 2301. ‘‘(3) Legal standards and precedents applied before the effective date of this section by the Merit Systems Protection Board and the courts under chapters 43, 75, and 77 of this title shall apply to employees of organizational and functional units included in the National Security Personnel System, unless such standards
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