Association of Civilian Technicians, Pennsylvania State Council (Union) and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania (Activity) 

 



[ v03 p50 ]
03:0050(8)NG
The decision of the Authority follows:


 3 FLRA No. 8
 
 ASSOCIATION OF CIVILIAN TECHNICIANS,
 PENNSYLVANIA STATE COUNCIL
 (Union)
 
 and
 
 THE ADJUTANT GENERAL, DEPARTMENT OF
 MILITARY AFFAIRS, COMMONWEALTH OF
 PENNSYLVANIA
 (Activity)
 
                                            Case No. 0-NG-50
 
                     DECISION ON NEGOTIABILITY ISSUES
 
    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 (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    6.  RETENTION REGISTER STANDING
 
    A.  EXCEPTED SERVICE-- RETENTION STANDING OF A TECHNICIAN IS
 DETERMINED BY THE COMBINED CUMULATIVE TOTALS OF THE ANNUAL TECHNICIAN
 PERFORMANCE RATING NGB FORM 2, PREPARED IN ACCORDANCE WITH TPP 902, AND
 THE APPRAISAL BY THE IMMEDIATE MILITARY SUPERVISOR NGB FORM 351-2,
 PREPARED AT THE SAME TIME.  MILITARY APPRAISALS WILL BE COMPLETED AT THE
 TIME OF A RIF ONLY FOR THOSE TECHNICIANS WHO DO NOT HAVE A CURRENT
 MILITARY APPRAISAL IN THEIR OFFICIAL PERSONNEL FOLDERS.  THE WEIGHTED
 VALUE OF THE ANNUAL TECHNICIAN PERFORMANCE RATING WILL BE AS FOLLOWS:
 
                      SATISFACTORY-- 25 TO 40 POINTS
 
                        EXCELLENT-- 50 TO 65 POINTS
 
                       OUTSTANDING-- 75 TO 90 POINTS
 
    C.  AN APPEAL OF THE MILITARY APPRAISAL WILL BE AS FOLLOWS:
 
    (1) IF A TECHNICIAN IS NOT SATISFIED WITH HIS MILITARY APPRAISAL, HE
 MAY APPEAL TO THE
 
    IMMEDIATE MILITARY SUPERVISOR OF HIS RATER.  THIS SECOND LEVEL
 SUPERVISOR WILL GATHER ALL
 
    FACTS AND RENDER A DECISION WITHIN 15 DAYS OF REQUEST.
 
    (2) IF THE TECHNICIAN IS STILL NOT SATISFIED, HE MAY APPEAL TO THE
 NEXT LEVEL MILITARY
 
    SUPERVISOR.  THIS SUPERVISOR WILL GATHER ALL FACTS AND RENDER A
 DECISION WITHIN 15 DAYS OF
 
    REQUEST.
 
    (3) IF THE TECHNICIAN REMAINS DISSATISFIED, THE NEXT STEP WILL BE THE
 NEXT LEVEL MILITARY
 
    SUPERVISOR.  THIS SUPERVISOR WILL GATHER ALL FACTS AND RENDER A
 DECISION WITHIN 15 DAYS OF THE
 
    REQUEST.
 
    (4) IF THE TECHNICIAN REMAINS DISSATISFIED HE MAY THEN APPEAL TO THE
 ADJUTANT GENERAL WHO
 
    WILL GATHER ALL FACTS AND RENDER A DECISION WITHIN 15 DAYS OF THE
 REQUEST.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS WITHIN THE AGENCY'S
 DUTY TO BARGAIN UNDER THE STATUTE OR, AS ALLEGED BY THE AGENCY, IS
 OUTSIDE THE OBLIGATION TO BARGAIN.
 
                                  OPINION
 
    CONCLUSION:  (1) PARAGRAPH (A) OF THE PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE.  (2) THE SECOND PART OF THE PROPOSAL,
 PARAGRAPH (C), IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (45 FED.REG. 3482 ET SEQ. (1980)), THE AGENCY'S ALLEGATION
 THAT THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN IS SUSTAINED IN
 PART AND SET ASIDE IN PART.
 
    REASONS:  (A) THE UNION'S PROPOSAL SET FORTH ABOVE INVOLVES THE
 REDUCTION IN FORCE (RIF) PROCEDURES FOR NATIONAL GUARD TECHNICIANS /1/
 ESTABLISHED BY NATIONAL GUARD BUREAU (NGB) REGULATIONS.  /2/ THE AGENCY
 ALLEGES THAT ITS DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO
 PARAGRAPH (A) OF THE UNION'S PROPOSAL INASMUCH AS A "COMPELLING NEED"
 EXISTS WITHIN THE MEANING OF SECTION 7117(A)(2) OF THE STATUTE /3/ AND
 PART 2424 OF THE AUTHORITY'S RULES AND REGULATIONS FOR THE NGB
 REGULATION (TPM 351) CONCERNING RIF PROCEDURES FOR NATIONAL GUARD
 TECHNICIANS.  THE UNION CONTENDS, ON THE OTHER HAND, THAT NOTHING IN
 PARAGRAPH (A) OF ITS PROPOSAL CONFLICTS WITH THE NGB REGULATION FOR
 WHICH A COMPELLING NEED EXISTS, BUT THAT PARAGRAPH (A) " . . . MERELY
 GIVES MORE LATITUDE TO THE TECHNICIAN SUPERVISOR BY EXPANDING THE POINT
 RANGE OF EACH CLASS OF PERFORMANCE RATING." /5/ FOR THE REASONS STATED
 BELOW, THE AUTHORITY CONCLUDES THAT PARAGRAPH (A) IS WITHIN THE DUTY TO
 BARGAIN UNDER THE STATUTE.
 
    THE NATIONAL GUARD TECHNICIANS ACT OF 1968, AS PREVIOUSLY INDICATED,
 CONTAINS THE AUTHORITY FOR THE EMPLOYMENT OF NATIONAL GUARD TECHNICIANS.
  THE ACT PROVIDES FURTHER THAT RIF ACTIONS INVOLVING NATIONAL GUARD
 TECHNICIANS ARE TO BE ACCOMPLISHED BY THE ADJUTANTS GENERAL OF THE
 RESPECTIVE JURISDICTIONS CONCERNED SUBJECT TO THE REGULATIONS OF THE
 APPROPRIATE MILITARY SERVICE SECRETARY.  /6/ ADDITIONALLY, IT REQUIRES
 THAT, AS FAR AS PRACTICABLE, SUCH REGULATIONS SHOULD APPLY UNIFORMLY TO
 BOTH ARMY AND AIR FORCE NATIONAL GUARD TECHNICIANS.  /7/ OTHER SECTIONS
 OF THE ACT MANDATE THAT NATIONAL GUARD TECHNICIANS BE EXCEPTED FROM THE
 APPLICATION OF VETERANS' PREFERENCE AND FROM THE APPLICATION OF RIF
 PROCEDURES DEVELOPED BY THE CIVIL SERVICE COMMISSION (NOW THE OFFICE OF
 PERSONNEL MANAGEMENT) WHICH APPLY VETERANS' PREFERENCE.  /8/ MOREOVER,
 THE ACT REQUIRES TECHNICIANS TO MAINTAIN MILITARY MEMBERSHIP IN THE
 NATIONAL GUARD AND HOLD THE MILITARY GRADE SPECIFIED FOR THEIR
 TECHNICIAN POSITION AS A CONDITION OF CONTINUED TECHNICIAN EMPLOYMENT.
 /9/
 
    THE NGB, ACTING ON BEHALF OF THE SECRETARY OF THE ARMY AND THE
 SECRETARY OF THE AIR FORCE, PROMULGATED THE RIF REGULATIONS INVOLVED
 HEREIN, IMPLEMENTING THESE STATUTORY MANDATES.  THAT IS, AS RELEVANT TO
 THIS DISPUTE, TO IMPLEMENT THE STATUTORY MANDATE THAT TECHNICIANS
 MAINTAIN MILITARY MEMBERSHIP IN THE NATIONAL GUARD AND HOLD THE MILITARY
 GRADES SPECIFIED FOR THEIR TECHNICIAN POSITIONS, EVEN IN A RIF
 SITUATION, THE REGULATIONS REQUIRE TECHNICIAN RIF DISPLACEMENT RIGHTS
 WITHIN AND ACROSS COMPETITIVE LEVELS TO BE BASED ON A MEASUREMENT OF
 BOTH CIVILIAN TECHNICIAN AND MILITARY JOB PERFORMANCE.  IN SHORT, THE
 NGB REGULATIONS IMPLEMENT IN AN ESSENTIALLY NONDISCRETIONARY MANNER THE
 STATUTORY MANDATE THAT TECHNICIANS MAINTAIN MILITARY MEMBERSHIP IN THE
 NATIONAL GUARD AND HOLD THE MILITARY GRADE SPECIFIED FOR THEIR
 TECHNICIAN POSITIONS, AND THEREFORE A COMPELLING NEED EXISTS WITHIN THE
 MEANING OF SECTION 7117(A)(2) OF THE STATUTE AND SECTION 2424.11(C) OF
 THE AUTHORITY'S RULES FOR THE NGB REGULATION SO AS TO BAR NEGOTIATIONS
 ON CONFLICTING UNION PROPOSALS.
 
    IN THE INSTANT CASE, HOWEVER, NOTHING IN PARAGRAPH (A) OF THE UNION'S
 PROPOSAL WOULD CONFLICT WITH ANY PART OF THE NGB REGULATION WHICH
 IMPLEMENTS THE NONDISCRETIONARY STATUTORY MANDATE THAT TECHNICIANS MUST
 MAINTAIN MILITARY MEMBERSHIP IN THE NATIONAL GUARD AND HOLD THE MILITARY
 GRADE SPECIFIED FOR THEIR TECHNICIAN POSITIONS AS A CONDITION OF
 CONTINUED TECHNICIAN EMPLOYMENT.  THAT IS, WHILE THE NATIONAL GUARD
 TECHNICIANS ACT OF 1968 REQUIRES BOTH CIVILIAN AND RELATED MILITARY
 PERFORMANCE TO BE CONSIDERED AS PART OF A TECHNICIAN'S OVERALL
 EVALUATION, NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY THEREOF
 SPECIFIES WHAT RELATIVE WEIGHT MUST BE ACCORDED TO EACH APPRAISAL.  THE
 PROPOSAL AT ISSUE HEREIN WOULD REQUIRE TECHNICIAN SUPERVISORS TO RATE
 EACH TECHNICIAN AS EITHER "SATISFACTORY," "EXCELLENT" OR "OUTSTANDING,"
 AS REQUIRED BY THE NGB REGULATION (SUPRA NOTE 2), BUT WOULD PERMIT MORE
 ACCURACY AND PRECISION BY ESTABLISHING A RANGE OF POINTS RATHER THAN A
 SPECIFIC POINT VALUE FOR EACH CATEGORY.  SINCE THE RANGE FOR EACH
 CATEGORY WOULD START WITH THE POINT VALUE CONTAINED IN THE NGB
 REGULATION AND EXTEND NO HIGHER THAN THE POINT VALUE SPECIFIED THEREIN
 FOR THE NEXT HIGHER CATEGORY, THERE IS AT LEAST THE POTENTIAL FOR A
 TECHNICIAN'S CIVILIAN RATING TO ACQUIRE SLIGHTLY GREATER WEIGHT RELATIVE
 TO HIS OR HER MILITARY APPRAISAL SO LONG AS THE WEIGHT ATTRIBUTED TO THE
 MILITARY APPRAISAL REMAINED UNCHANGED.  HOWEVER, NOTHING IN THE PROPOSAL
 WOULD INTERFERE WITH MANAGEMENT'S RIGHT TO ESTABLISH POINT RANGES FOR
 MILITARY APPRAISALS OR OTHERWISE ALTER THE WEIGHT THEREOF, TO DETERMINE
 WHICH TECHNICIANS TO RETAIN IN A RIF OR SANCTION THE RETENTION OF ANY
 TECHNICIAN UNQUALIFIED TO HOLD THE CORRESPONDING MILITARY GRADE FOR SUCH
 POSITION.  ACCORDINGLY, IT IS CONCLUDED THAT PARAGRAPH (A) OF THE
 PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.  /10/
 
    (2) HOWEVER, IT IS CONCLUDED THAT PARAGRAPH (C) OF THE PROPOSAL IS
 OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.  AS SET FORTH ABOVE,
 PARAGRAPH (C) WOULD ESTABLISH A PROCEDURE FOR A TECHNICIAN TO APPEAL
 FROM AN APPRAISAL OF HIS MILITARY PERFORMANCE RENDERED BY HIS MILITARY
 SUPERVISOR.  THAT IS, IT WOULD PERMIT A TECHNICIAN DISSATISFIED WITH HIS
 MILITARY APPRAISAL TO APPEAL THAT APPRAISAL THROUGH FOUR LEVELS OF
 MILITARY PERSONNEL CULMINATING WITH THE ADJUTANT GENERAL.  WHILE
 NATIONAL GUARD TECHNICIANS ARE REQUIRED BY LAW (SUPRA N. 9) TO MAINTAIN
 MILITARY STATUS IN THE NATIONAL GUARD AS A CONDITION OF THEIR CIVILIAN
 TECHNICIAN EMPLOYMENT RELATIONSHIP (WHICH RELATIONSHIP IS, OF COURSE,
 SUBJECT TO THE STATUTE), THE MILITARY RELATIONSHIP ITSELF IS NOT COVERED
 BY THE STATUTE BUT IS TOTALLY MANDATED BY LAW.  THEREFORE, INASMUCH AS
 PARAGRAPH (C) OF THE UNION'S PROPOSAL CONCERNS A MATTER IN CONNECTION
 WITH THE MILITARY ASPECTS OF TECHNICIAN EMPLOYMENT FOR MEMBERS OF THE
 BARGAINING UNIT, IT CONCERNS A SUBJECT WHICH IS NOT A "CONDITION OF
 EMPLOYMENT" WITHIN THE MEANING OF SECTION 7103(A)(14) OF THE STATUTE
 /11/ AND ACCORDINGLY IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE.
 /12/
 
    ISSUED, WASHINGTON, D.C., APRIL 14, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                  FEDERAL LABOR RELATIONS AUTHORITY /13/
 
    /1/ NATIONAL GUARD TECHNICIANS ARE EMPLOYED PURSUANT TO THE NATIONAL
 GUARD TECHNICIANS ACT OF 1968, 32 U.S.C. 709(1970), IN FULL-TIME
 CIVILIAN POSITIONS TO ADMINISTER AND TRAIN THE NATIONAL GUARD AND TO
 MAINTAIN AND REPAIR THE SUPPLIES ISSUED TO THE NATIONAL GUARD OR THE
 ARMED FORCES.  SUCH TECHNICIANS MUST, AS A CONDITION OF THEIR CIVILIAN
 EMPLOYMENT UNDER THE ACT, BECOME AND REMAIN MEMBERS OF THE NATIONAL
 GUARD (I.E., IN A MILITARY CAPACITY) AND HOLD THE MILITARY GRADE
 SPECIFIED FOR THE TECHNICIAN POSITION PURSUANT TO 32 U.S.C. 709(B) AND
 (E).
 
    /2/ THE NGB REGULATION, TECHNICIAN PERSONNEL MANUAL (TPM) 351,
 PROVIDES IN ESSENCE THAT RIF RETENTION STANDING IS BASED ON A COMPOSITE
 MEASUREMENT OF TECHNICIAN PERFORMANCE AND RELATED MILITARY PERFORMANCE.
 INSOFAR AS PERTINENT TO PARAGRAPH (A) OF THE UNION'S PROPOSAL, TPM 351
 PROVIDES THAT A TECHNICIAN WHOSE ANNUAL PERFORMANCE RATING IS
 "SATISFACTORY" WILL RECEIVE 25 POINTS, WHILE A TECHNICIAN RATED
 "EXCELLENT" WILL RECEIVE 50 POINTS AND ONE RATED "OUTSTANDING" WILL
 RECEIVE 75 POINTS.
 
    /3/ SECTION 7117(A)(2) OF THE STATUTE (92 STAT. 1205) PROVIDES AS
 FOLLOWS:
 
    (A)(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULE OR