Association of Civilian Technicians, Inc., Pennsylvania State Council (Union) and the Adjutant General, Military Affairs, Commonwealth of Pennsylvania (Agency)

 



[ v07 p346 ]
07:0346(52)NG
The decision of the Authority follows:


 7 FLRA No. 52
 
 ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
 PENNSYLVANIA STATE COUNCIL
 Union
 
 and
 
 THE ADJUTANT GENERAL, DEPARTMENT OF
 MILITARY AFFAIRS, COMMONWEALTH OF
 PENNSYLVANIA
 Agency
 
                                            Case No. O-NG-154
 
                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. 7101-7135).  THE ISSUES PRESENTED ARE THE RIPENESS OF
 THE APPEAL AND THE NEGOTIABILITY OF SEVEN PROVISIONS /1/ CONTAINED IN A
 LOCALLY EXECUTED AGREEMENT WHICH WERE DISAPPROVED AS NOT BEING IN
 ACCORDANCE WITH APPLICABLE LAWS, RULES OR REGULATIONS BY THE NATIONAL
 GUARD BUREAU (NGB), UPON REVIEW PURSUANT TO SECTION 7114(C) OF THE
 STATUTE.  /2/
 
    THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH THE AUTHORITY
 BASED ON THE NGB DISAPPROVAL.  IN ITS STATEMENT OF POSITION, THE AGENCY
 CONTENDS THE APPEAL IS NOT PROPERLY BEFORE THE AUTHORITY.  IT ARGUES,
 FIRST, THAT THE NGB'S DISAPPROVAL OF PORTIONS OF THE LOCAL AGREEMENT WAS
 NOT A "NEGOTIABILITY DETERMINATION" GIVING RISE TO A NEGOTIABILITY
 APPEAL;  AND, SECOND THAT THE LOCAL PARTIES SUBSEQUENTLY REACHED
 AGREEMENT AS TO SOME OF THE DISAPPROVED MATTERS.  THIS CONTENTION CANNOT
 BE SUSTAINED.
 
    WITH RESPECT TO THE AGENCY'S FIRST ARGUMENT, SECTION 2424.1 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.1 (1981)) PROVIDES,
 CONSISTENT WITH SECTION 7117(B)(1) AND (C)(1) OF THE STATUTE, THAT:
 
    THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
 CONDITIONS PRESCRIBED BY 5
 
    U.S.C. 7117(B) AND (C), NAMELY:  IF AN AGENCY INVOLVED IN COLLECTIVE
 BARGAINING WITH AN
 
    EXCLUSIVE REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD
 FAITH DOES NOT EXTEND TO ANY
 
    MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
 INCONSISTENT WITH LAW,
 
    RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE
 ALLEGATION TO THE AUTHORITY
 
    . . . .  IN THIS REGARD, THE LOCAL PARTIES SUBMITTED THEIR AGREEMENT,
 INCLUDING THE DISPUTED PROVISIONS HEREIN, TO THE NGB FOR APPROVAL UNDER
 THE PROVISIONS OF SECTION 7114(C) OF THE STATUTE.  WHEN THE NGB
 DISAPPROVED CERTAIN AGREEMENT PROVISIONS AS BEING INCONSISTENT WITH THE
 REQUIREMENTS OF LAW, RULE OR REGULATION AND COMMUNICATED ITS DISAPPROVAL
 IN WRITING TO THE LOCAL BARGAINING PARTIES, IT WAS, IN ESSENCE, ALLEGING
 THAT THE MATTERS AT ISSUE ARE NOT WITHIN THE AGENCY'S DUTY TO BARGAIN.
 THEREFORE, THE CIRCUMSTANCES UNDERLYING THE UNION'S APPEAL CONFORM TO
 THE CONDITIONS FOR REVIEW OF A NEGOTIABILITY ISSUE AS SET FORTH IN THE
 STATUTE AND THE AUTHORITY'S RULES AND CONSISTENT WITH AUTHORITY
 PRACTICE, THE APPEAL IS DEEMED TO BE PROPERLY BEFORE THE AUTHORITY.  /3/
 
    AS TO THE AGENCY'S SECOND ARGUMENT THAT THE UNION'S APPEAL IS
 PREMATURE BECAUSE THE LOCAL PARTIES REACHED AGREEMENT AS TO SOME OF THE
 DISAPPROVED PROVISIONS, IT PROVIDES NO BASIS FOR DISMISSING THE APPEAL.
 ALTHOUGH THE LOCAL PARTIES REINSTITUTED BARGAINING SUBSEQUENT TO THE
 UNION'S APPEAL, BASED ON THE RECORD ALL MATTERS APPEALED IN THE INSTANT
 PETITION FOR REVIEW (EXCEPT ARTICLE 4 - SECTION 4.4A(1), SEE NOTE 1,
 SUPRA) REMAIN IN DISPUTE.  CONSEQUENTLY, THE AUTHORITY FINDS THAT THE
 AGENCY HAS NOT SUPPORTED ITS CLAIM THAT THE APPEAL IS NOT PROPERLY
 BEFORE THE AUTHORITY.
 
    ACCORDINGLY, THE AGENCY'S REQUEST THAT THE APPEAL BE DISMISSED IS
 DENIED.
 
                                PROVISION 1
 
    ARTICLE 1.4 - LAWS AND REGULATIONS
 
    B(7) - MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT IN
 ACCORDANCE WITH APPLICABLE
 
    LAWS AND REGULATIONS . . . TO TAKE WHATEVER ACTIONS MAY BE NECESSARY
 TO CARRY OUT THE MISSION
 
    OF THE AGENCY DURING EMERGENCIES, WHEN VERIFIED AND DECLARED BY THE
 ACTIVITY
 
    SUPERVISOR.  (ONLY THE UNDERSCORED LANGUAGE OF THE PROVISION IS IN
 DISPUTE.)
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THIS PROVISION IS INCONSISTENT WITH
 MANAGEMENT'S RIGHT, UNDER SECTION 7106(A)(2)(D) OF THE STATUTE, TO TAKE
 NECESSARY ACTIONS DURING EMERGENCIES, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROVISION IS INCONSISTENT WITH THE RIGHT
 RESERVED TO MANAGEMENT UNDER SECTION 7106(A)(2)(D) OF THE STATUTE AND,
 THEREFORE, IT IS NOT WITHIN THE DUTY TO BARGAIN.  ACCORDINGLY, PURSUANT
 TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THIS
 DISPUTED PROVISION BE, AND IT HEREBY IS, DISMISSED.
 
    REASONS:  THIS PROVISION LITERALLY WOULD LIMIT THE RIGHT OF
 MANAGEMENT OFFICIALS TO TAKE NECESSARY ACTIONS TO CARRY OUT THE AGENCY'S
 MISSION DURING EMERGENCIES /4/ ONLY TO SITUATIONS WHEN THE ACTIVITY
 SUPERVISOR VERIFIES AND DECLARES THAT AN EMERGENCY EXISTS.
 
    THUS, AS THE AGENCY CONTENDS, MANAGEMENT OFFICIALS WOULD BE PREVENTED
 FROM TAKING NECESSARY ACTIONS UNLESS OR UNTIL THE ACTIVITY SUPERVISOR
 DECLARED THAT THERE WAS AN EMERGENCY.  AS A CONSEQUENCE, IF THE ACTIVITY
 SUPERVISOR WAS UNAVAILABLE OR FOR ANY REASON DID NOT VERIFY OR DECLARE
 AN EMERGENCY, THE PROVISION WOULD DENY THE AGENCY'S RIGHT TO RESPOND TO
 THAT EMERGENCY SITUATION.
 
    THE UNION CONTENDS, HOWEVER, THAT THE INTENT OF THIS PROVISION IS
 ONLY TO MAKE CLEAR TO BARGAINING UNIT EMPLOYEES THE SOURCE OF EMERGENCY
 DECLARATIONS, I.E., WHO WILL BE TELLING EMPLOYEES THAT AN EMERGENCY
 SITUATION EXISTS.  FURTHER, ACCORDING TO THE UNION, THE PROVISION WOULD
 NOT PREVENT THE ACTIVITY SUPERVISOR FROM DELEGATING THIS AUTHORITY TO
 SOMEONE ELSE, AS DETERMINED THROUGH INTERNAL ADMINISTRATIVE PROCEDURES.
 
    THUS, AS THE UNION EXPLAINS THE PROVISION, IT IS INTENDED ONLY TO
 REQUIRE MANAGEMENT OFFICIALS TO ADVISE EMPLOYEES AND THE UNION
 CONCERNING WHO HAS THE AUTHORITY TO VERIFY AND DECLARE EMERGENCIES.
 HOWEVER, THE UNION'S EXPLANATION DOES NOT CORRESPOND TO THE CLEAR AND
 UNAMBIGUOUS LANGUAGE OF THE DISPUTED PROVISION AND, THEREFORE, IS NOT
 DETERMINATIVE OF WHETHER THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN. /5/
 
    SECTION 7106(A)(2)(D) OF THE STATUTE EXPLICITLY PROVIDES THAT
 "NOTHING IN THIS CHAPTER (THE STATUTE) SHALL AFFECT THE AUTHORITY OF ANY
 MANAGEMENT OFFICIAL OF ANY AGENCY . . . TO TAKE WHATEVER ACTIONS MAY BE
 NECESSARY TO CARRY OUT THE AGENCY MISSION DURING EMERGENCIES." /6/ BY
 THIS EXPRESS LANGUAGE CONGRESS INTENDED MANAGEMENT OFFICIALS TO BE ABLE
 TO TAKE SUCH ACTIONS WHENEVER AN EMERGENCY EXISTS.  THE PROVISION HERE
 IN DISPUTE, ON ITS FACE, WOULD DIRECTLY INTERFERE WITH THIS STATUTORY
 RIGHT BY REQUIRING THAT A PARTICULAR MANAGEMENT OFFICIAL MUST FIRST
 VERIFY AND DECLARE THAT AN "EMERGENCY" EXISTS BEFORE MANAGEMENT COULD
 ACT PURSUANT TO SECTION 7106(A)(2)(D).  HENCE, THE PROVISION IS
 INCONSISTENT WITH MANAGEMENT'S RESERVED RIGHT AND IS NOT WITHIN THE DUTY
 TO BARGAIN.
 
    A PROPOSAL EXPLICITLY DRAFTED TO CONFORM TO THE UNION'S STATED
 INTENT, HOWEVER, AS PREVIOUSLY SET FORTH, WOULD BE WITHIN THE AGENCY'S
 DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.  /7/ THAT IS,
 SUCH A PROPOSAL WOULD CONCERN THE PROCEDURES MANAGEMENT WILL FOLLOW IN
 EXERCISING ITS RIGHT UNDER SECTION 7106(A)(2)(D), WITHOUT IMPOSING A
 LIMITATION AS THE INSTANT PROVISION DOES, SUCH AS THE PRESENCE OR
 ABSENCE OF A PARTICULAR MANAGEMENT OFFICIAL, WHICH WOULD INTERFERE
 DIRECTLY WITH THE EXERCISE OF THE RIGHT.
 
                                PROVISION 2
 
    ARTICLE 4.5 - EXCUSED ABSENCE
 
    B(6) - WHEN A TECHNICIAN HAS BEEN ORDERED TO ACTIVE DUTY UNDER
 MILITARY ORDERS OF THE
 
    GOVERNOR OF THE STATE FOR PARTICIPATION IN RESCUE OR PROTECTION WORK
 IN CONNECTION WITH FLOOD,
 
    FIRES, OTHER ACTS OF GOD, ABSENCES MAY BE GRANTED NOT TO EXCEED FIVE
 WORKDAYS (40 HOURS) FOR
 
    EACH STATE EMERGENCY.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THIS PROVISION IS BARRED FROM NEGOTIATIONS BY
 AGENCY-WIDE REGULATIONS AND IS OUTSIDE THE DUTY TO BARGAIN, AS ALLEGED
 BY THE AGENCY, UNDER SECTION 7117(A)(2) OF THE STATUTE.  /8/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE AGENCY HAS NOT DEMONSTRATED THAT A
 COMPELLING NEED EXISTS FOR THE REGULATIONS IN QUESTION;  THUS, THE
 PROVISION IS NOT BARRED FROM NEGOTIATIONS BY THE AGENCY REGULATIONS
 ASSERTED BY THE AGENCY.  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 RESCIND ITS DISAPPROVAL OF THIS PROVISION, WHICH
 WAS BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL.  /9/
 
    REASONS:  UNDER THIS PROVISION, TECHNICIANS WOULD BE EXCUSED FROM
 THEIR CIVILIAN TECHNICIAN DUTIES FOR UP TO FIVE DAYS EACH TIME THEY ARE
 ORDERED TO ACTIVE DUTY IN CONNECTION WITH STATE EMERGENCIES IN THE
 NATURE OF NATURAL DISASTERS.
 
    THE AGENCY CONTENDS THAT THE PROVISION IS INCONSISTENT WITH NGB
 REGULATIONS COVERING LEAVE OR EXCUSED ABSENCES FOR TECHNICIANS BECAUSE
 IT FAILS TO REFLECT THE DIFFERENT REGULATORY LEAVE POLICIES WHICH APPLY
 TO EMERGENCY OR PROTECTIVE WORK AS COMPARED TO THOSE APPLICABLE TO LAW
 ENFORCEMENT DUTIES.  /10/ IN PARTICULAR, THE AGENCY CONTENDS THE
 PROVISION DOES NOT EXPLICITLY EXCLUDE FROM ITS COVERAGE MILITARY LEAVE
 TO WHICH TECHNICIANS ARE ENTITLED WHEN THEY ARE CALLED UPON TO PROVIDE
 AID TO ENFORCE THE LAW.  THE UNION CONTENDS, IN ESSENCE, THAT THE
 PROVISION IS NOT INCONSISTENT WITH THE AGENCY'S REGULATIONS.
 
    UNDER SECTION 7117(A)(2) OF THE STATUTE AND SECTION 2424.11 OF THE
 AUTHORITY'S RULES (5 CFR 2424.11(1981)), AN AGENCY HAS THE BURDEN OF
 COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR ASSERTIONS THAT ITS
 REGULATIONS BAR NEGOTIATION ON CONFLICTING PROPOSALS BECAUSE OF THE
 EXISTENCE OF A COMPELLING NEED.  /11/ EVEN ASSUMING, ARGUENDO, THAT THE
 PROVISION IN DISPUTE IS INCONSISTENT WITH THE REGULATIONS, AS THE AGENCY
 ASSERTS, THE CITED REGULATIONS CANNOT STAND AS A BAR TO NEGOTIATIONS.
 THE AGENCY HEREIN HAS NOT EVEN ALLEGED THAT A COMPELLING NEED EXISTS FOR
 THE REGULATIONS IN QUESTION TO BAR NEGOTIATIONS ON THE DISPUTED
 PROVISION AND, THUS, HAS MADE NO SHOWING WHATSOEVER TO SUPPORT SUCH A
 FINDING BY THE AUTHORITY.
 
    THEREFORE, THE AGENCY HAS FAILED TO SUPPORT ITS ALLEGATION THAT THE
 PROVISION IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) OF THE
 STATUTE.  ACCORDINGLY, THE PROVISION IS NOT BARRED FROM NEGOTIATIONS.
 
                                PROVISION 3
 
    ARTICLE 6.6 - IDENTIFYING & RANKING CANDIDATES
 
    D(1) - THE RANKING PROCEDURE FOR EXCEPTED TECHNICIAN POSITIONS WILL
 BE BASED ON THE
 
    FOLLOWING POINT RATING SYSTEM -
 
    LENGTH OF SERVICE AS A PENNSYLVANIA NATIONAL GUARD TECHNICIAN RELATED
 TO THE ANNOUNCED
 
    POSITION ONE POINT FOR EACH TWO YEARS;  MAXIMUM TEN POINTS.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE PROVISION IS
 INCONSISTENT WITH REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL (FPM)
 AND, IF NOT, WHETHER A COMPELLING NEED EXISTS FOR THE AGENCY REGULATION
 ASSERTED AS A BAR TO NEGOTIATIONS UNDER SECTION 7117(A)(2) OF THE
 STATUTE.  /12/
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROVISION IS NOT INCONSISTENT WITH
 REQUIREMENTS PROVIDED IN THE FPM.  FURTHER, THE AGENCY HAS NOT
 DEMONSTRATED THAT A COMPELLING NEED EXISTS FOR THE AGENCY REGULATION IN
 QUESTION TO BAR NEGOTIATIONS ON THE PROVISION UNDER SECTION 7117(A)(2)
 OF 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 RESCIND ITS DISAPPROVAL OF THIS PROVISION, WHICH
 WAS BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL.  /13/
 
    REASONS:  THE PROVISION IN DISPUTE WOULD ESTABLISH A PROCEDURE FOR
 RANKING CANDIDATES FOR EXCEPTED TECHNICIAN POSITIONS UNDER WHICH A
 TECHNICIAN WOULD RECEIVE ONE POINT FOR EACH TWO-YEAR PERIOD OF SERVICE
 AS A PENNSYLVANIA NATIONAL GUARD TECHNICIAN, UP TO A MAXIMUM OF TEN
 POINTS, WHERE SUCH SERVICE IS RELATED TO THE ANNOUNCED POSITION.  THE
 AGENCY CONTENDS THE PROVISION IS INCONSISTENT WITH THE FPM, A SUPPLEMENT
 THERETO, AND AN AGENCY REGULATION, ARGUING THAT THESE AUTHORITIES
 MANDATE MERIT PROMOTION SYSTEMS REQUIRING SELECTION OF CANDIDATES BASED
 ON MERIT AND QUALIFICATIONS AND EXCLUDING USE OF LENGTH OF SERVICE OR
 EXPERIENCE AS SELECTION FACTORS.
 
    AS TO THE AGENCY CONTENTION THAT THE PROVISION WOULD VIOLATE MERIT
 PROMOTION REQUIREMENTS AND PRINCIPLES CONTAINED IN THE FPM,
 SPECIFICALLY, FPM CHAPTER 335, SUBCHAPTER 1-4 AND FPM SUPPLEMENT 335,
 SUBCHAPTER S4-1, THE FPM PROVISIONS RELIED UPON BY THE AGENCY APPLY ONLY
 TO THE COMPETITIVE SERVICE.  /14/ THE PROVISION IN DISPUTE, HOWEVER,
 EXPRESSLY APPLIES ONLY TO POSITIONS IN THE EXCEPTED SERVICE.  HENCE, THE
 FPM PROVISIONS RELIED UPON ARE INAPPLICABLE AND MAY NOT STAND AS A BAR
 TO NEGOTIATIONS ON THE DISPUTED PROVISION IN THE PRESENT CASE.  /15/
 
    THE REMAINING AGENCY CONTENTION IS THAT THE PROVISION IS BARRED FROM
 BARGAINING BY AN AGENCY REGULATION SET FORTH IN TECHNICIAN PERSONNEL
 PAMPHLET (TP PAM 911.  /16/ AS STATED PREVIOUSLY WITH RESPECT TO
 PROVISION 2, AN AGENCY HAS THE BURDEN OF COMING FORWARD WITH AFFIRMATIVE
 SUPPORT FOR ASSERTIONS THAT ITS REGULATIONS BAR NEGOTIATION ON
 CONFLICTING PROPOSALS BECAUSE A COMPELLING NEED EXISTS.  /17/ THE AGENCY
 HEREIN, HOWEVER, HAS NOT EVEN ALLEGED THAT A COMPELLING NEED EXISTS FOR
 THE REGULATION IN QUESTION TO BAR NEGOTIATIONS ON THIS DISPUTED
 PROVISION.  THEREFORE, THE AGENCY HAS MADE ABSOLUTELY NO SHOWING THAT
 THIS PROVISION IS BARRED FROM NEGOTIATIONS BY AGENCY REGULATIONS, AND,
 THE AGENCY'S CONTENTION CANNOT BE SUSTAINED.
 
                                PROVISION 4
 
    ARTICLE 9.1 - WAGE SURVEYS
 
    WHEN REQUESTED BY THE WAGE SURVEY LEAD AGENCY, THE EMPLOYER WILL
 NOTIFY THE ASSOCIATION TO
 
    SELECT ASSOCIATION REPRESENTATIVES TO PARTICIPATE IN THE WAGE SURVEY.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THIS PROVISION IS INCONSISTENT WITH
 MANAGEMENT RIGHTS UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN
 WORK TO EMPLOYEES AND IS, THEREFORE, OUTSIDE THE DUTY TO BARGAIN, AS IN
 EFFECT ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROVISION IS INCONSISTENT WITH THE RIGHT
 OF MANAGEMENT TO ASSIGN WORK TO EMPLOYEES UNDER SECTION 7106(A)(2)(B) OF
 THE STATUTE /18/ AND, THEREFORE, IT IS NOT WITHIN THE DUTY TO BARGAIN.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
 REVIEW OF THIS DISPUTED PROVISION BE, AND IT HEREBY IS DISMISSED.  /19/
 
    REASONS:  THIS PROVISION PROVIDES THAT IF THE ACTIVITY IS REQUESTED
 TO PROVIDE UNION REPRESENTATIVES FOR SERVICE AS DATA COLLECTORS FOR A
 LOCAL WAGE SURVEY COMMITTEE, THE UNION HAS THE RIGHT TO SELECT THE UNION
 REPRESENTATIVES WHO WILL PARTICIPATE.
 
    PURSUANT TO STATUTORY MANDATE, THE OFFICE OF PERSONNEL MANAGEMENT
 (OPM) HAS PRESCRIBED PROCEDURES FOR CONDUCTING WAGE SURVEYS IN FPM
 SUPPLEMENT 532.1, SUBCHAPTERS S1-S5.  /20/ UNDER THESE PROCEDURES, THE
 HEAD OF EACH OF AN AGENCY'S LOCAL ACTIVITIES IS RESPONSIBLE FOR
 PROVIDING DATA COLLECTORS AS REQUESTED BY THE LOCAL WAGE SURVEY
 COMMITTEE.  /21/ THEREFORE, IF SO REQUESTED, LOCAL ACTIVITIES MUST
 SELECT EMPLOYEES TO PARTICIPATE IN A WAGE SURVEY AS DATA COLLECTORS.
 
    EMPLOYEES SELECTED AS DATA COLLECTORS PERFORM THE DUTIES ASSOCIATED
 WITH DATA COLLECTING EITHER AS THEIR TOTAL WORK ASSIGNMENT OR IN
 ADDITION TO THE REGULARLY ASSIGNED DUTIES OF THEIR APPOINTED POSITIONS.
 THUS, THE DETERMINATION TO SELECT A PARTICULAR EMPLOYEE FOR WORK AS A
 DATA COLLECTOR IS, IN FACT, A DECISION MADE BY LOCAL MANAGEMENT TO
 ASSIGN CERTAIN DUTIES TO SUCH AN EMPLOYEE.  IN THIS REGARD, UNDER
 SECTION 7106(A)(2)(B) OF THE STATUTE, THE AGENCY RETAINS THE RIGHT TO
 ASSIGN WORK TO POSITIONS OR EMPLOYEES.  AS THE AUTHORITY HAS PREVIOUSLY
 STATED, THE EXERCISE OF THIS AUTHORITY, AS CONTRASTED WITH PROCEDURES
 WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING IT, OR APPROPRIATE
 ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF IT,
 /22/ IS NOT SUBJECT TO NEGOTIATION.  /23/ THE PROVISION IN QUESTION,
 HOWEVER, IS NOT CONCERNED WITH PROCEDURES OR APPROPRIATE ARRANGEMENTS.
 RATHER, IT WOULD REQUIRE THE AGENCY TO RELINQUISH ITS STATUTORY
 AUTHORITY TO ASSIGN WORK, I.E., DATA COLLECTION DUTIES, TO THE UNION.
 ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THIS PROVISION IS NOT WITHIN
 THE DUTY TO BARGAIN MUST BE SUSTAINED.  /24/
 
                                PROVISION 5
 
    ARTICLE 10.4 - TRAINING OPTION
 
    TECHNICIANS INVOLVED IN A REDUCTION IN FORCE OR A MAJOR EQUIPMENT
 CHANGE AND ASSIGNED TO A
 
    POSITION THAT IS NOT RELATED TO THEIR PAST JOB DESCRIPTION WILL BE
 SENT TO A RESIDENT SCHOOL,
 
    IF ONE IS AVAILABLE, FOR RETRAINING.  TECHNICIANS WILL HAVE THE
 OPTION OF SELECTION OF
 
    TRAINING IN A CIVILIAN/MILITARY STATUS.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROVISION IS OUTSIDE THE DUTY TO BARGAIN
 UNDER SECTION 7117(A)(2) OF THE STATUTE BECAUSE IT IS INCONSISTENT WITH
 AN AGENCY REGULATION, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE AGENCY HAS NOT DEMONSTRATED THAT A
 COMPELLING NEED EXISTS FOR THE REGULATIONS IN QUESTION;  THUS, THE
 PROVISION IS NOT BARRED FROM NEGOTIATIONS UNDER SECTION 7117(A)(2) OF
 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 RESCIND ITS DISAPPROVAL OF THIS PROVISION, WHICH
 WAS BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL.  /25/
 
    REASONS:  THE AGENCY CLAIMS THAT THE PORTION OF THE PROVISION IN
 DISPUTE HEREIN IS INCONSISTENT WITH NGB REGULATIONS WHICH PROVIDE THAT
 DETERMINATIONS AS TO WHETHER TECHNICIANS WILL ATTEND MILITARY SERVICE
 SCHOOLS IN THEIR CIVILIAN TECHNICIAN STATUS ARE SUBJECT TO THE APPROVAL
 OF THE STATE ADJUTANT GENERAL.  /26/
 
    AS MENTIONED PREVIOUSLY WITH RESPECT TO PROVISIONS 2 AND 3, AN AGENCY
 HAS THE BURDEN OF COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR ASSERTIONS
 THAT ITS REGULATIONS BAR NEGOTIATION ON CONFLICTING PROPOSALS BECAUSE A
 COMPELLING NEED EXISTS.  /27/ IN THE PRESENT CASE, THE AGENCY MAKES NO
 SHOWING WHATSOEVER TO SUPPORT A FINDING BY THE AUTHORITY THAT A
 COMPELLING NEED EXISTS FOR THE REGULATION AT ISSUE HEREIN TO BAR
 NEGOTIATIONS ON THIS PROVISION.  THEREFORE, THE AGENCY'S ALLEGATIONS
 THAT THE PROVISION IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7117(A)(2) OF THE STATUTE BECAUSE OF AN AGENCY REGULATION CANNOT BE
 SUSTAINED.
 
    IT IS EMPHASIZED THAT THIS DECISION RELATES ONLY TO THE ISSUE HERE
 PRESENTED TO THE AUTHORITY, THAT IS, WHETHER THE AGENCY HAS DEMONSTRATED
 A COMPELLING NEED FOR ITS REGULATION TO BAR NEGOTIATIONS ON A
 CONFLICTING PROVISION.  NO ISSUE IS PRESENTED OR REACHED WITH RESPECT TO
 MILITARY SCHOOL ATTENDANCE REQUIREMENTS, NOT WITHIN THE AGENCY'S
 DISCRETION, CONCERNING THE STATUS OF STUDENTS, WHICH REQUIREMENTS MAY
 IMPINGE UPON THE APPLICATION OF THE PROVISION.  /28/
 
                            PROVISIONS 6 AND 7
 
           ARTICLE 8 & 18 - GRIEVANCE PROCEDURES AND ARBITRATION
 
    8.1A - A GRIEVANCE MEANS ANY COMPLAINT - (1) BY A TECHNICIAN
 CONCERNING ANY MATTER RELATING
 
    TO THE EMPLOYMENT OF THE TECHNICIAN.
 
    18.1 - THE EMPLOYER OR THE ASSOCIATION MAY INVOKE BINDING ARBITRATION
 OVER UNIT TECHNICIAN
 
    GRIEVANCES.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE PROVISIONS ARE
 OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE BECAUSE THEY ARE
 INCONSISTENT WITH SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT
 BY FAILING TO EXPRESSLY INCLUDE APPEALS OF ADVERSE ACTIONS INVOLVING
 NATIONAL GUARD TECHNICIANS.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE PROVISIONS 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 RESCIND ITS DISAPPROVAL OF THESE PROVISIONS, WHICH
 WERE BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL.  /29/
 
    REASONS:  THE AGENCY CONTENDS THAT NEGOTIATED GRIEVANCE PROCEDURES
 MAY NOT COVER GRIEVANCES BY NATIONAL GUARD TECHNICIANS OF ADVERSE
 ACTIONS AND THAT THE PROVISIONS IMPROPERLY PROVIDE FOR SUCH GRIEVANCES.
 ACCORDING TO THE AGENCY, SUCH GRIEVANCES UNDER THE NEGOTIATED PROCEDURES
 WOULD CONFLICT WITH SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT
 OF 1968, WHICH DESIGNATES THE ADJUTANT GENERAL OF THE STATE AS THE FINAL
 ARBITER OF SUCH DISPUTES.  THE AGENCY'S CONTENTION CANNOT BE SUSTAINED.
 
    BASED ON THE RECORD, IT APPEARS THAT THE UNION INTENDS THE SCOPE AND
 COVERAGE OF THE PARTIES' GRIEVANCE PROCEDURE TO INCLUDE GRIEVANCES
 CONCERNING ADVERSE ACTIONS.  IN THIS REGARD, THE PROVISIONS BEAR NO
 MATERIAL DIFFERENCE FROM THE PROPOSAL BEFORE THE AUTHORITY IN NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA
 NATIONAL GUARD, 5 FLRA NO. 25(1981).  IN THAT CASE, THE AUTHORITY
 CONSIDERED A SIMILAR AGENCY ARGUMENT CONCERNING SECTION 709(E) OF THE
 NATIONAL GUARD TECHNICIANS ACT AND DETERMINED THAT A PROPOSED GRIEVANCE
 PROCEDURE WHICH INCLUDED WITHIN ITS COVERAGE MATTERS RELATING TO APPEALS
 OF ADVERSE ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS WAS WITHIN THE
 DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE.  SEE ALSO AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3486 AND NEW JERSEY
 AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP, POMONA, NEW JERSEY,
 5 FLRA NO.  26(1981).  THEREFORE, BASED ON THE REASONS FULLY SET FORTH
 IN CALIFORNIA NATIONAL GUARD, THE PROVISIONS HERE IN DISPUTE MUST ALSO
 BE HELD TO BE WITHIN THE DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 15, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN ITS STATEMENT OF POSITION, THE AGENCY WITHDREW ITS DISAPPROVAL
 OF AN ADDITIONAL PROVISION, ARTICLE 4 - SECTION 4.4A(1), WHICH THE UNION
 HAD ORIGINALLY INCLUDED IN ITS APPEAL.  CONSEQUENTLY, THE DISPUTE AS TO
 THIS PROVISION HAS BEEN RENDERED MOOT AND IT IS UNNECESSARY TO CONSIDER
 IT FURTHER HEREIN.
 
    /2/ SECTION 7114(C) PROVIDES IN RELEVANT PART AS FOLLOWS:
 
    SEC. 7114.  REPRESENTATION RIGHTS AND DUTIES
 
   .          .          .          .
 
 
    (C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
 REPRESENTATIVE SHALL BE SUBJECT TO
 
    APPROVAL BY THE HEAD OF THE AGENCY.
 
    (2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
 FROM THE DATE THE
 
    AGREEMENT IS EXECUTED IF THE AGREEMENT 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).
 
    /3/ SEE GENERALLY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
 BASE, OHIO, 5 FLRA NO. 15(1981).
 
    /4/ SECTION 7106(A)(2)(D) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (D) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE AGENCY
 MISSION DURING
 
    EMERGENCIES.
 
    /5/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 2955 AND NATIONAL GUARD BUREAU, OFFICE OF THE ADJUTANT GENERAL, DES
 MOINES, IOWA, 5 FLRA NO.  86(1981).
 
    /6/ SEE NOTE 4, SUPRA.
 
    /7/ SECTION 7106(B)(2) PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   .          .          .          .
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM
 
    NEGOTIATING--
 
   .          .          .          .
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY
 
    AUTHORITY UNDER THIS SECTION(.)
 
    /8/ SECTION 7117(A) PROVIDES IN RELEVANT PART AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (A)(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.
 
    /9/ IN SO DECIDING THAT THE SUBJECT PROVISION IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
 THE BARGAIN.
 
    /10/ BASED UPON THE RECORD, THE REGULATIONS IN QUESTION PROVIDE IN
 RELEVANT PART AS FOLLOWS:
 
    TECHNICIAN PERSONNEL MANUAL SUPPLEMENT 990-2, SUBCHAPTER S11.
 
           SUBCHAPTER S11.  EXCUSED ABSENCE S11.5 ADMINISTRATIVE
 
                                DISCRETION
 
   .          .          .          .
 
 
    G.  (ADDED) EMERGENCY RESCUE OR PROTECTIVE WORK.  WHEN ORDERED TO
 ACTIVE DUTY UNDER
 
    MILITARY ORDERS OF THE GOVERNOR OF A STATE FOR PARTICIPATION IN
 RESCUE OR PROTECTIVE WORK NOT
 
    INVOLVING LAW ENFORCEMENT DUTIES) IN CONNECTION WITH FIRES, FLOODS,
 OR OTHER NATURAL
 
    PHENOMENA, TECHNICIANS MAY BE EXCUSED FOR A PERIOD NOT TO EXCEED 5
 WORKDAYS FOR EACH STATE
 
    EMERGENCY OF THIS NATURE.  WHEN PROVIDING MILITARY AID TO ENFORCE THE
 LAW TECHNICIANS MUST USE
 
    MILITARY LEAVE AUTHORIZED FOR SUCH PURPOSES.  AND
 
             TECHNICIAN PERSONNEL MANUAL 600, SUBCHAPTER 14.
 
         SUBCHAPTER 14 (ADDED).  LEAVE TO PROVIDE MILITARY AID TO
 
                              ENFORCE THE LAW
 
                            14-1.  INTRODUCTION
 
    A.  DEFINITION.  THIS ADDITIONAL MILITARY LEAVE IS AUTHORIZED WITHOUT
 LOSS OR REDUCTION OF
 
    LEAVE TO WHICH OTHERWISE ENTITLED, CREDIT FOR TIME OR SERVICE, RATING
 OF PERFORMANCE OR
 
    EFFICIENCY, FOR THE PURPOSE OF PROVIDING AID TO ENFORCE THE LAW.
 
                            14-2.  LEGAL BASIS
 
    A.  ENTITLEMENT.  EACH NATIONAL GUARD TECHNICIAN SERVING UNDER A
 PERMANENT APPOINTMENT, WHO
 
    IS AN OFFICER OR ENLISTED MEMBER OF THE NATIONAL GUARD OF THE UNITED
 STATES, COMMONWEALTH OF
 
    PUERTO RICO, OR DISTRICT OF COLUMBIA, IS ENTITLED TO MILITARY LEAVE
 FOR NOT MORE THAN 22
 
    WORKDAYS IN A CALENDAR YEAR FOR THE PURPOSE DESCRIBED IN 14-1, ABOVE.
 
    /11/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1928
 AND DEPARTMENT OF THE NAVY, AIR DEVELOPMENT CENTER, WARMINSTER,
 PENNSYLVANIA, 2 FLRA 451(1980) AT 454.
 
    /12/ SEE NOTE 8, SUPRA.
 
    /13/ IN SO DECIDING THAT THE SUBJECT PROVISION IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
 THE PROVISION.
 
    /14/ 5 CFR 210.101(B)(1981).
 
    /15/ SEE ASSOCIATION OF CIVILIAN TECHNICIANS, INC., PENNSYLVANIA
 STATE COUNCIL AND ADJUTANT GENERAL, DEPARTMENT OF MILITARY AFFAIRS,
 PENNSYLVANIA, 4 FLRA NO.  10(1980) AT 5.
 
    /16/ TP PAM 911 PROVIDES IN RELEVANT PART AS FOLLOWS:
 
    3-9.  IDENTIFYING QUALIFIED CANDIDATES.
 
    THE ACCOMPLISHMENT OF THE NATIONAL GUARD MISSION REQUIRES THAT THE
 BEST QUALIFIED
 
    TECHNICIANS BE PROMOTED;  THEREFORE, TECHNICIANS WHO MEET THE MINIMUM
 QUALIFICATIONS SHOULD BE
 
    RATES AGAINST THE JOB-RELATED CRITERIA FOR THE POSITION . . . .
 AFTER ALL APPROPRIATE
 
    EVALUATION FACTORS THAT MEASURE QUALITY HAVE BEEN APPLIED, LENGTH OF
 SERVICE OR LENGTH OF
 
    EXPERIENCE MAY THEN BE APPLIED IF ALL RATINGS OF CANDIDATES ARE
 EQUAL.
 
    /17/ SEE NOTE 11, SUPRA AND ACCOMPANYING TEXT.
 
    /18/ SECTION 7106(A)(2)(B) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
   .          .          .          .
 
 
    (2) IN ACCORDANCE WITH APPLICABLE LAWS--
 
   .          .          .          .
 
 
    (B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
 CONTRACTING OUT, AND TO
 
    DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
 CONDUCTED(.)
 
    /19/ IN VIEW OF THE DECISION THAT SECTION 7106(A)(2)(B) OF THE
 STATUTE BARS NEGOTIATION OF THE PROVISION, IT IS UNNECESSARY TO CONSIDER
 THE REMAINING CONTENTIONS OF THE AGENCY WITH RESPECT TO THE
 NONNEGOTIABILITY OF THE PROVISION.
 
    /20/ 5 U.S.C. 5343(C).
 
    /21/ FPM SUPPLEMENT 532.1, SUBCHAPTER S5-3C(2)(C).
 
    /22/ SEE SECTION 7106(B)(2) AND (3) OF THE STATUTE.
 
    /23/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
 FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
 604(1980) AT 623, ENFORCED AS TO OTHER MATTERS SUB NOM.  DEPARTMENT OF
 DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR.
 1981);  NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 19 AND NATIONAL
 LABOR RELATIONS BOARD, REGION 19, 2 FLRA 775(1980) AT 776-77;  AND
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1331 AND
 DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION ADMINISTRATION, EASTERN
 REGIONAL RESEARCH CENTER, PHILADELPHIA, PENNSYLVANIA, 4 FLRA NO. 2(1980)
 AT 2-3.
 
    /24/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 1786 AND MARINE CORPS DEVELOPMENT AND EDUCATION COMMAND, QUANTICO,
 VIRGINIA, 2 FLRA 423(1980), WHEREIN THE AUTHORITY HELD NEGOTIABLE A
 PROVISION WHICH, UNLIKE THE PROVISION HERE IN DISPUTE, ESTABLISHED A
 UNION RIGHT TO REPRESENTATION ON WAGE SURVEY TEAMS BUT DID NOT REQUIRE
 AGENCY SELECTION OF PARTICULAR EMPLOYEES TO PERFORM DATA COLLECTION
 DUTIES AND, THEREFORE, DID NOT INTERFERE WITH MANAGEMENT'S RIGHTS UNDER
 SECTION 7106(A)(2)(B) OF THE STATUTE.
 
    /25/ IN SO DECIDING THAT THE SUBJECT PROVISION IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
 THE PROVISION.
 
    /26/ THE REGULATION RELIED UPON BY THE AGENCY PROVIDES IN RELEVANT
 PART AS FOLLOWS:
 
                  TECHNICIAN PERSONNEL MANUAL 400 (410.3)
 
               SUBCHAPTER 3.  ESTABLISHING TRAINING PROGRAMS
 
         3-6.  SELECTION AND ASSIGNMENT OF EMPLOYEES FOR TRAINING
 
    H.  (ADDED) ATTENDANCE AT MILITARY SERVICE SCHOOLS IN A TECHNICIAN
 STATUS.
 
    (1) TECHNICIANS MAY BE PERMITTED TO ATTEND MILITARY SERVICE SCHOOLS
 IN A TECHNICIAN STATUS
 
    SUBJECT TO THE APPROVAL OF THE STATE ADJUTANT GENERAL OR HIS
 DESIGNATED REPRESENTATIVE . . . .
 
    /27/ SEE NOTE 11, SUPRA AND ACCOMPANYING TEXT.
 
    /28/ IN THIS REGARD, THE NGB REGULATION PROVIDES, IN PERTINENT PART,
 AS FOLLOWS:
 
                  TECHNICIAN PERSONNEL MANUAL 400 (410.3)
 
               SUBCHAPTER 3.  ESTABLISHING TRAINING PROGRAMS
 
         3-6.  SELECTION AND ASSIGNMENT OF EMPLOYEES FOR TRAINING
 
    H.  (ADDED) ATTENDANCE AT MILITARY SERVICE SCHOOLS IN A TECHNICIAN
 STATUS.
 
   .          .          .          .
 
 
    (2) BEFORE TECHNICIANS ARE PERMITTED TO ATTEND SERVICE SCHOOLS IN A
 TECHNICIAN STATUS, THEY
 
    MUST BE:
 
   .          .          .          .
 
 
    (B) ADVISED THAT THEY WILL COMPLY WITH ALL THE REQUIREMENTS OF THE
 APPROPRIATE MILITARY
 
    SERVICE COMPONENT, INCLUDING THE WEARING OF THE UNIFORM, TO THE SAME
 EXTENT AS IF THEY WERE
 
    ATTENDING IN THEIR NATIONAL GUARD MILITARY STATUS.  ALTHOUGH THEY
 WILL NOT BE REQUIRED TO
 
    PERFORM INCIDENTAL MILITARY DUTIES SUCH AS CHARGE-OF-QUARTERS,
 BARRACKS CHIEF,
 
    OFFICER-OF-THE-DAY, ETC., THEY WILL BE EXPECTED TO PERFORM ADDITIONAL
 DUTIES REQUIRED OF ANY
 
    OTHER CIVILIAN CLASS MEMBER.
 
    /29/ IN SO DECIDING THAT THE SUBJECT PROVISIONS ARE WITHIN THE DUTY
 TO BARGAIN, THE AUTHORITY, OF