National Federation of Federal Employees, Local 1724 (Union) and Utah National Guard, Salt Lake City, Utah (Agency)

 7 FLRA No. 116
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1724
 Union
 
 and
 
 UTAH NATIONAL GUARD,
 SALT LAKE CITY, UTAH
 Agency
 
                                            Case No. O-NG-267
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C.
 7101-7135) (THE STATUTE).  THE ISSUE PRESENTED IS THE NEGOTIABILITY OF
 THE FOLLOWING UNION PROPOSAL:
 
    THAT ALL (A)FFECTED, ON BOARD, TECHNICIANS REMAIN OR BE REINSTATED TO
 THEIR FORMER POSITION
 
    AT THEIR FORMER GRADE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE QUESTION PRESENTED IS WHETHER, AS ALLEGED BY THE AGENCY, THE
 UNION'S PROPOSAL IS INCONSISTENT WITH FEDERAL LAW, AGENCY REGULATIONS
 FOR WHICH A COMPELLING NEED IS CLAIMED TO EXIST, OR IS OTHERWISE NOT
 WITHIN THE DUTY TO BARGAIN.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  THE UNION'S PROPOSAL IS NOT WITHIN THE DUTY TO
 BARGAIN AS IT DOES NOT CONCERN THE CONDITIONS OF EMPLOYMENT OF
 BARGAINING UNIT EMPLOYEES.  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 THE PROPOSAL BE, AND IT HEREBY
 IS DISMISSED.  /1/
 
    REASONS:  THE PROPOSAL, WHICH IS UNCLEAR ON ITS FACE, AROSE IN THE
 CONTEXT OF NEGOTIATIONS CONCERNING THE ASSIGNMENT OF WOMEN TO POSITIONS
 IN UTAH NATIONAL GUARD TECHNICIANS COVERED BY THE INSTANT PROPOSAL ARE
 EMPLOYED PURSUANT TO THE NATIONAL GUARD TECHNICIANS ACT OF 1968, 32
 U.S.C. 709.  /2/ THIS ACT, WHICH CREATES A SEPARATE PERSONNEL SYSTEM
 APPLICABLE ONLY TO SUCH TECHNICIANS, PROVIDES THAT SUCH TECHNICIANS ARE
 EMPLOYED IN 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.  32 U.S.C. 719(A).  THE ACT ALSO REQUIRES,
 GENERALLY, THAT AS A CONDITION OF THEIR CIVILIAN EMPLOYMENT, TECHNICIANS
 MUST BECOME AND REMAIN MILITARY MEMBERS OF THE NATIONAL GUARD AND HOLD
 THE MILITARY GRADE SPECIFIED FOR THEIR CIVILIAN POSITIONS.  32 U.S.C.
 709(B).  THE ACT FURTHER MANDATES THAT A TECHNICIAN WHO IS SEPARATED
 FROM THE GUARD, AS A MILITARY MEMBER, OR WHO FAILS TO MAINTAIN THE
 MILITARY GRADE SPECIFIED FOR HIS OR HER POSITION, "SHALL BE PROMPTLY
 SEPARATED FROM THE GUARD, AS A MILITARY MEMBER, OR WHO FAILS TO MAINTAIN
 THE MILITARY GRADE SPECIFIED FOR HIS OR HER POSITION, "SHALL BE PROMPTLY
 SEPARATED FROM HIS TECHNICIAN EMPLOYMENT." 32 U.S.C. 709(E)(1).  IN THIS
 REGARD, THE PARTIES ARE AGREED THAT PRESENT MILITARY POLICY PRECLUDES
 THE MILITARY ASSIGNMENT OF WOMEN TO UNITS WHICH WOULD BE DIRECTLY
 ENGAGED IN COMBAT IN THE EVENT OF WAR.  SEE 10 U.S.C. 6015, 8549.
 
    THE UNION CONTENDS THE PROPOSAL IS NOT INTENDED TO ELIMINATE THE
 REQUIREMENT OF 32 U.S.C. 709 THAT A CIVILIAN TECHNICIAN MUST HOLD A
 COMPATIBLE MILITARY POSITION IN HIS OR HER UNIT.  THE UNION, IN ESSENCE,
 ACKNOWLEDGES THAT UNDER THE PRESENT POLICY WHICH PREVENTS THE MILITARY
 ASSIGNMENT OF WOMEN TO COMBAT UNITS, IT CANNOT NEGOTIATE OVER THE IMPACT
 OF A DECISION TO DESIGNATE A UNIT AS A COMBAT UNIT SINCE BY OPERATION OF
 LAW (I.E., 32 U.S.C. 709) WOMEN ARE PRECLUDED FROM HOLDING A CIVILIAN
 TECHNICIAN POSITION IN A COMBAT UNIT.  THUS, BY OPERATION OF ITS
 PROPOSAL, THE UNION ESSENTIALLY SEEKS TO CHANGE THE AGENCY'S EXISTING
 POLICY OF DESIGNATING UNITS AS COMBAT UNITS IN ADVANCE OF ANY DECISION
 TO ACTUALLY CALL SUCH UNITS INTO COMBAT.  THUS, AS EXPLAINED BY THE
 UNION, ITS PROPOSAL IS INTENDED TO ENSURE THAT WOMEN CIVILIAN
 TECHNICIANS RETAIN THEIR POSITIONS UNTIL THEIR MILITARY UNITS ARE CALLED
 TO THE FRONT LINE, AT WHICH TIME THE UNION INTENDS THAT THE UNIT COULD
 BE OFFICIALLY DESIGNATED FOR COMBAT.
 
    THE AGENCY CONTENDS, AND THE AUTHORITY AGREES, THAT THE DESIGNATION
 OF A UNIT AS A COMBAT UNIT AS WELL AS THE TIMING OF THAT DESIGNATION IS
 A MILITARY DECISION WHICH IS MADE BY THE AGENCY APART FROM AND WITHOUT
 REGARD TO THE EMPLOYMENT RELATIONSHIP OF CIVILIAN TECHNICIANS.  THE
 STATUTE PRESCRIBES CERTAIN RIGHTS AND OBLIGATIONS WITH RESPECT TO
 COLLECTIVE BARGAINING IN THE CIVIL (AS OPPOSED TO MILITARY) SERVICE.
 /3/ 5 U.S.C. 7101.  SINCE, AS NOTED ABOVE, THE UNION, THROUGH ITS
 PROPOSAL, SEEKS TO NEGOTIATE OVER THE EFFECTIVE DATE OF DESIGNATION OF A
 MILITARY UNIT AS A COMBAT UNIT, THE PROPOSAL DOES NOT CONCERN A
 CONDITION OF EMPLOYMENT OF NATIONAL GUARD CIVILIAN TECHNICIANS WITHIN
 THE MEANING OF THE STATUTE.  SEE ASSOCIATION OF CIVILIAN TECHNICIANS,
 PENNSYLVANIA STATE COUNCIL AND THE ADJUTANT GENERAL, DEPARTMENT OF
 MILITARY AFFAIRS, COMMONWEALTH OF PENNSYLVANIA, 3 FLRA NO. 8(1980).
 
    FOR THE FOREGOING REASONS, THE UNION'S PROPOSAL IS NOT WITHIN THE
 DUTY TO BARGAIN.
 
    ISSUED, WASHINGTON, D.C., JANUARY 22, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN VIEW OF THE AUTHORITY'S HOLDING IN THIS REGARD, IT IS NOT
 NECESSARY TO CONSIDER THE AGENCY'S ADDITIONAL CONTENTIONS THAT THE
 PROPOSAL IS INCONSISTENT WITH THE PROVISIONS OF 10 U.S.C. 976(E)(1), 32
 U.S.C. 709, OR AGENCY REGULATIONS FOR WHICH A COMPELLING NEED IS CLAIMED
 TO EXIST.
 
    /2/ 32 U.S.C. 709 PROVIDES, IN PERTINENT PART:
 
    SEC. 709.  TECHNICIANS:  EMPLOYMENT, USE, STATUS
 
   .          .          .          .
 
 
    (B) EXCEPT AS PRESCRIBED BY THE SECRETARY CONCERNED, A TECHNICIAN
 EMPLOYED UNDER SUBSECTION
 
    (A) SHALL, WHILE SO EMPLOYED, BE A MEMBER OF THE NATIONAL GUARD AND
 HOLD THE MILITARY GRADE
 
    SPECIFIED BY THE SECRETARY CONCERNED FOR THAT POSITION.
 
   .          .          .          .
 
 
    (E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND UNDER REGULATIONS
 PRESCRIBED BY THE
 
    SECRETARY CONCERNED --
 
    (1) A TECHNICIAN WHO IS EMPLOYED IN A POSITION IN WHICH NATIONAL
 GUARD MEMBERSHIP IS
 
    REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO IS SEPARATED FROM THE
 NATIONAL GUARD OR CEASES
 
    TO HOLD THE MILITARY GRADE SPECIFIED FOR HIS POSITION BY THE
 SECRETARY CONCERNED SHALL BE
 
    PROMPTLY SEPARATED FROM HIS TECHNICIAN EMPLOYMENT BY THE ADJUTANT
 GENERAL OF THE JURISDICTION
 
    CONCERNED(.)
 
    /3/ MOREOVER, AS SET FORTH IN 10 U.S.C. 976, CONGRESS EXPLICITLY
 MANIFESTED ITS INTENTION THAT MILITARY LABOR ORGANIZATIONS BE PROHIBITED
 FROM NEGOTIATING OVER THE TERMS AND CONDITIONS OF MILITARY SERVICE.