15:0330(70)NG - ACT and Delaware NG -- 1984 FLRAdec NG
[ v15 p330 ]
The decision of the Authority follows:
15 FLRA No. 70 ASSOCIATION OF CIVILIAN TECHNICIANS, INC. Union and DELAWARE NATIONAL GUARD Agency Case No. O-NG-540 DECISION AND ORDER ON NEGOTIABILITY ISSUE The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The issue presented is the negotiability of the following Union proposal: Prior to an employee voluntarily converting his present position and status to the AGR Program, he/she will be informed and will sign a statement of acknowledgment that he/she understands that, should a termination of tour of duty occur, he/she will not be entitled to restoration or re-employment rights to vacant or occupied positions within the bargaining unit. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The proposal is concerned with the entitlement of an employee to restoration or reemployment rights to vacant or occupied positions within the bargaining unit, when the employee voluntarily converts from a technician position to the Active Guard Reserve (AGR) Program. Based on the record, the Agency has asserted that under law employees voluntarily converting from a technician position to the AGR Program have certain restoration rights. Specifically, the Agency claims that participation in the AGR Program is duty performed under section 502(f) of Title 32, /1/ which duty entitles an employee to reemployment to the position held by the employee when called to duty. On its face, the specific language of 5 U.S.C. 3551 supports the Agency's contention. /2/ The Union, to the contrary, claims 5 U.S.C. 3551 does not apply to employees participating in the AGR Program. However, the Union has not supported this contention. Under the Statute, matters "specifically provided for by Federal statute" are expressly excluded from the definition of "conditions of employment" in section 7103(a)(14)(C) and hence, are not within the duty to bargain. See e.g., Association of Civilian Technicians, Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 49 (1980). Since, based on the record, under Federal law any person who enters upon duty under section 502(f) of title 32 is specifically provided certain reemployment rights under 5 U.S.C. 3551, the Union's proposal is expressly excluded by section 7103(a)(14)(C) from the definition of "conditions of employment" and, therefore, is not within the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. /3/ Issued, Washington, D.C., July 24, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 502 of Title 32 provides as follows: Sec. 502. Required drills and field exercises (f) Under regulations to be prescribed by the Secretary of the Army or Secretary of the Air Force, as the case may be, a member of the National Guard may-- (1) without his consent, but with the pay and allowances provided by law; or (2) with his consent, either with or without pay and allowances; be ordered to perform training or other duty in addition to that prescribed under subsection (a). Duty without pay shall be considered for all purposes as if it were duty with pay. /2/ 5 U.S.C. 3551 in relevant part provides as follows: Sec. 3551. Restoration; Reserves and National Guardsmen An employee as defined by section 2105 of this title or an individual employed by the government of the District of Columbia, permanent or temporary indefinite, who is ordered to active duty or to duty under sections 502-503 of title 32 as a Reserve of the armed forces or member of the National Guard is entitled, on release from duty within the time limits specified in section 9(g) of the Military Selective Service Act of 1967 (50 U.S.C.App. 459(g)), to be restored to the position held by him when ordered to duty(.) /3/ In view of its decision herein, the Authority finds it unnecessary to address the Agency's other arguments concerning the nonnegotiability of the proposal.