17:0546(80)NG - NAGE and Army and Air Force, NG Bureau -- 1985 FLRAdec NG

 17 FLRA No. 80
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES 
 Union 
 
 and 
 
 DEPARTMENT OF THE ARMY 
 AND THE AIR FORCE, 
 NATIONAL GUARD BUREAU 
 Agency
 
                                            Case No. 0-NG-932
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Federal Labor
 Relations Authority (Authority) pursuant to section 7105(a)(2)(D) and
 (E) of the Federal Service Labor-Management Relations Statute (the
 Statute) and raises issues concerning the negotiability of a single
 Union proposal.  Upon careful consideration of the record as a whole,
 including the parties' contentions, the Authority makes the following
 determinations.
 
                              Union Proposal
 
          Technicians applying for promotion under the Merit Promotion
       Plan to positions in support activities which are not mobilization
       entities will be considered eligible for that promotion regardless
       of the compatibility requirement.
 
    The National Guard Technicians Act of 1968 (32 U.S.C. 709(b)) /1/
 mandates that civilian technicians maintain military membership in the
 National Guard and hold the military grade specified for their civilian
 position.  The National Guard Bureau regulations implementing this
 statutory provision (TPR 300 (302.7), paragraph 7-9) detail the manner
 in which civilian technicians will comply with the statute's
 requirements by maintaining military membership in the Guard and, in
 particular, compatible civilian and military job designations.
 
    The Union proposal herein would require the Agency to consider
 technicians for promotions in nonmobilization units without regard to
 "compatibility" requirements.  That is, under this proposal a technician
 could be promoted to a position in a nonmobilization unit regardless of
 whether he possessed the equivalent military status for that position.
 In this respect, it is clear that the Union proposal conflicts with the
 cited Agency regulations.  Thus, whereas the compatibility requirement
 applies to all technicians whether or not in mobilization units, the
 Union proposal seeks to carve out an exception for technicians who apply
 for promotion to positions in nonmobilization units.
 
    Therefore, the issue before the Authority is whether, under section
 7117(a)(2) /2/ of the Statute, there is a compelling need for the
 regulation so as to bar negotiation on the conflicting Union proposal.
 The Agency argues /3/ that its regulation meets the compelling need
 criterion in the Authority's Rules and Regulations at section
 2424.11(c).  /4/ That criterion provides that a compelling need exists
 for an agency regulation to bar negotiation on a conflicting union
 proposal when the regulation in question implements, in an "essentially
 nondiscretionary" manner, a mandate directed toward the agency by law or
 outside authority.
 
    The National Guard Technicians Act clearly mandates that civilian
 technicians hold compatible military positions.  Moreover, that statute
 does not establish an exception for nonmobilization units.  Thus, the
 National Guard Bureau regulation at issue herein, by requiring
 compatibility with regard to positions in nonmobilization units,
 implements in a nondiscretionary manner the mandate of the statute.  As
 such, a compelling need exists under section 2424.11(c) of the
 Authority's Rules and Regulations for the instant Agency regulations.
 See Association of Civilian Technicians, Montana Air Chapter and
 Department of the Air Force, Montana Air National Guard, Headquarters
 120th Fighter Interceptor Group (ADTAC), 11 FLRA 505 (1983) (Union
 Proposal 4), aff'd in part and rev'd and remanded in part sub nom.
 Association of Civilian Technicians, Montana Air Chapter v. Federal
 Labor Relations Authority, No. 83-1489 (D.C. Cir. Mar. 8, 1985);
 American Federation of Government Employees, AFL-CIO, Local 2953 and
 State of Nebraska, Military Department, Office of the Adjutant General,
 Lincoln, Nebraska, 7 FLRA 712 (1982) (Union Proposal IV), rev'd in other
 respects sub nom. State of Nebraska, Military Department, Office of
 Adjutant General v. Federal Labor Relations Authority, 705 F.2d 945 (8th
 Cir. 1983);  American Federation of Government Employees, AFL-CIO, Local
 2953 and National Guard Bureau, Office of the Adjutant General,
 Nebraska, 7 FLRA 87 (1981) aff'd sub nom. American Federation of
 Government Employees, AFL-CIO, Local 2953 v. Federal Labor Relations
 Authority, 730 F.2d 1534 (D.C. Cir. 1984);  Association of Civilian
 Technicians, Pennsylvania State Council and The Adjutant General,
 Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50
 (1980).  Cf. National Association of Government Employees, Local R14-87
 and Kansas Army National Guard, Topeka, Kansas, 15 FLRA No. 11 (1984)
 (proposal for six month grace period to allow reassignment to compatible
 military position is outside duty to bargain in that military aspects of
 technicians are totally mandated by law).
 
    Thus, for the foregoing reasons, the Authority concludes that the
 Union's proposal is barred from negotiation by an Agency regulation for
 which a compelling need exists under section 7117(a)(2) of the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review in this
 matter be, and it hereby is, dismissed.  /5/ Issued, Washington, D.C.,
 April 15, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 32 U.S.C. 709(b) states:
 
          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.
 
 
    /2/ Section 7117(a)(2) of the Statute reads:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
                                .  .  .  .
 
          (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.
 
 
    /3/ Agency Statement of Position at 5.
 
 
    /4/ Section 2424.11(c) of the Authority's Rules and Regulations
 states:
 
          Sec. 2424.  Illustrative criteria.
 
          A compelling need exists for an agency rule or regulation
       concerning any condition of employment when the agency
       demonstrates that the rule or regulation meets one or more of the
       following illustrative criteria:
 
                                .  .  .  .
 
          (c) The rule or regulation implements a mandate to the agency
       or primary national subdivision under law or other outside
       authority, which implementation is essentially nondiscretionary in
       nature.
 
 
    /5/ In light of the Authority's disposition in this case it is not
 necessary to address the other arguments proffered by the Agency.