17:0546(80)NG - NAGE and Army and Air Force, NG Bureau -- 1985 FLRAdec NG
[ v17 p546 ]
The decision of the Authority follows:
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.