18:0475(62)CA - NG Bureau and NAGE -- 1985 FLRAdec CA



[ v18 p475 ]
18:0475(62)CA
The decision of the Authority follows:


 18 FLRA No. 62
 
 NATIONAL GUARD BUREAU 
 Respondent
 
 and 
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES 
 Charging Party
 
                                            Case No. 3-CA-2586
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts, accompanying exhibits, and the parties'
 contentions, the Authority finds:
 
    It is alleged that the National Guard Bureau violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) /1/ by instituting substantive changes
 in conditions of employment without affording the Charging Party,
 National Association of Government Employees (NAGE), reasonable time to
 present its views and recommendations regarding the changes pursuant to
 its previously granted national consultation rights, as required by
 section 7113 of the Statute.  /2/
 
    At all times material herein, NAGE has been granted national
 consultation rights by the National Guard Bureau under section 7113 of
 the Statute.  On June 11, 1981, the National Guard Bureau notified NAGE
 that on June 12, 1981, it would issue a letter entitled "Policies for
 Active Duty Guard/Reserve (AGR) Program, FY 81-Manpower Management
 Guidance No. G-81," announcing its policy for conversion of technician
 positions to Active Duty/Reserve.  The National Guard Bureau on the next
 day, June 12, 1981, issued the policy announcement.  The policy
 announcement was addressed to the Adjutants General of all states,
 Puerto Rico, the Virgin Islands, Guam, and the District of Columbia, and
 provides, inter alia, for the conversion of vacant Civilian Military
 Technician positions to Active Duty Guard/Reserve (AGR) positions;  for
 the voluntary conversion of incumbent Civilian Military Technician
 positions to AGR positions;  and for the gains in the number of military
 AGR positions to be offset by the reductions in the number of civilian
 technicians.
 
    The National Guard Bureau and NAGE stipulated that the National Guard
 Bureau has a past practice of providing NAGE with at least two weeks
 advance notice regarding such proposed changes, pursuant to NAGE's
 national consultation rights.
 
    Section 7113(b)(1) of the Statute provides that any labor
 organization having national consultation rights is entitled to receive
 advance notice of any substantive changes in conditions of employment
 proposed by the agency and to be given a reasonable period of time to
 present its views and recommendations regarding the changes.  If such
 views and recommendations are presented, they must be considered by the
 agency before it takes final action.
 
    The Authority finds that the June 12, 1981 policy announcement issued
 by the National Guard Bureau constituted a substantive change in
 personnel policy, as employees became subject to displacement from the
 collective bargaining unit inasmuch as the AGR positions created by the
 conversion of civilian technician positions would be military positions
 which are excluded from coverage under the Statute by section
 7103(a)(2)(B)(ii).  /3/ Since NAGE had national consultation rights, the
 National Guard Bureau was obligated to comply with the provisions of
 section 7113(b)(1) prior to finalizing its proposed changes.  Thus,
 after notifying NAGE on June 11, 1981, of its intention to issue a
 policy announcement, the National Guard Bureau was required to provide
 the Union with reasonable time to present its views and recommendations
 on the proposed new policy and to consider such views and
 recommendations before issuing the policy announcement.  This it failed
 to do.  Rather, the National Guard Bureau notified NAGE of its intention
 to issue the letter announcing its policy on the conversion of employee
 positions only the day before the policy announcement was issued.  The
 Authority finds that the one day between notice and issuance of the
 policy announcement does not satisfy the requirement of affording NAGE a
 reasonable period of time to present its views and recommendations,
 noting in particular that the record does not reveal an emergency or
 other compelling reason for immediate action and that the National Guard
 Bureau admits that it had a past practice of providing NAGE with at
 least two weeks advance notice regarding such changes.  Therefore, the
 Authority concludes that the National Guard Bureau failed to comply with
 its obligation to consult under 7113(b)(1) and thus violated section
 7116(a)(1) and (5) of the Statute.  See General Services Administration,
 6 FLRA 430 (1981).  /4/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the National Guard Bureau shall:
 
    1.  Cease and desist from:
 
    (a) Failing to inform the National Association of Government
 Employees (NAGE), pursuant to NAGE's national consultation rights under
 section 7113 of the Statute, of proposed substantive changes in
 conditions of employment, and failing to provide NAGE with a reasonable
 period of time to present its views and recommendations regarding the
 proposed changes.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Provide the National Association of Government Employees,
 pursuant to its national consultation rights under section 7113 of the
 Statute, a reasonable period of time to present its views and
 recommendations concerning procedures pertaining to the conversion of
 technician positions to Active Duty/Reserve, and thereafter comply with
 the requirements of section 7113(b)(2) of the Statute.
 
    (b) Post at all of its facilities copies of the attached Notice on
 forms to be furnished by the Federal Labor Relations Authority.  Upon
 receipt of such forms they shall be signed by the Director, Army
 National Guard, or a designee, and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including bulletin
 boards and other places where notices to employees are customarily
 posted.  Reasonable steps shall be taken by the National Guard Bureau to
 insure that such notices are not altered, defaced, or covered by any
 other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days of the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., June 19, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL to inform the National Association of Government
 Employees (NAGE), pursuant to NAGE's national consultation rights under
 section 7113 of the Statute, of proposed substantive changes in
 conditions of employment, or fail to provide NAGE with a reasonable
 period of time to present its views and recommendations regarding the
 proposed changes.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL provide the National Association of Government Employees,
 pursuant to its national consultation rights under section 7113 of the
 Statute, a reasonable period of time to present its views and
 recommendations concerning procedures pertaining to the conversion of
 technician positions to Active Duty/Reserve, and thereafter comply with
 the requirements of section 7113(b)(2) of the Statute.
                                       (Agency)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  P.O. Box 33758, 1111 18th Street, N.W., Room 700, Washington, D.C.
 20033-0758, and whose telephone number is:  (202) 653-8507.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1), (5) and (8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
                                  * * * *
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /2/ Section 7113 provides in pertinent part:
 
          Sec. 7113.  National consultation rights
 
          (a)(1) If, in connection with any agency, no labor organization
       has been accorded exclusive recognition on an agency basis, a
       labor organization which is the exclusive representative of a
       substantial number of the employees of the agency, as determined
       in accordance with criteria prescribed by the Authority, shall be
       granted national consultation rights by the agency.  National
       consultation rights shall terminate when the labor organization no
       longer meets the criteria prescribed by the Authority.  Any issue
       relating to any labor organization's eligibility for, or
       continuation of, national consultation rights shall be subject to
       determination by the Authority.
 
          (b)(1) Any labor organization having national consultation
       rights in connection with any agency under subsection (a) of this
       section shall--
 
          (A) be informed of any substantive change in conditions of
       employment proposed by the agency, and
 
          (B) be permitted reasonable time to present its views and
       recommendations regarding the changes.
 
          (2) If any views or recommendations are presented under
       paragraph (1) of this subsection to an agency by any labor
       organization--
 
          (A) the agency shall consider the views or recommendations
       before taking final action on any matter with respect to which the
       views or recommendations are presented;  and
 
          (B) the agency shall provide the labor organization a written
       statement of the reasons for taking the final action.
 
 
    /3/ While we find this sufficient to establish a substantive change
 in conditions of employment, it is also noted that, as the numbers and
 types of civilian technician positions for which the technicians who did
 not convert to military status would be eligible was substantially
 altered and thus admittedly could result in the alteration of job
 descriptions, this too would constitute a substantive change in
 conditions of employment.
 
 
    /4/ In view of this conclusion, the Authority finds it unnecessary to
 determine whether the National Guard Bureau's conduct also constituted a
 violation of section 7116(a)(8) of the Statute.  Further, in the
 particul