18:0736(85)NG - NAGE Local R14-87 and Kansas NG, Topeka, KS -- 1985 FLRAdec NG



[ v18 p736 ]
18:0736(85)NG
The decision of the Authority follows:


 18 FLRA No. 85
 
 
 NATIONAL ASSOCIATION OF 
 GOVERNMENT EMPLOYEES, 
 LOCAL R14-87, AFL-CIO 
 Union 
 
 and 
 
 KANSAS NATIONAL GUARD, 
 TOPEKA, KANSAS 
 Agency
 
                                            Case No. 0-NG-904
 
                 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) and presents an issue
 relating to the negotiability of the following Union proposal:  /1/
 
          Excepted technicians will be allowed to use a Secondary or
       Additional (Military Occupational Specialty) for compatibility
       purposes.
 
 Upon careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
 
    National Guard technicians are employed pursuant to the National
 Guard Technicians Act of 1968, 32 U.S.C. 709, in full-time civilian
 positions to administer and train the National Guard and to maintain and
 repair the supplies issued to National Guard or the armed forces.  Such
 technicians must, as a condition of their civilian employment under the
 Act, become and remain members of the National Guard (i.e., in a
 military capacity) and hold the military grades specified for their
 civilian technician positions pursuant to 32 U.S.C. 709(b).  /2/ Under
 the provisions of the law, compatibility between the civilian and
 military job assignments of technicians' dual status employment is
 required.  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 assignments.  /3/
 
    The proposal herein on its face would allow civilian technicians to
 use a secondary or additional Military Occupational Specialty (MOS) to
 achieve compatibility with additional civilian positions.  /4/ Insofar
 as appears from the record, the secondary MOS is an additional
 speciality which is not necessarily reflective of the military position
 an employee currently occupies.  That is, under this proposal a
 technician could quality for a civilian position which does not
 correspond with the MOS for the military position he or she actually
 holds as a member of the National Guard.  In this respect, the Union
 proposal conflicts with the above cited TPR which requires an excepted
 technician to occupy and perform in a civilian position determined to be
 compatible with the MOS of the military position occupied.  Thus,
 whereas the compatibility requirement applies to all civilian technician
 positions, the Union proposal would create an exception for a technician
 with a secondary MOS that is not the designated military counterpart of
 that technician's civilian technician position.
 
    Therefore, the issue before the Authority is whether, under section
 7117(a)(2) /5/ of the Statute, there is a compelling need for the
 regulation to bar negotiation on the conflicting Union proposal.  The
 Agency argues that its regulation meets the compelling need criterion in
 the Authority's Rules and Regulations at section 2424.11(c).  /6/ That
 criterion provides that a compelling need exist 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 to the agency by law or outside authority.
 
    The National Guard Technicians Act clearly mandates that civilian
 technicians hold compatible military positions.  Moreover, that law does
 not establish any exceptions that would permit substituting a secondary
 MOS for the designated military assignment to achieve compatibility.
 Thus, the National Guard Bureau regulation at issue herein, by requiring
 compatibility between an employee's civilian technician position and the
 MOS of the military position which the technician actually occupies
 implements in a nondiscretionary manner the mandate of that law.  As
 such a compelling need exists under section 2424.11(c) of the
 Authority's Rules and Regulations.  See National Association of
 Government Employees and Department of the Army and the Air Force,
 National Guard Bureau, 17 FLRA No. 80 (1985) and cases cited therein.
 Cf. National Federation of Federal Employees, Local 1694 and Oklahoma
 Army National Guard, Oklahoma City, Oklahoma, 14 FLRA 183 (1984)
 (wherein a proposal precluding an agency from requiring a candidate for
 a civilian technician position to be holding a specific MOS in his or
 her military position was found to be within the duty to bargain where
 the Authority specifically noted that the Agency did not raise the issue
 of the statutory mandate of compatibility and that there was
 insufficient record evidence to support such a finding).
 
    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.  /7/ 
 
 Issued, Washington, D.C., June 26, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William M. Mcginnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union's petition as originally filed contained three
 proposals.  In its response to the Agency's statement of position, the
 Union withdrew its appeal as to two of those proposals which, therefor,
 will not be considered further herein.
 
 
    /2/ 32 U.S.C. 709(b) provides:
 
          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.
 
 
    /3/ TPR 300 (302.7) paragraph 709 reads in pertinent part:
 
                  7-9.  TECHNICIAN/MILITARY COMPATIBILITY
 
          A National Guard technician must be assigned to an appropriate
       military unit (to include military grade and specialty) in the
       State where his technician job is located (see 32 U.S.C. 709(b)).
       The concept of the National Guard technician program is that
       technicians will be militarily assigned to the same unit in which
       his technician job is located.  In other words, a technician will
       perform his technician duties, his military duties, and be
       mobilized to active duty in the same unit.  Unless specifically
       approved by NGB-TN, the assignment will be in the unit by which
       employed, and the technician must be performing in the MPS/AFSC
       determined to be compatible with the technician position occupied.
        Situations of military or technician grade inversion are not
       permitted;  i.e., a technician is subordinate to an individual in
       technician status but senior to him in a military status.
 
 
    /4/ The Union declined to submit a statement of its intent,
 essentially contending that the proposal is clear on its face.  Thus,
 the Authority will interpret the proposal without benefit of any Union
 statement.  However, contrary to the Agency's procedural argument, the
 Authority finds the Union's reliance upon the plain language of its
 proposal is not a basis for dismissing the appeal under the Authority's
 rules.  See American Federation of Government Employees, AFL-CIO, Local
 3004 and Department of the Army and Air Force, National Guard Bureau, 15
 FLRA No. 58, n.1 (1984).
 
 
    /5/ 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) exist for the rule or regulation.
 
 
    /6/ Section 2424.11(c) of the Authority's Rules and Regulations
 states:
 
          Sec. 2424.11 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.
 
 
    /7/ In light