18:0736(85)NG - NAGE Local R14-87 and Kansas NG, Topeka, KS -- 1985 FLRAdec NG
[ v18 p736 ]
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 of the Authority's disposition in this case it is not necessary to address the other arguments proferred by the Agency.