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

 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