22:0836(90)CA - NGB and NAGE, SEIU -- 1986 FLRAdec CA



[ v22 p836 ]
22:0836(90)CA
The decision of the Authority follows:


 22 FLRA No. 90
 
 NATIONAL GUARD BUREAU
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, SEIU
 Charging Party/Union
 
                                            Case No. 3-CA-50534
 
                            DECISION and ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based on a stipulation of facts by the parties, who have
 agreed that no material issue of fact exists.  Briefs for the
 Authority's consideration were filed by the Respondent and by the
 General Counsel.
 
    The complaint alleges that the National Guard Bureau (Respondent)
 violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute) by instituting a
 substantive change in conditions of employment without affording the
 Charging Party, National Association of Government Employees, SEIU
 (NAGE), prior notice and a reasonable time to present its views and
 recommendations regarding the change, pursuant to its previously granted
 national consultation rights, as required by section 7113 of the
 Statute.  /1/ Specifically, by memorandum to all Adjutants General dated
 June 21, 1985, the Respondent implemented an expansion of its
 Mix-of-the-Force policy to allow non-bargaining unit Active
 Guard/Reserve military personnel to fill certain bargaining unit
 technicians positions formerly occupied solely by civilian technicians
 without prior notice to NAGE.
 
                              II.  The Facts
 
    At all times material herein, NAGE has been granted national
 consultation rights by the National Guard Bureau under section 7113 of
 the Statute.  By memorandum to the Adjutants General of all States,
 Puerto Rico, the Virgin Islands, Guam and the District of Columbia dated
 June 21, 1985, the National Guard Bureau implemented an expansion of its
 Mix-of-the-Force policy.  Paragraph 5(b) of the policy announcement
 listed twelve (12) job classifications which could now be filled by
 Active Guard/Reserve military personnel.  The twelve (12) job
 classifications were bargaining unit positions which had previously been
 reserved exclusively for civilian technicians.  At the time of the
 policy change, approximately 136 civilian technicians, located in
 nineteen different States, were assigned to the twelve job
 classifications.
 
                              III.  The Issue
 
    The issue in this case is whether the National Guard Bureau violated
 section 7116(a)(1) and (5) of the Statute by issuing, without consulting
 with NAGE under section 7113 of Statute, the June 21, 1985 Memorandum
 which authorized local State management to fill certain bargaining unit
 positions with Active Guard/Reserve military personnel.
 
                       IV.  Positions of the Parties
 
    The Respondent's position is that it was not required to consult with
 NAGE under section 7113 of the Statute because the June 21, 1985 policy
 letter had no immediate or foreseeable impact on bargaining unit
 employees.  The Respondent argues that paragraph 5(b) of the policy
 letter merely provides that a vacant position in the twelve (12) listed
 classifications may be filled by an Active Guard/Reserve or a civilian
 technician.  Thus, the Respondent argues, in any given State, there will
 be little if any impact on bargaining unit employees, in view of the
 limited number of positions in each State and the traditionally low or
 non-existent attrition in the affected positions.
 
    The General Counsel argues that the Respondent's decision to expand
 its Mix-of-the-Force policy by providing military personnel with the
 opportunity to fill positions formerly occupied solely by civilian
 technicians constituted a substantive change in conditions of employment
 of certain bargaining unit employees.  The General Counsel points out
 that the subject memorandum explicitly stated that the expansion of the
 Mix-of-the-Force program was intended to afford greater upward mobility
 and career progression for Active Guard/Reserve officers.  This policy
 change currently impacts upon bargaining unit employees eligible for the
 affected positions and foreseeably, will limit career progression for
 certain unit employees.  Thus, the General Counsel argues that the
 Respondent has instituted a substantive change in conditions of
 employment of certain bargaining unit employees without fulfilling its
 obligations under section 7113 of the Statute.
 
                               V.  Analysis
 
    This case involves the application of section 7113 of the Statute.
 Section 7113(b)(1) of the Statute requires an agency to inform a labor
 organization having national consultation rights with the agency of any
 substantive changes in conditions of employment proposed by the agency
 and to provide the labor organization with reasonable time to present
 its views and recommendations regarding the changes and to consider such
 views and recommendations before taking final action.
 
    In order for the consultation obligation set forth in section
 7113(b)(1) of the Statute to apply, there must be a substantive change
 in conditions of employment.  See General Services Administration, 6
 FLRA 430 (1981) and National Guard Bureau, 18 FLRA No. 62 (1985).
 Section 7103(a)(14) of the Statute defines conditions of employment as
 "personnel policies, practices, and matters, whether established by
 rule, regulation or otherwise, affecting working conditions . . . "
 
    In terms of this case, it is clear that the Respondent's June 21,
 1985 Memorandum, which expanded the Mix-of-the-Force policy to twelve
 (12) bargaining unit position classifications, was an implementation of
 a change in personnel policies in that classifications previously
 reserved to civilian technicians were opened to occupancy by active
 military personnel.  It is also apparent that this personnel policy
 change affects the working conditions of bargaining unit employees.  The
 Respondent's stated primary objective in instituting the expansion of
 the Mix-of-the-Force policy was to provide more high level grades and
 positions for Active Guard/Reserve military personnel.  Such an
 expansion materially affects the availability of promotional and career
 development opportunities for bargaining unit employees eligible for
 those positions.  Further, the change may result in a decrease in the
 size of the bargaining unit since bargaining unit positions if filled by
 military personnel will become military positions which are excluded
 from coverage under the Statute by section 7103(a)(2)(B)(ii) of the
 Statute.  Relying on the rationale set forth above, we find no merit to
 the Respondent's argument that the change had minimal affect on the
 working conditions of bargaining unit employees.  Accordingly, the
 Authority concludes that the June 21, 1985 policy announcement issued by
 the National Guard Bureau clearly constituted a substantive change in
 personnel policy.
 
    Since NAGE had national consultation rights, the National Guard
 Bureau was obligated to comply with the provisions of section 7113(b)(1)
 of the Statute prior to finalizing the changes.  Thus, the National
 Guard Bureau was required to notify NAGE and provide NAGE with the
 opportunity to present its views and recommendations and to consider
 such views or recommendations before it issued the June 21, 1985
 Memorandum.  This was not done.  Therefore, the Authority concludes that
 the National Guard Bureau failed to comply with its obligation to
 consult under 7113(b)(1) of the Statute.  See National Guard Bureau, 18
 FLRA No. 62 (1985).
 
                              VI.  Conclusion
 
    The Authority has considered all the facts and circumstances of this
 case, including the positions of the parties.  The Authority concludes
 that the Respondent failed to fulfill its obligation to consult with
 NAGE pursuant to section 7113(b)(1) of the Statute prior to issuing its
 June 21, 1985 Memorandum expanding its Mix-of-the-Force policy and thus,
 the Respondent violated section 7116(a)(1) and (5) of the Statute.
 Therefore, the Respondent shall be ordered to provide NAGE, pursuant to
 its national consultation rights under section 7113 of the Statute, with
 reasonable time to present its views and recommendations concerning
 procedures pertaining to the impact and implementation of the expanded
 Mix-of-the-Force policy.  /2/
 
                                   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, SEIU (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 impact and
 implementation of the expanded Mix-of-the-Force policy, 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., July 29, 1986.
 
                                       /s/ JERRY L. CALHOUN
                                       Jerry L. Calhoun, Chairman
                                       /s/ HENRY B. FRAZIER III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7113 provides in pertinent part:
 
          Section 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.
 
    (2) In the absence of a request by the General Counsel or NAGE for a
 status quo ante remedy herein, and in the circumstances of this case,
 the Authority concludes that no such remedy is warranted.  See National
 Guard Bureau, 18 FLRA No. 62 n.4 (1985).
 
 
                                 APPENDIX
 
  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, SEIU (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 impact and
 implementation of the expanded Mix-of-the-Force policy, and thereafter,
 comply with the requirements of section 7113(b)(2) of the Statute.
                                       (Activity)
 
    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: