28:1030(134)NG - ACT, DELAWARE CHAPTER VS ARMY, NGB, DELAWARE



[ v28 p1030 ]
28:1030(134)NG
The decision of the Authority follows:


28 FLRA NO. 134

DELAWARE CHAPTER, ASSOCIATION
OF CIVILIAN TECHNICIANS

              Union

      and

DELAWARE NATIONAL GUARD

              Agency

Case No. 0-NG-1381

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of eight proposals made by the Union during negotiations on the impact and implementation of the Agency's Military Education Program (MEP) on bargaining unit employees. For the reasons discussed below, we find Proposals 1 to 8, also set out below, to be outside the duty to bargain. 1

II. Background

The employees represented by the Union are National Guard technicians who, as a condition of their civilian employment, must become and remain military members of the National Guard and must maintain the military grade specified for their technician positions. 32 U.S.C. 709(b) and (e)(1). The proposals here concern MEP, a military education requirement which is applicable to Active Guard/ Reserve (AGR) personnel and the technicians involved in this case in their military capacity. more particularly, MEP is a  career development program which provides educational mile-stones for continued professional development of the Army National Guard full-time support force in order to enhance the military readiness of the Army National Guard Units. Agency's Statement of Position, Enclosure 5. MEP training applies only to the military position occupied by a full-time technician and is a prerequisite to qualify for advancement in that military position. See Agency's Statement of Position at 2 and Enclosures 1-5. In fact the agency states that if a technician does "not desire military promotion, he need not. . . attend MEP Training" and that failure to attend this training has no bearing on the technician's civilian employment. Agency's Statement of Position at 2. MEP training is tailored for individuals holding different military specialties such as infantry, engineer, armament, or electronics. Training varies in duration according to the specialty held; for example, infantry MEP training is 5 weeks while engineer training is 6 weeks. According to the Agency, the average MEP course is 7 to 8 weeks in duration. However, the Union claims that some MEP training is 10 months in duration.

III. Proposals 1-8

Proposal 1.

For the period covering August 1, 1985 to the date of this agreement, all civilian technicians who have successfully completed a State Military Academy, USAR (United States Army Reserve) School, or have completed an appropriate military correspondence course which results in the individual acquiring the same skills and educational background provided at the active component school for the civilian/military position presently held or for which promotion is required, then those individuals shall be exempt from the current requirement of the MEP.

a. All Technicians appointed after March 1, 1987 may be required to adhere to the requirements of the current MEP except where provisions reached by the parties to this agreement dictate otherwise.

Proposal 2.

When a Technician is determined to require training at an active component school in order to retain or achieve an advancement in accordance with the MEP, that individual will be so advised in writing and  a counseling session with a staff member of the Support Personnel Management Office (SPMO) or the Military Personnel Office (MPO) or both, will be scheduled within a reasonable time thereafter.

Proposal 3.

Counseling will consist of options available to the employee, i.e., dates of courses, types of courses etc., as well as certain advice and general information which the parties to this agreement will develop and agree upon during the course of bargaining.

Proposal 4.

Technicians will have the choice of attending an appropriately available course in either civilian or military pay status.

Proposal 5.

After receiving notification of a requirement to attend an active component school, Technicians will be afforded the opportunity to choose dates for an appropriate and available course which will have the least impact upon their current personal or family problems or finances. Any choice of a date to attend a course of instruction must be within a twenty-four (24) month period subsequent to the date of receipt of written notification of the requirement to attend a course of instruction.

Proposal 6.

When attending a required course of instruction in civilian pay status, Technicians will be in an Excused Absence status with continuation of full pay and all benefits.

Proposal 7.

For courses of instruction requiring attendance in military status because of appropriate and compel-ling reasons - which the parties to this agreement will delineate and cite in their subsequent agreement; or because of voluntary choice of an employee to attend in a military status, the Employer will provide the following arrangements: 

a. Where pay disparity results be-cause an employee's military pay is less than his/her civilian pay, the Employer will provide "Pay Differential., This procedure will be accomplished by the Employer making up the difference between the two pay systems with a partial civilian pay or "differential.'

b. The Employer will assure the continuation without loss of coverage and/or benefits, of an employee's participation in health and life insurance programs, retirement systems and membership in the Association.

Proposal 8.

The parties to this agreement will discuss and subsequently list within this agreement, various possible problems, which, if and when they are encountered by Technicians in either military or civilian pay status while in preparation or actual attendance at a course of instruction, the appropriate procedure which Technicians will follow in seeking relief or correction to a problem, i.e., use of the negotiated grievance procedure or military appeal procedure.

IV. Positions of the Parties

The Agency raises a general argument with respect to the negotiability of each proposal in this case, namely, that MEP is a military requirement which is not a condition of employment under section 7103(a)(14) of the Statute and therefore the Union's proposals--all of which concern training under this program--are outside the duty to bargain. More particularly, the Agency states that the MEP requirements began in 1984 as a mandatory requirement for eligibility for military promotion for AGR personnel who are full-time military personnel, and, in March 1985, were extended to technicians like those involved in this case in their military capacity. The Agency contends, as mentioned above, that MEP training is designed to enhance military readiness of the Army National Guard by training the entire full-time workforce to the highest level of performance possible, and that this training is accomplished by the active Army under Department of the Army policy. The Agency notes that training which affects the technician's civilian  position more than the military position is accomplished during the technician's civilian employment status. Agency's Statement of Position at 7. Therefore, in its view, the MEP concerns a military matter rather than a condition of civilian employment, and thus the proposals are outside the duty to bargain. The Agency further makes specific arguments with respect to each proposal; those arguments are set forth in the Appendix to this decision.

The Union concedes that military decisions do not constitute conditions of employment and are therefore outside the duty to bargain, but argues that the "unique hybrid nature of the National Guard civilian technicians(') (status) necessitates . . . a reevaluation of the normal precedents." Union's Response to Agency's Statement of Position at 2. The Union argues that when, as here, military decision affect a civilian technician's conditions of employment, bargaining concerning the impact and implementation of the military decision may be required. Union's Response to Agency's Statement of Position at 2. Therefore, in its view the proposals involved here are within the duty to bargain because they all address the impact and implementation of the MEP requirement on technicians. Finally, the Union's responses to the specific arguments raised by the Agency with respect to each proposal are set forth in the Appendix.

V. Analysis and Conclusion

The proposals in this case all concern the Agency's Military Education Program. More particularly, Proposal 1 would exempt a technician from the military training required by the above-mentioned program by allowing the employee to substitute certain military training for that required by the program. Proposals 2 and 3 deal with counseling of technicians with respect to the military training required by the MEP while Proposals 4 and 6 concern the status (military or civilian) of technicians while attending this training. Proposal 5 would afford a technician the opportunity to choose dates when he/she would attend the required training. Proposal 7 would require the Agency to pay an employee who attends MEP training in his/her military capacity the difference between his/her military and civilian pay during the employee's conversion to military status, as well as continue the employee's fringe benefits and union dues deduction. Finally, Proposal 8 would require the Agency to negotiate on possible problems that might develop from an individual having to attend MEP training including the appropriate procedure--negotiated grievance   procedure or military appeals procedure--to be used by an employee for the resolution of any problem arising from this training.

Considering the subject matter of the proposals, we find in agreement with the Agency that the proposals all concern the military aspect of civilian technician positions; that is, military training under the Military Education Program. Technicians attend the MEP while in their military status. Union's Response to Agency's Statement of Position at 2. The proposals are therefore outside the duty to bargain. More specifically, the Statute does not cover members of the *uniformed services. 2 The "uniformed services' are defined by law to include the 'armed forces," which tern is further defined to include the "Army" 5 U.S.C. 2101. The "Army" is defined to include the Army National Guard, 10 U.S.C. 3062(c). Members of the Army National Guard, as involved in this case, are members of the "uniformed services" and insofar as their status as members of the Guard is concerned, wholly apart from their status as civilian employees of the Guard, they are not covered by the Statute. The subject matter of the proposals, that is, the military aspects of civilian technician employment as summarized above, is, therefore, beyond the reach of the Statute.

As the Authority has emphasized in this regard, the Statute "prescribes certain rights and obligations with respect to collective bargaining in the civil (as opposed to  military) service." National Federation of Federal Employees, Local 1724 and Utah National Guard, Salt Lake City, Utah, 7 FLRA 732, 734 (1982). Moreover, the Authority has consistently held that matters pertaining to the military aspects of civilian technician employment do not concern conditions of employment which are bargainable within the meaning of the Statute. See, for example, Association of civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717, 736 (1985), citing Utah National Guard, Salt Lake City, Utah, 7 FLRA 732, 734; Association of civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475, 479 (1983). See also National Association of Government Employees, Local R14-87 and Kansas Army National Guard, Topeka, Kansas, 15 FLRA 52 (1984); National Federation of Federal Employees, Local 687 and Department of the Air Force, Headquarters 63rd Air Base Group (MAC), Norton Air Force Base, California, 19 FLRA 617, 619 (1985); 10 U.S.C. 976(c)(2) (which makes it unlawful for a labor organization to attempt to bargain on behalf of members of the armed forces over the terms and conditions of their military service).

Further, we find that the Authority's decision concerning Provision 5 in Association of Civilian Technicians, Inc., Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346 (1981), rev'd on other grounds sub nom. Adjutant General, Department of Military Affairs v. FLRA, 685 F.2d 93 (3d Cir. 1982), does not compel us to find Proposal 4 to be negotiable as the Union suggests. In that case, the only issue before the Authority was whether the Agency had demonstrated a compelling need for its regulations which the Agency argued barred negotiations on the provision. The Authority found that the Agency had not made any showing that a compelling need existed for its regulations and therefore found Provision 5 negotiable. Unlike the case before us, no issue was presented to or reached by the Authority with respect to military school requirements for technicians in their military status.

Finally, as to the Union's contention that in certain circumstances bargaining over the impact and implementation of a military decision may be required, we find only that, in the circumstances presented, the subject matter of each proposal deals with the military aspect of a technician's employment and therefore is outside the duty to bargain. 

Based on the reasons set forth above, we find that Proposals 1-8 are not within the duty to bargain. 3

VI. Order

The petition for review is dismissed.

Issued, Washington, D.C., September 21, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

APPENDIX

Agency's Additional Arguments and the Union's Responses

A. Proposal 1

The Agency contends that Proposal 1 concerns military training of technicians when they are in military status and therefore is nonnegotiable because it does not concern a condition of employment under the Statute. The Agency states that the proposal is an attempt to substitute what the Union believes is equivalent military training for what military authority has determined to be the training required to maintain combat readiness; to ensure that the military capability of the Guard is efficient and effective, and to increase professional development of its full-time support force. The Agency additionally contends that the proposal is nonnegotiable because it would interfere with its right to assign work under section 7106(a)(2)(B) of the Statute and its right to determine the nature and content of training as a "method and means" of performing work under section 7106(b)(1).

The Union contends that Proposal 1 "seeks to permit employees who have received training equivalent to that provided under MEP to forego the hardships imposed by MEP." Union's Petition for Review at 5. The Union further disputes the Agency's contentions mentioned above. It argues that the proposal does not excessively interfere with management's rights to assign work or to determine the nature and content of training as a method and means of performing work since the proposal "would affect only those technicians who in fact already possessed the skills and education that may be attained in any particular MEP course." Union's Response to Agency's Statement of Position at 4.

B. Proposals 2 and 3

The Agency contends that since MEP is a military requirement for military advancement and technician management is not responsible for determining military training or counseling technicians with respect to this training, Proposals 2 and 3, which require counseling with respect to a military matter, do not concern a condition of employment and therefore are nonnegotiable. The Agency also contends that Proposal 2 interferes with its right to assign work under Section 7106 (a)(2)(B). 

The Union claims that Proposals 2 and 3 do not interfere with management's right to assign work under 7106(a)(2)(B). It contends that the proposals merely seek to make "procedural arrangements concerning the effects of management's decision to impose a MEP requirement." Union's Response to Agency's Statement of Position at 5.

C. Proposals 4 and 6

The Agency claims that Proposals 4 and 6 would allow a technician to select his/her status (civilian or military) while attending the MEP and if the employee chose civilian status then he/she would be on excused absence with all technician benefits continuing. According to the Agency, the training referred to by these proposals is military and individuals attending it are required to be in a military status. The Agency further states that it would be illegal under Public Law No. 85-507 for a technician to attend a military service school in technician status when that training is required for his/her job while on military duty on weekends and for military promotion. It also claims that TPR 400 (410.4), a National Guard Regulation, which describes conditions under which a technician may attend military service schools in a technician status, meets the compelling need criteria under section 2424.1 of the Authority's Rules and Regulations. Finally, it states that the status of an employee while performing MEP training also constitutes methods and means of performing work negotiable only at the election of the Agency.

Citing Association of civilian Technicians Inc. Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346 (1981), the Union claims that Proposal 4 is substantially the same as Provision 5 found negotiable in that case. The Union states that the Agency has not demonstrated a compelling need for the regulation mentioned above, nor has the Agency shown how Proposals 4 and 6 violate 5 U.S.C. Chapter 41.

D. Proposal 5

The Agency claims that Proposal 5 would allow a technician an opportunity to choose when he/she would take MEP training. According to the Agency, even though individual applications are given every consideration, military course scheduling is a function of the military  organization and therefore outside the duty to bargain. The Agency further argues that the proposal would interfere with its right to assign work under section 7106(a)(2)(B) of the Statute because it would prevent it from determining when training is to be given.

The Union contends that Proposal 5 does not interfere with the Agency's right to determine when a technician will be required to take training, but merely "affords" the technicians "'the opportunity to choose dates' for courses." Union's Response to Agency's Statement of Position at 6. In the Union's view, this choice would permit a technician to attend a course which would have "the least impact" upon personal and family matters. Union's Response to Agency's Statement of Position at 6. The Union contends that the proposal does not require the Agency to honor the choice made, but rather provides employees with the opportunity to have input into when a course will be taken. It further states that the 24-month restriction mentioned in the proposal does not bind the Agency, but merely requires that the employee's choice be within 24 months of notification of the MEP requirement. The Union claims that the Agency has discretion under Proposal 5, where necessary, to select some other time if mandated by managerial necessity.

E. Proposal 7

The Agency contends that Proposal 7 deals with matters--pay differentials and fringe benefits-specifically provided for by Federal statutes and Government-wide regulations and therefore is nonnegotiable under section 7103(a)(14)(C) of the Statute.

According to the Union, Proposal 7 requires that, either where management determines that a technician must attend MEP in his/her military capacity or the technician elects to attend in this capacity, the Agency would be required to "make up the difference" for any pay and benefits lost as a result of the conversion to military status. Union's Response to Agency's Statement of Position at 7. The Union further states that the Agency has not identified any Federal law or Government-wide regulations applicable to civilian technicians which prohibit payment of the benefits at issue. Citing Authority cases for support, the Union contends that absent such prohibition the proposal is negotiable, even if technicians are in their military capacity when fulfilling MEP requirements. 

F. Proposal 8

In the Agency's view, Proposal 8 would require it to negotiate on handling situations--"possible problems"--that might develop from an individual having to attend MEP training. Agency's Statement of Position at 9. The Agency asserts that since "MEP is a military requirement levied by the military," and the proposal concerns this training, it does not concern a condition of employment and therefore is nonnegotiable. Agency's Statement of Position at 9. In the alternative, the Agency contends Proposal 8 is not specific enough for the Authority to rule on its negotiability.

The Union claims that Proposal 8 attempts to address possible problems that may arise