29:1231(95)NG - SEIU VS ARMY, NGB, MISSOURI



[ v29 p1231 ]
29:1231(95)NG
The decision of the Authority follows:


29 FLRA NO. 95


NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
SEIU, AFL-CIO

              Union

      and

MICHIGAN ARMY NATIONAL GUARD

              Agency

Case No. 0-NG-1391

      and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
SEIU, AFL-CIO

              Union

      and

MISSOURI ARMY NATIONAL GUARD

              Agency

Case No. 0-NG-1406

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

These cases are before the Authority because of negotiability appeals filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). Since each case involves issues as to the negotiability of three identical proposals for which the parties offered the same arguments, we have consolidated the cases for decision. For the reasons which follow, we find these proposals outside the duty to bargain.

II. Background

This case presents essentially the same issues as Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA No. 134 (1987). The employees represented by the Union are National Guard technicians who, as a condition of their employment, must become and remain military members of the National Guard and must maintain the military grade specified for their technician positions. The proposals here concern the Military Education Program (MEP), a requirement which is applicable to Active Guard and Reserve (AGR) and to the technicians involved in this case. MEP training applies to the military aspect of a technician's employment. While attending MEP training, technicians are in military status. The training is a requirement for military promotion.

III. Proposals 1 - 3

Proposal 1

Technicians who have qualified for military promotions through attendance at state run NCO Academys (sic) or reserve component courses and were substantially promoted between 7 March 1985 and 12 November 1986 are deemed to have satisfied MEP requirements for promotion to current grade held.

Proposal 2

Technicians who have qualified for military promotions by attendance at state run NCO Academy or reserve component course will not be required to use their annual leave or be placed in a leave without pay status to satisfy any new military education requirements for promotion.

Proposal 3

Technicians who attend an active component non-commissioned officer course to satisfy a MEP requirement for promotion will be given the choice of attending in a military status or civilian status.

a. If attending in a military status, they will be granted leave without pay status after the expiration date of all military leave. 

b. If in a leave without pay status, the technician will be covered by the Federal Employees Health Program without cost for 365 days.

C. If the technician requests to attend in a civilian status, the technician will be granted per diem in accordance with JTR Volume II.

IV. Positions of the Parties

The Agency raises three general arguments with respect to the negotiability of each proposal. The first argument is that these proposals concern the Agency's Military Education Program (MEP) which is a military requirement and not a condition of employment under section 7103(a)(14) of the Statute. Therefore, the Agency argues that these proposals are outside the duty to bargain. The second argument raised by the Agency is that there is a compelling need for the establishment of the MEP policy. That is, the Agency states that the MEP is essential for maintaining highly trained technician personnel. According to the Agency, these technicians are employed under 32 U.S.C. 709(a) to administer and train the National Guard. Thus, the Agency argues that the MEP is essential to its mission to train and administer the National Guard. Lastly, the Agency argues generally that because these proposals concern military training and are not conditions of employment, they are not appropriate arrangements which can be negotiated under the Statute.

In addition to these general arguments, the Agency claims that Proposal 1 violates management's rights to assign work under section 7106(a)(2)(B), and to determine the methods and means of performing work under section 7106(b)(1). As for Proposals 2 and 3, the Agency argues that they also violate management's right to determine the methods and means of performing work and that they therefore are not negotiable. Furthermore, the Agency argues that these proposals do not concern conditions of employment since these matters are covered by law and regulation.

The Union argues that these proposals constitute appropriate arrangements since they address the impact and implementation of the MEP requirements on technicians. 

V. Analysis and Conclusion

In Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA No. 134 (1987), we found eight proposals concerning the impact of the same Military Education Program to be nonnegotiable because they all dealt with the military aspect of civilian technician employment; that is, military training under the Military Education Program. The same Military Education Program is involved in this case.

Proposal 1 provides that employees would be permitted to substitute certain military training for that required by the MEP. It is to the same effect as Proposal 1 in Delaware National Guard which also would have permitted a technician employee to substitute certain military training for that required by the MEP.

Proposals 2 and 3 concern the status (military or civilian) of technicians while attending MEP training. Specifically, Proposal 2 provides that technician employees will not be required to use annual leave or be placed in a leave-without-pay status in order to attend MEP training. Rather, according to the Union, technician employees would be placed in an administrative leave status. Petition for Review at 2; Reply Brief at 4. In other words, the technicians would remain in a civilian status but be excused from their duties as civilian technicians with pay and without charge to leave for the duration of the MEP training. Proposal 3 expressly permits a technician to have the choice of attending MEP training in a civilian status with appropriate per diem expenses or in a military status on military leave or leave-without-pay from their civilian technician position. in this respect, Proposals 2 and 3 in this case are to the same effect as Proposals 4 and 6 in Delaware National Guard which also concerne