31:0824(58)NG - ACT, Pennsylvania State Council and Adjutant General of Pennsylvania -- 1988 FLRAdec NG



[ v31 p824 ]
31:0824(58)NG
The decision of the Authority follows:


  31 FLRA NO. 58
  31 FLRA 824

Date:             16 MAR 1988
ASSOCIATION OF CIVILIAN
TECHNICIANS, PENNSYLVANIA
STATE COUNCIL

                    Union

      and

ADJUTANT GENERAL OF
PENNSYLVANIA

                    Agency

Case No. 0-NG-1379
 (29 FLRA 1292)

DECISION ON RECONSIDERATION

     I. Statement of the Case

     This matter is before the Authority pursuant to the Union's
request for reconsideration of the Authority's Decision and Order
on Negotiability Issues in 29 FLRA  1292 (1987). That decision
concerned seven proposals which related to the Agency's
requirement that National Guard technicians' military and
civilian assignments be compatible. We dismissed the petition for
review as to Proposals 1 through 5 and found that Proposals 6 and
7 were within the duty to bargain.

     In that decision, we did not consider the Union's response
to the Agency's statement of position because we found that it
was filed untimely. The Union requests reconsideration of the
decision concerning Proposals 1 through 5 because it contends
that its response to the Agency's statement of position was
timely and should have been considered. The Union also requests
the Authority to amend the decision concerning Proposal 6 because
the decision did not reflect the statement in the Union's
response that Proposal 6 sought to have the employees' position
description state work location as well as assignment.

     We find that the response was filed timely. Therefore we
grant the Union's request for reconsideration. 

     Upon consideration of the Union's response, we reaffirm the
conclusions reached in the earlier decision as to the
negotiability of the proposals. Proposals 1 and 3 are
nonnegotiable because they interfere with the Agency's right to
determine its organization. Proposals 2 and 4 are nonnegotiable
because they concern military aspects of technician employment
and do not concern conditions of employment within the meaning of
the Statute. Proposal 5 is nonnegotiable because, based on
alternative interpretations, it would either interfere with the
Agency's right to determine its organization or concern the
military aspects of technician employment. Proposal 6 is
negotiable because it concerns conditions of employment and does
not concern the military aspects of technician employment.

     II. The Request for Reconsideration

     The Union contends that its response to the Agency's
statement of position was postmarked on the day it was due and
is, therefore, timely. We find that the Union is correct in this
assertion and that the earlier finding that the response was
untimely was incorrect. Accordingly, under section 2429.17 of our
Regulations, we grant the Union's request to reconsider our
earlier decision in light of the arguments in the Union's
response to the Agency's statement of position.

     The Union requests reconsideration of only Proposals 1
through 5. The Union requests that the decision concerning
Proposal 6 be amended to include recognition of the Union's
statement that this proposal was intended to require that
position descriptions state work location as well as assignment.
The Union does not request reconsideration of our decision that
Proposal 7 is within the duty to bargain. Therefore, we will not
consider that proposal further here.

     III. Background

     The Agency maintains three Army Aviation Support Facilities
(AASFs). The facility at Washington, Pennsylvania, supports those
military units in western Pennsylvania. Units in eastern
Pennsylvania are supported by facilities located at Fort
Indiantown Cap and Avoca, Pennsylvania. National Guard
technicians are required to maintain compatibility between their
military and civilian assignments. 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 (1985), aff'd sub
nom. Association of Civilian Technicians, Montana Chapter v.
FLRA,  No. 86-1057 (D.C. Cir. Jan. 29, 1987); Martelon
v. Temple, 747 F.2d 1348 (10th Cir. 1984), cert. denied 471 U.S.
1135, 105 S.Ct. 2675 (1985).

     Under this requirement, technicians must be assigned to a
military skill that is compatible with their civilian technician
job and have their military and civilian assignments in the same
unit or in a unit and the facility which supports that unit. The
negotiations during which the disputed proposals arose stemmed
from the Agency's having required successful applicants for a
particular civilian technician position at Fort Indiantown Gap to
be militarily compatible--specifically, to be assigned to a
military unit at Fort Indiantown Gap.

     IV. Proposal 1

      All Army Aviation Support Facilities within
      Pennsylvania are interlocked as one, therefore all
      Technicians must maintain compatibility in CMF (Career
      Military Field) related to their technician position
      as stated on Technicians position description.

In 29 FLRA  1292, we held that this proposal was nonnegotiable
because it conflicted with the Agency's right to determine its
organization. In its response to the Agency's statement of
position the Union argues that the proposal is a restatement of
the legal (32 U.S.C. 709(b)) and regulatory (Technician Personnel
Regulation (TPR) 300) requirements that technicians' civilian
assignments be compatible with their military assignments insofar
as career military field is concerned. The Union asserts that the
proposal also seeks to have that compatibility based on the
technician's position description.

     The Union's arguments contained in the response are an
elaboration of its statement of intent contained in the initial
petition--that is, that the proposal seeks to implement and
enforce the Agency's regulation relating to military
compatibility. In our view, the Union's characterization of the
proposal as merely a restatement of legal and regulatory
requirements does not correspond to the wording of the
proposal.

     We conclude that the proposal is not limited to the purposes
set forth by the Union in its response. The proposal would
circumvent the requirement that civilian technicians be
compatible as to military unit assignment as well as
career field by altering the Agency's organizational structure.
We base this conclusion on the wording of the proposal and the
record of the case.

     As stated earlier, the proposal resulted from the Agency's
requirement that civilian technicians be militarily compatible as
to unit assignment as well as career field. Also, the Agency
argued that the proposal would require it to alter its
organizational structure and treat the three AASFs as one rather
than as separate organizational entities. The Union's response
does not refute this interpretation of the language in the
proposal which specifically states that all the AASFs are
"interlocked as one." Additionally, unlike the Agency's
regulation which the proposal is purported to reaffirm, the
proposal references only the requirement that technicians be
compatible as to career field and not the requirement as to unit
assignment. We reaffirm the conclusions in the earlier decision
as to the interpretation and nonnegotiability of the proposal.

     The Union argues in its response that proposals which
require agencies to comply with laws or regulations are within
the duty to bargain. As set forth above, we do not interpret this
proposal as being limited to compliance with laws and
regulations. Moreover, proposals which incorporate a specific
regulatory requirement into the contract and which establish a
substantive contractual limitation on an agency's discretion to
exercise its management rights are distinguishable from proposals
which merely require management to act in accordance with
whatever regulations are in effect at the time. The first type of
proposal is nonnegotiable; the second is negotiable. See National
Federation of Federal Employees, Local 1167 and Department of the
Air Force, Headquarters, 31st Combat Support Group (TAC),
Homestead Air Force Base, Florida, 6 FLRA  574 (1981) (Proposals
1 and 2), aff'd sub nom. National Federation of Federal
Employees, Local 1167 v. FLRA,  681 F.2d 886 (D.C. Cir. 1982).
Also, proposals which incorporate specific regulatory
requirements but which do not limit the agency's discretion to
exercise its management rights are negotiable. See National
Treasury Employees Union and Nuclear Regulatory Commission, 31
FLRA  No. 36 (1988) (Proposals 38.4 and 38.11).

     V. Proposal 2

      That management realign and assign, through
      competitive and merit placement procedures, all
      Technicians and AGRs (Active Guard/Reserve)



      serving in Technician positions to meet the standards
      set forth in para. C of TPR 300, Section 7.8
      (Inversion of Military Rank). (Inversion occurs where
      a civilian technician is supervised by someone who is
      junior in terms of military rank.)

In our earlier decision, we relied on National Association of
Government Employees, SEIU, AFL - CIO and National Guard Bureau,
Adjutant General, 26 FLRA  515 (1987) (Proposal 3) and found that
this proposal was nonnegotiable because it concerned the military
aspects of technician employment.

     The Union argues that this proposal addresses the impact of
military decisions on the civilian aspects of technician
employment. The Union contends that it merely incorporates legal
and regulatory prohibitions on inversion of military rank. In
response to the Agency's allegation that this proposal interferes
with the rights to determine its organization, to assign and
direct employees, to assign work and determine the personnel by
which agency operations will be conducted, the Union argues that
the proposal only requires the Agency to act in accordance with
the legal and regulatory requirements prohibiting the inversion
of military rank. In response to the Agency's argument that this
proposal concerns conditions of employment of non-unit employees,
the Union contends that the proposal is intended to relate only
to the conditions of employment of the technicians in their
civilian capacities.

     Proposals which concern the military aspects of technician
employment do not concern conditions of employment within the
meaning of the Statute. See, for example, National Federation of
Federal Employees, Local 1655 and Adjutant General of Illinois,
20 FLRA  829 (1985). Technicians are members of the "uniformed
services" insofar as their status as members of the National
Guard, as opposed to their status as civilian employees, is
concerned. Members of the "uniformed services" are not covered by
the Statute. 5 U.S.C. 7103(a)(2)(ii). Id. at 830-31.

     Proposal 2 directly relates to the enforcement of
prohibitions on inversion of military rank--a military aspect of
technician employment. As such, it does not concern conditions of
employment within the meaning of the Statute. This conclusion is
not changed by the fact that the proposal  parallels
applicable law and regulation. See Id. Since we do not decide
that this proposal is nonnegotiable because it interferes with
management's rights, we do not need to address the Union's
arguments to the contrary.

     We reaffirm our earlier finding that Proposal 2 is not
within the duty to bargain because it does not concern conditions
of employment within the meaning of the Statute.

     VI. Proposal 3

      All transfers which are a creation of NGB (National
      Guard Bureau) or the employer (TAGPA) (the Adjutant
      General of Pennsylvania) through reorganizations
      and/or consolidations, and are of no fault of the
      employee, whether they be Technician or Military
      assignment, will not penalize or have adverse impact
      on the Technician's selection for career enhancement/
      advancement of the Technician civilian career
      progression.

In our earlier decision, we found that although this proposal did
not prohibit transfers, it would require the Agency to adopt
organizational structures which assured promotional opportunities
for employees. Based on this effect we found that the proposal
was nonnegotiable because it conflicted with the Agency's right
to determine its organization.

     In its response to the Agency's statement of position, the
Union argues that the proposal does not hamper the Agency's
ability to reassign employees or assign work and, therefore, it
does not conflict with any rights under section 7106(a) of the
Statute. Moreover, in response to the Agency's argument that this
proposal excessively interferes with its right to determine its
organization, the Union asserts that the proposal merely seeks to
reaffirm the Agency's own policies.

     The Union's arguments do not alter the conclusion that the
proposal would establish a contractual requirement that the
Agency adopt organizational structures which assure promotional
opportunities for employees. We, therefore, reaffirm our earlier
conclusion that this proposal is nonnegotiable because it
interferes with the Agency's right to determine its organization.


     VII. Proposals 4 and 5

     Proposal 4

         All currently employed technicians at all 3 Aviation
         locations be grandfathered for compatibility of
         support assignment.

Proposal 5

         All new personnel assigned to Eastern PA will be
         assigned to units supported by Avoca or FTIG and all
         personnel assigned to Western PA will be assigned to
         units supported by Little Washington, Pa.

In our earlier decision, we held that Proposal 4 was
nonnegotiable because it concerned the military aspects of
technician employment. We found that Proposal 4 would require
either that a technician's military assignment be tailored to
correspond to the civilian assignment or that an exception be
made to the compatibility requirement where there is a
discrepancy between military and civilian assignment.

     We held that Proposal 5 was susceptible to different
interpretations. Proposal 5 could be viewed as requiring that
employees assigned to military units in eastern Pennsylvania be
given the option of civilian assignment at either Avoca or Fort
Indiantown Gap. This interpretation would require the Agency
either to restructure its organization or to waive its
compatibility requirement. Under this interpretation, we found
that Proposal 5 was nonnegotiable because it would interfere with
the Agency's right to determine its organization or concern the
military aspects of technician employment. Alternatively, instead
of giving technicians a choice between Avoca and Fort Indiantown
Gap, Proposal 5 could be interpreted as incorporating the
Agency's current organizational structure in the agreement. Under
this interpretation, we held that Proposal 5 was nonnegotiable
because it interfered with the Agency's right to determine its
organization.

     The Union's response does not contain any additional
information as to how these two proposals are intended to
operate. It argues that the proposals are negotiable because they
merely establish criteria for selecting which employees will
perform previously assigned duties at different locations. This
argument does not take into consideration the existence of the
military compatibility requirement and the effect of
that requirement on technician work location assignments. When
viewed in the context of the military compatibility requirement,
these proposals cannot be given the limited interpretation which
the Union suggests. Rather, these proposals would require the
Agency to alter the military compatibility requirement and/or
limit the Agency's discretion to determine its organization.

     We therefore reaffirm our earlier interpretations and
conclusions. These proposals are not within the duty to bargain
for the reasons set forth in 29 FLRA  1292.

     VIII. Proposal 6

         All PDs (Position Description) will state assignment
         and _ _ _.

In our earlier decision, we found that this proposal would
require only that technician position descriptions contain a
statement reflecting their "assignment." In finding this proposal
to be negotiable, we noted that it concerned the content of the
civilian technician's position description and in no m