32:0785(115)NG - - AFGE Local 3006 and Idaho Army and Air NG - - 1988 FLRAdec NG - - v32 p785
[ v32 p785 ]
The decision of the Authority follows:
32 FLRA No. 115
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3006
IDAHO ARMY AND AIR NATIONAL GUARD
Case No. 0-NG-1509
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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). The case concerns the negotiability of a proposal which requires management to use the terms "employee" and "technician," and precludes the use of the term "military technician," in documents used to convey information to bargaining unit employees.
For the reasons which follow, we find that the proposal does not concern conditions of employment of bargaining unit employees within the meaning of the Statute. Therefore, we conclude that the proposal is outside the duty to bargain.
Article 32 - Section C
a. The terms "employee" and "technician" are the proper titles which pertain to all civil service employees of the Agency.
b. A concerted effort will be made to use proper terminology as outlined in para. (a.) above on all documents generated by the Agency.
III. Positions of the Parties
The Agency states that: (1) the term "military technician" was used by Congress in H.R. Rep. No. 97-333, 97th Cong., 1st Sess. (1981) pertaining to the FY 1982 Department of Defense Appropriations Bill and in Public Law 98-151, 97 Stat. 964 (1983); (2) Report No. 97-333 has been found by the Authority to constitute a Congressional mandate, National Federation of Federal Employees, Local 1669 and Arkansas Air National Guard, l3 FLRA 176 (1983), aff'd sub nom. National Federation of Federal Employees, Local 1669 v. FLRA, 745 F.2d 705 (1984); and (3) the term "military technician" is included in the terms or titles defined in Department of Defense Directive Number 1215.6. Therefore, the Agency argues, the term "military technician" is codified in Federal law. Consequently, the Agency asserts that the proposal concerns a matter which is "specifically provided for" by law so as to be excluded from the definition of "conditions of employment" under section 7103(a)(14)(C) of the Statute.
The Agency contends further that the term "military technician" is used to identify technicians who are required to occupy a compatible military position and are subject to mobilization in that position. The Agency maintains that the term "military technician" distinguishes these employees from technicians who are not required to occupy compatible military positions. The Agency argues that by precluding the use of the term "military technician," the proposal would interfere with its ability to develop "response-action" plans required as part of "Defense Standard Operating Procedures" for mobilization of the National Guard. The Agency asserts that it would be unable, "without a great deal of excess verbiage and resulting confusion," to "clearly and quickly differentiate between the two classes of technicians for call-up purposes." Agency's Statement of Position at 4. The Agency contends that the term "military technician," therefore, constitutes a "method" by which the Agency performs its work within the meaning of section 7106(b)(1) of the Statute. The Agency argues that the proposal has the same effect as a provision found nonnegotiable by the Authority in National Federation of Federal Employees, Local 1979 and U.S. Forest Service, San Dimas Equipment Development Center, 16 FLRA 369 (1984) (Provision 3).
As to paragraph a of the proposal, the Union asserts that the terms "employee" and "technician" are the only terms used in 5 U.S.C. º 2105 and 32 U.S.C. º 709, respectively, to identify civilian technician employees of the National Guard, whether those employees are competitive or excepted personnel. The Union argues that the term "military technician," therefore, is not based in law and cannot validly be used when communicating with civilian technicians.
The Union states that paragraph b of the proposal means that the terms "employee" and "technician" shall be used to refer to bargaining unit employees in documents generated by the Agency to convey information to them. Union's Petition for Review at 2. The Union states that the restriction applies only to documents which are generated by the Idaho Military Division for use in communicating information to unit employees. The Union maintains that paragraph b of the proposal does not apply to documents which are: (1) for the exclusive use of managers and supervisors; (2) sent to other agencies by the Idaho Military Division; or (3) sent to the Idaho Military Division, except when management has control over compliance with the proposal.
Whether the proposal is negotiable depends, first, on whether it concerns conditions of employment of bargaining unit employees. In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986), the Authority stated that in deciding whether a proposal involves a condition of employment of bargaining unit employees within the meaning of section 7103(a)(14), two basic factors will be considered:
(1) Whether the matter proposed to be bargained pertains to bargaining unit employees; and
(2) The nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees.
A. The Proposal Pertains to Bargaining Unit Employees
The Union's explanation of the proposal makes it clear that the proposal is intended to apply only to documents used to convey information to bargaining unit employees, and is not intended to apply to other documents. Union's Petition for Review, Attachment 9. Applying the first factor to the disputed proposal, we find, therefore, that the proposal pertains to bargaining unit employees. Compare National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 32 FLRA 544 (1988) (proposals which concerned contract personnel did not concern conditions of employment of bargaining unit employees).
B. The Proposal Does Not Affect the Working Conditions of Bargaining Unit Employees
Applying the second factor to the disputed proposal, we find that the proposal does not concern conditions of employment of bargaining unit employees. The proposal would limit the Agency, in documents used to convey information to bargaining unit employees, to use of the terms "employee" and "technician," an