45:0017(2)NG - - ACT, NY State Council and DOD, NG Bureau, State of NY, Division of Military and Naval Affairs - - 1992 FLRAdec NG - - v45 p17
[ v45 p17 ]
The decision of the Authority follows:
45 FLRA No. 2
FEDERAL LABOR RELATIONS AUTHORITY
ASSOCIATION OF CIVILIAN TECHNICIANS
NEW YORK STATE COUNCIL
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
STATE OF NEW YORK
DIVISION OF MILITARY AND NAVAL AFFAIRS
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
June 4, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal involves the negotiability of one proposal concerning qualifications for vacant positions. For the reasons that follow, we find that the proposal is nonnegotiable.
1. Members of the New York Army and Air National Guard who apply for full-time technician positions may apply their part-time membership service against qualification requirements if the following conditions are met:
a. The service performed must have been in a position directly related to the full-time position being applied for.
b. If several positions have been held during this time frame, then only that time actually served performing associated duty will be allowed.
c. In addition to the above the individual must have successfully passed an SQT test for the position being used in the time compilation. If an SQT test has not been passed, or if the SQT test has been abolished for the particular position and there is no equivalent test in place then completion of an appropriate service school must be completed prior to the granting of the time consideration.
d. Any testing or service school attendance used to meet the above listed qualification must have occurred within the last 36 months from the date of application.
2. The maximum amount of time allowed under this program will be two (2) years.
III. Positions of the Parties
The Agency contends that the proposal does not concern conditions of employment of unit employees because the Union "is attempting to bargain on behalf of military personnel who are not in the bargaining unit." Statement of Position at 2. The Agency also contends that, as the proposal "concern[s] military service[,] . . . military tests (SQTs) and military service schools[,]" it "relates solely to military personnel management policy . . . ." Id. at 3. Finally, the Agency asserts that, by establishing qualifications for promotion, the proposal directly interferes with its right under section 7106(a)(2)(C) to make selections for appointments.
The Union claims that, in response to the Agency's decision to permit experience as a part-time military member of the National Guard to satisfy qualification requirements for civilian positions, the Union sought to "negotiate appropriate procedures [concerning] the impact and implementation" of the decision. Petition for Review at 1. According to the Union, the Agency's decision "would have great adverse effects . . . ." Id. Further, the Union asserts that the proposal concerns conditions of employment of unit employees because the proposal addresses qualifications for promotion and "[m]erit [p]romotion goes to the very heart of any labor[-]management relationship[.]" Reply Brief at 2. The Union states that the proposal does not "establish who must be tested, how they must be tested or when." Id. According to the Union, the proposal does not determine the qualifications required for selection or promotion to vacant positions.
IV. Analysis and Conclusions
A. Conditions of Employment
The bargaining unit involved in this case is composed of National Guard technicians who must, as a condition of their continued civilian employment, maintain military membership in the National Guard as well as compatible military and civilian job designations. See generally American Federation of Government Employees, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984). Matters related solely to the military aspects of technician employment do not concern conditions of employment under section 7103(a)(14) of the Statute.*/ For example, Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 31 FLRA 824, 828 (1988). However, "matters related to the civilian aspect of civilian technicians' employment may be within the duty to bargain pursuant to the Statute." American Federation of Government Employees, AFL-CIO, Local 3006 and The Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA 816, 820 (1990).
Nothing in the wording of the proposal, or in the record, demonstrates that the proposal concerns matters related solely to the military aspects of technician employment or military personnel management policy. Rather, by its terms, the proposal concerns the manner in which the Agency applies certain qualification requirements established for civilian positions in the bargaining unit. Accordingly, the proposal concerns conditions of employment within the meaning of section 7103(a)(14) of the Statute. Compare American Federation of Government Employees, Local 3013 and U.S. Department of Defense, National Guard Bureau, Maine Air National Guard, Augusta, Maine, 40 FLRA 203, 206-08 (1991) (proposal addressing agency's evaluation of active duty military personnel being considered to fill positions in their military capacities involved matters solely within the purview of the military and did not concern conditions of employment of unit employees); Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA 1030, 1034-36 (1987) (proposals concerning military training requirements for military members of the National Guard held not to concern conditions of employment of bargaining unit employees).
B. Management's Right To Select
Management's right to select under section 7106(a)(2)(C) of the Statute includes the right to determine the qualifications, skills, and abilities needed to perform the work of a position and the right to determine whether applicants for the position possess such qualifications, skills, and abilities. For example, U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina, 36 FLRA 28, 31 (1990) (Cherry Point).
Sections 1.a. and b. of the proposal provide that only certain military experience in the National Guard may be counted toward meeting experience requirements. Under sections 1.c. and 1.d., such experience may be counted only if the applicant has passed a military proficiency test or completed a military service school within the last 36 months. Further, section 2 limits the total experience credit for part-time military duty in the National Guard to a maximum of 2 years.
We conclude that, as a whole, the proposal substantively limits the Agency's right to determine the extent to which experience as a part-time military member of the National Guard satisfies qualification requirements for civilian positions. Accordingly, the disputed proposal directly interferes with the Agency's right to select under section 7106(a)(2)(C) of the Statute. Compare Cherry Point at 30-31 (portion of provision creating a presumption that certain certification established qualifications to perform certain work found consistent with section 7106(a)(2)(C) because it did not remove the agency's discretion to determine an employee's ability to perform work).
C. Appropriate Arrangement
In determining whether a proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, we apply the framework set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). Specifically, we examine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's rights. In determining whether a proposal is an arrangement, we look to the "effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Id. at 31. In deciding whether a proposal excessively interferes with the exercise of a management right, we weigh the benefits conferred on employees by the proposal against the burden imposed on the exercise of management's rights.
In this case, the Union provides no support for its claim that it sought to "negotiate appropriate procedures [concerning] the impact and implementation" of the Agency's decision to permit experience as a part-time military member of the National Guard to satisfy qualification requirements for civilian positions, or that the Agency's decision "would have great adverse effects . . . ." Petition for Review at 1. In particular, the Union has not identified how employees are adversely affected by the exercise of management's right to select by permitting experience as a part-time military member of the National Guard to satisfy qualification requirements for civilian positions or how the proposal is intended as an arrangement. Accordingly, we find that the record does not contain information sufficient for us to determine whether the proposal constitutes an appropriate arrangement. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA No. 116, slip op. at 25 (1992).
The parties bear the burden of creating a record on which we can base a negotiability determination. Id. at 19. As the record does not contain information sufficient for us to determine whether the proposal constitutes an appropriate arrangement, and as the proposal directly interferes with the exercise of management's right to select under section 7106(a)(2)(C), the proposal is nonnegotiable.
The Union's petition for review is dismissed.
(If blank, the decision does not have footnotes.)
*/ Section 7103(a)(14) of the Statute defines "conditions of employment" as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwi