47:0332(25)NG - - ACT, PA State Council, DOD, NG Bureau, The Adjutant General of PA - - 1993 FLRAdec NG - - v47 p332

[ v47 p332 ]
The decision of the Authority follows:

47 FLRA No. 25















April 2, 1993


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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of four proposals submitted in response to the Agency's proposed revision of its merit promotion regulation.(*)

Proposal 2 would allow a technician who is appointed to a civilian position and who has a higher military rank than his or her civilian supervisor (a situation known as "military grade inversion") to retain his or her military rank for up to 3 years after the appointment. Proposal 3 provides that unit employees who have a higher military rank than their newly-hired supervisors will not be adversely affected because of the military grade inversion. Proposal 4 provides an exception to the prohibition on military grade inversion for civilian technicians who are currently in positions where they are of higher military rank than their supervisors. Proposal 5 would require the Agency to document reductions in military rank in the technician's military file and to indicate in that file that the reduction resulted from grade inversion and not from disciplinary action.

We find that Proposals 2-5 are nonnegotiable because they concern the military aspects of technician employment and do not concern conditions of employment within the meaning of the Statute.

II. Preliminary Matter

The Agency contends that the Union's petition should be dismissed because it was untimely filed. The Agency asserts that the Union did not file the petition with the Authority within the appropriate time frame after the "Agency's allegation of nonnegotiability was issued" on August 12, 1992. Statement at 1. The Union contends that the petition was timely filed in accordance with sections 2424.3 and 2429.21(b) of the Authority's Rules and Regulations. The Union asserts that the Agency's allegation of nonnegotiability, "while dated August 12, 1992," was "hand[-]delivered" to the Union on August 17, 1992. Response at 1. The Union contends, therefore, that the petition, which was filed with the Authority on September 1, 1992, was timely filed in accordance with the Authority's Rules and Regulations.

Under section 7117(c)(2) of the Statute and section 2424.3 of the Authority's Rules and Regulations, the time limit for filing a petition for review of a negotiability issue is 15 days after service on the Union of the Agency's allegation of nonnegotiability. In this case, although the Agency asserts that it issued its allegation on April 12, 1992, the Agency provides no evidence as to how or when it served the Union with the allegation of nonnegotiability. The Union asserts that the Agency's allegation was served by hand delivery, and the Union's petition contains a copy of the Agency's allegation of nonnegotiability which indicates that this document was received by the Union on August 17, 1992. See Petition at 2-3, Attachment D. In the absence of evidence to the contrary, we conclude, based on the record, that the Agency's allegation of nonnegotiability was served by hand delivery on the Union on August 17, 1992. Therefore, under the Authority's Rules and Regulations, the Union's petition had to be filed by September 1, 1992. The Union's petition was filed on September 1, 1992, and, consequently, was timely filed in accordance with the Authority's Rules and Regulations.

III. Proposals 2-5

Proposal 2

When a technician is appointed to a position he or she has applied for and consequently is senior militarily to the supervisor, the appointed employee will be given an opportunity not to exceed 3 years to become junior to the affected supervisor.

Proposal 3

If a supervisor is hired and is junior militarily to any subordinates, it will not adversely affect those employees.

Proposal 4

This does not apply to any positions (grade inversions) already in [e]ffect.

Proposal 5

If any military reductions take place due to rank inversion, [they] will be documented in the affected employee[']s military and technician 201 file that the reduction was for technician employment purposes and was not a result of any disciplinary action. The documentation will be signed by TAG [the Adjutant General], and will not be a factor for any retention board.

A. Positions of the Parties

1. Agency

The Agency asserts that Proposals 2-5 "are directly related to military policy and priorities" and, therefore, "are not conditions of employment" under the Statute. Statement at 3.

The Agency contends that: (1) Proposal 2 allows a subordinate technician to keep his or her higher military grade for 3 years; (2) Proposal 3 "ensures that the hiring of a supervisor who is of lesser military grade will not affect his or her subordinates"; (3) Proposal 4 "grandfather[s] individuals who are of higher military grade than their supervisors"; and (4) Proposal 5 "document[s] military grade inversion reductions in the employee[']s military (201) personnel file[.]" Id. at 2. The Agency asserts that the proposals relate to military grade inversion and that, under Authority precedent, military grade inversion is a military aspect of technician employment which is nonnegotiable because it does not concern conditions of employment within the meaning of the Statute.

According to the Agency, military grade inversion is prohibited by section 7-10.c. of National Guard Technician Personnel Regulation (TPR) 300-302.7, which states that "[s]ituations of inversion of military rank are not permitted; i.e., a military technician may not be militarily senior to his or her full-time supervisor." TPR 300-302.7, section 7-10.c. The Agency states that military grade inversion is prohibited because "all military technicians must be military members of the National Guard and wear the military uniform according to military standards." Statement at 1. The Agency asserts that this policy "ensures that conflict does not arise in either the technician or military [workplace] because a subordinate is of higher military rank than his or her supervisors[.]" Id. The Agency further asserts that military grade inversion would result in a civilian technician supervisor giving direction to a subordinate who has a higher military grade than the supervisor.

The Agency states that its mission is two-fold: (1) to support the active military services when needed; and (2) to assist in the event of state disasters. The Agency contends that to allow military grade inversion would interfere with mission accomplishments by creating military rank status conflicts between employees and their supervisors, thereby interfering with the military chain of command. The Agency asserts that "where the military uniform is worn during the technician workweek and military customs and courtesies are followed, military grade is a key element in the work area in identifying supervisors and their subordinates." Id. at 3. The Agency contends, therefore, that "military grade inversion is directly related to military policy." Id.

The Agency also asserts that TPR 300 implements a legal mandate to the Agency pursuant to 32 U.S.C. § 709(b), which is "essentially nondiscretionary in nature." Id. at 2. The Agency contends, therefore, that there is a compelling need for its regulation under section 2424.11 of the Authority's Rules and Regulations. Finally, the Agency contends that the proposals are nonnegotiable under sections 7106(a) and 7106(b)(1) of the Statute, concerning management's right to determine the organization of the Agency and the grades of employees assigned to work projects and or work functions.

2. Union

The Union asserts that the proposals were offered in response to the Agency's amendment to its regulation, TPR 335, which concerns merit promotion. The Union contends that this amendment "specifically prohibit[s] military grade inversion, that is, those employees selected to fill civilian jobs would not be militarily senior to the full-time civilian supervisor. Certified applicants who are senior would have their applications forwarded for consideration, but, if selected, the successful applicant '[would] have to be reduced or convert to a military grade less than the supervisor.'" Petition at 2 (quoting TPR 335, section 4-3e). The Union acknowledges that the reduction in rank of a technician selected for a position who is militarily senior to the supervisor "concerns a military matter which the Authority has held does not constitute a condition of employment," but argues that "a reduction in rank . . . has a very real impact on civilian conditions of employment." Id. at 3-4. The Union asserts, therefore, that the proposals are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute.

The Union contends that a technician could be adversely affected in a number of ways. The Union explains that a reduction in rank: (1) would appear on a technician's record and, therefore, could be a factor in a decision by the Agency not to retain the technician because a technician must be a member of the National Guard as a condition of his or her civilian employment; (2) may require a technician to be reassigned to another position in the military unit which, if not available, could force the technician to be placed in a military position that is not compatible with the technician's civilian job and, as a result, the technician could lose his or her civilian job; (3) may require a technician to be placed in a slot for which he or she is unqualified, causing the technician to be non-deployable, which is a ground for nonretention; (4) would entail an often significant loss in military pay; and (5) would inhibit the ability of technicians to advance.

The Union asserts that the proposals seek to ameliorate these adverse affects. The Union contends that Proposal 2, "[b]y permitting the no-inversion requirement to be satisfied over the course of three years," would give the technician "additional time to move up in military rank," and, thus, "forestall an adverse retention decision[]" by the Agency as well as provide the technician with additional time for military slots to become available for reassignment. Id. at 5. The Union states that Proposal 3 seeks to "permit subordinate employees to maintain their upward mobility, and guarantees that rank inversion will not be used as a factor in directing them in their civilian work activities." Id. at 6. The Union explains that Proposal 4 attempts to "'grandfather' inversion situations which may already exist." Id. The Union asserts that Proposal 5 seeks to limit any adverse effects for retention purposes of a military demotion caused by the Agency's policy by requiring management to record in a technician's military personnel file that the demotion resulted from the Agency's policy.

The Union contends that "[n]one of the proposals would excessively interfere with the 'military chain of command[.]'" Response at 2. The Union asserts that the "proposals involve the accomplishment of technicians' civilian function[.]" Id. at 3. According to the Union, "[n]othing in the proposal[s] would interfere with the ability of military superiors to appropriately order military subordinates in the event technicians must assume military functions in their military capacity." Id. In sum, the Union asserts that the proposals "have been tailored to benefit employees . . . adversely [affected by management's policy] without excessively interfering with the ability of the Agency to accomplish its mission." Id.

IV. Analysis and Conclusions

We find that Proposals 2-5 are nonnegotiable.

The Authority has consistently held that proposals whic