54:0552(57)NG - - ACT, PA State Council & DOD, Adjutant General of PA, Fort Indiantown Gap, Annville, Pennsylvania - - 1998 FLRAdec NG - - v54 p552



[ v54 p552 ]
54:0552(57)NG
The decision of the Authority follows:


54 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

ASSOCIATION OF CIVILIAN TECHNICIANS

PENNSYLVANIA STATE COUNCIL

(Union)

and

U.S. DEPARTMENT OF DEFENSE

ADJUTANT GENERAL OF PENNSYLVANIA

FORT INDIANTOWN GAP

ANNVILLE, PENNSYLVANIA

(Agency)

0-NG-2337

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

June 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This case is before the Authority on a negotiability appeal under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case involves a single proposal. The Agency filed a Statement of Position and the Union filed a Response. For the reasons that follow, we find that the proposal is within the duty to bargain.

II. Background

The record indicates that, when filling a vacant National Guard technician position, the Agency may post the vacancy in any of three ways: (1) as a military position;(1) (2) as a dual status technician position;(2) or (3) as a competitive technician position.(3)

The Agency may also "simultaneously announce" a single vacant position, for example, as a military position and a dual status technician position. Statement of Position at 2. Pursuant to such an announcement, the Agency processes applications for the military position by using military regulations and qualifications to assess AGR candidates; applications for the dual status technician position are processed according to the collective bargaining agreement and dual status technician personnel regulations and qualifications. Id. at 2-3.

III. Proposal

The employer and the Association agree that the Agency will choose in accordance with prescribed rules the method of fill prior to announcing the vacancy, allowing for all appropriate sources to apply, and be ranked and certified appropriately by the Agency.

IV. Positions of the Parties

A. Agency (4)

The Agency argues that, under the proposal, it would not be able to announce a position simultaneously as a military or a dual status technician position. The Agency also argues that the proposal would prevent it from simultaneously announcing a position as a competitive technician or dual status technician position. The Agency contends that if it decides to fill a position as a dual status technician position, although AGR candidates could apply, under the proposal such candidates would have to meet dual status technician qualification standards, not military standards, for consideration.

According to the Agency, the Union's assertion that the intent of the proposal is merely to require the Agency to announce to the Union how it intends to fill each vacancy is inconsistent with the plain wording of the proposal. The Agency contends that the proposal, as worded, does not refer to notifying or advising the Union; rather, it requires the Agency to choose the manner in which it will fill a position and to forgo exercising discretion in that regard at a later point. Based on statements it alleges that the Union made at the bargaining table,(5) the Agency claims that "the real intent of the proposal" is to require it "to select one of three ways to fill each vacancy": military position, dual status technician position, or competitive technician position. Statement of Position at 3.

The Agency claims that, consistent with its interpretation, the proposal concerns military matters and does not pertain to the conditions of employment of bargaining unit employees. The Agency also contends that, by prescribing the qualification standards for military personnel and positions, the proposal requires it to bargain on the conditions of employment of members of the armed forces in violation of 10 U.S.C. § 976(e).(6) According to the Agency, the terms and conditions of AGR service are covered by 10 U.S.C. § 976(e) because, as active duty members of the Army and Air Force, AGR personnel are members of the armed forces.

In addition, citing 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, 211-12 (1991) (Maine Air National Guard), the Agency asserts that, by requiring it to choose only one source from which to fill a position, the proposal interferes with its right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. The Agency maintains that the proposal is not an appropriate arrangement under section 7106(b)(3).

B. Union

The Union acknowledges that it made statements at the bargaining table such as those noted by the Agency, but asserts that the cited statements were not made in connection with the proposal in this case. The Union argues that the Agency's interpretation of the proposal "finds no support in the language of the proposal itself." Response at 1.

The Union states that the phrase "prescribed rules" is intended "to permit the Agency to 'prescribe' the rules which it would choose to use in filling the vacancy." Id. The Union also states that use of the term "prescribed" is intended to require the Agency to communicate to the Union the rules that the Agency establishes.

The Union claims that the proposal does not: (1) require the Agency to make a single job announcement; (2) limit the sources from which the Agency can solicit candidates; (3) preclude simultaneous solicitation of dual status technicians and AGR personnel; (4) require AGR personnel to meet the same qualification requirements as dual status technicians; and (5) seek to negotiate on behalf of military personnel.

V. Analysis and Conclusions

A. Meaning of the Proposal

The Authority determines the meaning of a proposal based on its wording and a union's explanation that is consistent with that wording. See, e.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995). Statements allegedly made by the Union at the bargaining table that were not reasserted by the Union in the record of this case do not provide a basis for determining the meaning of the proposal. When a proposal is silent as to a particular matter, a union's statement clarifying the matter is considered consistent with the proposal's plain wording so long as the statement otherwise comports with the wording of the proposal. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996).

As worded, the proposal provides that: (1) the Agency will choose, in accordance with prescribed rules, the method of filling a vacant position prior to announcing the vacancy; (2) individuals from all appropriate sources may apply for the vacancy; and (3) applicants will be ranked and certified appropriately. Nothing in the wording of the proposal requires the Agency, once a position is posted, to make a selection to fill the vacancy or to fill it only from the source(s) posted.

The Union explains that, by providing that the rules be "prescribed" by the Agency, the proposal merely requires that those rules "be communicated to the Union so that the Union would gain knowledge of what rules had been 'prescribed' by the Agency." Response at 1. The Union does not explain the term "method." However, the Union explains that the proposal does not preclude a "dual track" vacancy announcement. Given this explanation, which is not inconsistent with the proposal's wording, we construe the proposal as not restricting the Agency's designation of the source, i.e., military technician, dual status technician, or competitive technician, from which it will select, but as referring instead to the process by which a position is filled. Thus, the Agency's decision to simultaneously announce a vacancy as both a military position and a dual status technician position would be a "method" of filling the position.

The proposal also allows all "appropriate" sources to apply for a vacancy. The proposal is silent as to what constitutes an appropriate source. However, the Union explains that the proposal is not intended to restrict the sources from which the Agency can solicit applicants. As so construed, the proposal leaves to the Agency's discretion the determination of the appropriate sources for any given vacancy.

Further, the proposal provides for all applicants to be ranked and certified appropriately. The Union does not define the term "appropriately." The Union explains, however, that the proposal does not require that AGR personnel meet civilian technician requirements for a position. As so explained, the proposal permits the Agency to rate and rank AGR personnel according to military qualifications and to rate and rank other applicants by the criteria appropriate to their status.

In sum, based on the proposal's wording and the Union's explanation, which is consistent with that wording, we interpret the proposal as: (1) requiring the Agency to inform the Union, prior to the announcement of a unit vacancy, with regard to the method by which the vacant position will be filled; (2) allowing the Agency to solicit several sources concurrently and to select from any source; (3) allowing the Agency to rank and certify applicants by the criteria that are appropriate to their status as AGR personnel, dual status technicians, or competitive technicians; and (4) permitting the Agency, once the position is posted, to decide not to fill the position and repost the vacancy or not to fill the position from the source(s) posted. See, e.g., National Education Association, Overseas Education Association, Fort Rucker Education Association and U.S. Department of Defense, Domestic Dependent Elementary and Secondary Schools, Fort Rucker Dependents Schools, Fort Rucker, Alabama, 53 FLRA 941, 950 (1997).

B. The Proposal Concerns the Conditions of Employment of Unit Employees and Is Not Inconsistent with 10 U.S.C. § 976(e)

As construed, the proposal permits the Agency to solicit, consider, or select AGR candidates for a vacant position, but does not require the Agency to take any of those actions. Moreover, the proposal does not affect the Agency's ranking and certification of AGR personnel. Consequently, the proposal does not attempt to regulate the filling of military positions or the consideration of military applicants, but prescribes the conditions governing the filling of vacant unit positions. See Maine Air National Guard, 40 FLRA at 205-06. Consequently, we find that the proposal concerns the conditions of employment of unit employees.

Because the proposal does not regulate the filling of military positions, it also does not require the Agency to negotiate on behalf of the United States concerning the terms of service of military personnel in violation of 10 U.S.C. § 976(e). That statutory provision prohibits any member of the armed forces or any civilian officer or employer from negotiating on behalf of the United States with anyone representing, or purporting to represent, members of the armed forces concerning the conditions of military service. Cf. 120th Fighter Interceptor Group, 20 FLRA at 737-42 (proposal requiring automatic renewal of military membership of dual status technician in National Guard upon expiration of term of enlistment constitutes negotiation of military matter on behalf of members of the armed forces in violation of 10 U.S.C. § 976(c)(2)).(7) Consequently, we find that the proposal is not inconsistent with 10 U.S.C. § 976(e).

C. The Proposal Does Not Affect Management's Right to Select Under Section 7106(a)(2)(C) of the Statute

Under section 7106(a)(2)(C) of the Statute, agencies have discretion to fill positions by selecting candidates from any appropriate source without restriction. See, e.g., National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, Washington, D.C., 53 FLRA 967, 972 (1997). Proposals that allow an agency to solicit, consider, and select from any appropriate source when filling a position do not affect management's right to select. See, e.g., National Federation of Federal Employees, Local 33 and U.S. Department of the Army, Corps of Engineers, Galveston, Texas, 47 FLRA 765, 772-73 (1993). The proposal permits the Agency to determine the method by which it will fill a vacant position and allows it to solicit applicants from any appropriate source. Therefore, the proposal does not restrict the Agency to a single source.

This proposal is distinguishable from a proposal found to be outside the duty to bargain in Maine Air National Guard, 40 FLRA at 211-12. The proposal in that case, as here, required the agency to decide how it would fill a position before posting the vacancy. However, in contrast to the proposal in this case, which does not explicitly mention sources, the proposal in Maine Air National Guard explicitly specified that, in deciding how to fill the position, the agency would choose a single posting. Thus, the Authority rejected the union's explanation that the proposal allowed the Agency to simultaneously announce a vacant position as a military or a dual status position on the grounds that the explanation was inconsistent with the plain wording of the proposal. The Authority concluded that the proposal limited the agency to soliciting applicants only from the single source posted.

Unlike the proposal in Maine Air National Guard, the proposal in this case does not limit the Agency to a single posting of a vacant position. That is, the proposal, as construed, permits the Agency to choose to post a vacancy in a way that simultaneously solicits applicants from all appropriate sources. Thus, the proposal does not restrict the Agency to considering applicants from a single source. Even if the Agency in its discretion decided to post the position so as to solicit applicants from only a single source, nothing in the proposal would preclude the Agency from deciding not to select from that source, and to reannounce the position.

Consequently, we find that the proposal does not affect management's right to select under section 7106(a)(2)(C) of the Statute and conclude that it is within the duty to bargain.

VI. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on the proposal.(8)

APPENDIX

32 U.S.C. § 709 provides, in relevant part, as follows:

§ 709. Technicians: employment, use, status

(a) Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection (b) of this section persons may be employed as technicians in--

(1) the administration and training of the National Guard; and

(2) the maintenance and repair of supplies issued to the National Guard or the armed forces.

(b) A technician employed under subsection (a) shall, while so employed--

(1) be a member of the National Guard;

(2) hold the military grade specified by the Secretary concerned for that position; and

(3) wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician.

. . . .

(d) A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard.

. . . .

10 U.S.C. § 976(e) provides as follows:

§ 976. Membership in military unions, organizing of military unions, and recognition of military unions prohibited

(e) No member of the armed forces, and no civilian officer or employee, may--

(1) negotiate or bargain on behalf of the United States concerning the terms or conditions of military service of members of the armed forces with any person who represents or purports to represent members of the armed forces, or

(2) permit or authorize the use of any military installation, facility, reservation, vessel, or other property of the United States for any meeting, march, picketing, demonstration, or other similar activity which is for the purpose of engaging in any activity prohibited by subsection (b), (c), or (d).

Nothing in this subsection shall prevent commanders or supervisors from giving consideration to the views of any member of the armed forces presented individually or as a result of participation on command-sponsored or authorized advisory councils, committees, or organizations.

10 U.S.C. § 976(c) provides, in relevant part, as follows.

(c) It shall be unlawful for any person--

. . . .

(2) to negotiate or bargain, or attempt through any coercive act to negotiate or bargain, with any civilian officer or employee, or any member of the armed forces, on behalf of members of the armed forces, concerning the terms or conditions of service of such members[.]




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Only Active Guard and Reserve (AGR) personnel may apply for such a position. In order to qualify for a military position, such personnel must meet military qualification standards.

2. Military technicians, who are employed pursuant to 32 U.S.C. § 709, possess "dual status." See, e.g., 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, 732 (1985) (120th Fighter Interceptor Group). The relevant text of 32 U.S.C. § 709 is set forth in the Appendix to this decision. Dual status technicians are civilian employees, but in order to be employed in technician positions they must maintain a compatible military status in the National Guard. 120th Fighter Interceptor Group, 20 FLRA at 739-40 n.39. In order to distinguish AGR technicians, who are military personnel, from military technicians, who are civilians possessing military status, we will refer to the latter as "dual status technicians."

3. Competitive technicians are civilian employees who do not need to maintain compatible military status. Statement of Position at 3.

4. The Agency claims that the petition for review should be dismissed because the Union did not serve the petition on the Agency head as required by section 2424.4(b) of the Authority's Regulations. In response to an order from the Authority, the Union cured this procedural defect. Accordingly, we do not dismiss the petition on this basis. See, e.g., American Federation of Government Employees, Local 3369 and U.S. Department of Health and Human Services, Social Security Administration, Patchogue, New York, 49 FLRA 1074, 1076 (1994).

5. According to the Agency, the Union stated that the proposal was intended to require the Agency to fill a vacant position as either a milit