Association of Civilian Technicians, New York State Council (Union) and U.S. Department of Defense, National Guard Bureau, New York Division of Military and Naval Affairs, Latham, New York (Agency)

[ v56 p444 ]

56 FLRA No. 66

ASSOCIATION OF CIVILIAN TECHNICIANS
NEW YORK STATE COUNCIL
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
NEW YORK DIVISION OF MILITARY
AND NAVAL AFFAIRS
LATHAM, NEW YORK
(Agency)

0-NG-2373

______

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

June 19, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

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), and concerns the negotiability of a proposed supplemental agreement to the parties' collective bargaining agreement. [n1] 

      For the reasons that follow, we find that the proposed agreement is outside the duty to bargain. Accordingly, we dismiss the petition pursuant to section 2424.10 of the Authority's Regulations. [n2] 

II.     Background

      As a result of a reorganization, the Air Defense mission for the continental United States was assigned by the Air Force to the Air National Guard. The Air National Guard then created three Air Defense Sectors and, in 1994, the Northeast Air Defense Sector (Northeast Sector) became the first sector to become operational. Prior to that time, two small activities of the New York Air National Guard were closed and 26 displaced technicians were transferred to the organization that became the Northeast Sector.

      Because the mission assigned to the Air National Guard requires that it be on alert 24 hours a day, 7 days a week, it determined that its mission could best be performed by full-time Active Guard and Reserve (AGR) personnel. [n3]  This determination was not made, however, until the technicians had already been transferred. As a result, the 26 technicians who are employed in the Northeast Sector have been "grandfathered in." That is, although they have retained their civilian status, the technicians "are `slotted' against . . . military positions in lieu of AGR incumbents." Statement of Position at 7. The supplemental agreement at issue here was offered in response to the impact of the reorganization on the Agency's technicians.

III.     Positions of the Parties

A.     Agency

1.     The Proposed Agreement Affects Section 7106(a)(1)

      The Agency asserts that because of its mission, the Northeast Sector has been organized to be supported solely by full-time military members of the Air National Guard. The Agency contends that if the proposed agreement were adopted, all of the agreement's provisions would operate together to require a change in its organizational structure by permanently establishing positions for civilian technicians where no such positions currently exist. According to the Agency, the Union has attempted to accomplish this by "cloaking the entirety of [its] proposal package in the language of [s]ection 7106(b)(1)[.]" Statement of Position at 7. However, the Agency points out that none of the provisions included in the supplemental agreement addresses specific numbers, types or grades of personnel to be assigned to any subdivision of the Northeast Sector. Rather, the Agency [ v56 p445 ] claims that they "all address the organization as a whole[,]" in violation of section 7106(a)(1). Id. at 8.

      In support of this position, the Agency maintains that section 1 of the agreement sets forth the Union's intent to "establish a contractual requirement for permanent technician positions" within the Northeast Sector. Id. at 3. The Agency explains that section 3 would initiate the step-by-step process culminating in this requirement by mandating that management identify all future positions in the Northeast Sector that could be filled by civilian technicians if management so desired. It would also require, in the Agency's view, that management determine whether the majority of such positions could be filled in accordance with Air National Guard Instruction (ANGI) 36-101. According to the Agency, by incorporating this instruction, the Union "clearly intends to make virtually all of the [Northeast Sector] positions subject to fill by technicians." Id. at 8. The Agency adds that "[t]his is because many, if not most, categories of full[-]time positions . . . can, pursuant to ANGI 36-101, be filled by [civilian] technicians." Id.

      By further establishing particular contractual requirements in the succeeding sections that: increase the number of positions for which civilian technicians may apply; mandate that future vacancies in the Northeast Sector be jointly announced to both AGR personnel and civilian technicians (Proposal 4); extend eligibility for vacancies to all technicians in the state of New York (Proposal 5); change the qualification requirements for technicians who apply for such vacancies and provide them with first consideration (Proposal 6); and insulate technicians from potential reductions (Proposal 8), the Agency contends that the proposed agreement, as a whole, seeks to reorganize the Northeast Sector "into a permanently mixed workforce of technicians and AGRs." Id. Consequently, the Agency asserts that the proposed agreement would violate its right to determine its organization under section 7106(a)(1).

2.     The Proposed Agreement Affects Section 7106(a)(2)

      The Agency also asserts, based on International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2, 25 FLRA 113 (1987) (Provision 36), that the supplemental agreement is contrary to its right to determine the personnel by which its operations shall be conducted in violation of section 7106(a)(2)(B).

      In addition, the Agency submits that the Authority has long held that the right to assign work under section 7106(a)(2)(B) includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments in determining whether a particular employee meets those qualifications. According to the Agency, section 6 of the proposed agreement -- which addresses the experience that civilian technicians would be required to possess to be eligible for a Northeast Sector position -- is, on its face, inconsistent with section 7106(a)(2)(B) because the contract language, rather than the Agency's determination, would govern the qualifications required for advancement.

3.     The Proposed Agreement Violates Other Statutory Provisions

      The Agency further contends that to the extent that sections 6, 7, and 8 of the supplemental agreement would impact the assignment, promotion and retention of AGR personnel, they would violate 10 U.S.C. § 976. According to the Agency, under that statute, it is unlawful for a labor organization to attempt to bargain on behalf of members of the armed forces over the terms and conditions of their military service.

      The Agency maintains that to the extent that section 6 of the supplemental agreement would require AGR members to "meet the qualifications requirements (i.e., technician qualifications requirements under TPR 300[335]) different than those required by the [Air Force Specialty Code] to qualify for military positions within [the Northeast Sector], it would affect and therefore, change the terms and conditions of [their] military membership[.]" Id. at 12. The Agency also contends that section 7 of the agreement would change the terms and conditions of the AGRs' military service by linking their career progression with the prior consideration and rejection of personnel who are evaluated under the civilian personnel system. Finally, the Agency asserts section 8 would change the terms and conditions of the AGRs' military service "by making their very retention subject to the absence of a minimally qualified technician . . . based on rules and procedures designed for personnel and positions of a totally different system." Id. at 13. Accordingly, the Agency submits the proposed agreement constitutes an attempt to bargain over terms and conditions of military membership, in violation of 10 U.S.C. § 976.

      In addition, the Agency submits that the proposed agreement should be rejected because AGR personnel are not employees within the meaning of the Statute and, therefore, are not "types" of employees who encumber "types" of positions within the meaning of section 7106(b)(1). Even assuming that certain sections of the agreement address the numbers, types and grades [ v56 p446 ] of employees or positions in an organizational subdivision within the meaning of section 7106(b)(1), the Agency argues that the agreement is still beyond the scope of bargaining because the dominant requirement of the agreement would dictate a change in the Northeast Sector's organizational structure. The Agency maintains that the petition should be dismissed on this basis alone.

B.     Union

      As an initial matter, the Union challenges the Agency's assertion that the supplemental agreement violates management's rights to determine its organization and the personnel by which it will conduct its operations. According to the Union, these arguments are premised on the erroneous belief that the agreement would establish a contractual requirement for permanent technician positions. However, the Union contends that nothing in the agreement would establish such a requirement. Rather, the Union maintains that the agreement concerns not how the Northeast Sector will be organized but how that organizational subdivision will be staffed. The Union asserts that such matters are negotiable under section 7106(b)(1).

      In addition, the Union rejects the Agency's claim that the proposed agreement is beyond the scope of bargaining because it affects the conditions of employment of non-unit, AGR employees. The Union argues that "[t]he fact that the anti-discrimination proposal affects AGR personnel, by prohibiting discrimination in their favor, does not render it non-negotiable." Response at 7. The Union explains that "[t]his is because the proposal addresses a matter that `vitally affects' technicians -- namely, their basic eligibility for employment[.]" Id. As the Agency concedes that AGR members are not employees within the meaning of the Statute, the Union contends that the proposal is within the duty to bargain because it is a non-employee matter that vitally affects bargaining unit interests.

      The Union also dismisses the argument that the proposed agreement would increase the number of civilian technicians in the Northeast Sector while decreasing the AGR workforce. The Union submits that this would occur only if the Agency actually selects civilian technicians to fill vacant military positions but argues that nothing in the agreement requires this result.

      Finally, the Union contends that the proposed agreement "establishes [A]gency procedures and makes appropriate arrangements for bargaining unit employees who may be adversely affected by [A]gency actions." Petition for Review at 2. In particular, the Union submits that section 3 of the agreement constitutes an appropriate arrangement because the Agency's organizational decision foreclosed other qualified technicians from being considered for positions in the Northeast Sector even though they may have been better qualified than any of the AGR members or the 26 technicians who were transferred. The Union also submits that section 8 of the agreement -- which applies to potential RIFs -- is an appropriate arrangement because it pertains to technicians who are adversely affected by a management decision to reduce its workforce.

IV.     Meaning of the Proposed Agreement

      In interpreting a disputed proposal, the Authority first looks to its plain wording. When a union's explanation is not supported by a reasonable construction of the proposal, the explanation is deemed inconsistent with the proposal's plain wording, and the Authority does not adopt it for purposes of determining whether the proposal is within the duty to bargain. E.g., International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 459 (1995) (Member Armendariz concurring as to other matters) (Philadelphia Naval Shipyard).

      In this case, in order to understand the operation of the proposed agreement, it is necessary to review the regulatory provisions on which the agreement relies. First, section 3 of the agreement incorporates ANGI 36-101 -- an Air National Guard Instruction that applies to AGR members. [n4]  ANGI 36-101, para 2.2.1 describes specific categories of positions that appear on the Support Personnel Manpower Document for the Northeast Sector. Category One positions are those that may be filled by AGR personnel only. Category Two positions are those that may be filled by either civilian technicians or AGR personnel. In addition, section 7 of the proposed agreement, which pertains to the selection procedure, incorporates the Division of Military and Naval Affairs (DMNA) Pamphlet Number 690-4. That regulation, promulgated by the state of New York, sets forth the Agency's civilian personnel merit promotion and placement plan, which applies to civilian technicians. [n5] 

      Contrary to the Union's claims, an analysis of the supplemental agreement, which incorporates both [ v56 p447 ] ANGI 36-101 --applicable to the Air National Guard -- and DMNA Pam 690-4 -- applicable to civilian technicians in the New York Air National Guard -- shows that it would operate to increase the number of civilian technicians assigned to the Northeast Sector. A review of the agreement's sections reflects how it is designed to work.

      Initially, section 1 of the agreement simply sets forth the purpose of the proposed agreement and imposes no requirements. However, section 3 of the agreement would require the Agency to identify all positions in the Northeast Sector that may be filled either by civilian technicians or AGR personnel, which would be a Category Two position under ANGI 36-101, para 2.2.1.2. Under para 2.2.1.2, a position may be filled by either civilian technicians or AGR personnel. The agreement would then require, in section 4, that all vacancies for positions identified in section 3 be posted by joint vacancy announcement for both technicians and AGR personnel. Section 5 would next expand the area of consideration to all technicians in the state of New York.

      At this point in the agreement, the Agency would be required to announce all vacancies in the Northeast Sector consistent with ANGI 36-101, para 2.2.1.2., despite the fact that the positions were only intended to be filled by AGR personnel. Under section 6, any differences in selective factors between the technician and AGR programs would be eliminated. Section 7 would then require that all selections be made in accordance with DMNA Pam 690-4, a New York state regulation. All previous sections had relied on ANGI 36-101, a federal instruction. As relevant here, the state regulation dictates that eligible candidates be referred to the selecting official in a particular sequence, beginning with an initial category -- Category I -- which only includes civilian technicians. In addition, section 6-1.c of the state regulation provides that "[i]f there are fewer than three qualified applicants in Category I, then qualified applicants from Category II, III, and/or IV will be forwarded to the selecting official, in sequential order, to provide at least three qualified applicants." Like Category I, Category II is comprised of only civilian technicians. This establishes that the minimally required referral may only include civilian technicians if there are three qualified civilian applicants. In fact, under this procedure, AGR personnel would not get referred to the selecting official until all qualified applicants had been referred from Categories I and II. Finally, section 8 of the proposed agreement would further promote the technicians' tenure by providing them with priority over AGR personnel in the event of a reduction-in-force (RIF).

      As the forgoing illustrates, the Union's explanation of the proposed agreement does not comport with its plain wording. The specific sequence of steps, coupled with the relevant regulatory requirements, results in the likely submission of candidate lists comprised only of civilian technicians. While the selecting official could reject these candidates, cancellation of the vacancy and reposting of the position would require application of the same procedures, ultimately with the same result. Therefore, consistent with Philadelphia Naval Shipyard, we do not adopt the Union's explanation for purposes of assessing whether the agreement is within the duty to bargain. Instead, we conclude that the primary purpose of the proposed agreement is to increase the number of Northeast Sector positions that can be filled by civilian technicians.

V.     Analysis and Conclusions

A.     The Proposed Agreement Is Properly Considered as an Integrated Whole

      Generally, the Authority does not consider parts of a proposal separately, unless the parties specifically so request. See, e.g., National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 39 FLRA 762, 765 n.* (1991); Local 32, American Federation of Government Employees, AFL-CIO v. FLRA, 774 F.2d 498, 505 (D.C. Cir. 1985) (Authority correctly determined, based on the record before it, that various aspects of a proposal should be considered together). Moreover, the Authority declines to sever parts of a proposal where the proposal presents an "integrally related package." National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 54 FLRA 1302, 1311 (1998), review denied sub nom. National Association of Government Employees, Local R14-23 v. FLRA, No. 98-1520 (D.C. Cir. Sept. 24, 1999). See also National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 435 (1997) (refusing to sever parts of a proposal where the parts are found to be "inseparably linked"). Although the Authority has recognized that parts or subparts of a proposal that present distinct legal or factual questions may be separately addressed, it need not do so if such questions are not presented. See Association of Civilian Technicians, Inc., Rhode Island Chapter and U.S. Department of Defense, Rhode Island National [ v56 p448 ] Guard, Providence, Rhode Island, 55 FLRA 420, 424 (1999); Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 807 n.7 (1991) (citing Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234, 239-40 (D.C. Cir. 1987) (DLC)).

      In this case, the Union has not requested the Authority to sever any parts of its supplemental agreement. Therefore, based on the subject matter of the Union's proposal, as well as the relationship between its individual parts, we conclude that the supplemental agreement should be treated as a whole. In arriving at this conclusion, we note that each of the agreement's sections is designed to affect the manner in which vacancies in Northeast Sector are filled. See DLC, 810 F.2d at 239 (noting that subject matter may warrant uniform treatment of union proposals). We further note that with the exception of section 1, which addresses the agreement's purpose, the agreement is carefully and deliberately crafted so that each of its sections is predicated on the sections that precede it. In these circumstances, we conclude that the various sections of the proposed agreement do not present distinct legal or factual questions but, instead, constitute an an integrally related whole.

      Certainly, in a vacuum, it is possible to sever individual sections of the proposed agreement, such as sections 4 and 5, and rule on the negotiability of each. However, standing alone, these sections would serve no useful purpose because they depend for their viability on the sections that precede them. For example, section 4 requires joint civilian and military announcements for vacancies in the Northeast Sector. However, since the Agency has determined not to fill vacancies in the Northeast Sector with civilians, section 4 has meaning only in relation to section 3, which precedes it. That section requires the Agency to identify all vacancies that, theoretically and under the regulations, could be filled by either civilian technicians or AGR personnel. Likewise, sections 6 and 7, which refer to matters affecting technician applicants, have meaning only by virtue of the preceding sections that require the Agency to identify which positions could, theoretically, be opened to civilian technicians and to post joint civilian and military vacancy announcements. As these examples illustrate, severing the proposed agreement would only serve to negate its operation. There is no indication in the record that the Union has any interest in negotiating over individual proposals that would not provide a comprehensive selection procedure that affects how the Northeast Sector will be staffed. See International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 45 FLRA 1154, 1161-62 (1992) (substantive revision of proposals is not the Authority's role). Accordingly, we will consider the proposed supplemental agreement as an integrated whole. [n6] 

B.     The Proposed Agreement is Outside the Duty to Bargain Pursuant to Section 7106(a)

      In American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171 (1998), the Authority described the sequence of analysis it will follow in resolving negotiability disputes where parties disagree as to whether a proposal comes within the terms of section 7106(a) or section 7106(b). Where an agency claims that a proposal affects a management right or rights under section 7106(a), and a union claims that the proposal is within the duty to bargain under section 7106(b)(2) and/or (3), as well as being electively negotiable under section 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain, and then, if necessary, address those claims that would determine if a proposal is electively negotiable. See National Association of Government Employees, [ v56 p449 ] Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 54 FLRA 521, 526-28 (1998).

      Consistent with this sequence, we first consider whether the proposed agreement comes within the terms of section 7106(a). The Agency claims that "Proposals 1, 3, 4, 5, 6, 7 and 8 would all operate in conjunction to require management to establish technician positions in an organization where none exist . . . ." Statement of Position at 7. As worded, the disputed portions of section 3 provide that, using the Support Personnel Manpower Document, the Agency would be required to identify all positions that may be filled by technicians, which, pursuant to the incorporated regulation and the unrefuted contention of the Agency, would be almost all Northeast Sector positions. Section 4 would require the Agency to post such positions by means of the same or "joint" announcement, i.e., an announcement with both technician and AGR information therein. Section 5 would next expand eligibility for any position announced under section 3 or section 4 to all National Guard technicians in the state of New York -- a result directly contrary to the Agency's decision to permit only the 26 technicians currently employed in the Northeast Sector to fill positions that are slated to be military. In these circumstances, it is apparent that section 5 would require the Agency to permit civilian technicians to apply for military positions. The Agency maintains that such a requirement would violate its right to determine its organization under section 7106(a)(1).

      Management's right to determine its organization under section 7106(a)(1) encompasses the right to determine the administrative and functional structure of the agency, including the relationship of personnel through lines of authority and the distribution of responsibilities for delegated and assigned duties. See, e.g., American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794, 802 (1996). That is, this right includes the authority to determine how an agency will structure itself to accomplish its mission and functions. Id. Additionally, management's right to determine its organization includes such matters as, inter alia, the geographical locations in which an agency will provide services or otherwise conduct its operations, and how various responsibilities will be distributed among the agency's organizational subdivisions. Id. at 802-03; see also American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1604-05 (1993).

      As more specifically discussed above, the Northeast Sector has been organized to be supported solely by full-time military personnel. Nevertheless, if adopted, section 5 of the supplemental agreement proposed by the Union would precipitate a change in the Agency's organization. In particular, building upon the preceding sections, section 5 would effectively require the Agency to convert full-time military positions in the Northeast Sector to positions that can be filled either by civilian technicians or AGR personnel. By imposing such a requirement, the agreement dictates how the Agency will be structured to accomplish its mission and functions. See U.S. Department of Defense, National Guard Bureau, Washington Army National Guard, Tacoma, Washington and National Association of Government Employees, Sub-Local R12-122, 45 FLRA 782, 787 (1992) (agency's decision to make a position military rather than civilian concerns the organization and functional structure of the agency and the assignment of duties to personnel); see also Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 29 FLRA 1292, 1296-97 (1987) (proposals which require an agency to establish its organizational structure in such a manner as to assure promotional opportunities for employees directly interfere with management's right to determine its organization under section 7106(a)(1)). Accordingly, we conclude that section 5 affects the Agency's right to determine its organization.

      The Union does not claim that section 5 of the proposed agreement constitutes a procedure or appropriate arrangement within the meaning of section 7106(b)(2) or (b)(3) or is negotiable at the election of the Agency under section 7106(b)(1). Pursuant to our determination not to sever the agreement's individual sections and our finding that section 5 affects the Agency's right to determine its organization, we conclude that the Union's supplemental agreement is outside the duty to bargain. See Professional Airways Systems Specialists, District No. 6, PASS/NMEBA and U.S. Department of the Navy, U.S. Marine Corps, Marine Corps Air Station, Cherry Point, North Carolina, 54 FLRA 1130, 1131 (1998) (if any portion of a disputed proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain).

VI.     Order

      The petition for review is dismissed. [n7]  [ v56 p450 ]


APPENDIX

      The disputed sections of the supplemental agreement proposed by the Union are as follows:  [n8] 

Purpose
1.     This agreement establishes conditions of employment for bargaining unit technicians employed within the Northeast Air Defense Sector . . . . The agreement addresses the numbers, types, and grades of bargaining unit employees and technician positions assigned within [the Northeast Sector]. It establishes agency procedures and makes appropriate arrangements for bargaining unit employees who may be adversely affected by agency actions.
Types of [Northeast Sector] Positions
3.     Each position within [the Northeast Sector] shall appear on the [Northeast Sector] Full-time Support Personnel Manpower Document (SPMD). The types or categories of positions on the SPMD, and the positions that may be filled by technicians, shall be determined in accordance with ANGI 36-101 para 2.2.1 (29 December 1993) and changes thereto. The SPMD shall identify the positions that may be filled by technicians. Whether the number of positions that may be filled by technicians shall be a majority of the positions on the SPMD shall be determined in accordance with ANGI 36-101 para 2.2.1.2 (29 December 1993) and changes thereto.
Joint Vacancy Announcements
4.     Any vacant position on the [Northeast Sector] SPMD that may be filled by a technician and which the agency determines to fill through competitive procedures shall be announced by joint announcement. Both technician and AGR duty information (military title, grade, qualifications, etc.) shall appear on the announcement.
Eligibility to Include New York Technicians
5.     Technicians employed in the State of New York shall be among those eligible to apply for any announced, vacant [Northeast Sector] position that may be filled by a technician.
General or Specialized Experience Required for Basic Eligibility
6.     The qualifications and other selective placement factors determining a technician's basic eligibility for a [Northeast Sector] position that may be filled by a technician shall not include general or specialized experience not used in determining an AGR member's basic eligibility for that position.
Selection from Among Eligible Applicants
7.     Selection for a vacant [Northeast Sector] position that may be filled by a technician shall be from among eligible applicants, and in accordance with DMNA Pamphlet Number 690-4 (1 July 1994).
Technician Rights in Reduction in Force
8.     In any reduction in force (RIF) each technician employed within [the Northeast Sector] shall have priority over all AGR members for retention in any [Northeast Sector] position that may be filled by a technician for which the technician meets the qualifications and selective placement factors for basic eligibility.

      Air National Guard Instruction 36-101, entitled "The Active Guard/Reserve (AGR) Program" provides, as relevant here:

2.2.     General:
2.2.1.     Members of the ANG must be assigned to AGR status against vacant positions that appear on the ANG SPMD. The SPMD contains two categories of positions.
2.2.1.1.     Category One consists of positions that must be filled only by AGR personnel (such as recruiters, range personnel, etc.). Each position in this category contains an appropriate military AFSC [Air Force Speciality Code] and the maximum military grade.
2.2.1.2.     Category Two consists of positions that may be filled by either military technicians or AGR personnel. Each position in this category contains a standard technician grade and maximum military grade. The majority of SPMD positions are in this category. [ v56 p451 ]

      DMNA Pam 690-4, para 6-1., entitled "Referral of Candidates," provides, as relevant here:

      b. For bargaining unit positions qualified applicants will be referred to the selecting official in the following sequence:

(1)     Category I.     All excepted service technicians in the New York Army Guard for Army technician vacancies and all excepted technicians in the New York Air National Guard for air technician vacancies, working at the location specified in the job announcement where the vacancy exits.
(2)     Category II.      All currently employed excepted service technicians in either the New York Army or New York Air National Guard.
(3)     Category III.     Qualified members of the New York National Guard (Army or Air), to include AGR personnel, or other individuals who are willing to become members of the New York Army or New York Air National Guard.
(4)     Category IV.     Applicants from outside the organization, including individuals on an OPM certificate and those eligible for reinstatement due to prior competitive status.

      c.     If there are fewer than three qualified applicants in Category I, then qualified applicants from Category II, III, and/or IV will be forwarded to the selecting official, in sequential order, to provide at least three qualified applicants.

10 U.S.C. § 976 provides, in relevant part:

Membership in military unions, organizing of military unions, and recognition of military unions prohibited
(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[.]



Footnote # 1 for 56 FLRA No. 66

   The text of the proposed agreement is set forth in the Appendix to this decision.


Footnote # 2 for 56 FLRA No. 66

   The Authority's Regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.


Footnote # 3 for 56 FLRA No. 66

   AGR personnel are full-time members of the military. By contrast, National Guard technicians are employed pursuant to 32 U.S.C. § 709 and possess "dual status." See, e.g., Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120 Fighter Interceptor Group (ADTAC), 20 FLRA 717, 732 (1985) (Montana ACT). 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. In order to distinguish AGR personnel from National Guard technicians, who are civilians possessing military status, we will refer to the latter as "civilian technicians" or simply "technicians."


Footnote # 4 for 56 FLRA No. 66

   The relevant provisions of ANSI 36-101 are set fo