Association of Civilian Technicians, Montana Air Chapter No. 29 (Union) and U.S. Department of Defense, National Guard Bureau, Montana National Guard, Helena, Montana (Agency)

[ v56 p674 ]

56 FLRA No. 111

ASSOCIATION OF CIVILIAN TECHNICIANS
MONTANA AIR CHAPTER NO. 29
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MONTANA NATIONAL GUARD
HELENA, MONTANA
(Agency)

0-NG-2527

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

September 22, 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)(D) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons that follow, we find that the proposal is within the duty to bargain.

II.     Proposal

      The proposal sets out the order in which employee names would be placed on retention registers when the Agency conducts a reduction in force (RIF), as follows:

3)     Retention Registers:
a)     Technicians are listed in descending order, within their competitive levels, starting with the technician with the most points. They shall be classified on a retention register on the basis of their tenure of employment, length of service, and performance in descending order as follows:
(1)     By tenure group I, group II, group III, and
(2)     Within each group by years of service as augmented by credit for performance beginning with the earliest TSD service date. Technician service date (TSD) is length of continuous service as a technician in the Montana Air National Guard.
b)     A technician's entitlement to additional service credit for performance shall be based on the technician's three most recent annual performance ratings. Employees who do not have three current appraisals on file will be credited with fully acceptable ratings for missing appraisals.
c)     The additional service credit for technician's performance shall be expressed in additional years of service, and shall consist of the mathematical average of the technician's last three annual performance ratings of record computed on the following basis:
(1)     Ten additional years of service for each performance rating of "Exceeds Fully Successful."
(2)     Five additional years of service for each performance rating of "Fully Successful."
(3)     No service credit for an "Unsuccessful" performance rating.
(4)     The following formula will be used to credit performance appraisals of record used under the former performance appraisal system:
a)     Ten additional years of service for each performance rating of 70 through 100 points.
b)     Five additional years of service for each performance rating of 11 through 69 points.
d)     Tie-breaker will be the Service Computation Date. This date is the total length of government service credited for retirement purposes.

III.     Positions of the Parties

A.     Agency

      The Agency asserts that the proposal conflicts with National Guard Technician Personnel Regulation (TPR) 300 (351), an Agency regulation for which there is a compelling need. That regulation provides that, in the event of a RIF, technicians' names will be arranged on retention registers "in descending order within each [ v56 p675 ] competitive level by tenure group, and technician performance appraisal score." Id., section 3-2(d). The Agency argues that the proposal would establish a seniority-based retention system and, as such, conflicts with the regulation, which establishes retention standing based on performance alone.

      The Agency contends that the regulation is essential to its mission and consistent with effective and efficient Government. According to the Agency, basing retention standing on seniority would have a major impact on the mission of the National Guard -- military readiness -- because it could interfere with retention of best performers. The Agency relies, in this regard, on the court's statement in American Federation of Government Employees, Local 2953 v. FLRA, 730 F.2d 1534, 1544 (D.C. Cir. 1984) (AFGE, Local 2953), that "it is essential that the strength . . . of the . . . National Guard . . . be maintained and assured at all times."

      The Agency also contends that TPR 300 (351) is necessary to ensure the maintenance of the merit principles set out at 5 U.S.C. §2301(b)(5) and (6). [n1] In particular, the Agency claims that the proposal is inconsistent with an efficient Government and with retention based on performance.

      Finally, the Agency asserts that TPR 300 (351) implements a nondiscretionary mandate to the Agency under the Technician Act, 32 U.S.C. § 709(f), [n2] and 5 U.S.C. § 2301(b) and (c). [n3] The Agency relies on the court's statement in AFGE, Local 2953, 730 F.2d at 1546, that the Technician Act "ensur[es] the Guard's ability to recruit and retain technicians . . . and preserv[es] the command authority of the state adjutants general in personnel actions in general and reductions-in-force in particular." [n4] 

B.     Union

      The Union asserts that the retention system encompassed by TPR 300 (351) is not essential. According to the Union, the proposal would not require retention of any employees who are not qualified or do not acceptably perform their duties.

      The Union also asserts that TPR 300 (351) is not necessary to ensure the maintenance of merit principles. The Union points out, in this regard, that 5 U.S.C. § 2301(b)(6) concerns the separation of employees for unacceptable performance, not RIFs. The Union also claims that interpreting section 2301(b)(6) as mandating that retention standing be based on performance alone is inconsistent with 5 U.S.C. § 3502(a), which provides that RIF regulations must give effect to tenure group, military preference, length of service, and performance.Finally, the Union asserts that TPR 300 (351) does not implement a nondiscretionary mandate under law. The Union argues that nothing in 5 U.S.C. § 2301(b) or the Technician Act requires that RIF retention be based only on performance.

IV.     Meaning of the Proposal

      The parties agree that the proposal determines the order in which unit employees are listed on retention registers for release in a RIF. See Post-Petition Conference Record at 1-2. Under the proposal, the Agency would be required to place employees in one of three tenure groups: non-probationary permanent employees, probationary permanent employees, and indefinite employees. Within each group, employees would be listed in descending order based on their length of service, augmented by up to 30 years of service based on their last three performance appraisals. [ v56 p676 ]

V.     The proposal does not conflict with an Agency regulation for which there is a compelling need.

      To demonstrate that a proposal is outside the duty to bargain based on conflict with an agency regulation for which there is a compelling need, an agency must: (1) identify a specific agency regulation; (2) show that there is a conflict between the regulation and the proposal; and (3) demonstrate that the regulation is supported by a compelling need within the meaning of section 2424.50 of the Authority's Regulations. [n5] See American Federation of Government Employees, Locals 3807 and 3824 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 55 FLRA 1, 3 (1998).

      With respect to the first requirement, there is no dispute that TPR 300 (351) is an Agency regulation. With respect to the second requirement, there is no dispute that the regulation and the proposal conflict because: (1) TPR 300 (351) bases retention standing on performance ratings, with length of service used as a tie breaker; and (2) the proposal bases retention standing of length of service, augmented by performance ratings. With respect to the third requirement, the Agency asserts compelling need under each of the three examples provided in section 2424.50 of the Authority's Regulations, which we address as follows.

A.     TPR 300 (351) is not essential to the accomplishment of the Agency's mission.

      To establish a compelling need under section 2424.50(a),the Agency must demonstrate that the regulation is essential,as distinguished from helpful or desirable, to the accomplishment of its mission or the execution of itsfunctions in an effective and efficient manner. See National Association of Government Employees, Local R7-72 and U.S. Department of The Army, Rock Island Arsenal, Rock Island, Illinois, 38 FLRA 1223 (1990).

      In support of its contention that the regulation is essential, the Agency makes one argument: that, by requiring it to consider length of service, the proposal would have a major impact on military readiness. However, the Agency does not explain how TPR 300 (351) is essential to preserve military readiness. In particular, although the Agency asserts that the proposal would have a detrimental effect on military readiness, the Agency has not demonstrated how considering length of service in addition to performance would have such effect. The Agency does not assert, for example, that its more senior employees are less-skilled, or that they have received, or are more likely to receive, lower performance appraisals than more junior employees. We note, in this connection, that nothing in the regulation indicates that seniority may not be considered in determining retention standing. In fact, both the regulation and the proposal use seniority as part of the formula for retention. [n6] Further, the proposal does not eliminate consideration of, and instead accords significant weight to, performance. For example, an employee with performance appraisals of "exceeds fully successful" for 3 years would be credited with 30 years' additional seniority over an employee who was "unsuccessful."

      The Agency's reliance on AFGE, Local 2953 is misplaced. In that case, the court agreed with the Authority that a union proposal prohibiting consideration of military performance in determining retention standing was inconsistent with an Agency regulation for which there was a compelling need. The court and the Authority found that an Agency regulation requiring consideration of military and civilian performance implemented an essentially nondiscretionary mandate of the Technician Act. The court held, in this connection, "that the primary mandate of the [Technician Act] is to insure that the military capability of the guard is effective and efficient, and that the National Guard was not required to engage in collective bargaining negotiations over the union's proposal that completely eliminated the military rating and evaluations from the RIF process." 730 F.2d at 1546 (emphasis in original). In this case, by contrast, the Agency has not asserted that the proposal here eliminates the consideration of military performance in any way. In this regard, the proposal encompasses the same performance ratings that are used in the Agency regulation. [ v56 p677 ]

      Apart from its conclusory reasoning, the Agency provides no basis for concluding that, if agreed upon and implemented, the Union's proposal would affect military readiness by requiring that its "best performers" be released in a RIF. See Statement of Position at 5. Accordingly, we find that the Agency has not established a compelling need for TPR 300 (351) under section 2424.50(a) of the Authority's Regulations. See American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 466 (1991) (generalized and conclusory reasoning is not enough to support a finding of compelling need).

B.     TPR 300 (351) is not necessary to ensure the maintenance of merit principles.

      To establish compelling need under section 2424.50(b) of the Authority's Regulations, an agency must demonstrate that a disputed rule or regulation is necessary to ensure maintenance of basic merit principles. See National Association of Government Employees, Local R7-23 and Department of the Air Force, Headquarters, 375th Air Base Group (Mac), Scott Air Force Base, Illinois, 26 FLRA 916, 919 (1987).

      We conclude that the Agency has not established that the disputed regulation is necessary to ensure maintenance of the two merit principles on which it relies. See note 1, supra.

      With respect to 5 U.S.C. § 2301(b)(5), the Agency has not asserted, or established, that its regulation is essential for effective and efficient "use" of the workforce. Accordingly, consistent with our rejection of the Agency's argument that the regulation is essential to accomplishment of its mission, we reject the Agency's argument that the regulation implements a mandate of section 2301(b)(5).

      With respect to 5 U.S.C. § 2301(b)(6), the Union correctly points out that the provision applies to the separation of employees for unacceptable performance. See note 1, supra. Separations for unacceptable performance are distinct from separations as a result of RIFs, which are undertaken because of "[r]eorganizations, realignments, and work force reductions[.]" TPR 300 (351) 1-1. Neither the proposal nor the regulation address separations for unacceptable performance, and the Agency has not alleged that the proposal would inhibit it from implementing such separations. As such, the Agency has not demonstrated that TPR 300 (351) is necessary to ensure the maintenance of the merit principle set forth in section 2301(b)(6).

      We note that, as argued by the Union, the law governing RIFs of most Federal employees specifically provides that seniority be considered a factor in determining RIF retention. See 5 U.S.C. § 3502(a) (Congress mandated that RIF retention regulations promulgated by OPM for Federal employees "give due effect to" tenure of employment, military preference, length of service, and efficiency or performance ratings). The Agency correctly points out that section 3502 does not apply to the unit employees involved in this case and that, instead, the Agency has independent authority to promulgate RIF regulations under 32 U.S.C. § 709. However, the fact that Congress specifically mandated the consideration of length of service in evaluating RIF retention indicates that it does not view such consideration as improper or inconsistent with basic merit principles set forth in 5 U.S.C. § 2301.

      Based on the foregoing, we find that the Agency has not established a compelling need for TPR 300 (351) under section 2424.50(b) of the Authority's Regulations.

C.     TPR 300 (351) does not implement a nondiscretionary mandate under law.

      Under section 2424.50(c) of the Authority's Regulations,a compelling need exists for an agency regulation if it implements an essentially nondiscretionary mandate under law or other outside authority. See Service Employees International Union, Local 556 and U.S. Department of the Navy, Navy Exchange, Pearl Harbor, Hawaii, 37 FLRA 320, 341 (1990). The Agency asserts that TPR 300 (351) implements a mandate to the Agency under 5 U.S.C. § 2301(b) and 9(c) and the Technician Act that is essentially nondiscretionary.

      Consistent with the foregoing discussion, nothing in 5 U.S.C. § 2301(b)(5) and (b)(6) mandates that the Agency establish RIF retention rules that do not consider seniority. The Agency does not rely on any subsections of section 2301(b) other than (5) and (6). Accordingly, we reject the Agency's argument that the disputed regulation implements a nondiscretionary mandate of section 2301(b). For the same reasons, we reject the Agency's argument that the disputed regulation implements a mandate under section 2301(c), which merely requires agencies to implement regulations consistent with merit system principles. See note 3, supra.

      With respect to the Technician Act, the Agency claims that TPR 300 (351) implements section 10 of the Technician Act of 1968, Pub. L. No. 90-486, which provides that regulations issued by the Army and Air Force under the Act "shall be approved by the Secretary of [ v56 p678 ] Defense and shall, so far as practical, be uniform." Section 10 is not currently codified in the U.S. Code. Instead, current authorization for the issuance of regulations is contained in 32 U.S.C. § 709(f), which we apply here and which provides:

Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned-
. . . .
(3) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned . . . .

      There is no dispute that nothing in this, or any other, section of the Technician Act establishes or references a particular mandate for the content of Agency RIF regulations. The Agency asserts, however, that the disputed regulations are mandated by the "fundamental purpose" of the Technician Act, which is to "preserve the Guard's military effectiveness and efficiency," by "ensuring the Guard's ability to recruit and retain technicians[.]" Statement of Position at 6, 7 (citing AFGE, Local 2953, 730 F.2d 1534). The Agency relies, in this connection, on the Authority's decision in Association of Civilian Technicians, Pennsylvania State Council and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50 (1980) (Pennsylvania National Guard), and the court's decision in AFGE, Local 2953.

      The Agency's argument misapprehends the requirement in section 2424.50(c) of the Authority's Regulations. In particular, as both the Authority's decision in Pennsylvania National Guard and the court's decision in AFGE, Local 2953 demonstrate, the nondiscretionary mandate referenced in the regulation must be specific and the conflict between the regulation and the proposal must relate to that specific mandate.

      The distinction between proposals that conflict with a specific mandate and those that conflict with a regulation, but not a specific mandate, is clear in Pennsylvania National Guard. There, the Authority found that certain aspects of the Agency's RIF regulations implemented nondiscretionary mandates of the Technician Act, while others did not. In particular, the Authority held that the Technician Act mandated that both civilian and military performance appraisals be considered in a technician's evaluation. As a result, the Authority concluded that compelling need existed for portions of the RIF regulations encompassing these requirements so as to render nonnegotiable a union proposal that conflicted with the regulations. Pennsylvania National Guard, 3 FLRA at 54. However, the Authority also held that the Technician Act did not "specif[y] what relative weight must be accorded to each appraisal." Id. Therefore, the Authority concluded that the RIF regulations did not render nonnegotiable a union proposal establishing such weights. Id.

      The court's decision in AFGE, Local 2953 also supports the conclusion that, here, the disputed regulation does not implement a nondiscretionary mandate of the Technician Act. As noted above, the court in that case affirmed the Authority's determination that a proposal eliminating consideration of military evaluations in RIFs was outside the duty to bargain because it was inconsistent with an Agency regulation that implemented a nondiscretionary mandate of the Technician Act. In so doing, the court rejected the argument that the Authority had erred because "the plain language" of the Act "mentions nothing at all about 'evaluations' or their use." 730 F.2d at 1544. The court stated, in this regard, that the evaluation of employees was "implicit in every military organization . . . and need not be explicated." Id. The court found an "express mandate" in the Technician Act that requires "both military and technician evaluations to be taken into account in executing a RIF." [n7] Id. at 1548.

      The Agency has not pointed to a specific mandate, either implicit or explicit, in the Technician Act that prevents it from determining retention standing based on both seniority and performance. Indeed, as pointed out above, the Agency's regulation itself encompasses both seniority and performance, albeit in a different combination from that in the proposal. Accordingly, we find that the Agency has not established a compelling need for TPR 300 (351) under section 2424.50(c) of the Authority's Regulations.

VI.     Order

      The Agency shall, upon request, or as otherwise agreed to by the parties, bargain over the Union's proposal.



Footnote # 1 for 56 FLRA No. 111

   5 U.S.C. § 2301(b)(5) and (6) provide:

(5) The Federal work force should be used efficiently and effectively.
(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.

Footnote # 2 for 56 FLRA No. 111

   32 U.S.C. § 709(f) provides, in pertinent part, that, "Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned-":

(3) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned . . . .

Footnote # 3 for 56 FLRA No. 111

   Relevant portions of 5 U.S.C. § 2301(b) are set forth in note 1, supra. Section 2301(c) provides, in pertinent:

(2) . . . the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations or directives;which is consistent with the provisions of this title and which the . . . head . . . determines is necessary to ensure that personnel management is based on and embodies the merit system principles.

Footnote # 4 for 56 FLRA No. 111

   The Agency does not argue that the proposal relates to a military aspect of technician employment or is otherwise contrary to law. Therefore, the Authority's recent precedent on those issues is not relevant. See Association of Civilian Technicians, Texas Lone Star Chapter 100 and U.S. Department of Defense, National Guard Bureau, State of Texas Adjutant General's Department, 55 FLRA 1226 (2000), petition for review filed, Association of Civilian Technicians, Texas Lone Star Chapter 100 and Association of Civilian Technicians, Wisconsin Chapter 26 (Army) v. FLRA, No. 00-1245 (D.C. Cir. June 12, 2000).


Footnote # 5 for 56 FLRA No. 111

   5 C.F.R. § 2424.50 provides, in pertinent part:

A compelling need exists for an agency rule or regulation . . . when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria:
(a) The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission . . . in a manner that is consistent with the requirements of an effective and efficient government.
(b) The rule or regulation is necessary to ensure the maintenance of basic merit principles.
(c) The rule or regulation implements a mandate to the agency . . . under law or other outside authority, which implementation is essentially nondiscretionary in nature.

Footnote # 6 for 56 FLRA No. 111

   The proposal uses seniority as the second ranking factor, after tenure group. See Proposal, Article 22-3(b)(