National Guard Bureau (Respondent) and Association of Civilian Technicians (Charging Party)
[ v57 p240 ]
57 FLRA No. 50
NATIONAL GUARD BUREAU
ASSOCIATION OF CIVILIAN TECHNICIANS
DECISION AND ORDER
June 6, 2001
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members.
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent (National Guard Bureau). The General Counsel and the Charging Party (Association of Civilian Technicians) each filed an opposition to the Respondent's exceptions.
The amended complaint alleges that the Respondent breached its duty to consult and violated § 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) [n1] by issuing a Release abolishing certain position descriptions without providing national consultation rights to the Charging Party. The Judge concluded that the Respondent had violated the Statute as alleged and ordered, as relevant here, a status quo ante remedy and a nationwide posting.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision.
II. Background and the Judge's Decision
The Charging Party represents more than 50% of eligible bargaining unit employees in the Army National Guard and thus has been granted national consultation rights by the Respondent pursuant to § 7113(a) of the Statute. These employees are technicians employed pursuant to the National Guard Technicians Act of 1968, 32 U.S.C. § 709. The National Guard has two types of technicians: (1) dual status technicians, who must be members of the National Guard as a prerequisite to their civilian employment; and (2) non-dual status technicians, who are not required to be military members. Dual status technicians are part of the excepted service, and non-dual status technicians are part of the competitive service. The vast majority of technicians are dual status.
Over the last few years, Congress has begun the process of eliminating non-dual status technician positions in the National Guard. The National Defense Authorization Act for Fiscal Year 1996 mandates that all future hires in the National Guard technician program be military members that is, dual status technicians. Pub. L. No. 104-106, § 513, 110 Stat. 186, 306 (1995). Similarly, the National Defense Authorization Act for Fiscal Year 1998 requires that: (a) the number of non-dual status technicians must be reduced by 50% by September 30, 2002; and (b) all non-dual status technician positions must be eliminated by September 30, 2007. [n2] Pub. L. No. 105-85, § 523, 111 Stat. 1629, 1737 (1997).
In June 1998, the Respondent issued to the state National Guards a Position Description Release (Release) that included new descriptions for positions in the United States Property and Fiscal Office Supply and Services Division of the Army National Guard. No national consultation took place prior to this issuance. The Release abolished all existing position descriptions that permitted the positions to be held by either a dual status or non-dual status technician and replaced these with new position descriptions stating that the positions could be held by only dual status technicians. The Release also allowed non-dual status incumbents of [ v57 p241 ] those positions to continue to work under their previous descriptions and to bid on positions being vacated by other non-dual status technicians.
B. The Judge's Decision
The Judge found that the Respondent's issuance of the Release was a substantive change in conditions of employment. According to the Judge, the Release limited the total number of positions that could be held by a non-dual status technician, which shrunk the pool of positions to which a non-dual status technician could be promoted. [n3] The Judge found "immaterial" the Respondent's argument that it was not obligated to consult because the change concerns a military aspect of technician employment. Judge's Decision at 10. Citing National Guard Bureau, 22 FLRA 836 (1986) (NGB), the Judge stated that the only prerequisite under the Statute for the obligation to consult is that there be a substantive change in conditions of employment.
As relevant here, the Judge ordered a status quo ante remedy and a nationwide posting. Although he noted that the Authority had never granted a status quo ante remedy in a consultation case, the Judge explained that such a remedy was appropriate in this case because (1) unlike prior cases, here the Charging Party had requested it, and (2) it was necessary to effectively provide the Charging Party the opportunity to exercise its consultation rights.
III. Positions of the Parties
A. Respondent's Exceptions
With regard to the Judge's conclusion that the Release made a substantive change in the technicians' conditions of employment, the Respondent makes three arguments. First, the Respondent argues that there was no change. In this regard, the Respondent asserts that although the Release abolished position descriptions for non-dual status technicians, this was consistent with previous practices (not at issue here) to eliminate non-dual status technician positions. The Respondent further contends that not permitting a competitive service (non-dual status) employee to apply for an excepted service position has been the longstanding practice of the National Guard.
Second, the Respondent argues in the alternative that if there was a change, it was not substantive within the meaning of 5 U.S.C. § 7113(b)(1)(A). In this regard, the Respondent asserts that the Judge based his decision on `apparent' rather than `real' changes. Respondent's Exceptions (Ex.) at 2. Noting that there are no Authority decisions defining substantive within the context of § 7113(b)(1)(A), the Respondent argues that the Judge committed prejudicial error by failing to address the definition of substantive changes.
Third, the Respondent argues that the Release concerned a military matter and not conditions of employment and, therefore, the Judge erred by failing to address the military aspects doctrine. In this regard, the Respondent asserts that it is well settled in Authority decisions that military aspects of technician employment are not conditions of employment and cites ACT, Texas Lone Star Chapter 100, 55 FLRA 1226 (2000) (ACT, Texas), aff'd, No. 00-1245 (D.C. Cir. June 1, 2001). Respondent's Ex. at 5. Noting that this doctrine arose in the context of bargaining obligations, the Respondent contends that it should also apply to national consultation rights.
The Respondent also asserts that certain closing comments made by the Judge at the end of the hearing amount to prejudicial error. [n4] In the Respondent's view, the comments demonstrate that the Judge made a decision without considering the record as a whole or post-hearing briefs.
With regard to the Judge's remedy, the Respondent makes two arguments. First, the Respondent asserts that the following part of the Judge's remedy is contrary to the Technicians Act: (c) Withdrawal of all placement actions from which classified (non-dual status) employees were excluded from consideration due to the Release of June 29, 1998, Re-announce and Re-run all such placement actions. Respondent's Ex. at 8. In this regard, relying on United States Department of Defense, National Guard Bureau, 55 FLRA 657 (1999) (Dep't of Defense), the Respondent asserts that the state [ v57 p242 ] adjutants general and not the Respondent employ the technicians. Further, the Respondent contends that it lacks the ability to direct the states to accomplish the ordered remedy.
Second, the Respondent argues that the order to post the Notice wherever employees represented by [ACT] are located is overbroad. Respondent's Ex. at 9. The posting should be limited, according to the Respondent, to those bargaining units where [ACT] represents the United States Property and Fiscal Office of the Army National Guard because those are the only employees affected by the Release. Id. Further, the Respondent asserts that it acted in good faith and that, therefore, cases in which the Authority issued broad postings to remedy multiple ULPs are distinguishable. Id. at 10 (citing United States Dep't of Justice, Fed'l Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA 388 (1999)).
B. General Counsel's Opposition
The General Counsel argues that the Judge properly found that a substantive change occurred because the Release changed the number of positions non-dual status employees were eligible to occupy, thus reducing mobility and promotion potential. The General Counsel also argues that the change in this case was substantive, citing NGB, 22 FLRA 836, the case relied on by the Judge.
The General Counsel contends that the Judge did not err by failing to address the Respondent's reliance on the military aspects doctrine. The General Counsel points out that the Authority has held that the doctrine is not based on the definition of conditions of employment, citing ACT, Texas, 55 FLRA at 1229. Further, the General Counsel also similarly asserts that the doctrine applies to only dual status technicians.
The General Counsel argues that, at most, the Judge's closing comments show that he had reached tentative conclusions after presiding over the entire hearing.
With regard to the Judge's proposed order, the General Counsel notes that the Respondent does not challenge the appropriateness of the status quo ante remedy but rather argues that it lacks the authority to implement the remedy. In this regard, the General Counsel points out that the state Guards used the new position descriptions because they were advised to do so by the Respondent in the Release. Accordingly, argues the General Counsel, the Respondent could issue a new release that would rescind the Release and require all placement actions involving the rescinded descriptions to be rerun. The General Counsel suggests that the order be modified to reflect that the Respondent would not itself rerun placement actions involving the rescinded descriptions but would instead issue a release instructing the state Guards to do so.
The General Counsel argues that the Judge's nationwide posting is appropriate for several reasons. First, all non-dual status employees are affected by the change, not just those that currently work in the Property and Fiscal Office of the Army National Guard. Second, the ULP was committed by national level employees, not personnel within the Property and Fiscal Office. Finally, the record does not indicate whether the Respondent in fact acted in good faith.
C. Charging Party's Opposition
Like the General Counsel, the Charging Party asserts that a substantive change occurred because the Release decreased the number of jobs open to non-dual status employees.
The Charging Party argues that the Respondent's position regarding the Authority's military aspects doctrine is erroneous for three reasons. First, the Charging Party notes that in the case cited by the Respondent, ACT, Texas, the Authority rejected the idea that military aspects fall outside the Statute's definition of conditions of employment. Second, the Charging Party argues that the military aspects doctrine is not applicable because the employees whose conditions changed are not military members that is, they are non-dual status. In this regard, the Charging Party asserts that the Authority has never applied this doctrine to non-dual status technicians. Third, the Charging Party claims that the doctrine has no basis in law.
The Charging Party contends that the Judge's closing remarks were not prejudicial because they were tentative and as such, do not indicate that the Judge had already made a decision but rather indicate the opposite. However, the Charging Party argues that even if the Judge had made up his mind, it would have been harmless error because the record establishes a violation of § 7113.
With regard to the remedy, the Charging Party states that the Respondent can direct the states to restore the status quo, citing a National Guard Bureau regulation, TPR 250.1, para. 1-4e. [n5] This regulation, although recognizing that the adjutants general have the authority to employ and manage technicians, makes clear that all personnel actions will be in accordance with applicable Federal statutes. TPR 250.1, para. 1-4f. In addition, the Charging Party contends that the Respondent's assertion of impotence to require compliance with the law lacks [ v57 p243 ] credibility because the Respondent, historically, has been inconsistent on this issue. Charging Party's Opposition at 5-6. In support, the Charging Party attaches documents it believes prove the Respondent has inconsistently argued this point in various proceedings before the FLRA.
The Charging Party argues that the posting is appropriate to inform all agency activities where employees represented by ACT work that the Respondent has authority to order adjutants general to comply with the Respondent's directives and to take remedial action when those directives are found to violate federal law. According to the Charging Party, this broad posting is particularly necessary because of the Respondent's inconsistent positions before the Authority regarding its role in National Guard labor relations.
IV. Analysis and Conclusions
A. The Respondent Made a "Substantive Change in Conditions of Employment" Within the Meaning of § 7113 of the Statute
The Judge properly concluded that the Respondent's limitation of the employees' promotion potential was a substantive change within the meaning of § 7113 of the Statute. Section 7113(b) requires an agency to inform a union with national consultation rights of any substantive changes in conditions of employment proposed by the agency. NGB, 22 FLRA at 839. The questions here are thus whether there has been a change in the conditions of employment, and if so, whether the change was substantive.
The Authority has held that the opportunity for promotion is a condition of employment. See Letterkenny Army Depot, 34 FLRA 606, 611 (1990) (Consideration for promotion is a condition of employment within the meaning of section 7103(a)(14) of the Statute.). The Authority has also determined that limiting employees' promotion potential is a change within the meaning of § 7113. Nat'l Guard Bureau, 24 FLRA 577, 579 (1986); NGB, 22 FLRA at 839.
Here, the Respondent changed a condition of employment of the non-dual status (competitive service) employees when it limited their promotion potential by precluding them from competing for certain positions. Specifically, the Release took positions for which both excepted and competitive service employees were eligible and transformed them into positions for which only excepted employees were eligible. Prior to the Release, any time one of the positions became vacant, a non-dual status employee could apply for it, whether it had been held by a dual status or non-dual status employee. After the Release, non-dual status employees could apply only for positions that had been held by another non-dual status employee. Thus, the Release limited the non-dual status employees' promotion potential and lateral mobility.
The fact that the Respondent's general goal of eliminating non-dual status technicians predated the Release does not alter the fact that the Release took specific steps toward reaching that goal. These steps constitute a change in conditions of employment.
The Respondent's argument that there has been no change, because non-dual status technicians have always been limited to applying for positions designated as competitive service, similarly is not dispositive. The Release had the effect of narrowing the number of positions that are designated competitive service. Thus, the change involves the number of positions for which the employees are eligible not the policy that non-dual status technicians can apply only for positions that are non-dual status.
With regard to the Respondent's alternative argument, it was not necessary for the Judge to define the limits of substantive within the meaning of § 7113 because Authority precedent has held such a change to be substantive. NGB, 22 FLRA at 840. See also Nat'l Guard Bureau, 18 FLRA 475, 477 (1985) (converting dual-status technician positions to military positions is a substantive change in personnel policy). In NGB, the agency had limited the employees' promotion potential by altering who could apply for particular positions. The Authority rejected the argument that such a change was minimal and held that it clearly constituted a substantive change in personnel policy. NGB, 22 FLRA at 840. Here, the agency has similarly limited promotion potential by altering who may apply for particular positions. As a result, and contrary to the Respondent's argument, the change accomplished by the Release was real as opposed to apparent. Accordingly, the Judge properly relied on NGB and determined that the change in this case was also substantive. [ v57 p244 ]
B. The "Military Aspect of Technician Employment" Doctrine Is Inapplicable
Contrary to the Respondent's argument, the Judge did not err by failing to consider the military aspects doctrine because that doctrine is inapplicable to this case. The duty to consult is triggered by any substantive change in conditions of employment. 5 U.S.C. § 7113(b)(1)(A). As the Authority has recently clarified, the military aspects doctrine is a limitation on the duty to bargain, pursuant to § 7117(a) of the Statute, not a limitation on the definition of conditions of employment, pursuant to § 7103(a)(14)(C). See ACT, Tex., 55 FLRA at 1229.
In addition, the ilitary aspects doctrine recognizes the unique employment status of dual status technicians who, as a condition of their employment, must be members of the military. Their bargaining rights extend only to their civilian employment and not to their military membership. Accordingly, under Authority case law, these dual status technicians may bargain over matters that relate to the civilian aspects but not the military aspects of their employment. See ACT, Tex., 55 FLRA at 1228 and cases cited therein. In contrast, non-dual status employees are not military members. Therefore, with respect to the non-dual status technicians involved in this case, the military aspects doctrine does not resolve the question of whether conditions of employment are at issue.
We reiterate that the Release limits the promotion opportunities of the non-dual status technicians. Clearly, this change concerns their conditions of employment. See 5 U.S.C. § 7103(a)(14); Letterkenny Army Depot, 34 FLRA at 611.
Based on the above, we find that the Respondent has failed to consult with the Charging Party regarding a substantive change in conditions of employment. Accordingly, we affirm the Judge's finding that this failure violates this Statute.
C. The Judge's Closing Comments Do Not Indicate That the Decision Is Based on Prejudicial Error
The Judge's closing comments do not establish prejudicial error. These comments reveal merely that, after presiding over the entire hearing, the Judge may have reached tentative conclusions about the case, not that he had prejudged the case. Further, the Judge qualified his comments with phrases that evidenced that he was keeping his mind open until after he received post-hearing briefs. The Respondent did not cite any case law finding that such opinions expressed by a judge constitute prejudicial error. We therefore deny this exception.
D. The Status Quo Ante Remedy Is Not Contrary to the Technicians Act, 32 U.S.C. § 709
1. Respondent's Motion to Strike
As a preliminary matter, we decide whether to consider the attachments to the Charging Party's Opposition regarding the status quo ante remedy. These documents are a copy of National Guard Bureau regulation, TPR 250.1, and three documents from FLRA proceedings. The Respondent has moved to strike these attachments because most of them existed before the hearing and therefore should have been offered during the proceeding, citing 5 C.F.R. § 2429.5.
We deny the Respondent's motion to strike. First, § 2429.5 does not act as a bar because the documents relate to the appropriateness of the Judge's remedy, an issue that arose after the hearing. Second, as the Charging Party points out, the Authority may take official notice of laws, United States Dep't of Trans., 54 FLRA 584, 585 n.1 (1998), and of the record of other FLRA proceedings, Phoenix Area Indian Health Serv., Sacaton Serv. Unit, Hu Hu Kam Mem'l Hosp., Sacaton, Ariz., 53 FLRA 1200, 1202 n.7 (1998). See 5 C.F.R. § 2429.5.
2. Status Quo Ante Relief
The purpose of status quo ante relief is to place parties in the positions that they would have occupied had there been no unlawful conduct. Dep't of Veterans Affairs Med. Ctr., Asheville, N.C., 51 FLRA 1572, 1580 (1996). Here, the Respondent does not challenge the appropriateness of the status quo ante remedy. Rather, the Respondent argues only that it cannot accomplish the remedy because the National Guards are state entities over which the Respondent has no authority. This contention is contrary to well-established precedent and the Respondent's regulation. [n6]
First, pursuant to the Technicians Act, technicians are federal employees and, for the purposes of the Statute, the state National Guards are federal agencies that must comply with the Statute's mandates. See Puerto Rico Air Nat'l Guard, 156th Airlift Wing (AMC), Carolina, P.R., 56 FLRA 174, 177-78 (2000), aff'd, 239 F.3d 66 (1st Cir. 2001), and cases cited therein.
Second, as the Technicians Act makes clear, the adjutants general are subject to federal regulation. [n7] Section 709(a) states that persons may be employed as [ v57 p245 ] Guard technicians [u]nder regulations prescribed by the Secretary of the Army or the Secretary of the Air Force. The secretaries have delegated this authority to the Respondent which, among other things, issues regulations that govern the technician program. These regulations make clear that the adjutants general must comply with federal statutes and that the Respondent has the authority to "direct corrective action on any matter not found to be in accordance with applicable laws, rules, regulations, or NGB policy." TPR 250.1, para. 1-4e (emphasis added). Thus, the Respondent, pursuant to its own regulation, may direct the state Guards to correct any action inconsistent with the Statute.
We note, however, that the order as proposed by the Judge directs the Respondent itself to withdraw certain placement actions that took place pursuant to the Release. We modify the order to reflect that the Respondent itself is not directed to rerun placement actions involving the rescinded descriptions but, instead, is directed to issue a release instructing the state Guards to do so. In addition, we direct the Respondent to ensure that the state Guards comply with that release.
E. The Posting Is Not Overbroad
The posting of a notice serves the two remedial purposes of demonstrating to bargaining unit employees that 1) the Authority will vigorously enforce rights guaranteed by the Statute, and 2) the respondent recognizes and intends to fulfill its obligations under the Statute. United States Dep't of Justice, 55 FLRA at 394-95. In analyzing the proper scope of a posting requirement, the Authority considers whether the posting's scope serves the two goals of the notice remedy. Id. at 394.
We reject the Respondent's argument that the posting should be limited to those bargaining units where the Charging Party represents the United States Property and Fiscal Office of the Army National Guard. The Respondent in this case failed to comply with its national consultation obligations and in such cases, the Authority has typically issued a nationwide posting. See, e.g., NGB, 22 FLRA 836, 841 (1986) (posting ordered at all of [the respondent's] facilities); Nat'l Guard Bureau, 18 FLRA 475, 479 (1985) (same). Further, although the Release concerned positions in the Property and Fiscal Office of the Army National Guard, it changed the promotional opportunities of all non-dual status technicians. Additionally, and similarly, a nationwide posting is appropriate when the ULP is committed at the national level. See FDIC, Washington, D.C., 48 FLRA 313, 331 (1993) (holding that a nationwide posting is necessary where ULP committed at national level), pet. for review denied, No. 93-1694, (D.C. Cir. Dec. 22, 1994). Because a national posting would demonstrate that the Authority will enforce, and the Respondent will comply with, national consultation rights, the scope of the posting is appropriate in this case.
Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the National Guard Bureau shall:
1. Cease and desist from:
(a) Failing to consult with the Association of Civilian Technicians before replacing position descriptions that allow non-dual status technicians to occupy the positions with position descriptions that make membership in the National Guard a prerequisite to occupying the positions.
(b) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Withdraw the new Position Descriptions it unilaterally implemented on June 29, 1998.
(b) Reinstate the Position Descriptions it abolished on June 29, 1998, and which were in effect before June 29, 1998.
(c) Issue a release instructing the state Guards to withdraw all placement actions from which Classified (non-dual status) employees were excluded from consideration due to the Release of June 29, 1998, re-announce, and re-run all such placement actions.
(d) Ensure that the state Guards withdraw all placement actions from which Classified (non-dual status) employees were excluded from consideration due to the Release of June 29, 1998, re-announce, and re-run all such placement actions.
(e) Consult with the Association of Civilian Technicians about any decision to replace position descriptions that permit non-dual status technicians to occupy the positions in the Army National Guard, [ v57 p246 ] United States Property and Fiscal Office, Supply and Services Division.
(f) Post wherever employees represented by the Association of Civilian Technicians are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chief of the National Guard Bureau, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(g) Pursuant to § 2423.41(e) of the Authority's Regulations, 5 C.F.R. § 2423.41(e), notify the Regional Director, Washington Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the National Guard Bureau violated the Federal Service Labor- Management Relations Statute and has ordered us to post and abide by this notice.
WE HEREBY NOTIFY BARGAINING UNIT EMPLOYEES THAT:
WE WILL NOT fail to consult with the Association of Civilian Technicians before replacing position descriptions that allow non-dual status technicians to occupy the positions with position descriptions that make membership in the National Guard a prerequisite to occupying the positions.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL withdraw the new Position Descriptions we unilaterally implemented on June 29, 1998.
WE WILL reinstate the Position Descriptions we abolished on June 29, 1998, and which were in effect before June 29, 1998.
WE WILL issue a release instructing state National Guards to withdraw all placement actions from which Classified (non-dual status) employees were excluded from consideration due to the Release of June 29, 1998 and to re- announce and re-run all such placement actions.
WE WILL ensure that the state Guards withdraw all placement actions from which Classified (non-dual status) employees were excluded from consideration due to the Release of June 29, 1998, re-announce, and re-run all such placement actions.
WE WILL consult with the Association of Civilian Technicians about any decision to replace position descriptions that permit non-dual status technicians to occupy the positions in the Army National Guard, United States Property and Fiscal Office, Supply and Services Division.
NATIONAL GUARD BUREAU
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Regional Office, whose address is: Tech World Plaza, 800 K Street, NW., Suite 910N, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700.
File 1: Authority's Decision in 57 FLRA No.
File 2: ALJ's Decision
Footnote # 1 for 57 FLRA No. 50 - Authority's Decision
The original complaint alleged violations of only § 7116(a)(1) and (8); the Judge amended the complaint sua sponte to allege a violation of § 7116(a)(5). Because the parties do not dispute this amendment, it will not be discussed further.
Footnote # 2 for 57 FLRA No. 50 - Authority's Decision