Association of Civilian Technicians, Alabama ACT (Union) and State of Alabama National Guard (Activity)  

 2 FLRA No. 39
 
 ASSOCIATION OF CIVILIAN TECHNICIANS,
 ALABAMA ACT
 (Union)
 
 and
 
 STATE OF ALABAMA NATIONAL GUARD
 (Activity)
 
                                            Case No. 0-NG-27
 
                     DECISION ON NEGOTIABILITY APPEAL
 
    IN INITIALLY RESPONDING TO AN AGENCY PROGRAM CONCERNED WITH FILLING
 VACANT NATIONAL GUARD TECHNICIAN POSITIONS WITH ACTIVE DUTY MILITARY
 PERSONNEL, THE UNION PROPOSED TO NEGOTIATE THAT TECHNICIAN POSITIONS
 WITHIN THE UNIT WOULD CONTINUE TO BE FILLED BY CIVILIAN TECHNICIANS.
 /1/ THE AGENCY ALLEGED THAT THE UNION'S PROPOSAL WAS NOT WITHIN THE DUTY
 TO BARGAIN.  THEREAFTER, THE UNION FILED A PETITION FOR REVIEW "ON THE
 SUBJECT OF 'CONVERSION OF CIVILIAN TECHNICIAN SPACES TO FULLTIME
 MILITARY,'" REQUESTING THE AUTHORITY TO DETERMINE "WHETHER OR NOT THE
 IMPLEMENTATION AND IMPACT OF THIS PROGRAM AS IT AFFECTS THE CONDITIONS
 OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES IS NEGOTIABLE." IN ITS
 SUBMISSION TO THE AUTHORITY, THE AGENCY REASSERTED ITS POSITION THAT THE
 UNION'S PROPOSAL PREVIOUSLY ADVERTED TO IS NOT WITHIN THE DUTY TO
 BARGAIN.  IN RESPONSE, THE UNION CONTENDED THAT THE AGENCY HAD NOT
 ADDRESSED THE ISSUE RAISED BY THE UNION IN ITS PETITION FOR AUTHORITY
 REVIEW, I.E., WHETHER THE IMPLEMENTATION AND IMPACT OF THE CONVERSION
 PROGRAM IS NEGOTIABLE.
 
    THUS, IT IS CLEAR THAT THE UNION IS NOT SEEKING AUTHORITY REVIEW AS
 TO WHETHER WHAT THE UNION REFERS TO AS ITS "ORIGINAL PROPOSAL MADE PRIOR
 TO OUR REQUEST TO THE AUTHORITY FOR NEGOTIABILITY DETERMINATION" IS
 WITHIN THE DUTY TO BARGAIN.  RATHER, WITHOUT HAVING PROPOSED SPECIFIC
 LANGUAGE FOR NEGOTIATION, THE UNION APPARENTLY WISHES THE AUTHORITY TO
 RULE GENERALLY AS TO WHETHER IMPLEMENTATION AND IMPACT ON THE SUBJECT OF
 THE AGENCY CONVERSION PROGRAM IS WITHIN THE DUTY TO BARGAIN.  FOR THE
 REASONS STATED BELOW, IT IS CONCLUDED THAT THE UNION'S PETITION FOR
 REVIEW MUST BE DISMISSED.
 
    THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE ESTABLISHES
 THAT THE SCOPE OF THE DUTY TO BARGAIN IN GOOD FAITH OVER CONDITIONS OF
 EMPLOYMENT EXTENDS GENERALLY TO MATTERS NOT INCONSISTENT WITH FEDERAL
 LAW, GOVERNMENT-WIDE RULE OR REGULATION, OR AGENCY RULE OR REGULATION
 FOR WHICH THERE IS A COMPELLING NEED.  /2/ UNDER THE STATUTE, THE
 AUTHORITY MUST RESOLVE ISSUES RELATING TO WHETHER A MATTER PROPOSED FOR
 NEGOTIATION IS WITHIN THE SCOPE OF THE DUTY TO BARGAIN ESTABLISHED BY
 THE STATUTE.  /3/ THE STATUTE REQUIRES THAT IN DOING SO THE AUTHORITY
 ISSUE A WRITTEN, SPECIFICALLY REASONED DECISION TO THE PARTIES IN EACH
 CASE.  /4/
 
    THUS, AN ESSENTIAL ELEMENT OF THE STATUTORY SCHEME FOR AUTHORITY
 RESOLUTION OF DISPUTES OVER THE SCOPE OF THE DUTY TO BARGAIN IS THAT THE
 AUTHORITY WILL DECIDE SUCH CASES BASED ON A RATIONAL ANALYSIS AND
 CONCLUSION AS TO WHETHER A MATTER PROPOSED FOR NEGOTIATION IS
 INCONSISTENT WITH ANY PARTICULAR FEDERAL LAW, GOVERNMENT-WIDE RULE OR
 REGULATION, OR AGENCY RULE OR REGULATION FOR WHICH THERE IS A COMPELLING
 NEED.  IN ORDER TO CARRY OUT THIS STATUTORY REQUIREMENT, THE AUTHORITY
 MUST HAVE SUFFICIENT AND SPECIFIC INFORMATION TO ENABLE IT TO ISSUE A
 REASONED AND CONCLUSIVE DECISION WHETHER NEGOTIATION OF THE MATTERS IN
 DISPUTE WOULD VIOLATE SUCH LAWS AND REGULATIONS.  SUCH A RESOLUTION
 CANNOT BE ACCOMPLISHED IN THE ABSENCE OF A BARGAINING PROPOSAL
 SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND CONTENT SO THAT THE
 AUTHORITY CAN MEASURE WHAT IS PROPOSED FOR NEGOTIATION AGAINST SPECIFIC
 STATUTORY OR REGULATORY PROVISIONS ALLEGED TO BAR NEGOTIATIONS AND
 THEREBY DETERMINE WHETHER A VIOLATION WOULD RESULT IF THE PARTIES WERE
 TO REACH AGREEMENT ON THE DISPUTED MATTER.
 
    IN THIS REGARD, THE AUTHORITY HAS ISSUED RULES AND REGULATIONS
 IMPLEMENTING ITS STATUTORY MANDATE UNDER SECTION 7117, WHICH ESTABLISH
 UNDER SEC. 2424.1 (44 FED.REG.  44765(1979)) THE FOLLOWING CONDITIONS
 GOVERNING AUTHORITY REVIEW OF A NEGOTIABILITY ISSUE:
 
    SEC. 2424.1 CONDITIONS GOVERNING REVIEW.
 
    THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
 CONDITIONS PRESCRIBED BY 5 U.S.C. 7117(B) AND (C), NAMELY:  IF AN AGENCY
 INVOLVED IN COLLECTIVE BARGAINING WITH AN EXCLUSIVE REPRESENTATIVE
 ALLEGES THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO ANY
 MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
 INCONSISTENT WITH LAW, RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE
 MAY APPEAL THE ALLEGATION TO THE AUTHORITY WHEN--
 
    (A) IT DISAGREES WITH THE AGENCY'S ALLEGATION THAT THE MATTER AS
 PROPOSED TO BE BARGAINED, IS INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR REGULATION;  OR
 
    (B) IT BELIEVES, WITH REGARD TO ANY AGENCY RULE OR REGULATION
 ASSERTED BY THE AGENCY AS A BAR TO NEGOTIATIONS ON THE MATTER, AS
 PROPOSED, THAT:
 
    (1) THE RULE OR REGULATION VIOLATES APPLICABLE LAW, OR RULE OR
 REGULATION OF APPROPRIATE AUTHORITY OUTSIDE THE AGENCY;
 
    (2) THE RULE OR REGULATION WAS NOT ISSUED BY THE AGENCY OR BY ANY
 PRIMARY NATIONAL SUBDIVISION OF THE AGENCY, OR OTHERWISE IS NOT
 APPLICABLE TO BAR NEGOTIATIONS WITH THE EXCLUSIVE REPRESENTATIVE, UNDER
 5 U.S.C. 7117(A)(3);  OR
 
    (3) NO COMPELLING NEED EXISTS FOR THE RULE OR REGULATION TO BAR
 NEGOTIATIONS ON THE MATTER, AS PROPOSED, BECAUSE THE RULE OR REGULATION
 DOES NOT MEET THE CRITERIA ESTABLISHED IN SUBPART B OF THIS PART.
 
    IN SUMMARY, THE AUTHORITY, IN IMPLEMENTING ITS STATUTORY MANDATE TO
 DETERMINE WHETHER A MATTER IS WITHIN THE SCOPE OF BARGAINING AUTHORIZED
 BY THE STATUTE, HAS STATED WITH PARTICULARITY THE CONDITION WHICH GIVES
 RISE TO AUTHORITY REVIEW OF A NEGOTIABILITY ISSUE, I.E., "IF AN AGENCY
 INVOLVED IN COLLECTIVE BARGAINING WITH AN EXCLUSIVE REPRESENTATIVE
 ALLEGES THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES NOT EXTEND TO ANY
 MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
 INCONSISTENT WITH LAW, RULE OR REGULATION . . . "
 
    FURTHER, IN THIS CONNECTION, WERE A DECISION ON A NEGOTIABILITY ISSUE
 TO BE REACHED IN THE ABSENCE OF A SPECIFIC AND DELIMITED PROPOSAL, SUCH
 DECISION WOULD BE OF LITTLE PRACTICAL ASSISTANCE TO THE PARTIES AND TO
 THE PUBLIC.  THIS IS SO BECAUSE A BROAD REQUEST TO NEGOTIATE ON A GIVEN
 SUBJECT SUBSUMES AN INFINITE NUMBER OF POTENTIAL PROPOSALS, EACH
 PARTICULAR PROPOSAL HAVING SPECIFIC PURPOSES AND CONSEQUENCES WHICH,
 MEASURED AGAINST APPLICABLE LAW AND RULES OR REGULATIONS, WOULD BE
 DETERMINATIVE OF WHETHER A GIVEN PROPOSAL IS WITHIN THE SCOPE OF THE
 DUTY TO BARGAIN.  THUS, A RULING ON A GENERAL BARGAINING REQUEST COULD
 NOT BE SPECIFIC, BUT WOULD OF NECESSITY BE SO BROAD AS TO BE VIRTUALLY
 WITHOUT DISPOSITIVE SIGNIFICANCE.  SUCH DECISIONS RENDERED IN THE
 ABSTRACT WOULD ONLY DELAY THE BARGAINING PROCESS AND PROMOTE FURTHER
 LITIGATION BETWEEN THE PARTIES, AS WELL AS PROMOTE UNCERTAINTY IN
 UNDERSTANDING BARGAINING DUTIES UNDER THE STATUTE.
 
    THE INSTANT CASE ILLUSTRATES THE FOREGOING DIFFICULTY.  THE UNION
 SEEKS AN AUTHORITY DECISION ON WHETHER IMPACT AND IMPLEMENTATION OF THE
 AGENCY'S CONVERSION PROGRAM IS WITHIN THE DUTY TO BARGAIN BUT HAS NOT
 SUBMITTED A SPECIFIC, DELIMITED PROPOSAL.  IN THIS REGARD, THE STATUTE
 PROVIDES THAT NEGOTIATION ON PROCEDURES WHICH MANAGEMENT WILL OBSERVE IN
 TAKING CERTAIN ACTIONS AND ARRANGEMENTS WHICH WILL BE MADE FOR EMPLOYEES
 ADVERSELY AFFECTED BY THOSE ACTIONS IS MANDATORY UNDER THE STATUTE.  /5/
 HOWEVER, IN THIS REGARD, THE LEGISLATIVE HISTORY IS CLEAR THAT
 NEGOTIATION ON SUCH PROCEDURES MUST NOT BE CONDUCTED IN A WAY THAT
 PREVENTS MANAGEMENT FROM ACTING AT ALL, OR CONVERSELY, IN ANY WAY THAT
 PREVENTS THE EXCLUSIVE REPRESENTATIVE FROM NEGOTIATING FULLY ON
 PROCEDURES.  /6/ THEREFORE, EVEN IF IMPLEMENTATION AND IMPACT WITH
 RESPECT TO THE AGENCY'S CONVERSION PROGRAM IS AS A GENERAL RULE
 MANDATORILY NEGOTIABLE UNDER THE STATUTE, A DEFINITE PROPOSAL IS
 ESSENTIAL IF THE AUTHORITY IS TO MAKE A DECISION IN ACCORDANCE WITH
 CONGRESS' INTENT AND EVALUATE WHETHER THE PROPOSED MATTER WOULD EFFECT
 AN IMPERMISSIBLE RESULT UNDER THE LAW, WHICH WOULD THUS RENDER THE
 PARTICULAR PROPOSAL OUTSIDE THE DUTY TO BARGAIN.
 
    IN THIS CASE, AS PREVIOUSLY NOTED, THE UNION HAS REQUESTED AN
 AUTHORITY DETERMINATION ON THE QUESTION OF WHETHER IMPACT AND
 IMPLEMENTATION BARGAINING IS NEGOTIABLE UNDER THE STATUTE, BUT HAS NEVER
 PRESENTED A SPECIFIC PROPOSAL TO MANAGEMENT REGARDING THE ESSENCE OF ITS
 BARGAINING POSITION IN THIS REGARD.  UNDER THESE CIRCUMSTANCES, THE
 AUTHORITY CONCLUDES THAT THE CONDITIONS FOR REVIEW OF THE UNION'S APPEAL
 HEREIN, AS SET FORTH IN SECTION 7117 OF THE STATUTE AND PART 2424.1 OF
 THE AUTHORITY'S RULES AND REGULATIONS, HAVE NOT BEEN MET.  ACCORDINGLY,
 THE PETITION FOR REVIEW IS HEREBY DISMISSED.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 28, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE UNION'S PROPOSAL STATED AS FOLLOWS:
 
    POSITIONS NOW HELD BY DUAL STATUS TECHNICIANS WILL CONTINUE TO BE
 FILED BY CIVILIAN TECHNICIANS, AND NO VACANCIES OCCURRING BY ATTRITION
 OF THE INCUMBENT TECHNICIANS SHALL BE FILLED WITH MILITARY STATUS
 EMPLOYEES;  NOR WILL NEW POSITIONS, OR UNFILLED EXISTING POSITIONS BE
 FILLED BY ANY OTHER THAN CIVILIAN TECHNICIANS.
 
    /2/ WITH RESPECT TO THE SCOPE OF THE DUTY TO BARGAIN OVER CONDITIONS
 OF EMPLOYMENT, SECTION 7117(A)(92 STAT. 1205) OF THE STATUTE PROVIDES:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY
 FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION, ONLY IF THE RULE OR
 REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION,
 EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY AGENCY RULE OR REGULATION
 REFERRED TO IN PARAGRAPH (3) OF THIS SUBSECTION ONLY IF THE AUTHORITY
 HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO COMPELLING
 NEED(AS DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS
 FOR THE RULE OR REGULATION.
 
    (3) PARAGRAPH (2) OF THE SUBSECTION APPLIES TO ANY RULE OR REGULATION
 ISSUED BY ANY AGENCY OR ISSUED BY ANY PRIMARY NATIONAL SUBDIVISION OF
 SUCH AGENCY, UNLESS AN EXCLUSIVE REPRESENTATIVE REPRESENTS AN
 APPROPRIATE UNIT INCLUDING NOT LESS THAN A MAJORITY OF THE EMPLOYEES IN
 THE ISSUING AGENCY OR PRIMARY NATIONAL SUBDIVISION, AS THE CASE MAY BE,
 TO WHOM THE RULE OR REGULATION IS APPLICABLE.
 
    /3/ SECTION 7105(92 STAT. 1196-7) OF THE STATUTE STATES INSOFAR AS IS
 RELEVANT HEREIN:
 
    SEC. 7105.  POWERS AND DUTIES OF THE AUTHORITY
 
    (A)(2) THE AUTHORITY SHALL, TO THE EXTENT PROVIDED IN THIS CHAPTER
 AND IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE AUTHORITY --
 
   *          *          *          *
 
 
    (E) RESOLVE ISSUES RELATING TO THE DUTY TO BARGAIN IN GOOD FAITH
 UNDER SECTION 7117(C) OF
 
    THIS TITLE(.)
 
    /4/ IN THIS REGARD, SECTION 7117(C)(6)(92 STAT. 1206) REQUIRES:
 
    THE AUTHORITY . . . SHALL ISSUE TO THE EXCLUSIVE REPRESENTATIVE AND
 TO THE AGENCY A WRITTEN DECISION ON THE ALLEGATION AND SPECIFIC REASONS
 THEREFOR AT THE EARLIEST PRACTICABLE DATE.
 
    /5/ SECTION 7106(92 STAT. 2298-9) PERTINENTLY PROVIDES:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
   *          *          *          *
 
 
    (B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
 ORGANIZATION FROM NEGOTIATING --
 
   *          *          *          *
 
 
    (2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
 IN EXERCISING ANY AUTHORITY UNDER THIS SECTION;  OR
 
    (3) APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
 EXERCISE OF ANY AUTHORITY UNDER THIS SECTION BY SUCH MANAGEMENT
 OFFICIALS.
 
    /6/ S. REP. NO. 95-1272, 95TH CONG., 2D SESS. 158(1978).