American Federation of Government Employees, AFL-CIO, Local 2953 (Union) and National Guard Bureau, Office of the Adjutant General, Nebraska (Agency) 

 7 FLRA No. 12
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2953
 (Union)
 
 and
 
 NATIONAL GUARD BUREAU, OFFICE OF
 THE ADJUTANT GENERAL, NEBRASKA
 (Agency)
 
                                            Case No. O-NG-279
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D)
 AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
 STATUTE) (5 U.S.C. 7101 ET SEQ.).  THE ISSUE PRESENTED IS THE
 NEGOTIABILITY OF THE FOLLOWING PROPOSAL:
 
                              UNION PROPOSAL
 
    ARTICLE 32 REDUCTION-IN-FORCE
 
    SECTION 32-4 RETENTION REGISTERS.  IN THE EVENT OF A REDUCTION IN
 FORCE, THE EMPLOYER SHALL
 
    ESTABLISH A RETENTION REGISTER WHICH THEY WILL BE REACHED FOR
 PERSONNEL ACTIONS GENERATED BY
 
    THE RIF.  THE RETENTION REGISTER SHALL BE COMPILED ACCORDING TO THE
 FOLLOWING METHOD:
 
    (A) EMPLOYEES WILL BE RANKED ACCORDING TO GRADE LEVEL;  AND
 
    (B) EMPLOYEES WITHIN EACH GRADE WILL BE RANKED ACCORDING TO CIVILIAN
 APPRAISAL SCORE;  THEN
 
    (C) EMPLOYEES HAVING THE SAME APPRAISAL SCORE WILL BE RANKED
 ACCORDING TO LENGTH OF
 
    TECHNICIAN SERVICE;  THEN
 
    (D) EMPLOYEES HAVING THE SAME APPRAISAL SCORE AND THE SAME LENGTH OF
 TECHNICIAN SERVICE
 
    WILL BE RANKED ACCORDING TO LENGTH OF CREDITABLE SERVICE.
 
                       QUESTION BEFORE THE AUTHORITY
 
    THE SPECIFIC QUESTION BEFORE THE AUTHORITY IS WHETHER THE UNION'S
 PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN BECAUSE IT IS INCONSISTENT WITH
 AN AGENCY REGULATION FOR WHICH A COMPELLING NEED EXISTS UNDER SECTION
 7117(A)(2) OF THE STATUTE AND SECTION 2424.11(C) OF THE AUTHORITY'S
 RULES AND REGULATIONS, AS ALLEGED BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION AND ORDER:  A COMPELLING NEED EXISTS UNDER SECTION
 7117(A)(2) OF THE STATUTE AND SECTION 2424.11(C) OF THE AUTHORITY'S
 RULES AND REGULATIONS FOR THE AGENCY REGULATION TO BAR NEGOTIATION OF
 THE UNION'S PROPOSAL.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
 THAT THE PETITION FOR REVIEW OF THE DISPUTED PROPOSAL BE DISMISSED.
 
    REASONS:  THE UNION'S PROPOSAL SET FORTH ABOVE WOULD REQUIRE THE
 AGENCY TO ESTABLISH, WITH RESPECT TO A REDUCTION IN FORCE (RIF) OF
 NATIONAL GUARD TECHNICIANS, A RETENTION REGISTER RANKING SUCH
 TECHNICIANS ACCORDING TO A NUMBER OF FACTORS RELATED TO THEIR CIVILIAN
 TECHNICIAN SERVICE, INCLUDING THEIR CIVILIAN APPRAISAL SCORES, BUT
 WITHOUT REFERENCE TO THE APPRAISALS OF THEIR MILITARY SUPERVISORS.  THE
 AGENCY CONTENDS THAT, TO THE EXTENT THE PROPOSAL WOULD PRECLUDE
 CONSIDERATION OF MILITARY APPRAISALS IN ESTABLISHING THE RIF RETENTION
 REGISTER, IT CONFLICTS WITH A NATIONAL GUARD BUREAU (NGB) REGULATION,
 I.E., TECHNICIAN PERSONNEL MANUAL (TPM) 351, SUBCHAPTER 5, PARAGRAPH
 5-3E, WHICH PROVIDES IN ESSENCE THAT RIF RETENTION STANDING WILL BE
 DETERMINED BY A COMPOSITE MEASUREMENT OF BOTH TECHNICIAN PERFORMANCE AND
 RELATED MILITARY PERFORMANCE.  IN THIS REGARD, THE AGENCY CONTENDS THAT
 TPM 351 IMPLEMENTS IN AN ESSENTIALLY NONDISCRETIONARY MANNER THE MANDATE
 OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 (32 U.S.C. 709(B)) /1/
 THAT CIVILIAN TECHNICIANS MAINTAIN MILITARY MEMBERSHIP IN THE NATIONAL
 GUARD AND HOLD THE MILITARY GRADE SPECIFIED FOR THEIR POSITION.
 THEREFORE, THE AGENCY ARGUES THAT THE DUTY TO BARGAIN IN GOOD FAITH DOES
 NOT EXTEND TO THE UNION'S PROPOSAL INASMUCH AS THERE IS A "COMPELLING
 NEED" FOR TPM 351 WITHIN THE MEANING OF SECTION 7117(A)(2) OF THE
 STATUTE /2/ AND SECTION 2424.11(C) OF THE AUTHORITY'S RULES AND
 REGULATIONS.  /3/ THE UNION CONTENDS, ON THE OTHER HAND, THAT THE AGENCY
 REGULATION DOES NOT MEET THE "COMPELLING NEED" CRITERIA;  THAT THE
 STATUTE SUPERSEDES ANY CONFLICTING PROVISIONS OF THE NATIONAL GUARD
 TECHNICIANS ACT OF 1968;  AND THAT ITS PROPOSAL MUST BE PRESUMED
 NEGOTIABLE UNLESS THE AGENCY PROVES OTHERWISE.
 
    IN ASSOCIATION OF CIVILIAN TECHNICIANS, PENNSYLVANIA STATE COUNCIL
 AND THE ADJUTANT GENERAL, DEPARTMENT OF MILITARY AFFAIRS, COMMONWEALTH
 OF PENNSYLVANIA, 3 FLRA NO. 8(1980), THE AUTHORITY CONSIDERED A
 PROPOSAL, A PORTION OF WHICH, LIKE THE ONE AT ISSUE HERE, INVOLVED THE
 RELATIVE RIF RETENTION STANDING OF NATIONAL GUARD TECHNICIANS.
 SPECIFICALLY, THE RELEVANT PORTION OF THE PROPOSAL AT ISSUE IN THAT CASE
 WOULD HAVE ESTABLISHED A RANGE OF POINTS FOR EACH TECHNICIAN PERFORMANCE
 LEVEL (I.E., SATISFACTORY, EXCELLENT, OR OUTSTANDING) RATHER THAN THE
 SPECIFIC POINT VALUE FOR EACH CATEGORY PRESCRIBED IN THE SAME NGB
 REGULATION AS IS INVOLVED IN THE INSTANT CASE.  WITH REGARD TO THIS
 REGULATION (TPM 351), THE AUTHORITY THERE FOUND, IN AGREEMENT WITH THE
 AGENCY'S POSITION, THAT:
 
    (T)HE NGB REGULATIONS IMPLEMENT IN AN ESSENTIALLY NONDISCRETIONARY
 MANNER THE STATUTORY
 
    MANDATE THAT TECHNICIANS MAINTAIN MILITARY MEMBERSHIP IN THE NATIONAL
 GUARD AND HOLD THE
 
    MILITARY GRADE SPECIFIED FOR THEIR TECHNICIAN POSITIONS AND THEREFORE
 A COMPELLING NEED EXISTS
 
    WITHIN THE MEANING OF SECTION 7117(A)(2) OF THE STATUTE AND SECTION
 2424.11(C) OF THE
 
    AUTHORITY'S RULES FOR THE NGB REGULATION SO AS TO BAR NEGOTIATIONS ON
 CONFLICTING UNION
 
    PROPOSALS.
 
    THE AUTHORITY FURTHER FOUND, HOWEVER, THAT THE SPECIFIC PROPOSAL
 THERE IN DISPUTE DID NOT CONFLICT WITH ANY PART OF THE NGB REGULATION
 WHICH IMPLEMENTS THE NONDISCRETIONARY STATUTORY MANDATE SET FORTH ABOVE.
  MORE SPECIFICALLY THE AUTHORITY STATED:
 
    (W)HILE THE NATIONAL GUARD TECHNICIANS ACT OF 1968 REQUIRES BOTH
 CIVILIAN AND RELATED
 
    MILITARY PERFORMANCE TO BE CONSIDERED AS PART OF A TECHNICIAN'S
 OVERALL EVALUATION, NOTHING IN
 
    THE LANGUAGE OR LEGISLATIVE HISTORY THEREOF SPECIFIES WHAT RELATIVE
 WEIGHT MUST BE ACCORDED TO
 
    EACH APPRAISAL.
 
    ACCORDINGLY, THE AUTHORITY CONCLUDED THAT THE RELEVANT PORTION OF THE
 PROPOSAL IN THAT CASE WAS WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
 
    IN THIS CASE, BY CONTRAST, THE UNION'S PROPOSAL WOULD NOT MERELY
 AFFECT THE RELATIVE WEIGHT ACCORDED TO A TECHNICIAN'S APPRAISAL IN
 RELATION TO HIS MILITARY APPRAISAL BUT WOULD PRECLUDE MANAGEMENT FROM
 CONSIDERING MILITARY PERFORMANCE AT ALL IN RANKING TECHNICIANS ON THE
 RETENTION REGISTER FOR RIF PURPOSES.  THEREFORE, SUCH PROPOSAL CONFLICTS
 WITH THE MANDATE OF THE NATIONAL GUARD TECHNICIANS ACT OF 1968 THAT BOTH
 CIVILIAN AND RELATED MILITARY PERFORMANCE BE CONSIDERED AS PART OF A
 TECHNICIAN'S OVERALL EVALUATION AND WITH THE NGB REGULATION (TPM 351),
 NONDISCRETIONARY MANNER.  /4/
 
    ACCORDINGLY, FOR THE FOREGOING REASONS, THE AUTHORITY CONCLUDES THAT
 THE UNION'S PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN UNDER THE
 STATUTE.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ 32 U.S.C. 709(B) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    (A) TECHNICIAN . . . SHALL, WHILE SO EMPLOYED, BE A MEMBER OF THE
 NATIONAL GUARD AND HOLD THE MILITARY GRADE SPECIFIED BY THE SECRETARY
 CONCERNED FOR THAT POSITION.
 
    /2/ SECTION 7117(A)(2) OF THE STATUTE (92 STAT. 1205) PROVIDES AS
 FOLLOWS:
 
    (A)(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/ SECTION 2424.11(C) PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
 ANY CONDITION OF EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT
 
   .          .          .          .
 
 
    (C) THE RULE OR REGULATION IMPLEMENTS A MANDATE TO THE AGENCY OR
 PRIMARY NATIONAL SUBDIVISION UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
 IMPLEMENTATION IS ESSENTIALLY NONDISCRETIONARY IN NATURE.
 
    /4/ IN LIGHT OF THIS DECISION, IT IS UNNECESSARY TO ADDRESS THE OTHER
 CONTENTIONS OF THE PARTIES.