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11:0189(42)NG - AFGE Local 3742 and Army, HQ, 98th Division (Training), Webster, NY -- 1983 FLRAdec NG

[ v11 p189 ]
The decision of the Authority follows:

 11 FLRA No. 42
                                            Case No. O-NG-68
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 relating to the negotiability of nine Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
    The nine proposals at issue in the case were presented by the Union
 in response to implementation by the Agency of a "Military Technician
 Conversion Program." This program, instituted as a test program at the
 recommendation of Congress, lasted from March 1979 through June 1980 and
 was conducted to ascertain whether the military reserve components,
 i.e., the National Guard, Army and Air Force Reserve, could attract and
 retain active duty military personnel to fill vacant positions in the
 reserve component previously held by civilian technicians.  Four of the
 nine proposals herein (set forth in the appendix) relate solely to the
 now terminated test program and thus became moot as of July 1980.
 However, as the record in this case also indicates that Congress, after
 reviewing the results of the test program, authorized the Agency to
 continue to convert civilian technician positions, the remaining five
 proposals which are applicable to such conversions are decided herein.
                             Union Proposal 1
          Only entry level positions will be filled by military GS-5 or
                             Union Proposal 5
          Guaranteed opportunities for advancement and lateral transfers.
                             Union Proposal 6
          Guaranteed opportunities for women and minorities to advance as
       civilian technicians.
                             Union Proposal 7
          Guaranteed opportunities for civilian technicians to get a
       first level management position.
    The four Union proposals set out above are designed to require that
 the Agency establish its organization structure in a manner which will
 assure promotional opportunities for its civilian technician employees.
 These proposals, in this respect, are not materially different from
 Union Proposal I in National Association of Government Inspectors and
 Quality Assurance Personnel, Unit #2 and Naval Air Engineering Center,
 Lakehurst, New Jersey, 8 FLRA No. 28 (1982) which the Authority found to
 conflict with the Agency's right to determine its organization under
 section 7106(a)(1) of the Statute.  See also Congressional Research
 Employees Association and the Library of Congress, 3 FLRA 736 (1980).
 Therefore they are outside the duty to bargain.
                             Union Proposal 8
                      Prevention of cluster groups.
    In the absence of an explanation by the Union of the meaning and
 purpose of this proposal, the Authority adopts the Agency's description
 as follows:
          We understand that this proposal is intended to prevent all
       civilian vacancies in any one unit from becoming militarized under
       the conversion program.  The union wants the affected vacancies to
       be spread out around the Division.
    Union Proposal 8, then, would limit the number of civilian positions
 in any unit which could be converted to positions occupied by military
 personnel.  The proposal in effect would prevent the Agency from making
 any of its sub-elements a completely military organization,
 notwithstanding a management determination that such action is
 necessary.  This proposal, like Union Proposal V in Naval Air
 Engineering Center, supra, would require the Agency to conform to a
 certain organizational structure and to organize its workforce in a
 contractually prescribed manner.  Therefore, Union Proposal 8 directly
 interferes with the right of the Agency under section 7106(a)(1) of the
 Statute, to determine its organization and is outside the duty to
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  
 Issued, Washington, D.C., January 31, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                             Union Proposal 2
          All other positions (from GS-7 - up) be announced for promotion
       and only if not filled by civilians then they can be used for the
       test program.
                             Union Proposal 3
          As this is only a test program there will be no abolishment of
       ART positions on TDA, instead will report only temporary fill by
       military personnel.
                             Union Proposal 4
          No reassignment or trade-off of incumbered civilian positions
       unless guaranteed to return to former positions upon completion of
       test program.
                             Union Proposal 9
          Proposal must have a grandfather clause to protect civilian
       employees effective as of this date.