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The decision of the Authority follows:
11 FLRA No. 48 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1671 Union and ARKANSAS ARMY NATIONAL GUARD Agency Case No. O-NG-72 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 one multi-part Union proposal (set forth in an appendix to this decision). Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. The proposal at issue in this case, presented by the Union in response to implementation by the Agency of a program, inter alia, to convert civilian technician vacancies to positions to be filled instead by active duty military personnel, would prevent the Agency from converting certain specified technician vacancies to full time military positions. As to this proposal, the Agency in its statement of position contends only that it is nonnegotiable "where it impacts on the right of management to convert a vacant technician position to full-time military and fill with military personnel." /1/ The Union's proposal in this regard is not materially different from Union Proposal 1 in American Federation of Government Employees, AFL-CIO, Local 3742 and Department of the Army, Headquarters, 98th Division (Training), Webster, New York, 11 FLRA No. 42 (1983) which the Authority found to conflict with the Agency's right to determine its "organization" under section 7106(a)(1) of the Statute. Therefore, as this proposal would also prevent the Agency from determining its organization, that is, which positions will be filled with civilian technicians and which positions will be filled by active duty military personnel, it is outside the duty to bargain. 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., February 3, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX Chapter I General Information 1-1. Message, NFB-ARP-MU dated 100537Z Feb 79, authorizes the State of Arkansas to order personnel to full-time military status under the provisions of Title 32 USC, Section 503, for vacancies supported in the latest FY79 technician manpower vouchers, at the discretion of the Adjutant General. This program is known as Conversion of New or Selected Technician Spaces to Full-Time Military (CFTM). 1-2. The latest technician manpower vouchers will determine how many spaces are to be converted. A combination of CFTM and technician spaces may not exceed the State's manpower allocation. 1-3. Positions which may be converted to full-time military are: a. All new or additional positions authorized since 1 January 1979. A "new" position is one not previously authorized or which does not replace or succeed another. These positions may be used to accommodate the placement of personnel displaced by reduction-in-force actions. b. All current or future vacancies which are not filled by merit placement actions. c. Once a position has been converted and filled by a military member it will remain a military position unless otherwise approved by NGB. 1-4. Persons selected by this program will be ordered to Full-Time Training Duty (FTTD) under the provisions of Title 32 USC, Section 503, for a period of two (2) years. This test program is budgeted through FY 1980. In the event that the program is not continued participating ARNG personnel may complete their tours and every effort will be made to place the individual in other full-time support programs. If this program is adopted for continuation beyond the test period, an appropriate career management system will be adopted after proper negotiations with union officials. Chapter II Conversion of Positions 2-1. The conversion of any technician position, whether they be new positions as defined in paragraph 1-3a or current or future technician vacancies, will be accomplished as follows: a. No position which carries a civilian grade of GS-6 or WG-10 will be converted to FTTD until such position has been advertised as a civilian technician position and after which it is determined under the provisions of the State Merit Promotion/Placement Plan that no on-board technicians are qualified to fill that the higher grade and their vacated lower position would then be filled by FTTD personnel. The request for conversion of a new or vacant position must be made to the Adjutant General from the commander of the unit or facility concerned. The Adjutant General will determine whether a new position is to be filled by a National Guard member on FTTD or by a current National Guard Technician. Upon approval of the conversion of a new position to a military position by TAG, the Technician Personnel Officer will initiate a statewide announcement of the military position. The appropriate announcement will contain desired qualifications to include required MOS, and the specified duties of the position. The position vacancy announcement will be effective for a minimum of 15 calendar days, but not more than 30 calendar days. b. In those cases where an effort is made, or becomes necessary in the future to be made, to convert a position occupied by a technician, prior to any personnel action being taken toward the technician, the Personnel Management Officer will advise the employee of his right to union representation, and such representation will be made available prior to any decision by the employee or management. c. Those technicians occupying a position that is to be converted to FTTD will be given an opportunity, and if militarily qualified, to volunteer for such conversion. If the technician requests a transfer to another existing vacant position within the State rather than convert to FTTD, then those provisions of the JTR and other regulations governing moving expenses and relocation allowances will be interpreted in as broad a manner as possible. This interpretation will include the right of a trip by the technician to the new work site to determine suitability of the site at government or State expense. d. Once a decision is made by the Adjutant General to convert a position, whether to FTTD or civilian technician, the decision will remain until it is determined that no qualified individual can be found. If the decision was made to fill the position in a civilian technician status, the Local union representing that technician position will be advised prior to readvertising the position in a military status. e. Those technicians that convert to a FTTD position, whether by volunteering for a new or different position or that have their positions converted to FTTD status, will maintain and be given reemployment rights. f. No announcements for any position vacancy formerly held by a technician but which becomes vacant due to the technician applying for a FTTD position will be made until it is determined that the technician so applying is accepted for the new position. 2-2. A standing selection committee of ten (10) individuals, of which two (2) are selected from a list prepared by Local 1671, N.F.F.E., representing all career fields, will be appointed by the Chief of Staff. A group of three (3) individuals, one (1) of which will be selected from a list prepared by Local 1671, from the standing committee will be selected by the Military Personnel Management Officer to interview and select the most qualified applicant for the position. The supervisor for the unit or facility concerned will then make his selection based on the recommendation of the three (3) man selection committee. Chapter III Assignment and Duties 3-1. Personnel selected will be assigned to the supported unit. Military personnel in converted positions will be placed in MTOE/TDA positions in like grades and skills. Day to day supervision will be exercised by the next higher technician or military member. Grade inversion is prohibited; no military member will be placed under the supervision of any individual of lower military grade. Utilization of Guardswomen in this test program will be consistent with existing assignment policies. 3-2. FTTD personnel will perform all the duties outlined in the appropriate technician position description and MOS assignment within his unit. Individuals selected will participate with the unit of assignment during all periods of IDT and AT. Supervisory/evaluation channels will be established by the next higher headquarters and approved by TAG or his designee. Individuals selected will be advised that continuance of the tour is dependent upon satisfactory job performance. Those individuals who are converted from technician positions will be immediately placed back into their old position or another position of like grade and duties if they are released from FTTD status. Members of Title 32 duty are subject to State Military Justice or State Civil Law provisions as appropriate. 3-3. Minimum Selection Criteria: a. All applicants must meet the physical standards outlined in NGR 40-501. A physical examination conducted within the last year or a physical examination from the Armed Forces Entrance and Examining Station, Little Rock, AR, or an appropriate active installation will be required of each selected individual. b. Enlisted persons must have sufficient retainability on their current enlistment to permit completion of the two (2) year tour of duty. Officer personnel must have two (2) years before mandatory removal date (MRD). c. Officers who will attain 18 or more years active Federal service, creditable toward Title II retirement (10, USC 3911), may not be selected without approval of NGB. Request for waiver will be forwarded through TAG to NGB-ARP-M. d. Enlisted applicants must be qualified in the MOS required for the converted position. E-5's and below may be assigned conditionally pending successful completion of on-the-job experience (OJE), or appropriate schooling if they are otherwise qualified for the award of the required MOS IAW NGR 600-200. e. Officer applicants must be qualified for the assignment based on the MOTE/TDA duty position requirement codes and his/her primary alternate or substitutable specialty skill identifier IAW NGR 600-100 and warrant officers must possess the MOS required for the position to which assigned. f. Personnel selected who do not have a current favorable NAC (see NGR 604-10) will have an investigation initiated immediately upon entry. If the investigation is unfavorable, immediate action will be taken to terminate the FTTD tour. g. Persons receiving a Federal Civil Service retirement annuity are not eligible. Current National Guard technicians selected for a military position who elect Federal technician retirement during the period of FTTD, will have their FTTD status terminated. Current ARNG technicians may not elect to convert their positions. Army National Guard technicians selected to fill test positions will be placed in a "Military Leave of Absence" status IAW subchapter 6, FPM, Chapter 353. Chapter IV Administrative Instructions 4-1. Existing ARNG promotion policies will apply to both officers and enlisted persons. Officers selected for unit vacancy promotion may assume the higher grade on date of Federal Recognition. 4-2. Persons on Title 32 tours will be protected under Title VI of the Civil Rights Act of 1964 against discrimination based on race, color, creed, sex, religion, age, marital status, national origin, or physical handicap. 4-3. Orders will be issued using format 284, NGR 310-10. Authority will be 32 USC 503, and Msg, 100537Z Feb 79, NGB-ARP-M. 4-4. All personnel will be paid using JUMPS-ARMY under the open allotment. PCS moves must be approved by TAG, DPA prior to the move. During the test phase of the program, PCS will be limited to initial duty locations. Requests for authorization of additional PCS moves during an individual's tour will be forward with complete justification through TAG-DPA to NGB-ARP-M. 4-5. The Military Personnel Management Officer has staff responsibility for administering the CFTM Program, with close coordination with the TPO. 4-6. Applicable monthly reports to NGB will be initiated and processed by TPO with copies furnished to NFFE Local 1671. All remarks concerning this program furnished to NGB will also be furnished to NFFE Local 1671. --------------- FOOTNOTES$ --------------- /1/ The Union filed no response to the Agency's statement of position, as required by section 2424.7 of the Authority's Rules and Regulations. Thus, the Authority will decide herein only the issue raised by the Agency and will not decide whether individual portions of the proposal are within the duty to bargain under the Statute.