11:0228(48)NG - NFFE Local 1671 and Arkansas Army NG -- 1983 FLRAdec NG

 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.