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U.S. Federal Labor Relations Authority

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11:0234(49)NG - AFGE Local 1900 and Army, HQ, 76th Division (Training), West Hartford, CT -- 1983 FLRAdec NG

[ v11 p234 ]
The decision of the Authority follows:

 11 FLRA No. 49
                                            Case No. O-NG-76
    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 ten Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
    The ten proposals at issue in this case were presented by the Union
 in response to the Agency's implementation of a "Military Technician
 Conversion Program." This program, instituted as a test program on the
 recommendation of Congress, lasted from March 1979 through June 1980 and
 was undertaken to ascertain whether the military reserve components,
 i.e., the National Guard and the Army and Air Force Reserve, could
 attract and retain active duty military personnel to fill vacant
 positions in the reserve components previously held by civilian
 technicians.  Six of the ten 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, upon review of the test results, authorized the
 Agency to continue converting civilian technician positions, the
 remaining four proposals, relating to such conversions, are decided
 herein.  See 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).
                             Union Proposal 3
          Guaranteed opportunities for advancement and lateral transfer
       for civilian employees.
                             Union Proposal 4
          Guaranteed opportunities for civilian technicians to advance to
       first level supervisory and/or management positions.
                             Union Proposal 5
          Guaranteed opportunities for women and minority employees for
    These three Union proposals are essentially similar to Union
 Proposals 5, 6 and 7 in the 98th Division case.  Noting that the three
 proposals in that case would require the Agency to structure its
 organization in a manner assuring promotional opportunities for civilian
 technicians, the Authority concluded that they conflicted with
 management's right to determine its "organization" under section
 7106(a)(1) of the Statute.  Thus, for the reasons set forth in that
 decision and the cases cited therein, Union Proposals 3, 4 and 5 in this
 case are outside the duty to bargain.
                             Union Proposal 7
          There will be no annual conversion goals.
    In the absence of elaboration on the part of the Union, the Authority
 adopts the Agency's reasonable view that "this proposal refers to the
 number of civilian technician positions either being established or
 becoming vacant which will be converted to military slots." Thus, this
 proposal would prevent management from determining the ratio between
 civilian technician positions and military positions it desires to
 attain at the end of any annual period.  As the Authority noted with
 respect to Union Proposal 8 in the 98th Division decision, when an
 Agency establishes the ratio between military and civilian positions in
 an organizational element, it is exercising its right under section
 7106(a)(1) of the Statute to determine its "organization." The instant
 proposal, by preventing management from determining in the future the
 numbers of civilian positions and positions to be occupied by military
 personnel, respectively, directly interferes with management's section
 7106(a)(1) right to determine its "organization" and is, therefore,
 outside the duty to bargain.  See also National Federation of Federal
 Employees, Local 1431 and Veterans Administration Medical Center, East
 Orange, New Jersey, 9 FLRA No. 139 (1982).
    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
                             Union Proposal 1
          (a) Only entry level positions will be utilized for the test
          (b) All other vacancies above entry level will be announced.
       If through competitive procedures no civilians fill these
       vacancies, then and only then, the vacancies may be filled by a
       military technician.
                             Union Proposal 2
          There will be no abolishment of ART Positions on TDAs, instead
       entry positions will be reported as temporary fills by military
       for the test period.
                             Union Proposal 6
          Any civilian employees who are reassigned for test purposes
       will be returned to his/her original position upon completion of
       the test.
                             Union Proposal 8
          It is agreed that all present civilian employees of the 76th
       Division will be covered by a "grandfather clause" effective March
       15, 1979.
                             Union Proposal 9
          The test period will run for a 12 month period.
                             Union Proposal 10
          AFGE Local 1900 and 2839 will be involved in the test
       evaluation process.