11:0243(51)NG - AFGE Local 2375 and 79th U.S. Army Reserve Command, Willow Grove, PA -- 1983 FLRAdec NG

 11 FLRA No. 51
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2375
 Union
 
 and
 
 79th UNITED STATES ARMY RESERVE
 COMMAND, WILLOW GROVE, PENNSYLVANIA
 Agency
 
                                            Case No. O-NG-102
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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, initiated as a test on the
 recommendation of Congress, lasted from March 1979 through June 1980.
 Its purpose was to ascertain whether the military reserve components,
 i.e., the Army and Air Force Reserves and the National Guard, 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.  Thus, these
 six proposals became moot as of July 1980.  However, as the record in
 this case also indicates that Congress, after reviewing the test
 results, authorized the Agency to continue converting civilian
 technician positions, the remaining four proposals which are applicable
 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), and American Federation of Government Employees, AFL-CIO,
 Local 1900 and Department of the Army, Headquarters, 76th Division
 (Training), West Hartford, Connecticut, 11 FLRA No. 49 (1983).
 
                             Union Proposal 3
 
          Guaranteed opportunities for advancement and lateral transfers
       of civilian personnel (employees).
 
                             Union Proposal 4
 
          Guaranteed opportunities for civilian technicians to advance to
       first level supervisory/or management positions.
 
                             Union Proposal 5
 
          Guaranteed opportunities for women and minorities to advance as
       civilian technicians.
 
    These three Union proposals are essentially similar to Union
 Proposals 6, 6 and 7 in the 98th Division case.  Noting that the Agency
 would be required to structure its organization in a manner assuring
 promotional opportunities for civilian technicians, the Authority, in
 the cited case, concluded that those three proposals 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 an explanation by the Union, the Authority adopts
 the Agency's reasonable interpretation 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
 concerning 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 planning the future 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
 
                    APPENDIX - PROPOSALS WHICH ARE MOOT
 
                             Union Proposal 1
 
          a.  Only entry level positions will be utilized for the test
       program GS-5, GS-6).
 
          b.  All other vacancies (GS-07 - up) 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 Military Technicians.
 
                             Union Proposal 2
 
          There will be no abolishment of ART positions on TDA's, instead
       entry positions will be reported as "Temporary Fills" by military
       technicians.
 
                             Union Proposal 6
 
          Any civilian employee(s) who are reassigned for the test
       program purposes will be returned to his/her original position
       upon completion of the test.
 
                             Union Proposal 8
 
          It is agreed all present civilian employees of the 79th ARCOM
       will be covered by a "grandfather" clause, effective 15 March
       1979.
 
                             Union Proposal 9
 
          The test period will run for a 12 month period.
 
                             Union Proposal 10
 
          AFGE Local 2375 will be involved in the test evaluation
       process.