[ v13 p232 ]
The decision of the Authority follows:
13 FLRA No. 40 DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU Activity and Case No. 3-UC-29 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT Petitioner DEPARTMENT OF DEFENSE, NATIONAL GUARD BUREAU Activity and Case No. 3-UC-30 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES Petitioner DECISION AND ORDER Upon petitions duly filed with the Federal Labor Relations Authority under section 7112(d) of the Federal Service Labor-Management Relations Statute (the Statute), a consolidated hearing was held before a hearing officer of the Authority. The Authority has reviewed the hearing officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, including the parties' contentions, the Authority finds: The National Federation of Federal Employees, Independent (NFFE) filed the petition in Case No. 3-UC-29 seeking to consolidate 19 units within the National Guard Bureau (NGB) for which it is the exclusive representative. The National Association of Government Employees (NAGE) filed the petition in Case No. 3-UC-30 seeking to consolidate 51 units within the NGB for which it is the exclusive representative. The Agency contends that the consolidated units sought, which in NAGE's case would cover approximately 9,800 out of the Agency's total civilian workforce of 44,000 employees, and in NFFE's case would cover approximately 3,800 employees, do not satisfy the appropriate unit criteria set forth in section 7112(a)(1) of the Statute. /1/ More specifically, the Agency contends that the employees in the proposed units do not share a community of interest because they do not share a common mission, common overall supervision, or similar job classifications and working conditions, and are not subject to similar labor relations policies and practices. The Agency further asserts that the unique employment status of National Guard technicians does not lend itself to the creation of consolidated units because, while technicians are Federal government employees for some purposes, they are employed and their programs are administered by officials of the various states who have a limited responsibility to the NGB and the Federal government. Given these circumstances, the Agency asserts that the proposed consolidated units would not promote effective dealings or efficiency of the National Guard's operations, as the only effective authority to operate and maintain National Guard facilities within a given state lies with state officials who are not directly responsible to the NGB. The petitioning unions contend that the proposed consolidated units satisfy the requisite criteria for consolidation under section 7112(a)(1) of the Statute. They contend that the employees sought to be included in the proposed units share a clear and identifiable community of interest as evidenced by such factors as a common mission, common working conditions, and common labor relations programs and policies. They give particular emphasis to the role played by the NGB in promulgating common regulations affecting all aspects of a technician's work experience and the common job classifications established by the NGB. In this regard, they contend that the proposed consolidated units would promote effective dealings and efficiency of operations by requiring negotiations at the level at which such regulations are developed as opposed to the present system wherein they are limited to the negotiation of the impact of such regulations at a multiplicity of facilities at the local level. The NGB is a joint Bureau of the Department of Army and the Department of Air Force. As such, it is a staff organization which provides liaison and coordination between the National Guard units in each state and the respective Department of Defense components. The NGB is headed by a Chief who reports to the Chiefs of Staff of the Army and the Air Force concerning National Guard matters. As a staff organization, the NGB does not exercise command over any state activity where the technician employees sought herein are employed. The NGB does not employ any technicians. Pursuant to section 10 of the National Guard Technicians Act of 1968 (32 U.S.C. 709) which governs the operation of the technician program, the NGB has been delegated by the Secretaries of the Army and the Air Force the responsibility of promulgating uniform regulations covering the conditions of the technicians' employment. The NGB acts as the resource manager for federal money, material and manpower allocated to the National Guard and it implements Federal military policy as it affects the National Guard. The National Guard is established in each of the 50 states, the District of Columbia and Puerto Rico. The chief military officer of each state is generally known as the adjutant general of that state's National Guard. In most cases, the adjutant general is appointed by the state's governor, although the President appoints the Adjutants General for the District of Columbia and for Puerto Rico. For some 60 years the adjutants general of the several states have been empowered by federal law to employ personnel to train and administer the National Guard and maintain its equipment, and to pay such personnel with Federal funds. Pursuant to the National Guard Technicians Act of 1968, these employees were brought into federal employment as excepted service employees with the title of "technicians." Technicians are covered by the Federal government's system for purposes of retirement and benefits. However, as a condition of employment, the vast majority of technicians must be members of the National Guard and must retain the appropriate military grade in a state unit in order to maintain their civilian employment. Technicians are not authorized overtime, they are not entitled to veterans preference, and they have no appellate rights to the Merit Systems Protection Board. The approximately four per cent of the technician work force which is in the Federal competitive service is assigned to positions, primarily secretarial or administrative, which are not subject to mobilization. The National Guard employs approximately 44,700 technicians nationwide. The technician workforce nationwide is almost equally divided between Wage Grade employees who are involved in such work as equipment maintenance, avionics, and electronics, and General Schedule employees who are engaged in such support activities as base supply, personnel, training and fiscal management. There is also an almost equal division nationwide between technicians assigned to the Army National Guard and those assigned to the Air National Guard. The statewide proportions of both Wage Grade and General Schedule employees, and between Army and Air National Guard employees, generally mirror the nationwide pattern. Pursuant to the requirement of the National Guard Technicians Act of 1968, the NGB develops extensive regulations affecting all aspects of the technicians' work life, which are equally applicable to Army and Air National Guard technicians and which are to be uniformly applied to all technician employees. The NGB also develops uniform position descriptions affecting all technician employees. However, the NGB has no line responsibility for administering the personnel and labor relations programs for technician employees. The responsibility for administering these programs lies with the Technician Personnel Officer within each state who reports directly to the Adjutant General. While the NGB allocates to each state the funds appropriated for the National Guard by Congress and the NGB establishes manpower ceilings for each state, the adjutants general have the authority to reallocate funds they receive so as to best meet their particular needs. All personnel programs, including employment, recruiting, training, records retention, career development, and merit promotion systems, are administered by state officials. Competitive areas for purposes of both merit promotions and reductions in force are established by the states. It is difficult for a technician to move from a position in one state to another or from a position in an Air National Guard unit to one in an Army National Guard unit, as not only must there be an available civilian position, but the employee must find an equivalent military position. There is no appeal beyond the adjutant general of each state regarding disciplinary actions or reductions in force. The responsibility for administering labor relations programs, including negotiations, rests with the adjutants general. The NGB reviews contracts for conformance with law and regulation, it offers advice and assistance to state negotiators in preparing their bargaining positions, and it may offer assistance to state officials in third party proceedings. However, the NGB does not participate in collective bargaining, and the responsibility for negotiating contracts for units within any particular state lies with the adjutant general and his subordinates. NAGE represents 51 bargaining units in 22 states and the District of Columbia. It represents all the Army and Air National Guard technicians in 5 states (Florida, Kentucky, Missouri, Nevada, and Tennessee), and represents a joint unit of Army and Air National Guard technicians in Washington with 90% of all the technicians included. In six states, NAGE represents all the Army National Guard technicians, but none of the Air National Guard employees. In the other states, NAGE represents as few as 9% of the technicians. NFFE represents 19 bargaining units in ten states and Puerto Rico. It represents all the technicians in Louisiana and either all the Army or Air National Guard technicians in 5 states. NFFE represents two joint Army and Air National Guard units, covering 15% of the employees in South Carolina and over 90% of the employees in New Mexico. Approximately 75% of all National Guard technicians are represented by labor organizations. NAGE represents approximately 22% of the technician workforce and NFFE represents approximately 8% of these employees. /2/ In Department of Transportation, Washington, D.C., 5 FLRA No. 89 (1981), the Authority dismissed petitions to consolidate units noting that section 7112(a)(1) of the Statute requires any unit found appropriate to conform to the three criteria established by that section and held that these criteria applied as well to unit consolidation proceedings pursuant to section 7112(d) of the Statute. /3/ In addition to the Department of Transportation case, the Authority has issued other decisions involving the proposed consolidation of units under the Statute. /4/ In making its determinations on the appropriateness of such proposed consolidated units, the Authority considered several factors. As stated in Department of the Navy, U.S. Marine Corps, 8 FLRA No. 4 (1982), primary among these factors, in determining whether there was a community of interest, were: the degree of commonality and integration of the mission and function of the components involved; the distribution of the employees involved throughout the organizational and geographical components of the agency; the degree of similarity in the occupational undertakings of the employees in the proposed unit; and the locus and scope of personnel and labor relations authority and functions. The Authority finds that the employees in the proposed consolidated units herein do not share a clear and identifiable community of interest. The record reveals that NAGE's proposed unit would be limited to 22% of NGB's technician employees in 22 states and the District of Columbia, and that NAGE represents all the eligible technicians in only five states. NFFE's proposed unit would be limited to less than 9% of the NGB's technician employees in ten states and Puerto Rico, and NFFE represents all the eligible employees in only one state. While technicians are all subject to uniform regulations promulgated by the NGB, they are not subject to common overall supervision inasmuch as the NGB has no line responsibility for the employees in each state. While the technicians are all working for the common mission of maintaining National Guard materiel, training its personnel, and administering its program, the employees are also subject to the unique missions established at the state level. Further, there appears to be a near total lack of job mobility between units of the National Guard. State control over personnel, labor relations, and working conditions is statutory and not a matter of delegated authority from the NGB which the latter could rescind in the face of consolidated units. Given these facts, the Authority finds that the petitioned for consolidated units would not ensure a clear and identifiable community of interest among the employees involved in either proposed unit. The Authority further finds that it would not promote effective dealings to require National Guard-wide negotiations for a unit, in NAGE's case, wholly unrepresented in 28 states and Puerto Rico, and fully represented in only five states, and for a unit, in NFFE's case, wholly unrepresented in forty states and the District of Columbia, and fully represented in only one state. Such units would not be adequately reflective of the National Guard's organizational structure. Moreover, as noted above, daily supervision, personnel authority and control of labor relations lies with the respective state adjutants general. This has resulted in effective bargaining relationships established at the state level or below, not only with the petitioners, but with three other labor organizations as well. Given these circumstances, with three labor organizations each representing 20-22% of the National Guard's technicians, a fourth (NFFE) representing 8%, and with another 25% of the technicians being unrepresented, the Authority concludes that effective dealings with the National Guard, and the efficiency of its operations, would not be promoted by the proposed consolidated units. Accordingly, the Authority concludes that the proposed consolidated units are not appropriate, and will order that the petitions be dismissed. ORDER IT IS ORDERED that the petitions in Case Nos. 3-UC-29 and 3-UC-30 be, and they hereby are, dismissed. Issued, Washington, D.C., September 30, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Sec. 7112. Determination of appropriate units for labor organization representation (a)(1) The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of, the agency involved. /2/ Three other labor organizations-- the Association of Civilian Technicians and the American Federation of Government Employees with slightly lower percentages than NAGE, and the National Army Air Technicians Association with 1%-- also represent a portion of the technician force. /3/ Section 7112(d) provides as follows: (d) Two or more units which are in an agency and for which a labor organization is the exclusive representative may, upon petition by the agency or labor organization, be consolidated with or without an election into a single larger unit if the Authority considers the larger unit to be appropriate. The Authority shall certify the labor organization as the exclusive representative of the new larger unit. /4/ See Army and Air Force Exchange Service, Dallas, Texas, 5 FLRA No. 90 (1981); Department of Defense, U.S. Army, Corps of Engineers, 5 FLRA No. 91 (1981); Air Force Logistics Command, United States Air Force, Wright-Patterson Air Force Base, Ohio, 7 FLRA No. 33 (1981); Department of the Navy, U.S. Marine Corps, 8 FLRA No. 4 (1982); U.S. Army Training and Doctrine Command, 11 FLRA No. 28 (1983), U.S. Army Materiel Development and Readiness Command, 11 FLRA No. 36 (1983).