13:0232(40)UC - DOD, NG Bureau and NFFE; DOD, NG Bureau and NAGE -- 1983 FLRAdec RP

 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).