14:0038(6)NG - ACT, Pennsylvania State Council and Pennsylvania Army and Air NG -- 1984 FLRAdec NG

 14 FLRA No. 6
 
 ASSOCIATION OF CIVILIAN TECHNICIANS,
 PENNSYLVANIA STATE COUNCIL
 Union
 
 and
 
 PENNSYLVANIA ARMY AND AIR NATIONAL GUARD
 Agency
 
                                            Case No. O-NG-613
 
                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 presents issues
 relating to the negotiability of five Union proposals.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Non-bargaining unit technicians will not compete with
       bargaining unit technicians for bargaining unit positions.
 
    Based on the record before the Authority, Union Proposal 1 would only
 apply to a reduction-in-force (RIF) situation, which has the effect of
 reducing bargaining unit positions.  The objective of this proposal is
 to insure that bargaining unit employees would compete only with each
 other for retention in bargaining unit positions, after the Agency has
 made the determination as to which positions are to be eliminated.  In
 other words, Union Proposal 1 would define the competitive area, i.e.,
 the organizational boundaries within which employees who are affected by
 the RIF would compete for retention in the Agency, as being the
 bargaining unit.  In this regard, the Authority has previously held a
 proposal to negotiate competitive areas to be within the duty to
 bargain.  National Treasury Employees Union and Department of Health and
 Human Services, Region IV, 11 FLRA No. 53(1983).
 
    The Agency, however, contends that this proposal would violate its
 statutory rights (1) pursuant to section 7106(a)(1) "to determine the .
 . . organization";  (2) pursuant to section 7106(a)(2)(A) to "layoff,
 and retain employees in the agency";  and (3) pursuant to section
 7106(a)(2)(B) "to determine the personnel by which agency operations
 shall be conducted." These contentions cannot be sustained.  Union
 Proposal 1 does not require the Agency to establish its organization in
 any specified manner or limit the Agency in determining which positions,
 in terms of either numbers or types, will be abolished in a RIF.
 Moreover, nothing in Union Proposal 1 would alter in any manner the
 performance-based method of determining retention standing established
 by the Agency or qualifications requirements necessary for positions in
 the Agency.  Rather, after the Agency has determined what its
 organizational structure will be subsequent to a RIF, thereby
 determining the numbers and types of personnel which will remain, Union
 Proposal 1 only would establish the procedure by which employees would
 compete for retention in the Agency in the remaining bargaining unit
 positions on the basis of their relative retention standing as
 determined in the manner established by the Agency.  Thus, Union
 Proposal 1 does not violate the management rights relied upon by the
 Agency.  The proposal seeks only to establish a procedure by which
 bargaining unit employees would be protected from displacement by
 nonbargaining unit employees.
 
    The Agency also argues that, by preventing nonbargaining unit
 technicians from competing in a RIF with bargaining unit technicians for
 remaining bargaining unit positions, Union Proposal 1 directly affects
 the working conditions of such nonbargaining unit employees and is thus
 outside the duty to bargain.  This Agency argument likewise cannot be
 sustained.  In this connection, the Authority has previously stated that
 a bargaining proposal which directly affects the conditions of
 employment of bargaining unit employees and is otherwise consistent with
 applicable laws and regulations is within the duty to bargain despite
 the fact that such proposal also would affect employees outside the
 bargaining unit.  See National Treasury Employees Union and Internal
 Revenue Service, 7 FLRA 275, 284(1981).  In the instant case the Agency
 does not suggest, nor is it otherwise apparent, that the competitive
 area proposed by the Union is inconsistent with any applicable law or
 regulation.  Further, to the extent that an Agency has discretion with
 respect to a matter affecting conditions of employment of its employees,
 that matter is within the duty to bargain.  See National Federation of
 Federal Employees, Local 541 and Veterans Administration Hospital, Long
 Beach, California, 12 FLRA No. 62(1983).  In this case, no contention is
 made by the Agency that it is without discretion to establish the
 specific competitive area sought by the Union.
 
    Consequently, as Union Proposal 1 would only establish a procedure
 which the Agency must follow when exercising its statutory right
 pursuant to section 7106(a)(2)(A) to "layoff" employees, it is within
 the duty bargain under the Statute.  /1/ Department of Health and Human
 Services, Region IV, 11 FLRA No. 53(1983).
 
                             Union Proposal 2
 
          Three retention registers will be established, one for each of
       the tenure groups (I, II, III).  The retention standing within
       each register will be determined by using the following method:
 
          a.  Total Creditable Service - 5 pts per year.
 
          b.  Performance Appraisal - Actual Point Value
 
          c.  Credit for combat zone duty (Military Service) - 1 pt per
       month.
 
          d.  Military Appraisal - Actual Point Value
 
          e.  Technician service (Tie Breaker).  (The underlined parts of
       the proposal are in dispute.)
 
    The bargaining unit employees herein are National Guard technicians
 covered by the National Guard Technicians Act of 1968, as amended, 32
 U.S.C. 709 (the Technicians Act).  Section 709(f) of the Technicians
 Act, insofar as is here pertinent, excludes technicians from coverage of
 both the RIF and veterans' preference provisions of title 5, U.S.C.
 Further, the Technicians Act requires that technicians, even in a RIF
 situation, must maintain military membership in the National Guard and
 hold the military grade specified for their civilian technician
 positions as a condition of their continued technician employment.  See
 32 U.S.C. 709(b), 709(e)(1).  Pursuant to the mandate of the Technicians
 Act, the National Guard Bureau (NGB) has, on behalf of the Secretaries
 of the Army and the Air Force, promulgated regulations governing RIF's.
 These regulations, reflecting the statutory requirement that technicians
 maintain military status at the grades specified for their technician
 positions, base technician displacement rights on a measure of both
 military and civilian job performance.  In Association of Civilian
 Technicians, Pennsylvania State Council and the Adjutant General,
 Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA
 50(1980), the Authority found that the RIF regulations issued by the NGB
 implemented, in an essentially nondiscretionary manner, the statutory
 mandate that technicians maintain the military grade specified for their
 technician positions.  Consequently, the Authority concluded that a
 compelling need existed, pursuant to section 2424.11(c) of its Rules and
 Regulations, for the relevant portion of these RIF regulations.
 
    Section a. of Union Proposal 2, however, would in certain
 circumstances result in total Federal civilian seniority, including
 non-technician service, displacing military performance as a factor in
 determining a technician's retention standing in a RIF.  This is true
 since, as the Agency points out, the point scheme for creditable
 civilian service proposed by the Union combined with the NGB RIF
 regulations could, in certain situations, outweigh the points assigned
 for outstanding military performance, thereby resulting in a higher RIF
 retention standing for a more senior technician whose military
 performance rating is lower than that of another, less senior
 technician.  /2/ Thus, section a. of Union Proposal 2 is inconsistent
 with the relevant portion of the NGB RIF regulation for which there is a
 compelling need and is outside the duty to bargain pursuant to section
 7117(a)(2) of the Statute.
 
    Section c. of Union Proposal 2 would factor credit for military duty
 in combat zones into the determination of a technician's RIF retention
 standing.  However, the Technicians Act provides in section 709(f) that
 5 U.S.C. 3502 (establishing military preference as a factor in
 determining the order of retention for competitive civil service
 employees) does not apply to National Guard technicians.  In the report
 accompanying the House bill, which was ultimately passed and enacted
 into law as the Technicians Act, the House Committee on Armed Services
 explained the rationale behind excluding veterans' preference for
 technicians.  /3/ Noting that "the application of the veterans'
 preference provisions would pose a number of problems which could make
 the National Guard program less efficient and less responsive to its
 mission," the Committee cited two examples of potential problems, the
 second of which was:
 
          Another example might occur with respect to a reduction in
       force.  Any such action in the technicians program would probably
       be caused by the deactivation of a National Guard unit caused by a
       reorganization.  If the situation were to result where persons
       with veterans' preference in the unit being deactivated were in a
       position to "bump" persons in another unit not being deactivated,
       the efficiency of the remaining unit could well be impaired in
       terms of the requirement for specified military grades.
 
 Thus, section c. of Union Proposal 2, which factors at least a portion
 of military service into the retention standing of civilian technicians,
 could bring about the result the House sought to eliminate in section
 709(f) of the Technicians Act.  Hence, section c. is inconsistent with
 Federal law and is outside the duty to bargain pursuant to section
 7117(a)(1) of the Statute.
 
                             Union Proposal 3
 
          When a position becomes vacant which a released technician on
       the retention register once held;  (sic) that technician will be
       offered reemployment to that position without competition.  If
       there is more than one released technician, the technician with
       the highest retention standing will be offered the position first
       and continuing in descending order until the vacant position is
       filled.
 
    As previously noted, the Technicians Act requires that civilian
 technicians, as a condition of their civilian technician employment,
 hold the military grade specified for such technician positions.
 Consequently, in order for a technician to be appointed to a particular
 civilian technician position, that technician must meet not only the
 civilian qualifications for such technician position but also must hold
 the military grade specified for that particular position.  However, the
 record before the Authority does not indicate that Union Proposal 3 is
 consistent with this mandate.  While the Union argues that this proposal
 was intended to permit the Agency to select any qualified technician in
 inverse order of release from employment, the express language of the
 proposal contains no reference to a qualification determination or, as
 relevant here, to the military grade requirement.  Thus, the express
 language of Union Proposal 3 would result in a released technician with
 the oldest release date who once held a position which the Agency has
 decided to fill, being offered that position regardless of whether he
 currently holds the military grade specified for the position.  In this
 connection, the Authority has consistently stated that it will not base
 a negotiability determination on a Union's statement of intent which is
 inconsistent with the language of the disputed proposal.  See, e.g.,
 American Federation of Government Employees, AFL-CIO, Local 2955 and
 National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa,
 5 FLRA 617(1981).  Therefore, as written, Union Proposal 3 is
 inconsistent with law, namely the Technicians Act, and is outside the
 duty to bargain under section 7117(a)(1) of the Statute.  See
 Association of Civilian Technicians Montana Air Chapter and Department
 of the Air Force, Montana Air National Guard, Headquarters 120th Fighter
 Interceptor Group (ADTC), 11 FLRA No. 88(1983) (Proposal 7).
 
                             Union Proposal 4
 
          In the event a RIF occurs between the dates of 1 January 1982
       and 1 January 1983, the only factor to be used to decide retention
       will be the total federal service creditable to the technician.
 
    As noted with regard to Union Proposal 2, supra, Agency regulations
 which require that in a RIF situation, technician displacement rights be
 based on a measure of both military and civilian job performance, were
 found to meet the compelling need criterion specified in section
 2424.11(c) of the Authority's Rules and Regulations in Department of
 Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50(1980).
 However, Union Proposal 4 would require that creditable Federal service
 be the sole determinant of a technician's retention standing during the
 prescribed period.  Thus, based on Department of Military Affairs,
 Commonwealth of Pennsylvania, and the reasons stated therein, the
 proposal is inconsistent with an applicable Agency regulation for which
 there is a compelling need within the meaning of section 7117(a)(2) of
 the Statute.  Therefore, Union Proposal 4 is outside the duty to
 bargain.  See also Montana Air National Guard, 11 FLRA No. 88(1983)
 (Union Proposal 4).
 
                             Union Proposal 5
 
          When a technician believes the employer incorrectly applied the
       provisions of the RIF, he may appeal in accordance with the
       grievance procedure outlined in Article VIII.
 
    As indicated by the record, the purpose of this proposal is to
 subject an employee grievance over the conduct of a RIF to the
 negotiated grievance procedure which includes binding arbitration as the
 terminal step.  The Agency contends that this proposal is outside the
 obligation to bargain because it is inconsistent with law, specifically
 section 709(e) the Technicians Act.  /4/
 
    In a number of decisions and orders in negotiability cases, the
 Authority essentially determined, as relevant here, that coverage by a
 negotiated grievance procedure of a grievance concerning any of the
 matters enumerated in section 709(e) was not inconsistent with that
 provision.  Certain of these decisions have been reviewed by courts of
 appeals under section 7123 of the Statute.  In their decisions, the
 courts have uniformly interpreted and applied the Technicians Act so as
 to preclude, as a matter of law, the inclusion of an adjutant general's
 decision to remove a technician under section 709(e) from coverage of a
 negotiated grievance procedure, notwithstanding the grievance and
 arbitration provisions of the Statute.  Indiana Air National Guard v.
 FLRA, 712 F.2d 1187 (7th Cir. 1983);  State of Nebraska, Military
 Department, Office of the Adjutant General v. FLRA, 705 F.2d 945 (8th
 Cir. 1983);  California National Guard v. FLRA, 697 F.2d 874 (9th Cir.
 1983);  New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3d Cir.
 1982), cert. denied, sub nom. AFGE Local 3486 v. New Jersey Air National
 Guard, . . . U.S. . . ., 103 S.Ct. 343(1982).  In New Jersey Air
 National Guard the court held that the language of section 709(e) of the
 Technicians Act conflicts with the obligation on the part of the
 National Guard to arbitrate a grievance over a removal once the adjutant
 general has decided to separate the technician.  It specifically
 rejected the argument that the grievance and arbitration provisions of
 section 7121 of the Statute override the provisions of section 709(e) so
 as to permit the negotiation of a grievance and arbitration procedure as
 an alternative to the statutory procedure established by the Technicians
 Act.  677 F.2dat 280, 286.  Accord State of Nebraska, Military
 Department, Office of the Adjutant General, 705 F.2dat 952 & n. 11.
 
    The instant negotiability appeal presents the Authority with an
 opportunity to once again consider this issue.  Based upon the rationale
 set forth above and conclusions of the courts of appeals, the Authority
 now finds that inclusion in a negotiated grievance and arbitration
 procedure of a grievance concerning an adjutant general's decision to
 take any of the actions enumerated in section 709(e) is precluded by
 that provision of the Technicians Act.  Thus, in terms of this case,
 Union Proposal 5 is outside the duty to bargain under section 7117 of
 the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning Union Proposal 1.
  IT IS FURTHER ORDERED that the Union's petition for review as it
 concerns Union Proposals 2, 3, 4 and 5 be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., February 13, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In deciding that Union Proposal 1 is within the duty to bargain,
 the Authority makes no judgment as to its merits.
 
 
    /2/ In this regard, the Agency points out that, pursuant to the
 Union's proposal, five years of creditable service (25 points)
 regardless of whether it was gained in the technician program would
 cancel the effect of an outstanding military performance rating, which
 under the Agency's point allocation scheme would also total 25 points.
 
 
    /3/ H. REP. No. 1823, 90th Cong., 2d Sess. 13, reprinted in 1968 U.S.
 CODE CONG. & AD. NEWS 3318, 3335.
 
 
    /4/ The matters enumerated in section 709(e) generally relate to the
 discipline and discharge of civilian technicians and include separation,
 removal, discharge, suspension, furlough without pay, reduction in force
 and reduction in rank or compensation.  Further, as relevant herein,
 subsection 709(e)(5) specifically provides as follows:
 
          (5) a right of appeal which may exist with respect to (the
       matters set out in subsections 1-4) shall not extend beyond the
       adjutant general of the jurisdiction concerned (.)