15:0330(70)NG - ACT and Delaware NG -- 1984 FLRAdec NG

 15 FLRA No. 70
 
 ASSOCIATION OF CIVILIAN TECHNICIANS, 
 INC.
 Union
 
 and
 
 DELAWARE NATIONAL GUARD
 Agency
 
                                            Case No. O-NG-540
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    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).  The issue presented
 is the negotiability of the following Union proposal:
 
          Prior to an employee voluntarily converting his present
       position and status to the AGR Program, he/she will be informed
       and will sign a statement of acknowledgment that he/she
       understands that, should a termination of tour of duty occur,
       he/she will not be entitled to restoration or re-employment rights
       to vacant or occupied positions within the bargaining unit.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 The proposal is concerned with the entitlement of an employee to
 restoration or reemployment rights to vacant or occupied positions
 within the bargaining unit, when the employee voluntarily converts from
 a technician position to the Active Guard Reserve (AGR) Program.
 
    Based on the record, the Agency has asserted that under law employees
 voluntarily converting from a technician position to the AGR Program
 have certain restoration rights.  Specifically, the Agency claims that
 participation in the AGR Program is duty performed under section 502(f)
 of Title 32, /1/ which duty entitles an employee to reemployment to the
 position held by the employee when called to duty.  On its face, the
 specific language of 5 U.S.C. 3551 supports the Agency's contention.
 /2/ The Union, to the contrary, claims 5 U.S.C. 3551 does not apply to
 employees participating in the AGR Program.  However, the Union has not
 supported this contention.
 
    Under the Statute, matters "specifically provided for by Federal
 statute" are expressly excluded from the definition of "conditions of
 employment" in section 7103(a)(14)(C) and hence, are not within the duty
 to bargain.  See e.g., Association of Civilian Technicians, Pennsylvania
 State Council and the Adjutant General, Department of Military Affairs,
 Commonwealth of Pennsylvania, 3 FLRA 49 (1980).  Since, based on the
 record, under Federal law any person who enters upon duty under section
 502(f) of title 32 is specifically provided certain reemployment rights
 under 5 U.S.C. 3551, the Union's proposal is expressly excluded by
 section 7103(a)(14)(C) from the definition of "conditions of employment"
 and, therefore, is not within the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations (5 CFR 2424.10 (1982)), IT IS ORDERED that the Union's
 petition for review be, and it hereby is, dismissed.  /3/
 
    Issued, Washington, D.C., July 24, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 502 of Title 32 provides as follows:
 
          Sec. 502.  Required drills and field exercises
 
          (f) Under regulations to be prescribed by the Secretary of the
       Army or Secretary of the Air Force, as the case may be, a member
       of the National Guard may--
 
          (1) without his consent, but with the pay and allowances
       provided by law;  or
 
          (2) with his consent, either with or without pay and
       allowances;  be ordered to perform training or other duty in
       addition to that prescribed under subsection (a).  Duty without
       pay shall be considered for all purposes as if it were duty with
       pay.
 
 
    /2/ 5 U.S.C. 3551 in relevant part provides as follows:
 
    Sec. 3551.  Restoration;  Reserves and National Guardsmen
 
    An employee as defined by section 2105 of this title or an individual
 employed by the government of the District of Columbia, permanent or
 temporary indefinite, who is ordered to active duty or to duty under
 sections 502-503 of title 32 as a Reserve of the armed forces or member
 of the National Guard is entitled, on release from duty within the time
 limits specified in section 9(g) of the Military Selective Service Act
 of 1967 (50 U.S.C.App. 459(g)), to be restored to the position held by
 him when ordered to duty(.)
 
 
    /3/ In view of its decision herein, the Authority finds it
 unnecessary to address the Agency's other arguments concerning the
 nonnegotiability of the proposal.