U.S. Federal Labor Relations Authority

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17:0120(23)AR - NAGE and The Adjutant General of Kansas, The Kansas Army NG -- 1985 FLRAdec AR

[ v17 p120 ]
The decision of the Authority follows:

 17 FLRA No. 23
                                            Case No. O-AR-510
    This matter is before the Authority on exceptions to the award of
 Arbitrator A. Lee Belcher filed by the Agency under section 7122(a) of
 the Federal Service Labor-Management Relations Statute and part 2425 of
 the Authority's Rules and Regulations.
    The issue before the Arbitrator involved the compatibility of
 civilian technicians' civilian employment and their military
 assignments.  The employees represented by the Union are National Guard
 technicians who, as a condition of their civilian employment, must
 become and remain military members of the National Guard and must
 maintain the military grade specified for their technician positions.
 32 U.S.C. 709(b), 709(e)(1).  In addition, in order that technicians are
 performing the same work as civilians as they would undertake as
 military members subsequent to mobilization, technicians' military
 assignments are generally required to involve the same duties as their
 corresponding civilian technician positions, that is, the military and
 civilian assignments must be "compatible." See generally National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, Topeka, Kansas, 15 FLRA No. 11 (1984).  The grievance in
 this case arose when the adjutant general rescinded the policy of
 granting technicians a six-month, compatibility grace period.  This
 policy granted a technician affected by a civilian personnel action that
 created an incompatible assignment a six-month period in which to obtain
 a compatible military assignment.  On the advice of the National Guard
 Bureau that a grace period was contrary to law, the adjutant general
 rescinded that policy and announced that civilian and military
 assignments must be compatible on the effective date of the change
 affecting the technician's assignment.  As a result a grievance was
 filed protesting the policy change.  At the same time, a bargaining
 proposal was submitted by the Union essentially proposing a twelve-month
 grace period.  The Agency declared the proposal not to be within the
 duty to bargain and the Union filed with the Authority a petition for
 review of a negotiability issue.  National Association of Government
 Employees, Local R14-87 and Kansas Army National Guard, Topeka, Kansas,
 Case No. O-NG-667.  The grievance was not resolved and was submitted to
 arbitration while the negotiability issue was pending before the
    The Arbitrator determined that the Agency had acted improperly by
 rescinding the policy of granting the six-month grace period.  However,
 because of his doubt as to the legality of a six-month grace period and
 because the Arbitrator was of the opinion that this issue would be
 resolved by the Authority in the negotiability case, the Arbitrator as
 his award directed that the grace period be reimposed only from the date
 of the award until the date of the decision by the Authority in the
 negotiability case.
    The Agency in its exceptions to the award essentially argues that the
 award is deficient because the imposition of a grace period in which a
 civilian technician is allowed to obtain a compatible military
 assignment is contrary to the intent and implementing policy of the
 Technicians Act, 32 U.S.C. 709.  The Authority agrees.
    In the related negotiability case the Authority ordered the petition
 for review dismissed because the disputed proposal was outside the duty
 to bargain.  Kansas Army National Guard, 15 FLRA No. 11 (1984).  In that
 case the Authority characterized the requirement that civilian and
 military assignments be compatible on the effective date of the change
 affecting the technician's assignment as concerning a military aspect of
 technician employment-- the timing of military assignments which must be
 made to maintain compatibility between military and civilian functions.
 In this regard, the Authority has uniformly held that the military
 aspects of technician employment are "totally mandated by law." Id. at
 2;  Association of Civilian Technicians, Pennsylvania State Council and
 the Adjutant General, Department of Military Affairs, Commonwealth of
 Pennsylvania, 3 FLRA 50, 55 (1980).  Therefore, in terms of this case,
 the Authority finds that the Agency has sufficiently established that
 the mandate intended by the Technicians Act with respect to this
 military aspect of technician employment precludes the Arbitrator's
 imposition of a period of time during which a technician could
 permissibly maintain an incompatible military assignment.  Consequently,
 the award is deficient as contrary to law and is set aside.  Issued,
 Washington, D.C., March 7, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY