18:0736(85)NG - NAGE Local R14-87 and Kansas NG, Topeka, KS -- 1985 FLRAdec NG
[ v18 p736 ]
18:0736(85)NG
The decision of the Authority follows:
18 FLRA No. 85
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R14-87, AFL-CIO
Union
and
KANSAS NATIONAL GUARD,
TOPEKA, KANSAS
Agency
Case No. 0-NG-904
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) and presents an issue
relating to the negotiability of the following Union proposal: /1/
Excepted technicians will be allowed to use a Secondary or
Additional (Military Occupational Specialty) for compatibility
purposes.
Upon careful consideration of the entire record, including the parties'
contentions, the Authority makes the following determinations.
National Guard technicians are employed pursuant to the National
Guard Technicians Act of 1968, 32 U.S.C. 709, in full-time civilian
positions to administer and train the National Guard and to maintain and
repair the supplies issued to National Guard or the armed forces. Such
technicians must, as a condition of their civilian employment under the
Act, become and remain members of the National Guard (i.e., in a
military capacity) and hold the military grades specified for their
civilian technician positions pursuant to 32 U.S.C. 709(b). /2/ Under
the provisions of the law, compatibility between the civilian and
military job assignments of technicians' dual status employment is
required. The National Guard Bureau regulations implementing this
statutory provision (TPR 300 (302.7), paragraph 7-9) detail the manner
in which civilian technicians will comply with the statute's
requirements by maintaining military membership in the Guard and, in
particular, compatible civilian and military job assignments. /3/
The proposal herein on its face would allow civilian technicians to
use a secondary or additional Military Occupational Specialty (MOS) to
achieve compatibility with additional civilian positions. /4/ Insofar
as appears from the record, the secondary MOS is an additional
speciality which is not necessarily reflective of the military position
an employee currently occupies. That is, under this proposal a
technician could quality for a civilian position which does not
correspond with the MOS for the military position he or she actually
holds as a member of the National Guard. In this respect, the Union
proposal conflicts with the above cited TPR which requires an excepted
technician to occupy and perform in a civilian position determined to be
compatible with the MOS of the military position occupied. Thus,
whereas the compatibility requirement applies to all civilian technician
positions, the Union proposal would create an exception for a technician
with a secondary MOS that is not the designated military counterpart of
that technician's civilian technician position.
Therefore, the issue before the Authority is whether, under section
7117(a)(2) /5/ of the Statute, there is a compelling need for the
regulation to bar negotiation on the conflicting Union proposal. The
Agency argues that its regulation meets the compelling need criterion in
the Authority's Rules and Regulations at section 2424.11(c). /6/ That
criterion provides that a compelling need exist for an agency regulation
to bar negotiation on a conflicting union proposal when the regulation
in question implements, in an "essentially nondiscretionary" manner, a
mandate to the agency by law or outside authority.
The National Guard Technicians Act clearly mandates that civilian
technicians hold compatible military positions. Moreover, that law does
not establish any exceptions that would permit substituting a secondary
MOS for the designated military assignment to achieve compatibility.
Thus, the National Guard Bureau regulation at issue herein, by requiring
compatibility between an employee's civilian technician position and the
MOS of the military position which the technician actually occupies
implements in a nondiscretionary manner the mandate of that law. As
such a compelling need exists under section 2424.11(c) of the
Authority's Rules and Regulations. See National Association of
Government Employees and Department of the Army and the Air Force,
National Guard Bureau, 17 FLRA No. 80 (1985) and cases cited therein.
Cf. National Federation of Federal Employees, Local 1694 and Oklahoma
Army National Guard, Oklahoma City, Oklahoma, 14 FLRA 183 (1984)
(wherein a proposal precluding an agency from requiring a candidate for
a civilian technician position to be holding a specific MOS in his or
her military position was found to be within the duty to bargain where
the Authority specifically noted that the Agency did not raise the issue
of the statutory mandate of compatibility and that there was
insufficient record evidence to support such a finding).
Thus, for the foregoing reasons, the Authority concludes that the
Union's proposal is barred from negotiation by an Agency regulation for
which a compelling need exists under section 7117(a)(2) of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review in this
matter be, and it hereby is, dismissed. /7/
Issued, Washington, D.C., June 26, 1985
Henry B. Frazier III, Acting
Chairman
William M. Mcginnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union's petition as originally filed contained three
proposals. In its response to the Agency's statement of position, the
Union withdrew its appeal as to two of those proposals which, therefor,
will not be considered further herein.
/2/ 32 U.S.C. 709(b) provides:
Sec. 709. Technicians: employment, use, status.
* * * *
(b) Except as prescribed by the Secretary concerned, a
technician employed under subsection (a) shall, while so employed,
be a member of the National Guard and hold the military grade
specified by the Secretary concerned for that position.
/3/ TPR 300 (302.7) paragraph 709 reads in pertinent part:
7-9. TECHNICIAN/MILITARY COMPATIBILITY
A National Guard technician must be assigned to an appropriate
military unit (to include military grade and specialty) in the
State where his technician job is located (see 32 U.S.C. 709(b)).
The concept of the National Guard technician program is that
technicians will be militarily assigned to the same unit in which
his technician job is located. In other words, a technician will
perform his technician duties, his military duties, and be
mobilized to active duty in the same unit. Unless specifically
approved by NGB-TN, the assignment will be in the unit by which
employed, and the technician must be performing in the MPS/AFSC
determined to be compatible with the technician position occupied.
Situations of military or technician grade inversion are not
permitted; i.e., a technician is subordinate to an individual in
technician status but senior to him in a military status.
/4/ The Union declined to submit a statement of its intent,
essentially contending that the proposal is clear on its face. Thus,
the Authority will interpret the proposal without benefit of any Union
statement. However, contrary to the Agency's procedural argument, the
Authority finds the Union's reliance upon the plain language of its
proposal is not a basis for dismissing the appeal under the Authority's
rules. See American Federation of Government Employees, AFL-CIO, Local
3004 and Department of the Army and Air Force, National Guard Bureau, 15
FLRA No. 58, n.1 (1984).
/5/ Section 7117(a)(2) of the Statute reads:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
* * * *
(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exist for the rule or regulation.
/6/ Section 2424.11(c) of the Authority's Rules and Regulations
states:
Sec. 2424.11 Illustrative criteria.
A compelling need exists for an agency rule or regulation
concerning any condition of employment when the agency
demonstrates that the rule or regulation meets one or more of the
following illustrative criteria:
* * * *
(c) The rule or regulation implements a mandate to the agency
or primary national subdivision under law or other outside
authority, which implementation is essentially nondiscretionary in
nature.
/7/ In light of the Authority's disposition in this case it is not
necessary to address the other arguments proferred by the Agency.