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U.S. Federal Labor Relations Authority

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20:0829(103)NG - NFFE Local 1655 and Adjutant General of Illinois -- 1985 FLRAdec NG

[ v20 p829 ]
The decision of the Authority follows:

 20 FLRA No. 103
                                            Case No. 0-NG-1143
    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
 concerning the negotiability of the following disputed portions of a
 Union proposal:
                     Technician Military Compatibility
    1. The concept of the National Guard technician program is that all
 technicians who are required to be a member of the National Guard will
 be assigned a military skill that is compatible with their full-time
 technician job and in the same unit by which employed or a unit that is
 supported by the activity.
    2. Unless otherwise excepted, all technicians must continue to
 maintain proper military membership for the position occupied.
    3. Situations of military grade inversion are not permitted.
 Military supervisors may not be militarily junior to their full-time
    4. The adjutant general shall approve exceptions in the following
          A. The military appointment requirements or compatibility
       criteria change and that change creates an incompatible
       assignment.  This evaluation is applicable only as long as the
       technician continues to occupy the same military and technician
       position.  A continuous effort must be made to assign the
       individual to a compatible military position.
          B. When technicians are filling positions through temporary
       promotions or details.
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 The employees represented by the Union herein 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. Sec. 709(b), 709(e)(1).
    The proposal herein concerns military technician compatibility.
 Section 1 of the proposal deals with military skill, section 2 with
 proper military membership, section 3 with military grade inversion, and
 section 4 with exceptions to military compatibility.  Consequently, the
 Authority in agreement with the Agency finds that the proposal concerns
 the military aspect of civilian technician positions.
    The Statute does not cover members of the "uniformed services." /1/
 The "uniformed services" are defined by law to include the "armed
 forces," which term is further defined to include the "Army." /2/ The
 "Army" is defined to include the Army National Guard.  /3/ Members of
 the Army National Guard, as involved herein, are members of the
 "uniformed services" and insofar as their status as members of the Guard
 is concerned, wholly apart from their status as civilian employees of
 the Guard, they are not covered by the Statute.  The subject matter of
 the Union proposal, i.e., the military aspects of civilian technician
 employment as summarized above, therefore, is beyond the reach of the
 Statute.  As the Authority has emphasized in this regard, the Statute
 "prescribes certain rights and obligations with respect to collective
 bargaining in the civil (as opposed to military) service." Moreover, the
 Authority has consistently held that matters pertaining to the military
 aspects of civilian technician employment do not concern conditions of
 employment within the meaning of the Statute.  Association of Civilian
 Technicians, Montana Air Chapter and Department of the Air Force,
 Montana Air National Guard, Headquarters 120th Fighter Interceptor Group
 (ADTAC), 20 FLRA No. 85 (1985), citing National Federation of Federal
 Employees, Local 1724 and Utah National Guard, Salt Lake City, Utah, 7
 FLRA 732, 734 (1982);  Association of Civilian Technicians, New York
 State Council and State of New York, Division of Military and Naval
 Affairs, Albany, New York, 11 FLRA 475, 479 (1983).  Contrary to the
 Union's contention, this conclusion is not altered by the fact that the
 Agency has enacted regulations on a subject matter, in this case
 technician military compatibility, over which it is not obligated to
 bargain or by the fact that the proposal parallels applicable law
 dealing with military aspects of civilian technician employment.  Thus,
 for the foregoing reasons, the proposal is outside the duty to bargain
 under 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 be, and
 it hereby is, dismissed.  /4/
    Issued, Washington, D.C. December 11, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Section 7103(a)(2)(ii) provides:
       Sec. 7103.  Definitions;  application (a) For the purpose of this
          (2) "employee" means an individual-- but does not include--
       (ii) a member of the uniformed services(.)
    /2/ 5 U.S.C. Sec. 2101.
    /3/ 10 U.S.C. Sec. 3062(c).
    /4/ In view of the decision herein, it is unnecessary to address the
 Agency's additional contention that the Union proposal violates
 management rights under section 7106.  Also, in light of the above
 disposition, the Union's assertion that the proposal is negotiable under
 sections 7106(b)(2) and (3) cannot be sustained.  Cf., American
 Federation of Government Employees, Local 1546 and Department of the
 Army, Sharpe Army Depot, Lanthrop, California, 19 FLRA No. 118 (1985)
 (Provision 1) (wherein the Authority held that since the provision in
 question was inconsistent with a Government-wide regulation rather than
 a management right, sections 7106(b)(2) and (3) were not applicable).