U.S. Federal Labor Relations Authority

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The decision of the Authority follows:

29 FLRA NO. 86






Case No. O-NG-1411


I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7106(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of a proposal made by the Union during negotiations over a new collective bargaining agreement. For the reasons which follow, we find the proposal to be outside the duty to bargain.

II. Background

This case is essentially the same as Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA No. 134 (1987). The employees represented by the Union are National Guard technicians who, as a condition of their employment, must become and remain military members of the National Guard and must maintain the military grade specified for their technician positions. The proposal here concerns the Military Education Program (MEP), a requirement which is applicable to Active Guard and Reserve (AGR) and to the technicians involved in this case. MEP training applies to the military aspect of a technicians' employment. While attending MEP training, technicians are in military status. The training is a requirement for military promotion. 

III. The Proposal


Section 1: Employees will not be required to use annual leave or be in a leave without pay status when in an active duty for training status as a member of the National Guard.

A. Positions of the Parties

The Union contends that civilian technicians attending MEP training currently are allowed to use military leave, which is accrued at a rate of 15 days per fiscal year and, when that leave is exhausted, they must either use annual leave or be placed in leave without pay status. If the latter occurs, the technician receives military pay and benefits, which the Union contends is generally less than civilian pay and benefits. The Union describes the proposal as seeking to allow civilian technicians to continue receiving their full civilian pay and benefits after they have exhausted their military leave while attending MEP training, without having to use annual leave. The Union states that the proposal constitutes an appropriate arrangement, under section 7106 (a) (3) , for employees adversely affected by the Agency's exercise of its management right.

The Agency asserts that (1) the proposal is nonnegoti-able because it concerns military aspects of technician employment and, consequently, does not concern conditions of employment within the meaning of the Statute; (2) insofar as the proposal seeks to provide technicians the option of attending MEP training in civilian status, it conflicts with law, the &Training Act,& as well as an agency regulation for which a compelling need exists, TPR 400; (3) the status of an employee attending military training constitutes a methods and means of performing work within the meaning of section 7106 (b) (1) ; and (4) insofar as the proposal seeks to allow technicians attending military training in military status to receive the pay and benefits attached to their civilian positions, it violates the "Training Act."

B. Analysis and Conclusion

The proposal in this case is to the same effect as Proposals 4 and 6 in 'Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA No. 134 (1987). Those proposals sought to negotiate the pay status of National Guard technicians while they were attending MEP training. This proposal essentially seeks a similar result. In Delaware National Guard we found that Proposals 4 and 6 concerned the military aspects of technician employment and, thus, did not concern conditions of employment. For the same reasons as set forth more fully in that decision, we find that this proposal is not within the duty to bargain.

We note that the Authority's decision concerning Provisions 2 and 5 in Association of Civilian Technicians, Inc., Pennsylvania State Council and the Adjutant General, Department of Military Affairs, commonwealth of Pennsylvania, 7 FLRA 346 (1981), rev'd on other grounds sub nom. Adjutant General, Department of Military Affairs v. FLRA, 685 F.2d 93 (3d Cir. 1982), is distinguishable and does not compel a different conclusion. In that case the only issue presented to the Authority was whether a compelling need existed for certain agency regulations.

In view of our conclusion that the proposal does not concern conditions of employment, we do not decide the Agency's other arguments as to the nonnegotiability of the proposal. Since our determination that the proposal is nonnegotiable is not based on a finding that it conflicts with section 7106, we do not reach the Union's contention that the proposal constitutes an appropriate arrangement under section 7106(b)(3). See National Federation of Federal Employees, Local 1153 and U.S. Army, Seventh Signal Command and Fort Ritchie, Fort Ritchie, Maryland, 26 FLRA No. 61 (1987).

IV. Order

The Union's petition for review is dismissed.

Issued, Washington, D.C.,October 27, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member