45:0017(2)NG - - ACT, NY State Council and DOD, NG Bureau, State of NY, Division of Military and Naval Affairs - - 1992 FLRAdec NG - - v45 p17

[ v45 p17 ]
The decision of the Authority follows:

45 FLRA No. 2















June 4, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal involves the negotiability of one proposal concerning qualifications for vacant positions. For the reasons that follow, we find that the proposal is nonnegotiable.

II. Proposal

1. Members of the New York Army and Air National Guard who apply for full-time technician positions may apply their part-time membership service against qualification requirements if the following conditions are met:

a. The service performed must have been in a position directly related to the full-time position being applied for.

b. If several positions have been held during this time frame, then only that time actually served performing associated duty will be allowed.

c. In addition to the above the individual must have successfully passed an SQT test for the position being used in the time compilation. If an SQT test has not been passed, or if the SQT test has been abolished for the particular position and there is no equivalent test in place then completion of an appropriate service school must be completed prior to the granting of the time consideration.

d. Any testing or service school attendance used to meet the above listed qualification must have occurred within the last 36 months from the date of application.

2. The maximum amount of time allowed under this program will be two (2) years.

III. Positions of the Parties

A. Agency

The Agency contends that the proposal does not concern conditions of employment of unit employees because the Union "is attempting to bargain on behalf of military personnel who are not in the bargaining unit." Statement of Position at 2. The Agency also contends that, as the proposal "concern[s] military service[,] . . . military tests (SQTs) and military service schools[,]" it "relates solely to military personnel management policy . . . ." Id. at 3. Finally, the Agency asserts that, by establishing qualifications for promotion, the proposal directly interferes with its right under section 7106(a)(2)(C) to make selections for appointments.

B. Union

The Union claims that, in response to the Agency's decision to permit experience as a part-time military member of the National Guard to satisfy qualification requirements for civilian positions, the Union sought to "negotiate appropriate procedures [concerning] the impact and implementation" of the decision. Petition for Review at 1. According to the Union, the Agency's decision "would have great adverse effects . . . ." Id. Further, the Union asserts that the proposal concerns conditions of employment of unit employees because the proposal addresses qualifications for promotion and "[m]erit [p]romotion goes to the very heart of any labor[-]management relationship[.]" Reply Brief at 2. The Union states that the proposal does not "establish who must be tested, how they must be tested or when." Id. According to the Union, the proposal does not determine the qualifications required for selection or promotion to vacant positions.

IV. Analysis and Conclusions

A. Conditions of Employment

The bargaining unit involved in this case is composed of National Guard technicians who must, as a condition of their continued civilian employment, maintain military membership in the National Guard as well as compatible military and civilian job designations. See generally American Federation of Government Employees, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984). Matters related solely to the military aspects of technician employment do not concern conditions of employment under section 7103(a)(14) of the Statute.*/ For example, Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 31 FLRA 824, 828 (1988). However, "matters related to the civilian aspect of civilian technicians' employment may be within the duty to bargain pursuant to the Statute." American Federation of Government Employees, AFL-CIO, Local 3006 and The Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA 816, 820 (1990).

Nothing in the wording of the proposal, or in the record, demonstrates that the proposal concerns matters related solely to the military aspects of technician employment or military personnel management policy. Rather, by its terms, the proposal concerns the manner in which the Agency applies certain qualification requirements established for civilian positions in the bargaining unit. Accordingly, the proposal concerns conditions of employment within the meaning of section 7103(a)(14) of the Statute. Compare American Federation of Government Employees, Local 3013 and U.S. Department of Defense, National Guard Bureau, Maine Air National Guard, Augusta, Maine, 40 FLRA 203, 206-08 (1991) (proposal addressing agency's evaluation of active duty military personnel being considered to fill positions in their military capacities involved matters solely within the purview of the military and did not concern conditions of employment of unit employees); Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA 1030, 1034-36 (1987) (proposals concerning military training requirements for military members of the National Guard held not to concern conditions of employment of bargaining unit employees).

B. Management's Right To Select

Management's right to select under section 7106(a)(2