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55 FLRA No. 79
ASSOCIATION OF CIVILIAN TECHNICIANS
GRANITE STATE CHAPTER
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
NEW HAMPSHIRE AIR NATIONAL GUARD
CONCORD, NEW HAMPSHIRE
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
May 27, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
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), and concerns the negotiability of one proposal that involves the assignment of involuntary overtime to bargaining unit employees. For the reasons that follow, we find that the proposal is within the duty to bargain. [n1]
The Union submitted its proposal during renegotiation of the parties' collective bargaining agreement (the Agreement). The proposal would amend Article 8, Section 2 of the Agreement, which provides, in relevant part, that "[o]vertime hours shall be assigned fairly and without discrimination among employees of similar skills and capabilities."
The Agency states that the bargaining unit consists of military technicians, and that the non-unit members to whom the proposal refers are "Active Guard/Reserve" or "AGR" personnel. Statement of Position (Statement) at 1. According to the Agency, AGR members are "full time military members of the National Guard who perform many duties similar to those of the military technician workforce." Id. The Agency asserts, without contradiction from the Union, that AGR members are "full time military personnel whose membership is based on Section 502 of Title 32 of the United States Code; and are not 'employees' within the meaning of the Statute." Id.
d. The employer shall not, in any calendar year, assign to a bargaining unit employee on an involuntary basis more work outside the normal duty hours than is assigned on an involuntary basis to any available and similarly qualified person not in the bargaining unit, except that inequality unavoidable due to work not being equally divisible among available qualified persons shall be allowed. The employer shall redress any such inequality at the earliest possible opportunity in the succeeding calendar year.
e. The employer shall keep records stating for each group of similarly qualified bargaining unit employees and non-bargaining unit persons (1) by date, the number of hours of work outside normal duty hours involuntarily assigned to each member of the group; and (2) for each date on which any group member was involuntarily assigned work outside normal duty hours, whether any of the other group members was unavailable for the assignment, and if so, who and why. [n2]
IV. Positions of the Parties
The Agency asserts that the Union's proposal is "an overt attempt to make the AGR program ineffective by imposing restrictions and adverse changes directly upon the terms and conditions of the military membership of the AGR personnel . . . which . . . by law, cannot be affected by collective bargaining." Id. at 2. The Agency contends that the proposal violates 10 U.S.C. § 976 by bargaining the terms and conditions of military service for members of the armed forces. [n3] In the Agency's view, the language of the proposal changes the conditions of military membership by subjecting work [ v55 p477 ] assignments given to AGR members to a comparison with assignments given to bargaining unit employees. To support its position, the Agency cites Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana National Guard, 20 FLRA 717, 739 (1985) (ACT-Montana), petition for review denied mem., 809 F.2d 930 (D.C.Cir. 1987), in which the Authority held that the military aspects of civilian technician employment is not subject to negotiation. The Agency asserts, therefore, that because the proposal seeks to bargain on terms or conditions of service of members of the armed forces--non-unit personnel--it is inconsistent with 10 U.S.C. § 976 and, is outside the duty to bargain.
The Agency further argues that the proposal does not vitally affect unit employees' conditions of employment. In the Agency's view, the disputed language "deals only" with non-unit members, namely those in the AGR. Statement at 5. According to the Agency, AGR members "are specifically excluded from the definition of employees within the meaning of [s]ection 7103(a)(2) of the Statute by [s]ection 7103(a)(2)(B)(ii)." Id. Citing United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434, 1439-40 (D.C. Cir. 1992) (Cherry Point), the Agency asserts that "[t]he only basis for bargaining on a proposal which is intended to affect the terms and conditions of membership of personnel who are outside the bargaining unit would be that the proposal vitally affects the conditions of employment of members of [the] bargaining unit." Statement at 5. The Agency asserts that the proposal "does not rise to that level [because] the assignment of duties to AGR members in no way affects the conditions of employment of bargaining unit members." Id.
The Union acknowledges that 10 U.S.C. § 976 prohibits agencies from negotiating terms or conditions of service of members of the armed forces (such as AGR members). However, the Union maintains that it "does not purport to represent anyone but technicians." Response at 2. The Union denies the Agency's allegation that the proposal unlawfully affects AGR members. According to the Union, "[n]othing in the . . . proposal . . . would give AGR members any rights . . ., let alone contract rights." Id. at 4.
The Union further asserts that the proposal concerns overtime work performed by technicians in their civilian capacity and, thus, "clearly concerns [unit employees] conditions of employment." Id. at 5. The Union alleges that the proposal's implications for AGR members do not place it outside the duty to bargain, because the proposal vitally affects technicians. Acknowledging that AGR members are not employees within the meaning of the Statute, the Union cites Cherry Point, 952 F.2d at 1442, and American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1416-21 (1992), for the proposition that a union may bargain over conditions of employment that implicate non-employees, if the union can show that the proposal vitally affects unit employees. According to the Union, emergencies such as repair of aircraft and other equipment for urgent missions often require technicians to work overtime. The Union asserts that the resulting involuntary overtime disrupts family life, interferes with educational and other pursuits, and imposes significant expenses for child care. Moreover, since technicians are prohibited from receiving overtime pay under 32 U.S.C. § 709(g)(2), the Union contends that "expense[s] incurred as a result of involuntary overtime can impose a significant hardship." Response at 7 n.2. For these reasons, the Union asserts that its proposal vitally affects the conditions of employment of unit members.
Additionally, the Union contends that the proposal would not interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because the Agency would retain exclusive authority to determine which persons are "available" and "similarly qualified," under the proposal, and the amount of overtime work necessary to meet the Agency's needs. Id. at 5. The Union cites National Federation of Federal Employees, Council of Veterans Administration Locals and Veterans Administration, 31 FLRA 360, 426 (1988), for the proposition that proposals concerning the distribution of overtime assignments are within the duty to bargain, so long as the proposals do not interfere with management's rights to set the qualifications necessary for the assignment, and to determine whether a particular assignment should be performed on overtime. In the alternative, the Union contends that the proposal is electively negotiable under section 7106(b)(1) of the Statute, as relating to the number of employees assigned to any tour of duty, citing Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) in support of its position.
V. Analysis and Conclusions
A. Meaning of the Proposal
As worded, the proposal provides that the Agency may not, over a given calendar year, assign to a bargain- [ v55 p478 ] ing unit employee more involuntary overtime than is assigned to "available" and "similarly qualified" non-unit personnel, except where inequality results from the work not being "equally divisible." Petition at 2. Under the proposal, the Agency would be required to remedy any inequalities caused by the indivisibility of work "at the earliest opportunity" the following year, and to keep accurate records of such involuntary overtime assignments. Id.
With respect to the entire proposal, the Union states that, "[t]he proposal means what it says. It uses no terms of art, acronyms, technical language, or any other language not in common usage." Id. at 3. As to Paragraph d., the Union states that this section "concerns the circumstances in which bargaining unit technicians who are among the personnel determined by the employer to be available and similarly qualified for a particular overtime tour of duty may be involuntarily assigned to that tour." Response at 5. Also, according to the Union, the Agency "determine[s]" who is "qualified," "available," and/or "similarly-qualified." [n4] Id. and Petition at 3.
Given the Union's statement of intent, which comports with the proposal's wording, the proposal would require the Agency to address inequalities to bargaining unit employees caused by overtime work not being equally divisible during the calendar year among available qualified persons, in the following year. The proposal would not require the Agency to ensure that all AGR members (non-unit personnel) had already received more involuntary overtime than similarly qualified bargaining unit employees before work could be assigned to a unit employee "at any time" the need for overtime work arises. Accordingly, we so interpret the proposal.
B. The Proposal Is Not Inconsistent with 10 U.S.C. § 976 and Concerns the Conditions of Employment of Bargaining Unit Employees
It is undisputed that "the military aspects of civilian technician employment" are not subject to negotiation. ACT-Montana, 20 FLRA at 739.
As interpreted, the proposal does not prevent the Agency from assigning AGR members or unit employees to any particular task at any particular time. Rather, it seeks to limit the amount of involuntary overtime required of unit employees over the course of a calendar year, as compared with involuntary overtime worked by non-unit personnel. Consequently, the proposal does not regulate the assignment of overtime work to non-unit personnel, but addresses the inequality of involuntary overtime assignments to bargaining unit employees. Thus, the proposal does not require the Agency to negotiate on behalf of the United States concerning the terms of service of military personnel in violation of 10 U.S.C. § 976(e). That statutory provision prohibits any member of the armed forces or any civilian officer or employer from negotiating on behalf of the United States with anyone representing, or purporting to represent, members of the armed forces concerning the conditions of military service. See, e.g., Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, Adjutant General of Pennsylvania, Fort Indiantown Gap, Annville, Pennsylvania, 54 FLRA 552, 557-58 (1998) (proposal requiring agency to alter its method of filling vacancies did not require the agency to select AGR candidates for any particular position and, therefore, did not require the agency to negotiate on behalf of the United States concerning the terms of service of military personnel in violation of 10 U.S.C. § 976(e)). That the proposal may affect non-unit personnel, AGR members, does not, in and of itself, constitute a violation of 10 U.S.C. § 976. See id.
A proposal that directly determines the conditions of employment of non-unit employees, including supervisors, is outside the duty to bargain. See American Federation of State, County & Municipal Employees, Local 2910 and Library of Congress, 53 FLRA 1334, 1338 (1998) (Library of Congress), citing Cherry Point and American Federation of Government Employees v. FLRA, 110 F.3d 810 (D.C. Cir. 1997) (AFGE I). However, the fact that a proposal affects non-unit employees' conditions of employment is not sufficient to remove it from the duty to bargain. Id.; International Federation of Professional and Technical Engineers, Local 35 and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 54 FLRA 1377, 1381 (1998) (Department of the Navy). In this regard, "[n]early every bargaining proposal, if accepted, will have some effect on non-unit personnel." Library of Congress, 53 FLRA at 1338 (citing AFGE I, 110 F.3d at 815). That a proposal has an indirect effect on non-unit employees may relate to its reasonableness or merits, but does not render the proposal outside the duty to bargain. Id. (cit- [ v55 p479 ] ing AFGE I and Cherry Point). Accordingly, proposals that directly implicate the working conditions of unit employees, and that are otherwise within the duty to bargain, are not removed from the duty simply because they also affect non-unit employees. Id.
In this case, nothing on the face of the proposal indicates a direct effect on non-unit personnel. The Union's proposal would only require the Agency to assign bargaining unit members the same or less involuntary overtime than it assigned to non-bargaining unit persons. It would not directly determine the amount of involuntary overtime that non-unit personnel (the AGR members) would be required to perform. Although the proposal may well result in additional overtime work for AGR members, that effect is not enough to lead to the conclusion that the proposal directly determines the conditions of employment of non-unit personnel. See, e.g., Library of Congress, 53 FLRA at 1338-39 (although a proposal requiring an agency to provide a proportionate number of parking spaces to unit employees would reduce the number of spaces available to non-unit employees, that effect was not sufficient to remove the proposal from the agency's duty to bargain); Department of the Navy, 54 FLRA at 1381-82 (the fact that a proposal that designated the location of an agency restaurant also affected non-unit personnel, such as military personnel, did not remove the proposal from the scope of bargainable conditions of employment and did not implicate the vitally affects test). In this regard, where a proposal does not directly determine the conditions of employment of nonunit personnel, the vitally affects test is not implicated. As such, we do not determine whether in this case the proposal vitally affects the conditions of employment of unit employees. See, e.g., id. at 1382.
Because the proposal does not directly determine the terms or conditions of service of AGR members, it is within the duty to bargain unless it is removed from the duty for some reason other than the effect of the proposal on AGR members. Other than the assertion that the proposal is inconsistent with 10 U.S.C. § 976, the Agency presented no further reason for finding the proposal outside the duty to bargain. For the reasons discussed at the beginning of this section, that argument lacks merit. Accordingly, we conclude that the proposal is within the duty to bargain.
The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on the proposal. [n5]
10 U.S.C. § 976 provides, in relevant part, as follows:
Membership in military unions, organizing of military unions, and recognition of military unions prohibited
(c) It shall be unlawful for any person--
. . . .
(2) to negotiate or bargain, or attempt through any coercive act to negotiate or bargain, with any civilian officer or employee, or any member of the armed forces, on behalf of members of the armed forces, concerning the terms or conditions of service of such members;
. . . .
(e) No member of the armed forces, and no civilian officer or employee, may--
(1) negotiate or bargain on behalf of the United States concerning the terms or conditions of military service of members of the armed forces with any person who represents or purports to represent members of the armed forces, or
(2) permit or authorize the use of any military installation, facility, reservation, vessel, or other property of the United States for any meeting, march, picketing, demonstration, or other similar activity which is for the purpose of engaging in any activity prohibited by subsection (b), (c), or (d).
Nothing in this subsection shall prevent commanders or supervisors from giving consideration to the views of any member of the armed forces presented individually or as a result of participation on command-sponsored or authorized advisory councils, committees, or organizations.
Footnote # 1 for 55 FLRA No. 79
The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.
Footnote # 2 for 55 FLRA No. 79
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f. As used in paragraphs b-e above, the terms "qualified," "available," and "similarly-qualified," mean, respectively,
"determined by the employer to be qualified,"
"determined by the employer to be available,"
and "determined by the employer to be similarly-qualified."
Petition at 3.
Footnote # 5 for 55 FLRA No. 79