20:0717(85)NG - ACT, Montana Air Chapter and Air Force, Montana Air NG, HQ, 120th Fighter Interceptor Group (ADTAC) -- 1985 FLRAdec NG
[ v20 p717 ]
20:0717(85)NG
The decision of the Authority follows:
20 FLRA No. 85
ASSOCIATION OF CIVILIAN
TECHNICIANS, MONTANA
AIR CHAPTER
Union
and
DEPARTMENT OF THE
AIR FORCE, MONTANA AIR
NATIONAL GUARD, HEADQUARTERS
120TH FIGHTER INTERCEPTOR
GROUP (ADTAC)
Agency
Case No. 0-NG-387
11 FLRA No. 88
DECISION AND ORDER ON REMAND
By its Order of August 1, 1983, the United States Court of Appeals
for the District of Columbia Circuit granted the Union's motion to
summarily reverse the Authority's decision as to two proposals in the
instant case and to remand them to the Authority for reconsideration in
light of the Court's decision in American Federation of Government
Employees, Local 278; v. Federal Labor Relation; Authority, 702 F.2d
1183 (D.C. Cir. 1983), reversing the Authority's decision in American
Federation of Government Employees, AFL-CIO, Local 2782 and Department
of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).
The proposals remanded to the Authority were the following:
Union Proposal 3 /1/
Article 11, Section 2 Determination of which employer(s) will be
affected will be done in thy following manner and order: c.
Immediately upon determination of individuals that will be
affected by the RIF, management will screen the manning document
of the entire unit and offer all vacancies that management deems
may be filled. No affected technician will be offered a position
of higher grade than held at the time of notice other than through
merit promotion. The occupancy date must be prior to the
expiration of the sixty (60) days individual notice. (The
underlined portion of the proposal is in dispute.)
Union Proposal 6
Article 11, Section 5 Those technicians RIFed from employment will
be notified by mail of any position opening that is expanded
beyond internal placement and will be given the position if
retrainable to the position before the hiring of a non-RIFed
person. This provision shall apply one (1) year from date
technician was RIFed.
In the instant case, relying on its original decision in AFGE, Local
2782 and Bureau of the Census, the Authority held that each of the
proposals set forth above directly interfered with management's right
under section 7106(a)(2)(C) to choose among candidates when filling a
vacant position because they required management to select,
respectively, employees subject to release pursuant to a RIF and
individuals with reemployment priority. In its original decision in
AFGE, Local 2782 and Bureau of the Census, the Authority held that a
proposal which required management to select available qualified
repromotion eligible employees when filling vacant positions in the
bargaining unit was not negotiable as an "appropriate arrangement" under
section 7106(b)(3) of the Statute because it directly interfered with
management's right, under section 7106(a)(2)(C), to choose among
candidates from appropriate sources in filling a vacancy. /2/ On
appeal, the United States Court of Appeals for the District of Columbia
Circuit held that the Authority's use of the "direct interference" test
as the basis for determining whether a proposed arrangement for
adversely affected employees is "appropriate" within the meaning of
section 7106(b)(3) is contrary to law. The Court determined that
section 7106(b)(3) authorized the negotiation of proposals which
directly interfered with the exercise of management's rights under
section 7106, as long as that interference was not "excessive." The
Court remanded the case to the Authority with instructions to employ its
expertise in the competing practical needs of employees and managers to
determine whether the proposal at issue therein excessively interfered
with management's rights under section 7106, and, if it did not, whether
it nevertheless was inconsistent with applicable Government-wide
regulations under section 7117(a)(1) of the Statute. AFGE, Local 2782
v. FLRA, 702 F.2d 1183, 1188 (1983).
On remand, the Authority found that the proposal applied to employees
who were demoted through no fault of their own, that it provided for
management to select only repromotion eligibles who were qualified for
the vacant positions, and that it did not require management to fill any
positions. The Authority determined, based on these facts, that the
proposal would protect employees by ameliorating the adverse effects of
management's exercise of its prerogatives, while at the same time
protecting management's need "to determine the qualification
requirements of positions, to decide which vacancies to fill and to fill
those only with fully qualified employees." AFGE, Local 2782 and Bureau
of the Census, Decision and Order on Remand (May 11, 1984), at 4,
reconsideration granted by Authority on other grounds, June 22, 1984,
Decision and Order on Motion for Reconsideration (July 11, 1985), appeal
docketed, No. 85-1562 (,D.C. Cir. September 6, 1985). The Authority
concluded, therefore, that the proposal would not excessively interfere
with management's rights under section 7106(a)(2)(C) and, thus, if
otherwise consistent with law and regulation, that it constituted a
negotiable "appropriate arrangement" under section 7106(b)(3) of the
Statute.
Thus, based on the foregoing, the issue before the Authority pursuant
to the Court's remand in the instant case is whether, in light of the
Court's decision in AFGE, Local 2782 v. FLRA, Union Proposals 3 and 6
herein excessively interfere with the exercise of management's rights
under section 7106 so as to be rendered "inappropriate" for negotiations
under section 7106(b) (3) of the Statute. For the reasons set forth
below, the Authority concludes that, insofar as they are otherwise
consistent with law and regulation, the proposals are negotiable as
"appropriate arrangements." /3/
Union Proposal 3, as set forth above, would require management to
offer employees affected by a RIF all vacant positions that management
deems may be filled. By its terms, i.e., the phrase "management deems
may be filled," and based on the record herein, the proposal would
reserve to management the right to decide both as to whether to fill
positions which will remain vacant after the RIF and as to whether any
of the affected employees are qualified to fill such positions. Thus,
the proposal would require management to fill a vacant position with an
employee who would be affected by a RIF if, in its discretion, it
determines that the position needs to be filled and that there is an
employee who is qualified for the position.
As did the proposal in AFGE, Local 2782 and Bureau of the Census,
Union Proposal 3 in dispute herein protects the needs of employees
subject to demotion or release as a consequence of a RIF by mitigating
against the effects of such management action, while at the same time
protecting management's need to decide whether to fill vacant positions
and to fill them with persons who are qualified to do the work of those
positions. Thus, pursuant to the Court of Appeals' direction, the
Authority finds, for the reasons set forth in its Decision and Order on
Remand in AFGE, Local 2782 and Bureau of the Census, that Union Proposal
3 at issue herein would not excessively interfere with management's
rights under section 7106(a)(2)(C) of the Statute. Accordingly, insofar
as it is otherwise consistent with law and regulation, the proposal
constitutes a negotiable "appropriate arrangement" for employees
adversely affected by the exercise of management's rights within the
meaning of section 7106(b)(3) of the Statute.
As to Union Proposal 6, by its terms it provides that when management
decides to fill a vacant position and, in doing so, to consider
candidates other than those available internally, it will select a
former employee, released pursuant to a RIF action, if that candidate is
retrainable to the position. Thus, as with Union Proposal 3, Union
Proposal 6 would not require management to fill a position, since it
would only take effect after management has made that decision.
Moreover, Union Proposal 6 does not require management to select a
candidate from the reemployment list who is not at all qualified to
perform the work of the position. Rather, management need only select a
candidate who is "retrainable," i.e., an individual who is "sufficiently
familiar" with the work of the position that it is reasonable to expect
him or her to reach the full performance or fully qualified level in
less than a year. /4/ Thus, the proposal provides for managerial
judgment as to the degree to which an individual on the reemployment
list is "trainable." Within the ambit of that judgment, management may
determine whether such individuals possess enough knowledge of or
experience in the duties of the position that they will be able
satisfactorily to perform those duties after a reasonable period of
training. /5/ That is, by preserving managerial judgment as to whether
a given individual would be retrainable to a position in a reasonable
period of time, Union Proposal 6 in a manner similar to the previous
proposal, protects the need of management to fill vacant positions with
qualified employees. Thus, insofar as it is otherwise consistent with
law and regulation, this proposal also constituted a negotiable
"appropriate arrangement" within the meaning of section 7106(b)(3) of
the Statute. /6/
Having reached this conclusion, however, it becomes necessary to
resolve an issue which was not addressed in the Authority's initial
decision, namely, whether Union Proposals 3 and 6 are nonnegotiable
under section 7117(a) of the Statute /7/ because they are inconsistent
with applicable provisions of the National Guard Technicians Act of
1968, 32 U.S.C. 709(b) and 709(e)(1). /8/ Those provisions require that
National Guard technicians, as a condition of their continuing civilian
employment, must maintain military membership in the National Guard and
hold the military grade specified for their civilian technician
positions. The Agency claims that Union Proposals 3 and 6 would require
management to place released technicians into vacant positions without
regard to whether those technicians possess the requisite military grade
for the positions and, thus, that the proposals are contrary to law.
/9/
In this regard, the express language of the proposals contains no
requirement that selection be based upon military compatibility and the
record as a whole supports the conclusion that the proposals were not
intended to mandate compatibility. /10/ Thus, Union Proposals 3 and 6
herein have the same effect as Union Proposal 3 in Association of
Civilian Technicians, Pennsylvania State Council and Pennsylvania Army
and Air National Guard, 14 FLRA 38 (1984), which required that a
released technician with the oldest release date, who once held a
position which management has decided to fill, be offered that position
regardless of whether he currently holds the military grade specified
for that position. In that case, the Authority determined that, by
requiring management to select any qualified technician in inverse order
of release from employment without regard to whether he currently holds
the military grade specified for the position to be filled, the proposal
was inconsistent with law, i.e., the National Guard Technicians Act of
1968. Therefore, in similarly requiring the Agency to fill vacant
positions with, respectively, qualified or retrainable technicians
without regard to whether they hold the military grade compatible with
the position to be filled, Union Proposals 3 and 6 herein are
inconsistent with the Technicians Act. Thus, for the reasons set forth
more fully in Pennsylvania Army and Air National Guard, Union Proposals
3 and 6 are outside the duty to bargain under section 7117(a)(1) of the
Statute. /11/
The Union argues, contrary to this conclusion, that notwithstanding
the statutory requirement regarding military grade, the Secretary of the
Air Force has the authority, pursuant to 32 U.S.C. 709(b), to grant
exceptions to that requirement and, thus, the Agency is not precluded
from negotiating on and agreeing to these proposals. Based on the
legislative history of the provision cited by the Union, the Authority
disagrees.
The National Guard Technicians Act was originally introduced in the
First Session of the 90th Congress in 1967 as Title II of H.R. 2. /12/
With respect to the provision authorizing the Secretary to make
exceptions to the requirements of military membership and military
grade, the Report accompanying Title II of H.R. 2 stated as follows:
/13/
Clause (b) converts to a statutory requirement what has long been
practice and procedure-- that of requiring the civilian male
caretakers and clerks, now termed "technicians," to be members of
the National Guard and to hold the military grade specified by the
Secretary concerned for the corresponding technician position.
The requirement for military membership to assure the presence,
during mobilization, of a hard core of highly qualified
technicians was strongly endorsed by the House Armed Services
Committee in its consideration of H.R. 8186, 86th Congress, 1st
Session (see p. 12, H. Rept. No. 681, 1959, to accompany H.R.
8186). It has also been the practice of the Secretary concerned
to designate certain positions as "officer positions," others as
"enlisted positions," which can be filled only by individuals who
hold the appropriate grade in the National Guard. There is a high
correlation between the duties of the technician in his military
and civilian capacities. Thus, the division staff training
assistant (civilian) is conventionally a lieutenant colonel, the
division G-3, and the unit administrative supply technician (AST)
is conventionally the unit first sergeant or supply sergeant. In
the interest of efficiency and discipline, a military commander
should not be a civilian subordinate of a member of his unit.
Such inversions may be prevented by authorizing the Secretary
concerned to establish the military grade required for employment
in a particular technician position. Proposed 32 U.S.C. 709(b) of
the bill would so provide. The right to make exception the the
foregoing military requirement granted to the Secretary concerned
in the said clause (b) of section 709 is primarily directed toward
the female technician secretaries who would normally not be
expected to fulfill military assignments in the National Guard.
When the legislation was reintroduced in the Senate during the second
session of the 90th Congress (S. 3865) the language of 709(b) was
unchanged. Moreover, the reports which accompanied the bill in the
Senate and the House both indicate that, as with its predecessor Title
II above, the authority of the Secretaries of the Army and Air Force to
make exceptions set forth in 709(b) is intended to be confined to
certain specific types of positions, e.g., technician secretaries: /14/
Unless the Secretaries make an exception, the bill provides
that the technicians as a condition of civilian employment will be
required to be members of the National Guard and hold a military
grade required for that position. In addition, such civil service
positions would be noncompetitive. About 95 percent of the
technicians would hold noncompetitive positions and would be
required to be members of the Guard as a part of their civilian
employment. About 5 percent, or 2,000, would be in a competitive
Federal status and would constitute principally female employees,
clerk-typists, and security guards.
The noncompetitive status is necessary for the technicians in
view of (a) requirement for holding a concurrent military Guard
status as a condition for employment and (b) the fact that
civilian employment is terminated where the concurrent military
status ceases to exist.
Thus, based upon the legislative history of 709(b), it is clear that
the scope of the Secretary's discretion to make exceptions to the
requirements of military membership and military grade is extremely
limited. It is confined to certain specific types of positions, the
mobilization of which would serve no military purpose. /15/ Contrary to
the Union, therefore, the discretion of the Secretary is not so broad as
to permit agreement to proposals that, without regard to the
"compatibility" requirement, provide for the filling of civilian
technician positions which are essentially or integrally military in
purpose. Consequently, as determined above, Union Proposals 3 and 6,
which would require the Agency to disregard the statutory requirements,
are inconsistent with law and nonnegotiable. /16/
For the foregoing reasons, therefore, Union Proposals 3 and 6 are
outside the duty to bargain.
Turning next to the District of Columbia Circuit's further decision
in the instant case, Association of Civilian Technicians, Montana Air
Chapter v. Federal Labor Relations Authority, 756 F.2d 172 (D.C. Cir.
1985), the Court in that decision reversed and remanded the Authority's
decision as to Union Proposals 1 and 9. Specifically, as to Union
Proposal 1, the Court ordered the Authority to consider whether that
proposal, consistent with the Court's decision in American Federation of
Government Employees, Local 2782 v. Federal Labor Relations Authority,
702 F.2d 1183 (D.C. Cir. 1983), constitutes an "appropriate arrangement"
for employees adversely affected by the exercise of management's rights
within the meaning of section 7106(b)(3) of the Statute. With regard to
Union Proposal 9, the Court directed the Authority to reconsider its
interpretation and disposition of that proposal. After careful
consideration of the record in this case, including the submissions of
the parties pursuant to the Authority's Notice of Reopened Proceedings,
the Authority makes the following determinations. /17/
Union Proposal 1
Article 11, Section 1 After consultation with the Association,
notification of RIF will be in the form of a posted written
general notice as far in advance as possible. Upon posting of the
General Notice, the Air or Army Unit will be in a temporary hiring
freeze until all RIF actions have been completed except for
internal placement. (The underlined portion of the proposal is in
dispute.)
In the instant case, relying on its decision in National Federation
of Federal Employees (NFFE), Local 1332 and Headquarters, U.S. Army
Materiel Development and Readiness Command, Alexandria, Virginia, 3 FLRA
611 (1980), the Authority previously held that Union Proposal 1 was
directly and integrally related to the numbers, types, and grades of
employees assigned to a work project, tour of duty, or organizational
subdivision, a matter which is negotiable at the election of the Agency
under section 7106(b)(1) of the Statute and which, since the Agency had
elected not to negotiate, is outside the duty to bargain. /18/
Specifically, in the U.S. Army Materiel Development and Readiness
Command decision, the Authority rejected the union's contention that the
proposed hiring freeze constituted an "appropriate arrangement" for
employees adversely affected by the exercise of management's rights
within the meaning of section 7106(b)(3) of the Statute. /19/ U.S. Army
Materiel Development and Readiness Command, at 613. On appeal in the
instant case, the United States Court of Appeals for the District of
Columbia Circuit ruled that the Authority's determination that the
proposed "hiring freeze" did not constitute an "appropriate arrangement"
under section 7106(b)(3) because it violated management's rights was
erroneous. Citing its decision in AFGE, Local 2782 v. FLRA, wherein it
held that section 7106(b)(3) authorizes the negotiation of proposals
which directly interfered with the exercise of management's rights under
section 7106, as long as that interference, based upon the competing
practical needs of employees and managers, was not "excessive," the
Court reversed the Authority's determination that Union Proposal 1
herein was nonnegotiable and remanded the matter to the Authority for
further proceedings as appropriate. The issue before the Authority on
remand, therefore, is whether, consistent with the interpretation of
section 7106(b)(3) by the District of Columbia Circuit, /20/ the
proposed "hiring freeze" in Union Proposal 1 excessively interferes with
management's rights under section 7106 so as to be rendered
inappropriate for negotiation.
Union Proposal 1 as set forth above, would, upon issuance to
employees of a general notice of a reduction-in-force (RIF), temporarily
preclude management from hiring persons from outside the Agency to fill
vacant positions in the unit. /21/ Thus; the proposal would preserve
those vacancies for the placement of unit employees subject to a RIF who
may possess assignment rights thereto under applicable Agency
regulations or who, in the Agency's discretion, could be placed therein.
/22/ The effect of the proposal, therefore, pending completion of the
RIF, would be to delay implementation of any management decision to add
to the workforce by hiring from outside the Agency. Correlatively, the
proposal would force management to perform its workload with fewer
employees than it might otherwise have determined it would require to do
that work or without the skilled personnel, unavailable internally, it
deemed necessary.
The essential benefit the proposal affords employees who are affected
by the RIF is to maximize the possibility that they will retain their
jobs by preserving all available vacant positions for placement pursuant
to employee assignment rights. In this regard, it should be noted that
the imposition of such a freeze does not guarantee placement of any
employee in a vacant position, even if such vacancies exist, since the
employee may not have a right to the position under applicable Agency
RIF regulations. On the other hand, as to the impact of the proposal on
management, by precluding the Agency, regardless of the circumstances,
from obtaining additional personnel with skills unavailable in the unit,
management would be unable to provide the staffing it has determined is
necessary to accomplish the Guard's mission. For example, as the Agency
indicates, /23/ it anticipates that in 1988 new aircraft and associated
equipment will be introduced into the unit, which action could entail a
reorganization of the unit and the creation of new positions requiring
skills necessitated by the new equipment. During a RIF action resulting
from such a reorganization, the proposal would preclude management,
where the skills needed to maintain and operate this equipment are
unavailable in the unit, from obtaining the necessary personnel from
outside civilian sources or from active duty forces. As a consequence,
the Agency maintains, the freeze would prolong the transition of the
unit to a condition of readiness. In this regard, the Authority has
emphasized, in a related context, that the military mission of the
National Guard requires that it be in a constant state of readiness for
deployment. Division of Military and Naval Affairs, State of New York,
Albany, New York and New York Council, Association of Civilian
Technicians, 15 FLRA No. 65 (1984), affirmed sub nom. New York Council,
Association of Civilian Technicians v. Federal Labor Relations
Authority, 757 F.2d 502 (2nd Cir. 1985), cert. denied, 54 U.S.L.W. 3225
(U.S. Oct. 7, 1985) (No. 85-106). See also American Federation of
Government Employees, AFL-CIO, Local 2953 v. Federal Labor Relations
Authority, 730 F.2d 1534, 1544-47 (D.C. Cir. 1984), affirming American
Federation of Government Employees, AFL-CIO, Local 2953 and National
Guard Bureau, Office of the Adjutant General, Nebraska, 7 FLRA 87
(1981). Thus, even if the delay in staffing positions imposed by the
proposal was not long, in the case of the National Guard it could,
during and immediately after such freeze, severely hamper the ability of
the Guard to rapidly deploy its manpower and equipment at their maximum
effectiveness. /24/
Considering the risks to the ability of the National Guard to
maintain the condition of readiness necessary to its mission, as against
the uncertain benefits to employees of preserving vacant positions for
the duration of the RIF, since employees subject to the RIF may not
possess assignment rights to any of the vacant positions, the Authority
concludes that the proposed "hiring freeze" set forth in Union Proposal
1 excessively interferes with management's ability to provide the
numbers and types of employees to perform the Agency's work. As such,
Union Proposal 1 is not an "appropriate arrangement" within the meaning
of section 7106(b)(3) of the Statute and, thus, is negotiable only at
the election of the Agency under section 7106(b)(1). /25/
Union Proposal 9
Article 22-- Retirement Policies 2. The Employer agrees that all
job related requirements affecting a technician in his technician
employment are automatically renewable unless the technician is
separated for physical requirements or for just cause.
Generally speaking, as relevant herein, the National Guard
Technicians Act of 1968, Pub. L. 90-486, 82 Stat. 755, provides that a
National Guard technician, who is a full-time civilian employee of the
National Guard, must be a member of the National Guard, 32 U.S.C.
709(b), /26/ and that a technician who is separated from the Guard shall
be separated from his employment as a technician, 32 U.S.C. 709(e)(1).
/27/ See Tennessee v. Dunlop, 426 U.S. 312, 96 S.Ct. 2099, 48 L. Ed. 2d
660 (1976); Nesmith v. Fulton, 615 F.2d 196 (5th Cir. 1980). That is,
under law, a prerequisite to employment as a civilian technician
employee of the National Guard is enlistment as a military member of the
National Guard. Thus, when the term of enlistment of a civilian
technician expires, the technician, in order to maintain his civilian
employment, must reenlist in, and be accepted for reenlistment in, the
National Guard. /28/ See Nesmith v. Fulton.
By its plain terms, Union Proposal 9 requires the automatic renewal
of all job related requirements affecting the employment of Air National
Guard civilian technicians, absent just cause or failure to meet
physical requirements. In particular, the proposal requires that,
absent the stated factors, any technician whose enlistment has come to
an end, must automatically be accepted for reenlistment in the Guard.
/29/ The sole purpose of the proposal, therefore, is to confer
membership in the Air National Guard, i.e., military status, on
individuals who currently serve as civilian technicians. Thus, the
subject of the proposal concerns a military matter and does not
directly, but only incidentally, pertain to a technician's civilian
employment. Whether a technician may reenlist as a member of the Air
National Guard, of course, has consequences for the technician's
civilian employment, but acceptance of that reenlistment is a military
and not a civilian matter.
The Statute does not cover members of the "uniformed services." /30/
The "uniformed services" are defined by law to include the "armed
forces," which term is further defined to include the "Air Force." /31/
The "Air Force" is defined to include the Air National Guard. /32/
Members of the Air 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 Union Proposal 9, i.e., reenlistment as a member of the Air National
Guard, 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." National Federation of Federal Employees,
Local 1724 and Utah National Guard, Salt Lake City, Utah, 7 (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).
Moreover, the matter of membership in the Air National Guard is
outside the duty to bargain under section 7103(a)(14)(C) of the Statute
because it is a matter which is "specifically provided for by Federal
statute. /33/ In this regard, the Authority has consistently held that
the military requirements of civilian technician employment are excluded
from the scope of the duty to bargain by section 7103(a)(14)(C) because
they are "totally mandated by law." Association of Civilian Technicians,
Pennsylvania State Council and the Adjutant General, Department of
Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50 Irl-9805;
National Association of Government Employees, Local R14-87 and Kansas
Army National Guard, Topeka, Kansas, 15 FLRA No. 11 (1984). As relevant
herein, not only is membership in the Air National Guard mandated by
law, 32 U.S.C. 709(b), (e)(1), but the terms and conditions of
enlistment and reenlistment in the Guard are likewise prescribed by law,
32 U.S.C. 302, 303, 304. As are the proposals involved in the Authority
decisions cited above, these are matters which are reserved by law for
military determination and action, wholly apart from questions of
civilian technician employment. Thus, contrary to the Union's argument,
the Authority's decisions concerning the exclusion of military matters
from the duty to bargain is not limited only to certain kinds of
military decisions.
The Union refers to a portion of the legislative history of the
National Guard Technicians Act of 1968 as indicating a commitment on the
part of the National Guard to continue its policy of renewing the
enlistments of civilian technicians, so as not to force their
involuntary retirement. /34/ The Union maintains that its proposal
would only incorporate that policy into the collective bargaining
agreement. In this regard, however, the dispositive factor is that the
cited policy concerns a military matter, and, for the reasons set forth
above, is nonnegotiable under the Statute. As the Agency points out,
Agency Statement of Position on Remand at 6, if Union Proposal 9 is
found negotiable, Agency decisions denying reenlistment of unit
technicians would be subject to review by an arbitrator on grounds,
e.g., that the denial was not for just cause. In agreement with the
Agency, the Authority is of the opinion that Congress did not intend, in
providing collective bargaining rights for civilian technicians under
the Statute, to authorize arbitration of the reenlistment decisions of
the National Guard.
Finally, in agreement with the Agency, the Authority finds that, as
an attempt to negotiate on membership in the Air National Guard, Union
Proposal 9 is in violation of 10 U.S.C. 976(c)(2) /35/ That provision
makes it unlawful for a labor organization to attempt to bargain on
behalf of members of the armed forces /36/ over the terms and conditions
of their military service. /37/ Union Proposal 9 at issue herein
constitutes an attempt by the Union to negotiate on behalf of the
members of the Montana Air National Guard regarding their membership in
the Guard. As noted above, by providing for automatic reenlistment,
absent cause or failure to meet physical requirements, the proposal
requires the Agency to accept unit members' applications for
reenlistment, conferring upon them membership in the Guard, which, while
an acknowledged prerequisite to civilian employment, is nevertheless
essentially a term and condition of military service. The decision as
to whether an individual becomes a member of the armed forces is the
fundamental term and condition of military service, the predicate for
all other terms and conditions of such service.
In this regard, the Union argues, based upon the statutory definition
of the term "member of the armed forces," that the prohibition against
collective bargaining over terms and conditions of military service does
not apply to "inactive" membership in the National Guard. /38/ However,
the Union misinterprets the statutory provision. Insofar as National
Guard civilian technicians are concerned, the crucial distinction to be
made in construing the prohibition is not between an individual's status
as an active-duty as opposed to an "inactive-duty" member of the Guard,
but between the individual's service in a military capacity as
contrasted with his or her employment in a civilian capacity. As the
legislative history of the provision makes clear, it was Congress'
intent that the military aspects of civilian technician employment
should never be subject to negotiation. The bill which passed the
Senate would have precluded membership of National Guard civilian
technicians in labor organizations by virtue of their status as members
of the military service. The bill as amended by the House of
Representatives, which was passed by the Congress and signed into law by
the President, by means of the definition set forth in 10 U.S.C. 976(a),
was intended to preserve the right of civilian technicians to negotiate
on the terms and conditions of their employment in their civilian
capacity. /39/ Thus, the prohibition in 10 U.S.C. 976 against a labor
organization negotiating on behalf of members of the armed forces
concerning their terms and conditions of military service extends to the
military status of civilian technicians, but not to their civilian
employment.
The Union also argues that the prohibition in 10 U.S.C. 976 does not
apply to the proposal at issue herein because the proposal does not
concern "terms or conditions of military service" within the meaning of
law and regulation, see notes 35 and 37, supra, i.e., it does not
concern "wages, rates of pay, duty hours, assignments, grievances, or
disputes." /40/ Contrary to the Union's contention in this regard, as
noted above, the proposal concerns the fundamental term or condition of
military service, from which all other terms and conditions are derived,
namely, membership in the military service itself.
Hence, by purporting to negotiate on membership in the National
Guard, Union Proposal 9 is inconsistent with the prohibition, as set
forth in 10 U.S.C. 976, against labor organizations bargaining on behalf
of members of the armed forces over terms or conditions of military
service. The proposal is, therefore, outside the duty to bargain under
section 7117(a)(1) of the Statute as we11. /41/ See National Federation
of Federal Employees, Local 1724 and Utah National Guard, Salt Lake
City, Utah, 7 FLRA 732, 734 (1982) at note 3.
For the foregoing reasons, Union Proposal 9 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 petition for review as to Union
Proposals 1, 3, 6 and 9 be, and it hereby is, dismissed.
Issued, Washington, D.C., November 25, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The proposals will be referred to herein by the numbers given
them in the Authority's initial decision.
/2/ Section 7106 provides, in relevant part, as follows:
Section 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency--
(2) in accordance with applicable laws--
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source (.)
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating--
(3) appropriate arrangements for employees adversely affected by the
exercise of any authority under this section by such management
officials.
/3/ In this regard, the Agency argues that only proposals which
"indirectly affect" management rights are negotiable as "appropriate
arrangements" under section 7106(b)(3) of the Statute. However, as the
Union points out, this argument merely restates the "direct
interference" test which the Court of Appeals directed, as in AFGE,
Local 2782 v. FLRA, not be applied in this case.
/4/ Union's Supplemental Statement of Position at 3; Union's Reply
to Agency Supplemental Statement of Position at 8.
/5/ Cf. Federal Personnel Manual, chap. 351, Subchapter 4-6, 4-7.
While these provisions of the FPM are not applicable to National Guard
technicians, they are nevertheless analogous to the proposal here in
dispute in that they provide for an agency's right to reassign an
employee subject to a RIF action if the employee is able to perform the
duties of a vacancy position without a significant amount of retraining
and without undue interruption of the work. See also 5 CFR 351, Subpart
G.
/6/ Furthermore, the effect upon management's ability to insure that
fully qualified employees are selected for vacant positions under the
proposal is primarily one of the delay occasioned by the training which
would be required. Such delay is not sufficient to amount to excessive
interference with management's rights under section 7106(a)(2)(C). In
this regard, as the Authority has consistently held, delay in and of
itself does not rise to the level of direct interference with
management's rights. See, e.g., National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 14 FLRA 243, 250
(1984), citing American Federation of Government Employees, AFL-CIO,
Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange,
Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department
of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981).
/7/ Section 7117(a)(1) provides:
Section 7117. Duty to bargain in good faith; compelling need; duty
to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with any
Federal law or any Government-wide rule or regulation, extend to matters
which are the subject of any rule or regulation only if the rule or
regulation is not a Government-wide rule or regulation.
/8/ 32 U.S.C. 709(b) and 709(e)(1) provide:
Section 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.
(e) Notwithstanding any other provision of law and under regulations
prescribed by the Secretary concerned--
(1) a technician who is employed in a position in which National
Guard membership is required as a condition of employment and who
is separated from the National Guard or ceases to hold the
military grade specified for his position by the Secretary
concerned shall be promptly separated from his technician
employment by the adjutant general of the jurisdiction
concerned(.)
/9/ See Agency Supplemental Statement of Position at 9-16. See also
Agency statement of Position at 2.
/10/ In this regard, as discussed infra, the Union contends that
compatibility of civilian and military positions of National Guard
technicians is not mandated by law.
/11/ The Authority notes that while, as determined above, a proposal
requiring management to select a reemployment eligible who, though not
fully qualified for a position may nevertheless be trainable within a
reasonable period of time, is negotiable as an "appropriate arrangement"
under section 7106(b)(3), a similar "grace period" to allow a technician
to obtain a compatible military assignment is nonnegotiable under
section 7117(a)(1) as inconsistent with law, i.e., the National Guard
Technicians Act of 1968. See National Association of Government
Employees, Local R14-87 and Kansas Army National Guard, Topeka, Kansas,
15 FLRA No. 11 (1984). See also National Association of Government
Employees, Local R14-87 and The Adjutant General of Kansas, The Kansas
Army National Guard, 17 FLRA No. 23 (1985).
/12/ American Federation of Government Employees, AFL-CIO, Local 2953
v. Federal Labor Relations Authority, 730 F.2d 1534, 1542 (D.C. Cir.
1984). The legislation passed the House of Representatives, but Title
II was removed from the bill by the Senate, which wished to investigate
further certain aspects of the bill pertaining, among other things, to
the inclusion of technicians in the Federal civil service retirement
program. 113 Cong. Rec. S16104 (Nov. 8, 1967). The House conferees
agreed to this postponement based upon the commitment of the Senate
conferees to submit the bill during the next year's session. H.R. Rep.
No. 925, 90th Cong., 1st Sess. 11 (1967).
/13/ H.R. Rep. No. 13, 90th Cong., 1st Sess. 58-59 (1967).
/14/ S. Rep. No. 1446, 90th Cong., 2nd Sess. 5 (1968). See also
H.R. Rep. No. 1823, 90th Cong., 2nd Sess. 6 (1968).
/15/ See, e.g., Simpson v. United States, 467 F. Supp. 1122, 1127
(S.D. N.Y. 1979), wherein the Court states:
This conclusion (i.e., that Congress did not intend to exempt
National Guard technicians from the Reserve Officer Personnel Act)
is supported by the fact that Congress authorized the Secretary of
the Army to exempt some technicians from the requirement of
concurrent Guard membership. 32 U.S.C. 709(b); H.R. Rep. No.
1823, 90th Cong. 2d Sess. 6 (1968), reprinted in 3 (1968) U.S.
Code Cong. & Admin. News, pp. 3318, 3324. By providing this
exemption for those technicians (principally secretaries,
clerk-typists, and security guards, id.) whose jobs, in the
opinion of the Secretary, are completely non-military, Congress
indicated all the more clearly that in its view most technicians
jobs are integrally military and should be held by individuals who
meet military standards.
/16/ Having reached this conclusion, it is unnecessary to consider
whether Union Proposals 3 and 6 are also outside the duty to bargain
under section 7103(a)(14)(C) as alleged by the Agency.
/17/ The Union submitted a Supplemental Statement of Position in
response to the Agency's Statement of Position, claiming it was
permitted to do so pursuant to section 7117(c)(4) of the Statute. The
Agency filed a motion to dismiss the Union's supplemental submission.
Contrary to the Union's argument, section 7117(c) pertains to the
initial appeal of a negotiability dispute to the Authority and is
inapplicable to the remand of the instant case to the Authority by the
Court of Appeals. Moreover, the Authority's Notice of Reopened
Proceedings and Request for Statements of Position specifically provided
for each party to file a statement of its position addressing the issues
before the Authority on remand. The Notice did not provide for
supplemental, responsive statements and neither of statements and
neither of the parties requested the opportunity to file such
statements. Therefore, the Agency's motion to dismiss the Union's
supplemental statement is granted and that submission has not been
considered herein.
In addition, the National Federation of Federal Employees (NFFE),
which had been granted permission in the instant case to file a brief as
an amicus curiae by the Court of Appeals, requested and was granted the
opportunity to submit a statement as an amicus curiae. The Agency filed
a motion requesting the Authority to reconsider and deny its grant to
NFFE of permission to file a statement as an amicus curiae. Pursuant to
section 2429.9 of the Authority's Rules and Regulation, the Authority
may, as it deems appropriate, grant permission for an interested person
to present an argument as an amicus curiae. In the circumstances
herein, namely, that NFFE had participated as an amicus curiae in the
instant of several units of National Guard civilian technicians, NFFE
has an interest in the matters at issue herein, the Authority determined
it was appropriate to grant NFFE permission to file a statement as an
amicus curiae. Therefore, the Agency's motion is hereby denied.
/18/ Section 7106(b)(1) provides, in relevant part, as follows:
Section 7106. Management rights
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating--
(1) at the election of the agency, on the numbers, types, and grades
of employees or positions assigned to any organizational subdivision,
work project, or tour of duty. . . (.)
/19/ See note 2, supra.
/20/ As noted above in connection with the disposition of Union
Proposals 3 and 6, in its decision in AFGE, Local 2782 v. FLRA the
District of Columbia Circuit held that the Authority's use of the
"direct interference" test as the basis for determining whether a
proposed arrangement for adversely affected employees is "appropriate"
within the meaning of section 7106(b)(3) is contrary to law. Rather,
the Court viewed section 7106(b)(3) as authorizing the negotiation of
proposals which directly interfered with the exercise of management
rights under section 7106, as long as that interference was not
"excessive." The Court left it to the Authority, with its expertise in
the competing practical needs of employees and managers, to determine in
any given case what constitutes "excessive" interference.
/21/ In the instant case, under applicable Agency regulations, the
minimum duration of such a freeze would be 60 days, but could last as
long as 6 months. In this regard, TPM Chap. 351, Subchapter 8.a.
provides, in relevant part, as follows:
SUBCHAPTER 8. NOTICE TO TECHNICIAN
a. Requirement. The State Adjutant General must give written notice
to a competing technician reached for release from his competitive level
under this chapter. A reduction-in-force notice is an official,
personal communication addressed to the technician and issued by the
Technician Personnel Office. It is not a general information leaflet or
a notice on the bulletin board. Officially recognized labor
organizations will be kept informed on the progress of the RIF by means
of frequent meetings. The technician must receive the notice at least
60 full days before the date of his release. The technician should not
ordinarily receive the notice more than 90 days before the date of
release unless the State determines that a longer notice will protect
the technician's rights or avoid administrative hardship. In the event
of a major reduction, the notice should be made at least 6 months in
advance.
/22/ Regulations governing assignment rights of civilian technicians
are set forth in TPM Chap. 351, Subchapter 7. See also TPM Chap. 351,
Subchapter 2. Generally speaking, the right of an employee to a
position depends upon his or her qualifications for that position and on
whether the employee holds the military grade compatible with that
position. See TPM Chap. 351, Subchapter 4-3.b.(4), Subchapter 7-4.
/23/ Agency Statement of Position on Remand at 34.
/24/ In this connection, the Authority has reached a fundamentally
different conclusion as to the effect of the proposed freeze on
management's decisions concerning the staffing of its positions from
that set forth by NFFE in its brief amicus curiae. Amicus Curiae Brief
for the National Federation of Federal Employees at 3-5. The arguments
made there are general in nature and fail to take into account the
specifically military nature of the Guard mission and the necessity for
the Guard to be constantly ready to be deployed for the accomplishment
of that mission.
/25/ Contrary to the Union, the fact that the Agency, pursuant to its
rights under section 7106 of the Statute, has provided in its RIF
regulations for management to have the option of imposing a "hiring
freeze" is not of dispositive significance. See American Federation of
Government Employees, AFL-CIO, Local 3488 and Federal Deposit Insurance
Corporation, New York Region, 17 FLRA No. 78 (1985) at note 3; American
Federation of Government Employees, AFL-CIO, Local 1603 and Navy
Exchange, Naval Air Station, Patuxent River, Maryland, 9 FLRA 1039, 1040
(1982).
/26/ See note 8, supra.
/27/ See note 8, supra.
/28/ 32 U.S.C. 302 provides:
Section 302. Enlistments, reenlistments, and extensions
(a) Under regulations to be prescribed by the Secretary concerned,
original enlistments in the National Guard may be accepted for--
(1) any specified term, not less than three years, for persons
who have not served in an armed force; or
(2) any specified term, not less than one year, for persons who
have served in any armed force.
(b) Under regulations to be prescribed by the Secretary concerned,
reenlistment in the National Guard may be accepted for any specified
period, or, if the person last served in one of the highest five
enlisted grades, for an unspecified period.
(c) Enlistments or reenlistments in the National Guard may be
extended--
(1) under regulations to be prescribed by the Secretary
concerned, at the request of the member, for any period not less
than six months; or
(2) by proclamation of the President, if Congress declares an
emergency, until six months after termination of that emergency.
Agency regulations, Air National Guard Regulation 39-09, prescribe
the requirements for enlistment and reenlistment, including the grounds
for denying reenlistment. Agency Statement of Position on Remand at 6.
See also Gallo v. Brown, 446 F. Supp. 45 (D.C.R.I. 1978).
/29/ Union Statement of Position on Remand at 6.
/30/ Section 7103(a)(2)(ii) provides:
Section 7103. Definitions; application
(a) For the purposes of this chapter--
(2) "employee" means an individual--
but does not include--
(ii) a member of the uniformed services(.)
/31/ 5 U.S.C. 2101 provides, in relevant part, as follows:
Section 2101. Civil service; armed forces; uniformed services
For the purpose of this title--
(2) "armed forces: means the Army, Navy, Air Force, Marine
Corps, and Coast Guard; and
(3) "uniformed services" means the armed forces, the
commissioned corps of the Public Health Service, and the
commissioned corps of the National Oceanic and Atmospheric
Administration.
/32/ 10 U.S.C. 8062(d) provides:
Section 8062. Policy; composition; aircraft authorization
(d) The Air Force consists of--
(1) the Regular Air Force, the Air National Guard of the United
States, the Air National Guard while in the service of the United
States, and the Air Force Reserve;
(2) all persons appointed or enlisted in, or conscripted into,
the Air Force without component; and
(3) all Air Force units and other Air Force organizations, with
their installations and supporting and auxiliary combat, training,
administrative, and logistic elements; and all members of the Air
Force, including those not assigned to units; necessary to form
the basis for a complete and immediate mobilization for the
national defense in the event of a national emergency.
See also 10 U.S.C. 8261 which provides as follows:
8261. Air National Guard of United States
(a) Except as provided in subsection (c), to become an enlisted
member of the Air National Guard of the United States, a person
must--
(1) be enlisted in the Air National Guard;
(2) subscribe to the oath set forth in section 304 of title 32;
and
(3) be a member of a federally recognized unit or organization
of the Air National Guard in the grade in which he is to be
enlisted as a Reserve.
(b) Under regulations to be prescribed by the Secretary of the Air
Force, a person who enlists or reenlists in the Air National Guard, or
whose term of enlistment or reenlistment in the Air National Guard is
extended, shall be concurrently enlisted or reenlisted, or his term of
enlistment or reenlistment shall be concurrently extended, as the case
may be, as a Reserve of the Air Force for service in the Air National
Guard of the United States.
(c) A member of the Air Force Reserve who enlists in the Air National
Guard in his reserve grade, and is a member of a federally recognized
unit or organization thereof, becomes a member of the Air National Guard
of the United States and ceases to be a member of the Air Force Reserve.
/33/ Section 7103(a)(14)(C) of the Statute provides:
Section 7103. Definitions; application
(a) For the purpose of this chapter--
(14) "conditions of employment" means personnel policies, practices,
and matters, whether established by rule, regulation, or otherwise,
affecting working conditions, except that such term does not include
policies, practices, and matters--
(C) to the extent such matters are specifically provided for by
Federal statute(.)
/34/ S. Rep. No. 1446, 90th Cong., 2nd Sess. 12 (1968) states as
follows:
Under present regulations technicians holding enlisted grades
are permitted to enlist in the Guard up to age 60. The committee
has been informally advised that the National Guard intends to
continue this policy, with the result that enlisted members should
not be involuntarily retired through separation of job due to
military promotion or elimination factors. In other words, so
long as an enlisted technician properly performs his job there
should be no grounds for his involuntary retirement. Among the
specific grounds that would not be any basis for involuntary
retirement would be the voluntary resignation from a military
status on the part of either a commissioned or enlisted
technician, thereby causing disqualification for further civilian
employment, failure on the part of the enlisted technician to
reenlist in the Guard, or failure on the part of the National
Guard to accept his reenlistment application if properly
qualified, or the discharge from enlistment for failure to meet
military standards.
/35/ 10 U.S.C. 976(c)(2) provides:
Section 976. 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(.)
See also 32 CFR 143.4.(b).
/36/ 10 U.S.C. 976(a) provides:
976. Membership in military unions, organizing of military unions,
and recognition of military unions prohibited
(a) In this section:
(1) "Member of the armed forces" means (A) a member of the
armed forces who is serving on active duty, (B) a member of the
National Guard who is serving on full-time National Guard duty, or
(C) a member of a Reserve component while performing inactive-duty
training.
See also 32 CFR 143.7.(a).
/37/ 32 CFR 143.7.(f). provides:
Section 143.7. Definitions.
(f) Terms or Conditions of Military Service. Terms or conditions of
military compensation or duty including but not limited to wages, rates
or pay, duty hours, assignments, grievances, or disputes.
/38/ Union Statement of Position on Remand at 9.
/39/ H.R. Rep. No. 95-894 (II), 95th Cong., 2nd Sess. 6-7 (1978)
(Post Office and Civil Service Committee), reprinted in 1978 U.S. Code
Cong. and Ad. News 7575, 7590, states as follows:
S. 274, as passed by the Senate, would also deny to civilian
technicians the right to representation in collective bargaining.
This right has been available to such employees since 1968 under
Executive Order 11491. The committee was not persuaded by the
arguments of the National Guard Association that
collective-bargaining activities by employee representatives
detracted from the preparedness of the National Guard. Indeed,
available information and testimony of the Department of Defense
indicated that it was in the national interest for these
dual-status employees to enjoy representation in their civilian
capacities.
S. 274 is also deficient because it treats civilian technicians
as if they were full-time members of the military. As James
Pierce, president of the National Federation of Federal Employees
stated: * * * Civilian technicians * * * are not members of the
military and they are not subject to the Uniform Code of Military
Justice, which governs the employment relationship of military
personnel. Nor do they receive the benefits of military life.
The committee cannot accept the premise of S. 274 that civilian
technicians, while serving in their civilian capacity, are members
of the military. Yet, certain provisions of the Senate bill
would, in effect, convert them to this status. S.274 would deny
them their existing right to representation in collective
bargaining. It would further impose criminal sanctions for
violations of the act.
Accordingly, the committee has stricken those provisions of the
bill which would have had the effect of including civilian
technicians within the provisions of the bill.
See also H.R. Rep. No. 95-894 (I), 95th Cong., 2nd Sess. 8-9 (1978)
(Armed Services Committee), reprinted in 1978 U.S. Code Cong. and Ad.
News 7575, 7580-81, which states as follows:
Subsection (a)-- Definitions
(a)(1)-- paragraph defines a member of the Armed Forces for
purposes of the new section 975 as one who is serving on active
duty, or who is a member of a Reserve component while performing
inactive-duty training. This definition encompasses the Army,
Navy, Air Force, Marine Corps, Coast Guard and their Reserve and
National Guard components.
The committee believes that the prohibition on military labor
union membership must extend to the personnel of Reserve and
National Guard components, since they are subject to mobilization
in the event of a war or national emergency and would be serving
side by side with active forces personnel. However, since the
restriction on their union membership affects first amendment
rights, the committee believes that the restriction should be
drawn as narrowly as possible. To accomplish this, the bill
provides that Reserve and National Guard personnel shall be
considered as members of the Armed Forces only "while performing
inactive-duty training", i.e., those periods when they are
actually in uniform and engaged in military training or
instruction. It is the committee's belief that this limitation
will be sufficient to govern the conduct of reservists while they
are actually engaged in military duties, but would not infringe on
their first amendment right of freedom of speech or the right of
freedom of association at all other times.
/40/ Union Statement of Position on Remand at 10.
/41/ See note 7, supra.