[ v20 p829 ]
20:0829(103)NG
The decision of the Authority follows:
20 FLRA No. 103
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1655
Union
and
ADJUTANT GENERAL OF ILLINOIS
Agency
Case No. 0-NG-1143
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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
technician.
4. The adjutant general shall approve exceptions in the following
instances:
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
Chairman
---
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
chapter--
(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).