[ v55 p657 ]
55 FLRA No. 115
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
(Activity)
and
ASSOCIATION OF CIVILIAN TECHNICIANS
(Labor Organization/Petitioner)
and
WASHINGTON NATIONAL GUARD, et. al.
(Intervenors) [n1]
WA-RP-70070
_____
DECISION AND ORDER ON REVIEW
July 30, 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 Petitioner's application for review of the Regional Director's (RD's) decision dismissing its petition to consolidate separate bargaining units. 5 C.F.R. § 2422.31. The RD concluded that the proposed unit was not appropriate, as defined in section 7112(a) of the Federal Service Labor-Management Relations Statute (the Statute). The National Guard Bureau (NGB) and 20 state National Guard intervenors filed oppositions to the application. [n2]
For the following reasons, we deny the application for review of the RD's decision to dismiss the petition.
II. Background and the RD's Decision
The petition seeks to consolidate existing bargaining units in 39 states, the District of Columbia, Puerto Rico and the Virgin Islands, representing approximately 53 percent of eligible National Guard technicians nationwide.
National Guard technicians are a "hybrid class" of employee--federal civilians who work in a military environment and under the immediate control of state officers. State of Nebraska, Military Department, Office of the Adjutant General v. FLRA, 705 F.2d 945, 946 (8th Cir. 1983); see New Jersey Air National Guard v. FLRA, 677 F.2d 276, 279-80 (3d Cir. 1982) (NJ National Guard). As a condition of their civilian employment, technicians must become and remain members of the National Guard, maintaining the particular military grade specified for their civilian positions. 32 U.S.C. § 709(b),(d),(e) (the Technician Act). [n3]
The hybrid nature of technician service reflects, in part, the unique federal-state character of the National Guard. See generally, Perpich v. Department of Defense, 496 U.S. 334, 340-51 (1990) (describing the history of the National Guard and the competing themes of federal and state control over guard units). Each state National Guard activity is headed by an Adjutant General, who is usually appointed by the governor. Department of Defense, National Guard Bureau and National [ v55 p658 ] Federation of Federal Employees, Independent and Department of Defense, National Guard Bureau and National Association of Government Employees, 13 FLRA 232, 234 (1983) (National Guard). The federal NGB is "a joint Bureau" of the Department of the Army (Army) and the Department of the Air Force (Air Force), and a liaison in coordinating the activities of the state officers, the Army, and the Air Force. Id. The NGB is headed by a chief who reports on National Guard matters to the Chiefs of Staff of the Army and Air Force. RD's Decision at 7.
The Technician Act provides that technicians are considered "employees" of either the Army or the Air Force. 32 U.S.C. § 709(d). The Secretary of either Department is required, however, to "designate" the Adjutants General of the states to "employ and administer" the technicians. 32 U.S.C. § 709(c). In National Guard, the Authority described the joint federal-state management of technicians, stating that the NGB does not employ technicians or "exercise command over any state activity[,]" but it issues regulations pertaining to technicians' conditions of employment and work life. National Guard, 13 FLRA at 234. These regulations are administered by a personnel officer in each state who reports directly to the Adjutant General. Labor and personnel policies are administered by each state's Adjutant General.
The Authority dismissed two petitions seeking consolidation in National Guard, reasoning that each state's technicians are independently supervised and are subject to independent state control over personnel, labor relations, and working conditions. The Authority also found that technicians are subject to unique state missions. Thus, the Authority concluded that the units lacked a community of interest. See id. at 237. The Authority also determined that consolidation would not promote effective dealings between the parties, or the efficient operation of the National Guard, because of the small number of employees involved, and because national bargaining units would not adequately reflect state control. Id. at 237-38.
The RD described the issue here as "whether there have been meaningful changes" since National Guard that might lead to a conclusion that a consolidated unit would now be appropriate under the criteria set out in section 7112(a). RD's Decision at 6. The RD stated that the "basic organization, structure and mission of the NGB and its relationship to State Activities and the employees in units proposed to be consolidated have not changed," but that some changes in National Guard operations and labor relations dealings had occurred since National Guard, including: NGB review of collective bargaining agreements; the establishment of a procedure for states to submit bargaining agreements for advice as to negotiability matters; the establishment of a nationwide job bulletin board; an increase in the interchange of employees of the states in connection with a test program; and evidence that more consistent contract terms have been negotiated with states. The RD also acknowledged that, if the petition were granted, the proposed consolidated unit would result in the Petitioner representing a larger number of bargaining unit employees than did the petitioners in National Guard. See RD's Decision at 8-10 (summarizing changes).
The RD determined that the proposed consolidated unit was not appropriate under section 7112(a).
First, the RD stated that section 7112(a) requires that the proposed consolidated unit ensure a clear and identifiable community of interest. The RD applied the four-criteria test established in U.S. Department of Justice and American Federation of Government Employees, AFL-CIO, 17 FLRA 58 (1985) (Department of Justice) to determine if a community of interest had been established. The RD acknowledged that the second and third Department of Justice criteria--the organizational and geographic distribution of the employees and the degree of similarity in the occupational undertakings of the employees--favored consolidation because the Petitioner represents more technicians units in more states than the petitioners in National Guard and "these units are more evenly distributed" throughout the organization than in National Guard. RD's Decision at 9.
According to the RD, however, the first and fourth Department of Justice criteria--degree of commonality and integration of the mission and function of the components involved, and locus and scope of personnel and labor relations authority and functions--had not been met. Examining the first criteria, the RD stated that each state activity has a unique mission "and each performs slightly different functions based on that mission." Id. at 14. As to whether technicians' civilian and military duties are severable--and thus, the difference in state missions irrelevant--the RD concluded that "during their federal duty time [technicians] are preparing and training not only for mobilization of federal armed forces but to perform the state military mission when called upon to do so." Id. at 13. The RD concluded, therefore, that the basis for the Authority's conclusion in National Guard as to this criteria had not changed. The RD also determined that the fourth criteria had not been satisfied. Although the RD acknowledged that changes affecting labor and employment relations have occurred since National Guard, the RD determined that the NGB [ v55 p659 ] has no authority to "represent the State Activities in [collective bargaining], nor does the NGB set labor relations policy for the State Activities." Id. According to the RD, the states through their adjutants general "retain authority over personnel and labor relations matters," indicating a lack of community of interest among state employees. Id. at 14. Thus, he concluded that the employees did not share a community of interest.
Second, the RD determined that consolidation would not promote effective dealings or efficient agency operations, as required under section 7112(a). The RD found that "the proposed consolidated unit would place the NGB in a position of negotiating for the State Activities without authority to do so." Id. The "increase in the numbers of employees represented and their distribution in the National Guard is not sufficient to overcome the effect of the retention of personnel and labor relations authority at the state level," the RD concluded. Id. (citing United States Department of the Navy, Fleet and Industrial Supply Center, Norfolk, Virginia, 52 FLRA 950, 959 (1997) (FISC)). Also, the RD determined that consolidation would not promote efficient agency operations "given the authority retained" by states "to separately employ technicians and to administer the technicians program[.]" Id.
The RD also addressed the Petitioner's argument that the Authority should consider the extent that "the unit would ensure the employees the fullest freedom in exercising their rights under the Statute." Id. at 15. The RD stated that, even if an "expansion of bargaining rights could result from the proposed unit[,] this does not establish that the unit meets the [section 7112(a)] criteria without which the Authority cannot find a unit to be appropriate . . . ." Id.
The RD, relying on an Authority Order issued on August 31, 1998, stated that he need not address Constitutional issues raised by the parties because "the proposed consolidated unit is not appropriate for exclusive recognition under the Statute[.]" Id. at 12.
III. Positions of the Parties
A. Petitioner
The Petitioner asserts that the RD erred by determining that section 709 of the Technicians Act requires that labor relations authority be delegated to the states and the Adjutants General. [n4] The Petitioner argues that, under the statutory scheme, no such authority is delegated. Instead, according to the Petitioner, labor relations authority lies with the federal government--the Departments of the Army and Air Force--and nothing in the Act prohibits authority from being allocated "in any way the Departments desire." Application at 6. The Petitioner contends that technicians are federal, not state, employees. In this regard, the Petitioner argues that "principles of statutory construction preclude reading the authority to control labor relations into the [state's] authority under section 709(c) of the Act" because it conflicts with the Statute. Id. at 8.
The Petitioner also asserts that the RD failed to apply established law in determining that the proposed consolidated unit is not appropriate. The Petitioner argues that employees in the proposed unit share a clear and identifiable community of interest, asserting that employees in the proposed unit share missions and functions that are common and prescribed by section 709(a) of the Act. In that regard, according to the Petitioner, any difference in state military missions is not relevant to determining whether this criteria has been satisfied because "technicians do not perform state missions while in technicians status." Id. at 16 n.14. According to the Petitioner, "current bargaining units already span the greatest degree of diversity and separation in missions and functions that exists within the National Guard"--those separating Army and Air Force components. Id. at 15. Further, the Petitioner argues the fact that NGB regulations address "numerous conditions of technician employment" and "apply uniformly, nationwide" to all technicians also establishes the existence of a community of interest. Id. at 15-16. The Petitioner also asserts that the locus and scope of personnel and labor relations supports consolidation of the proposed unit as prescribed by section 7112(a). The Petitioner contends that, although the Authority in National Guard concluded that labor relations was within state authority, it did so without analysis or citation to legal precedent.
Further, the Petitioner asserts that the RD should have considered in connection with the community of interest analysis that expanded bargaining rights would accrue to the proposed consolidated unit under section 7117(a)(3) of the Statute. According to the Petitioner, section 7117(a)(3) gives an exclusive representative the right to bargain over matters that otherwise would be subject to an agency's claims of compelling need, and that this is relevant to determining whether a community of interest has been established. [ v55 p660 ]
The Petitioner asserts that consolidation "would end unnecessary, costly, and time-consuming duplication of effort" and, thus, would promote effective dealings and the efficiency of agency operations. Id. at 23-24 (citing U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio and American Federation of Government Employees, AFL-CIO, 55 FLRA 359, 361, 364 (1999) (AFMC).
Finally, the Petitioner asserts that the RD should have addressed the Constitutional arguments posed by the parties.
B. National Guard Bureau
The NGB argues that the RD correctly determined that the proposed consolidated unit is not appropriate under section 7112(a) of the Statute.
Addressing the Petitioner's argument that authority for labor relations under the Act does not lie with the adjutants general, the NGB states that the plain language of the Statute refutes that claim. According to the NGB, under the Act, "the Secretary . . . cannot revoke those authorities, nor can the Secretary delegate [it] to any other person." Id. at 3.
Addressing the Petitioner's section 7117(a)(3) argument, the NGB states that the Petitioner's argument "ignores the plain language of 7117(a)(3), which applies only to units already deemed appropriate. Id.
C. Intervenors
All of the positions taken by the intervenors whose oppositions we have accepted, see n.2, are summarized here. A table identifying the particular argument raised by each intervenor is attached as Appendix B.
In general, the intervenors argue that the Petitioner has failed to satisfy the established criteria for granting review of an RD's decision under section 2422.31 of the Authority's Regulations. The intervenors also assert that the proposed consolidation would be inconsistent with the Technicians Act. Further, the intervenors contend that the RD properly determined that the proposed consolidated unit is not appropriate.
In addition, the Montana National Guard addresses the Petitioner's argument that section 709(c) of the Technicians Act conflicts with the Statute. According to the Montana National Guard, the Petitioner seeks repeal by implication of portions of the Technicians Act, but this is neither favored by the courts nor necessary in this instance where two statutes can be reconciled (citing Morton v. Mancari, 417 U.S. 535, 551 (1974) (Mancari)). The Rhode Island National Guard argues that the proposed consolidated unit is unconstitutional under Article 1, Section 8 of the U.S. Constitution.
IV. Analysis and Conclusions
Under section 7112(d) of the Statute, two or more bargaining units represented by the same union may be consolidated "if the Authority considers the larger unit to be appropriate." See AFMC, 55 FLRA at 361. The reference in section 7112(d) to the consolidation of "appropriate" units incorporates the appropriate unit criteria established in section 7112(a). Those criteria provide that a unit may be determined to be appropriate if it will: (1) ensure a clear and identifiable community of interest among the employees in the unit; (2) promote effective dealings with the agency involved; and (3) promote efficiency of the operations of the agency involved. 5 U.S.C. § 7112(a); AFMC, 55 FLRA at 361-62. The Authority has identified a number of factors that indicate whether these statutory criteria are met, see generally, FISC, 52 FLRA at 960-61, and has consistently applied these factors on a case-by-case basis. See Department of Justice, 17 FLRA at 62; Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, AFL-CIO, 5 FLRA 657, 660-61 (1981) (AAFES).
The Petitioner asserts that the RD's decision misapplied the statutory criteria and erred particularly in holding that, under the Technicians Act, the states have a role in labor and employment relations. For the reasons explained below, we conclude that the RD properly construed the provisions of the Technicians Act and properly applied the appropriate unit test.
A. The state adjutants general have a role in labor relations.
The Petitioner's view is that, under the Statute and the Technician Act, labor relations is solely a federal function, with the states having no statutory role. According to the Petitioner, "technicians are federal employees," (Application at 6), the Statute "expressly grants the federal departments full control over labor relations with technicians," (id. at 7), and "[s]tate authority to control labor relations cannot be read into the Technician Act." Id. at 8 (capitalization removed).
The Petitioner's view ignores both the hybrid nature of technician employment and the significance of the command in section 709(c) of the Act, that the "Secretary concerned shall designate the adjutant general . . . to employ and administer the technicians . . . ." The Senate report on the legislation that became the Technician Act explains that a "principal feature" of the Act is the "[r]equirement for adjutants general to be the sole [ v55 p661 ] agent for employment and administration of [the] technician program under regulations prescribed by the Secretary concerned." S.R. Rep. No. 1446 at 2, 90th Cong. 2nd Sess. (1968) (emphasis added); see also H.R. Rep. No. 1823, at 3321 90th Cong. 2nd Sess. (1968) (same). [n5] Specifically, the Senate Report explains that the designation of the adjutants general of the states "to employ and administer the technicians" was "intended to achieve two purposes: (a) recognize the State character of the Guard and (b) meet the requirement of giving the adjutants general (who are State officers) the statutory function of employing Federal employees." S.R. Rep. No. 1446, at 15 (1968). As the U.S. Court of Appeals for the D.C. Circuit summarized, "the scheme of the [Technicians Act] is to create the technicians as nominal federal employees . . . and to recognize the military authority of the states through their Governors and Adjutants General to employ, command and discharge them." American Federation of Government Employees, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534, 1537-38 (D.C. 1984); see also, Johnson v. Orr, 780 F.2d 386, 392 (3rd Cir. 1986).
In addition to the general requirement that the states employ and administer the technicians, the Technician Act identifies a number of specific employment actions as within the authority of state officials. These include the separation of employees, reductions in force, suspensions, furloughs without pay, and reductions in rank. 32 U.S.C. § 709(e). This authority is exercised "under regulations prescribed by the Secretary concerned." Id.
There is no specific reference in the Technician Act to the allocation of labor relations authority. Further, there is no reference to technicians in the Statute, and there is no indication that issues relating to technician bargaining were separately considered by Congress when it enacted the Statute. [n6] There is, in short, no specific indication as to how Congress intended to integrate the authority set out in the Technician Act with the labor relations responsibilities set out in the Statute. Under basic rules of statutory construction, we must attempt to interpret both the Technician Act and the labor relations Statute so that they do not conflict. Mancari, 417 U.S. at 550. See also NJ National Guard, 677 F.2d at 282-84 (rejecting the assertion that the Technicians Act and the Statute conflicted, or that the StatuteJshould be interpreted as overriding a provision of the Technicians Act).
The Petitioner argues that the key element in construing the Statute in this context is that the Statute defines the term "agency" as an "executive agency," which only includes federal officials. Application at 7 (citing 5 U.S.C. 7103(a)(3)). According to the Petitioner, any labor relations authority exercised by the states is subject to the "unfettered discretion" of federal officials, who may appoint state officials as their "representatives." Id.
The Petitioner's position requires that authority over labor relations be separated from authority to control employees' conditions of employment. Under the Technician Act, general authority over employment is vested in state officials--at least to some degree--as is unreviewable authority over discipline, separations, and reductions in force. The Statute requires that employees be permitted to bargain over conditions of employment, including these specific matters. See 5 U.S.C. § 7114, § 7106(b)(2), (3). This statutory scheme is not workable if employees do not have a right to negotiate with the same officials who exercise authority over these conditions of employment.
Although federal officials promulgate regulations governing technician working conditions, this authority is not "unfettered." They retain no authority over the day-to-day employment of the technicians. That authority is designated by statute to the states. Although states' authority under section 709(e) is exercised "under regulations prescribed by the Secretary," this caveat does not empower federal officials to direct or supervise authority given to the states. As the Third Circuit Court of Appeals concluded in NJ National Guard, reconciling provisions of the Statute and the Technicians Act, "it appears quite clear from the importance Congress attached to the preservation of state control that . . . it intended to bring Guard technicians within the coverage of schemes such as the Labor-Management Act only with the provision that the state controls set out in section 709(e) would remain." NJ National Guard, 677 F.2d at 284. The court concluded that it could "find no evidence whatsoever that Congress in 1978 had within its contemplation the employment status of National Guard technicians." Id. at 285. Consistent with the foregoing, there is no basis to conclude that Congress intended that state control over technicians would be affected by the passage of the Statute, or that the Statute would have the effect of making labor relations an exclusively federal function. [ v55 p662 ]
The RD addressed the Petitioner's argument that the states have no necessary role in labor relations, stating that:
[s]o long as the authority to 'employ and administer' the technicians remains with the State Activities, through their Adjutants General, the locus and scope of labor relations and personnel functions will remain with the State Activities, regardless of whether that authority exists by virtue of the Act or by some other means.
RD's Decision at 14. The RD's decision is consistent with the hybrid nature of the National Guard, the Technician Act and the Statute. Accordingly, we conclude that the RD did not err in construing the role of the states in labor relations under the Act.
B. The RD properly applied established law in determining that the proposed consolidated unit is not appropriate.
1. The RD properly evaluated the community of interest criteria.
The Petitioner asserts that, contrary to the RD's decision, the proposed consolidated unit has a clear and identifiable community of interest under section 7112(a). The RD relied on the factors set out in Department of Justice for determining whether employees share a community of interest, which are:
the degree of commonality and integration of the mission and function of the components involved; the distribution of the employees involved throughout the organizational and geographical components of the agency; the degree of similarity in the occupational undertakings of the employees in the proposed unit; and the locus and scope of personnel and labor relations authority and functions.
Department of Justice, 17 FLRA at 62; see also Naval Submarine Base, New London Naval Submarine School, Naval Submarine Support Facility New London, Personnel Support Activity New London and Naval Hospital Groton and National Association of Government Employees, Local R1-100, SEIU, AFL-CIO, 46 FLRA 1354, 1360-61 (1993). These factors are applied on a case-by-case basis, and the Authority has not specified the number of factors needed to find a clear and identifiable community of interest. See FISC, 52 FLRA at 960.
As stated above, the RD acknowledged that two of the Department of Justice criteria had been met. He based his finding that the proposed consolidated unit lacks a community of interest on the two remaining factors.
a. Similarity and integration of National Guard mission and function
With respect to the degree of commonality and integration of the mission and function of the components involved, the Authority has held that the separate missions of each component need only "bear a relationship" to one another, and the functions need only be "similar or supportive" to one another, to satisfy this appropriate unit criteria. See AFMC (citing Department of the Navy, U.S. Marine Corps and American Federation of Government Employees, AFL-CIO, 8 FLRA 15, 22 (1982)). See also AAFES, 5 FLRA at 661. Examining this factor in National Guard, the Authority stated that, "[w]hile the technicians are all working for the common mission of maintaining National Guard materiel, training its personnel, and administering its program, the employees are also subject to the unique missions established at the state level." National Guard, 13 FLRA at 237.
Here, the RD found that no meaningful changes had occurred to alter the conclusions reached in National Guard, stating that the "missions of the State Activities is significant in determining whether an appropriate unit may be established that crosses state lines" because of "the uniqueness of the [states] separate missions . . . ." RD's Decision at 13.
The Petitioner asserts that there is a "commonality of mission" within the proposed unit that would be no different than the commonality found in existing units. According to the Petitioner, "current bargaining units already span the greatest degree of diversity and separation in missions and functions that exists within the National Guard"--those separating Army and Air Force components. Application at 15. However, the Petitioner's assertion is misdirected. The RD's decision, and the Authority's decision in National Guard, is based on a lack of commonality between the different missions of the state components, not the Army and Air Force components. Any similarity between the Army and Air Force components does not bridge the wholly different issue of diversity between states in terms of their varied missions.
The Petitioner does not dispute the RD's conclusion that state units have separate military missions. The Petitioner argues, instead, that these missions are irrelevant to our determination, because these missions are performed in military, rather than civilian status. The Petitioner does not, however, offer any reason or [ v55 p663 ] evidence to contradict the RD's finding that technicians prepare for state military missions while in federal civilian status.
Under our case law, the mission and function of various agency components sought to be placed in a consolidated unit is evaluated not only to determine whether these features are "similar," but also whether the mission and function are "integrated." Department of Justice, 17 FLRA at 62. The separate authority exercised by the states over their respective military missions indicates a lack of integration of mission and function across state lines that outweighs any similarity in the actual duties that the technicians perform while preparing for and performing these responsibilities. We thus find that the Petitioner has not demonstrated that the RD misapplied this aspect of the community of interest test.
b. Labor Relations and Personnel Authority
In determining whether a community of interest has been established, the Authority evaluates the "locus and scope of personnel and labor relations authority and functions." Department of Justice, 17 FLRA at 62; AAFES, 5 FLRA at 661. Under this factor, the Authority "looks to whether policy-making authority over personnel and labor relations policy is consistent with the proposed consolidation[.]" AFMC, 55 FLRA at 363.
Consistent with National Guard, 13 FLRA at 235, the RD found that the states set labor relations and personnel policies through their respective adjutants general. The Petitioner disagrees, asserting that the Technician Act grants "plenary authority to regulate the employment of technicians" in the Secretaries of the Army and Air Force and limits the Adjutants General to the role of "designate[d] . . . employ[ers] and administ[rators]." Application at 20 (brackets in original) (quoting 5 U.S.C. § 709(c)). The Petitioner's argument is based on its claim, addressed above, that the RD erred in his analysis of how labor relations and personnel authority is mandated under the Technician Act. For the reasons explained in § IV.A. of this decision, we have concluded that the RD did not err in this regard.
The Petitioner has not established any basis to reject the Authority's holding in National Guard. As we explained, the Petitioner's assertion that state authority is subordinate to federal authority in this respect ignores the hybrid authority set out in the Technician Act. A consolidation that ignored this hybrid authority would establish lines of authority for labor relations at odds with the lines of authority governing the employment of technicians in their work.
The authority of federal officials to issue regulations governing technician employment is necessarily accompanied by policy-making authority. However, the specific and irrevocable designations of authority to state officials contained in the Technician Act necessarily confers policy-making authority as well. The authority of state officials is greater than mere delegated, operational authority over day-to-day decision-making. Cf. AFMC, 54 FLRA at 363 (finding that the delegation of day-to-day operation of personnel and labor relations functions does not preclude consolidation). Rather, they exercise specific authority granted by the Technicians Act. Thus, the RD's conclusion is consistent with Authority precedent.
c. The Impact of Expanded Bargaining Rights.
The Petitioner asserts that RD should have considered the impact of expanded bargaining rights under section 7117(a) of the Statute in determining whether a community of interest had been established. The RD rejected this argument, stating that such a consideration is not a factor in determining a unit's appropriateness under section 7112(a).
As a matter of statutory construction, the RD's conclusion is sound. The bargaining rights discussed in Section 7117(a)(3), according to the provision's plain wording, apply only to "an exclusive representative [that] represents an appropriate unit." Thus, section 7117(a)(3) rights extended to a petitioning party only if separate bases have been satisfied and a unit determined to be appropriate.
Limitations on consolidation necessitated by the Technicians Act may have the effect of limiting the bargaining rights of these employees. However, nothing in the Statute guarantees that every group of employees will be able to avail themselves of all aspects of the Statute. A separate statutory scheme that applies to one group of employees may place limitations on their collective bargaining rights. See Phoenix Area Indian Health Service, Sacaton Service Unit, Hu Hu Kam Memorial Hospital, Sacaton, Arizona and Southwest Native American Health Care Employees, Local 1386, LIUNA, AFL-CIO, 53 FLRA 1200, 1219 (1998) (noting that technicians serve under a statutory scheme that places many working conditions that are ordinarily negotiated outside the scope of bargaining).
In sum, the RD did not err in determining that the proposed consolidated unit did not share a community of interest. [ v55 p664 ]
2. The RD properly applied established law in determining that consolidation would not promote effective dealings or the efficiency of the agency operations.
In determining whether consolidation would promote effective dealings and efficient agency operations, the Authority examines a number of factors, including: whether personnel and labor relations authority is centralized and broad operating polices exist at the national level; whether consolidation will reduce bargaining unit fragmentation, thereby, "promoting a more effective, comprehensive bargaining unit structure to effectuate the purposes of the Statute" (AAFES, 5 FLRA at 661-62); and whether the unit would adequately reflect the agency's organizational structure or would require creating a new agency structure. National Guard, 13 FLRA at 237. As a general matter, the Authority also considers the past collective bargaining experience of the parties in making "effective dealings" determinations. FISC, 52 FLRA at 961; AFMC, 55 FLRA at 364.
The Petitioner argues that consolidation would end the duplicative acts of negotiating separate contracts at the local level. The RD's conclusion that this criteria was not met is based, however, on his determination that the NGB is without authority to engage in collective bargaining on behalf of the states and on his determination that effective bargaining relationships currently exist. Although acknowledging that the proposed consolidated unit "represents more employees in units better distributed geographically and organizationally than the unions involved in National Guard," the RD relied on the retention of labor relations authority at the state level as indicating that consolidation would not be effective and would not promote efficient operations because the proposed consolidated unit would extend across state lines. RD's Decision at 14.
Essentially, the RD determined that the proposed consolidated unit would require a structuring of the National Guard inconsistent with the dictates of the Technicians Act. This determination, along with the RD's consideration that effective bargaining relationships already exist at the state level, is consistent with Authority precedent, see AFMC, 55 FLRA at 364, FISC, 52 FLRA at 961, and is also consistent with the Authority's holding in National Guard.
Based on the foregoing, the Authority finds that there is no basis for granting review of the RD's determination that the proposed consolidated unit would not promote effective dealings and the efficiency of agency operations.
3. The RD properly concluded that consolidation of the bargaining units was not appropriate.
In sum, the Petitioner has not established grounds warranting review of the RD's determination that a community of interest among employees was not established and that the proposed consolidated unit would not promote effective dealings and the efficiency of the National Guard's operations. [n7] Since all three section 7112(a) criteria must be met for a unit to be found appropriate, see U.S. Department of Housing and Urban Development and National Federation of Federal Employees, Independent, 15 FLRA 497, 500 n.6 (1984), the proposed unit is not appropriate under section 7112(a) of the Statute, and the RD properly dismissed the petition.
V. Order
The Application for Review of the RD's Decision and Order is denied.
APPENDIX A
Alabama National Guard
Arkansas National Guard
Florida National Guard
Illinois National Guard
Indiana National Guard
Iowa National Guard
Kansas National Guard
Kentucky National Guard
Maryland National Guard
Michigan National Guard
Minnesota National Guard
Montana National Guard
North Dakota National Guard
Pennsylvania National Guard
Rhode Island National Guard
Tennessee National Guard
Virginia National Guard
Vermont National Guard
Washington National Guard
Wisconsin National Guard [ v55 p665 ]
APPENDIX B
Footnote # 1 for 55 FLRA No. 115
The state National Guard intervenors are listed in Appendix A of this decision.
Footnote # 2 for 55 FLRA No. 115
The Authority has determined, pursuant to 5 C.F.R. § 2429.27(d) and 5 C.F.R. § 2429.22, that the opposition filed by the Maryland State National Guard is untimely. In addition, the Authority has determined, pursuant to 5 C.F.R. § 2429.27, that the oppositions filed by the Illinois National Guard, the Kansas National Guard and the North Dakota National Guard are deficient for failure to provide a statement of service. Accordingly, these submissions have not been considered.
Footnote # 3 for 55 FLRA No. 115
The Technicians Act, 32 U.S.C. § 709 states in relevant part:
(a) Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection
(b) of this section persons may be employed as technicians
. . . .
(b) A technician employed under subsection (a) shall, while so employed--
(1) be a member of the National Guard;
. . . .
(c) The Secretary concerned shall designate the adjutants general referred to in section 314 of this title, to employ and administer the technicians authorized by this section.
(d) A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force . . . .
(e) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned-
. . . .
(3) a technician may, at any time, be separated from his technician employment for cause by the adjutant general of the jurisdiction concerned;
(4) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned[.]
Footnote # 4 for 55 FLRA No. 115
In addition to legal error, the Petitioner asserts that the RD "[c]ommitted a clear and prejudicial error concerning ... substantial factual matter[s]." Application at 1-2 (citing 5 C.F.R. 2422.31(c)(3)(iii)). The Petitioner's ground for review, however, relates to the legal relevance of facts, and no specific factual errors are argued. Therefore, we do not construe the application as challenging the specific factual findings of the RD.
Footnote # 5 for 55 FLRA No. 115
The legislative history of the 1968 Act explains Congress' intent in enacting section 709(c). Although there have been several amendments to the Technician Act since 1968, these amendments did not alter, or relate to, section 709(c).
Footnote # 6 for 55 FLRA No. 115
Technicians are included in the general definition of "employee" found at 5 U.S.C. § 2105 and are, therefore, subject to the provisions of Title 5 relating to employees unless specifically excluded. See 5 U.S.C. § 2105(a)(1)(F).
Footnote # 7 for 55 FLRA No. 115
Because we conclude that the RD did not err, and consistent with the Authority's August 31, 1998, Order, we do not address the Constitutional arguments posed by the parties.