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.