22:0836(90)CA - NGB and NAGE, SEIU -- 1986 FLRAdec CA
[ v22 p836 ]
22:0836(90)CA
The decision of the Authority follows:
22 FLRA No. 90
NATIONAL GUARD BUREAU
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, SEIU
Charging Party/Union
Case No. 3-CA-50534
DECISION and ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on a stipulation of facts by the parties, who have
agreed that no material issue of fact exists. Briefs for the
Authority's consideration were filed by the Respondent and by the
General Counsel.
The complaint alleges that the National Guard Bureau (Respondent)
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by instituting a
substantive change in conditions of employment without affording the
Charging Party, National Association of Government Employees, SEIU
(NAGE), prior notice and a reasonable time to present its views and
recommendations regarding the change, pursuant to its previously granted
national consultation rights, as required by section 7113 of the
Statute. /1/ Specifically, by memorandum to all Adjutants General dated
June 21, 1985, the Respondent implemented an expansion of its
Mix-of-the-Force policy to allow non-bargaining unit Active
Guard/Reserve military personnel to fill certain bargaining unit
technicians positions formerly occupied solely by civilian technicians
without prior notice to NAGE.
II. The Facts
At all times material herein, NAGE has been granted national
consultation rights by the National Guard Bureau under section 7113 of
the Statute. By memorandum to the Adjutants General of all States,
Puerto Rico, the Virgin Islands, Guam and the District of Columbia dated
June 21, 1985, the National Guard Bureau implemented an expansion of its
Mix-of-the-Force policy. Paragraph 5(b) of the policy announcement
listed twelve (12) job classifications which could now be filled by
Active Guard/Reserve military personnel. The twelve (12) job
classifications were bargaining unit positions which had previously been
reserved exclusively for civilian technicians. At the time of the
policy change, approximately 136 civilian technicians, located in
nineteen different States, were assigned to the twelve job
classifications.
III. The Issue
The issue in this case is whether the National Guard Bureau violated
section 7116(a)(1) and (5) of the Statute by issuing, without consulting
with NAGE under section 7113 of Statute, the June 21, 1985 Memorandum
which authorized local State management to fill certain bargaining unit
positions with Active Guard/Reserve military personnel.
IV. Positions of the Parties
The Respondent's position is that it was not required to consult with
NAGE under section 7113 of the Statute because the June 21, 1985 policy
letter had no immediate or foreseeable impact on bargaining unit
employees. The Respondent argues that paragraph 5(b) of the policy
letter merely provides that a vacant position in the twelve (12) listed
classifications may be filled by an Active Guard/Reserve or a civilian
technician. Thus, the Respondent argues, in any given State, there will
be little if any impact on bargaining unit employees, in view of the
limited number of positions in each State and the traditionally low or
non-existent attrition in the affected positions.
The General Counsel argues that the Respondent's decision to expand
its Mix-of-the-Force policy by providing military personnel with the
opportunity to fill positions formerly occupied solely by civilian
technicians constituted a substantive change in conditions of employment
of certain bargaining unit employees. The General Counsel points out
that the subject memorandum explicitly stated that the expansion of the
Mix-of-the-Force program was intended to afford greater upward mobility
and career progression for Active Guard/Reserve officers. This policy
change currently impacts upon bargaining unit employees eligible for the
affected positions and foreseeably, will limit career progression for
certain unit employees. Thus, the General Counsel argues that the
Respondent has instituted a substantive change in conditions of
employment of certain bargaining unit employees without fulfilling its
obligations under section 7113 of the Statute.
V. Analysis
This case involves the application of section 7113 of the Statute.
Section 7113(b)(1) of the Statute requires an agency to inform a labor
organization having national consultation rights with the agency of any
substantive changes in conditions of employment proposed by the agency
and to provide the labor organization with reasonable time to present
its views and recommendations regarding the changes and to consider such
views and recommendations before taking final action.
In order for the consultation obligation set forth in section
7113(b)(1) of the Statute to apply, there must be a substantive change
in conditions of employment. See General Services Administration, 6
FLRA 430 (1981) and National Guard Bureau, 18 FLRA No. 62 (1985).
Section 7103(a)(14) of the Statute defines conditions of employment as
"personnel policies, practices, and matters, whether established by
rule, regulation or otherwise, affecting working conditions . . . "
In terms of this case, it is clear that the Respondent's June 21,
1985 Memorandum, which expanded the Mix-of-the-Force policy to twelve
(12) bargaining unit position classifications, was an implementation of
a change in personnel policies in that classifications previously
reserved to civilian technicians were opened to occupancy by active
military personnel. It is also apparent that this personnel policy
change affects the working conditions of bargaining unit employees. The
Respondent's stated primary objective in instituting the expansion of
the Mix-of-the-Force policy was to provide more high level grades and
positions for Active Guard/Reserve military personnel. Such an
expansion materially affects the availability of promotional and career
development opportunities for bargaining unit employees eligible for
those positions. Further, the change may result in a decrease in the
size of the bargaining unit since bargaining unit positions if filled by
military personnel will become military positions which are excluded
from coverage under the Statute by section 7103(a)(2)(B)(ii) of the
Statute. Relying on the rationale set forth above, we find no merit to
the Respondent's argument that the change had minimal affect on the
working conditions of bargaining unit employees. Accordingly, the
Authority concludes that the June 21, 1985 policy announcement issued by
the National Guard Bureau clearly constituted a substantive change in
personnel policy.
Since NAGE had national consultation rights, the National Guard
Bureau was obligated to comply with the provisions of section 7113(b)(1)
of the Statute prior to finalizing the changes. Thus, the National
Guard Bureau was required to notify NAGE and provide NAGE with the
opportunity to present its views and recommendations and to consider
such views or recommendations before it issued the June 21, 1985
Memorandum. This was not done. Therefore, the Authority concludes that
the National Guard Bureau failed to comply with its obligation to
consult under 7113(b)(1) of the Statute. See National Guard Bureau, 18
FLRA No. 62 (1985).
VI. Conclusion
The Authority has considered all the facts and circumstances of this
case, including the positions of the parties. The Authority concludes
that the Respondent failed to fulfill its obligation to consult with
NAGE pursuant to section 7113(b)(1) of the Statute prior to issuing its
June 21, 1985 Memorandum expanding its Mix-of-the-Force policy and thus,
the Respondent violated section 7116(a)(1) and (5) of the Statute.
Therefore, the Respondent shall be ordered to provide NAGE, pursuant to
its national consultation rights under section 7113 of the Statute, with
reasonable time to present its views and recommendations concerning
procedures pertaining to the impact and implementation of the expanded
Mix-of-the-Force policy. /2/
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the National Guard Bureau shall:
1. Cease and desist from:
(a) Failing to inform the National Association of Government
Employees, SEIU (NAGE), pursuant to NAGE's national consultation rights
under section 7113 of the Statute, of proposed substantive changes in
conditions of employment, and failing to provide NAGE with a reasonable
period of time to present its views and recommendations regarding the
proposed changes.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide the National Association of Government Employees,
pursuant to its national consultation rights under section 7113 of the
Statute, a reasonable period of time to present its views and
recommendations concerning procedures pertaining to the impact and
implementation of the expanded Mix-of-the-Force policy, and thereafter,
comply with the requirements of section 7113(b)(2) of the Statute.
(b) Post at all of its facilities copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms they shall be signed by the Director, Army
National Guard, or a designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including bulletin
boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken by the National Guard Bureau to
insure that such notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days of the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., July 29, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7113 provides in pertinent part:
Section 7113. National consultation rights
(a)(1) If, in connection with any agency, no labor organization
has been accorded exclusive recognition on an agency basis, a
labor organization which is the exclusive representative of a
substantial number of the employees of the agency, as determined
in accordance with criteria prescribed by the Authority, shall be
granted national consultation rights by the agency. National
consultation rights shall terminate when the labor organization no
longer meets the criteria prescribed by the Authority. Any issue
relating to any labor organization's eligibility for, or
continuation of, national consultation rights shall be subject to
determination by the Authority.
(b)(1) Any labor organization having national consultation
rights in connection with any agency under subsection (a) of this
section shall --
(A) be informed of any substantive change in conditions of
employment proposed by the agency, and
(B) be permitted reasonable time to present its views and
recommendations regarding the changes.
(2) If any views or recommendations are presented under
paragraph (1) of this subsection to an agency by any labor
organization --
(A) the agency shall consider the views or recommendations
before taking final action on any matter with respect to which the
views or recommendations are presented; and
(B) the agency shall provide the labor organization a written
statement of the reasons for taking the final action.
(2) In the absence of a request by the General Counsel or NAGE for a
status quo ante remedy herein, and in the circumstances of this case,
the Authority concludes that no such remedy is warranted. See National
Guard Bureau, 18 FLRA No. 62 n.4 (1985).
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL to inform the National Association of Government
Employees, SEIU (NAGE), pursuant to NAGE's national consultation rights
under section 7113 of the Statute, of proposed substantive changes in
conditions of employment, or fail to provide NAGE with a reasonable
period of time to present its views and recommendations regarding the
proposed changes.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL provide the National Association of Government Employees,
pursuant to its national consultation rights under section 7113 of the
Statute, a reasonable period of time to present its views and
recommendations concerning procedures pertaining to the impact and
implementation of the expanded Mix-of-the-Force policy, and thereafter,
comply with the requirements of section 7113(b)(2) of the Statute.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, 1111 18th Street, N.W., Room 700, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.