31:0824(58)NG - ACT, Pennsylvania State Council and Adjutant General of Pennsylvania -- 1988 FLRAdec NG
[ v31 p824 ]
31:0824(58)NG
The decision of the Authority follows:
31 FLRA NO. 58 31 FLRA 824 Date: 16 MAR 1988 ASSOCIATION OF CIVILIAN TECHNICIANS, PENNSYLVANIA STATE COUNCIL Union and ADJUTANT GENERAL OF PENNSYLVANIA Agency Case No. 0-NG-1379 (29 FLRA 1292) DECISION ON RECONSIDERATION I. Statement of the Case This matter is before the Authority pursuant to the Union's request for reconsideration of the Authority's Decision and Order on Negotiability Issues in 29 FLRA 1292 (1987). That decision concerned seven proposals which related to the Agency's requirement that National Guard technicians' military and civilian assignments be compatible. We dismissed the petition for review as to Proposals 1 through 5 and found that Proposals 6 and 7 were within the duty to bargain. In that decision, we did not consider the Union's response to the Agency's statement of position because we found that it was filed untimely. The Union requests reconsideration of the decision concerning Proposals 1 through 5 because it contends that its response to the Agency's statement of position was timely and should have been considered. The Union also requests the Authority to amend the decision concerning Proposal 6 because the decision did not reflect the statement in the Union's response that Proposal 6 sought to have the employees' position description state work location as well as assignment. We find that the response was filed timely. Therefore we grant the Union's request for reconsideration. Upon consideration of the Union's response, we reaffirm the conclusions reached in the earlier decision as to the negotiability of the proposals. Proposals 1 and 3 are nonnegotiable because they interfere with the Agency's right to determine its organization. Proposals 2 and 4 are nonnegotiable because they concern military aspects of technician employment and do not concern conditions of employment within the meaning of the Statute. Proposal 5 is nonnegotiable because, based on alternative interpretations, it would either interfere with the Agency's right to determine its organization or concern the military aspects of technician employment. Proposal 6 is negotiable because it concerns conditions of employment and does not concern the military aspects of technician employment. II. The Request for Reconsideration The Union contends that its response to the Agency's statement of position was postmarked on the day it was due and is, therefore, timely. We find that the Union is correct in this assertion and that the earlier finding that the response was untimely was incorrect. Accordingly, under section 2429.17 of our Regulations, we grant the Union's request to reconsider our earlier decision in light of the arguments in the Union's response to the Agency's statement of position. The Union requests reconsideration of only Proposals 1 through 5. The Union requests that the decision concerning Proposal 6 be amended to include recognition of the Union's statement that this proposal was intended to require that position descriptions state work location as well as assignment. The Union does not request reconsideration of our decision that Proposal 7 is within the duty to bargain. Therefore, we will not consider that proposal further here. III. Background The Agency maintains three Army Aviation Support Facilities (AASFs). The facility at Washington, Pennsylvania, supports those military units in western Pennsylvania. Units in eastern Pennsylvania are supported by facilities located at Fort Indiantown Cap and Avoca, Pennsylvania. National Guard technicians are required to maintain compatibility between their military and civilian assignments. See, for example, Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717 (1985), aff'd sub nom. Association of Civilian Technicians, Montana Chapter v. FLRA, No. 86-1057 (D.C. Cir. Jan. 29, 1987); Martelon v. Temple, 747 F.2d 1348 (10th Cir. 1984), cert. denied 471 U.S. 1135, 105 S.Ct. 2675 (1985). Under this requirement, technicians must be assigned to a military skill that is compatible with their civilian technician job and have their military and civilian assignments in the same unit or in a unit and the facility which supports that unit. The negotiations during which the disputed proposals arose stemmed from the Agency's having required successful applicants for a particular civilian technician position at Fort Indiantown Gap to be militarily compatible--specifically, to be assigned to a military unit at Fort Indiantown Gap. IV. Proposal 1 All Army Aviation Support Facilities within Pennsylvania are interlocked as one, therefore all Technicians must maintain compatibility in CMF (Career Military Field) related to their technician position as stated on Technicians position description. In 29 FLRA 1292, we held that this proposal was nonnegotiable because it conflicted with the Agency's right to determine its organization. In its response to the Agency's statement of position the Union argues that the proposal is a restatement of the legal (32 U.S.C. 709(b)) and regulatory (Technician Personnel Regulation (TPR) 300) requirements that technicians' civilian assignments be compatible with their military assignments insofar as career military field is concerned. The Union asserts that the proposal also seeks to have that compatibility based on the technician's position description. The Union's arguments contained in the response are an elaboration of its statement of intent contained in the initial petition--that is, that the proposal seeks to implement and enforce the Agency's regulation relating to military compatibility. In our view, the Union's characterization of the proposal as merely a restatement of legal and regulatory requirements does not correspond to the wording of the proposal. We conclude that the proposal is not limited to the purposes set forth by the Union in its response. The proposal would circumvent the requirement that civilian technicians be compatible as to military unit assignment as well as career field by altering the Agency's organizational structure. We base this conclusion on the wording of the proposal and the record of the case. As stated earlier, the proposal resulted from the Agency's requirement that civilian technicians be militarily compatible as to unit assignment as well as career field. Also, the Agency argued that the proposal would require it to alter its organizational structure and treat the three AASFs as one rather than as separate organizational entities. The Union's response does not refute this interpretation of the language in the proposal which specifically states that all the AASFs are "interlocked as one." Additionally, unlike the Agency's regulation which the proposal is purported to reaffirm, the proposal references only the requirement that technicians be compatible as to career field and not the requirement as to unit assignment. We reaffirm the conclusions in the earlier decision as to the interpretation and nonnegotiability of the proposal. The Union argues in its response that proposals which require agencies to comply with laws or regulations are within the duty to bargain. As set forth above, we do not interpret this proposal as being limited to compliance with laws and regulations. Moreover, proposals which incorporate a specific regulatory requirement into the contract and which establish a substantive contractual limitation on an agency's discretion to exercise its management rights are distinguishable from proposals which merely require management to act in accordance with whatever regulations are in effect at the time. The first type of proposal is nonnegotiable; the second is negotiable. See National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981) (Proposals 1 and 2), aff'd sub nom. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). Also, proposals which incorporate specific regulatory requirements but which do not limit the agency's discretion to exercise its management rights are negotiable. See National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA No. 36 (1988) (Proposals 38.4 and 38.11). V. Proposal 2 That management realign and assign, through competitive and merit placement procedures, all Technicians and AGRs (Active Guard/Reserve) serving in Technician positions to meet the standards set forth in para. C of TPR 300, Section 7.8 (Inversion of Military Rank). (Inversion occurs where a civilian technician is supervised by someone who is junior in terms of military rank.) In our earlier decision, we relied on National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau, Adjutant General, 26 FLRA 515 (1987) (Proposal 3) and found that this proposal was nonnegotiable because it concerned the military aspects of technician employment. The Union argues that this proposal addresses the impact of military decisions on the civilian aspects of technician employment. The Union contends that it merely incorporates legal and regulatory prohibitions on inversion of military rank. In response to the Agency's allegation that this proposal interferes with the rights to determine its organization, to assign and direct employees, to assign work and determine the personnel by which agency operations will be conducted, the Union argues that the proposal only requires the Agency to act in accordance with the legal and regulatory requirements prohibiting the inversion of military rank. In response to the Agency's argument that this proposal concerns conditions of employment of non-unit employees, the Union contends that the proposal is intended to relate only to the conditions of employment of the technicians in their civilian capacities. Proposals which concern the military aspects of technician employment do not concern conditions of employment within the meaning of the Statute. See, for example, National Federation of Federal Employees, Local 1655 and Adjutant General of Illinois, 20 FLRA 829 (1985). Technicians are members of the "uniformed services" insofar as their status as members of the National Guard, as opposed to their status as civilian employees, is concerned. Members of the "uniformed services" are not covered by the Statute. 5 U.S.C. 7103(a)(2)(ii). Id. at 830-31. Proposal 2 directly relates to the enforcement of prohibitions on inversion of military rank--a military aspect of technician employment. As such, it does not concern conditions of employment within the meaning of the Statute. This conclusion is not changed by the fact that the proposal parallels applicable law and regulation. See Id. Since we do not decide that this proposal is nonnegotiable because it interferes with management's rights, we do not need to address the Union's arguments to the contrary. We reaffirm our earlier finding that Proposal 2 is not within the duty to bargain because it does not concern conditions of employment within the meaning of the Statute. VI. Proposal 3 All transfers which are a creation of NGB (National Guard Bureau) or the employer (TAGPA) (the Adjutant General of Pennsylvania) through reorganizations and/or consolidations, and are of no fault of the employee, whether they be Technician or Military assignment, will not penalize or have adverse impact on the Technician's selection for career enhancement/ advancement of the Technician civilian career progression. In our earlier decision, we found that although this proposal did not prohibit transfers, it would require the Agency to adopt organizational structures which assured promotional opportunities for employees. Based on this effect we found that the proposal was nonnegotiable because it conflicted with the Agency's right to determine its organization. In its response to the Agency's statement of position, the Union argues that the proposal does not hamper the Agency's ability to reassign employees or assign work and, therefore, it does not conflict with any rights under section 7106(a) of the Statute. Moreover, in response to the Agency's argument that this proposal excessively interferes with its right to determine its organization, the Union asserts that the proposal merely seeks to reaffirm the Agency's own policies. The Union's arguments do not alter the conclusion that the proposal would establish a contractual requirement that the Agency adopt organizational structures which assure promotional opportunities for employees. We, therefore, reaffirm our earlier conclusion that this proposal is nonnegotiable because it interferes with the Agency's right to determine its organization. VII. Proposals 4 and 5 Proposal 4 All currently employed technicians at all 3 Aviation locations be grandfathered for compatibility of support assignment. Proposal 5 All new personnel assigned to Eastern PA will be assigned to units supported by Avoca or FTIG and all personnel assigned to Western PA will be assigned to units supported by Little Washington, Pa. In our earlier decision, we held that Proposal 4 was nonnegotiable because it concerned the military aspects of technician employment. We found that Proposal 4 would require either that a technician's military assignment be tailored to correspond to the civilian assignment or that an exception be made to the compatibility requirement where there is a discrepancy between military and civilian assignment. We held that Proposal 5 was susceptible to different interpretations. Proposal 5 could be viewed as requiring that employees assigned to military units in eastern Pennsylvania be given the option of civilian assignment at either Avoca or Fort Indiantown Gap. This interpretation would require the Agency either to restructure its organization or to waive its compatibility requirement. Under this interpretation, we found that Proposal 5 was nonnegotiable because it would interfere with the Agency's right to determine its organization or concern the military aspects of technician employment. Alternatively, instead of giving technicians a choice between Avoca and Fort Indiantown Gap, Proposal 5 could be interpreted as incorporating the Agency's current organizational structure in the agreement. Under this interpretation, we held that Proposal 5 was nonnegotiable because it interfered with the Agency's right to determine its organization. The Union's response does not contain any additional information as to how these two proposals are intended to operate. It argues that the proposals are negotiable because they merely establish criteria for selecting which employees will perform previously assigned duties at different locations. This argument does not take into consideration the existence of the military compatibility requirement and the effect of that requirement on technician work location assignments. When viewed in the context of the military compatibility requirement, these proposals cannot be given the limited interpretation which the Union suggests. Rather, these proposals would require the Agency to alter the military compatibility requirement and/or limit the Agency's discretion to determine its organization. We therefore reaffirm our earlier interpretations and conclusions. These proposals are not within the duty to bargain for the reasons set forth in 29 FLRA 1292. VIII. Proposal 6 All PDs (Position Description) will state assignment and _ _ _. In our earlier decision, we found that this proposal would require only that technician position descriptions contain a statement reflecting their "assignment." In finding this proposal to be negotiable, we noted that it concerned the content of the civilian technician's position description and in no manner would it affect the military aspects of the technician's employment. The Union requests us to amend the decision to reflect the Union's intent to require that the position description contain a statement as to the employee's work location as well as "assignment." This additional statement as to the intended meaning of the proposal is compatible with the term "assignment," which can reasonably be construed as including work location and requires no change in our disposition of this proposal. We, therefore, reaffirm our earlier decision that Proposal 6 is within the duty to bargain. IX. Conclusion We reaffirm the Order issued in 29 FLRA 1292. Issued, Washington, D.C. March 16, 1988 Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY