Association of Civilian Technicians, Inc., Pennsylvania State Council (Union) and the Adjutant General, Military Affairs, Commonwealth of Pennsylvania (Agency)
[ v07 p346 ]
07:0346(52)NG
The decision of the Authority follows:
7 FLRA No. 52
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.,
PENNSYLVANIA STATE COUNCIL
Union
and
THE ADJUTANT GENERAL, DEPARTMENT OF
MILITARY AFFAIRS, COMMONWEALTH OF
PENNSYLVANIA
Agency
Case No. O-NG-154
DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(D)
AND (E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE
STATUTE) (5 U.S.C. 7101-7135). THE ISSUES PRESENTED ARE THE RIPENESS OF
THE APPEAL AND THE NEGOTIABILITY OF SEVEN PROVISIONS /1/ CONTAINED IN A
LOCALLY EXECUTED AGREEMENT WHICH WERE DISAPPROVED AS NOT BEING IN
ACCORDANCE WITH APPLICABLE LAWS, RULES OR REGULATIONS BY THE NATIONAL
GUARD BUREAU (NGB), UPON REVIEW PURSUANT TO SECTION 7114(C) OF THE
STATUTE. /2/
THE UNION FILED THE INSTANT PETITION FOR REVIEW WITH THE AUTHORITY
BASED ON THE NGB DISAPPROVAL. IN ITS STATEMENT OF POSITION, THE AGENCY
CONTENDS THE APPEAL IS NOT PROPERLY BEFORE THE AUTHORITY. IT ARGUES,
FIRST, THAT THE NGB'S DISAPPROVAL OF PORTIONS OF THE LOCAL AGREEMENT WAS
NOT A "NEGOTIABILITY DETERMINATION" GIVING RISE TO A NEGOTIABILITY
APPEAL; AND, SECOND THAT THE LOCAL PARTIES SUBSEQUENTLY REACHED
AGREEMENT AS TO SOME OF THE DISAPPROVED MATTERS. THIS CONTENTION CANNOT
BE SUSTAINED.
WITH RESPECT TO THE AGENCY'S FIRST ARGUMENT, SECTION 2424.1 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.1 (1981)) PROVIDES,
CONSISTENT WITH SECTION 7117(B)(1) AND (C)(1) OF THE STATUTE, THAT:
THE AUTHORITY WILL CONSIDER A NEGOTIABILITY ISSUE UNDER THE
CONDITIONS PRESCRIBED BY 5
U.S.C. 7117(B) AND (C), NAMELY: IF AN AGENCY INVOLVED IN COLLECTIVE
BARGAINING WITH AN
EXCLUSIVE REPRESENTATIVE ALLEGES THAT THE DUTY TO BARGAIN IN GOOD
FAITH DOES NOT EXTEND TO ANY
MATTER PROPOSED TO BE BARGAINED BECAUSE, AS PROPOSED, THE MATTER IS
INCONSISTENT WITH LAW,
RULE OR REGULATION, THE EXCLUSIVE REPRESENTATIVE MAY APPEAL THE
ALLEGATION TO THE AUTHORITY
. . . . IN THIS REGARD, THE LOCAL PARTIES SUBMITTED THEIR AGREEMENT,
INCLUDING THE DISPUTED PROVISIONS HEREIN, TO THE NGB FOR APPROVAL UNDER
THE PROVISIONS OF SECTION 7114(C) OF THE STATUTE. WHEN THE NGB
DISAPPROVED CERTAIN AGREEMENT PROVISIONS AS BEING INCONSISTENT WITH THE
REQUIREMENTS OF LAW, RULE OR REGULATION AND COMMUNICATED ITS DISAPPROVAL
IN WRITING TO THE LOCAL BARGAINING PARTIES, IT WAS, IN ESSENCE, ALLEGING
THAT THE MATTERS AT ISSUE ARE NOT WITHIN THE AGENCY'S DUTY TO BARGAIN.
THEREFORE, THE CIRCUMSTANCES UNDERLYING THE UNION'S APPEAL CONFORM TO
THE CONDITIONS FOR REVIEW OF A NEGOTIABILITY ISSUE AS SET FORTH IN THE
STATUTE AND THE AUTHORITY'S RULES AND CONSISTENT WITH AUTHORITY
PRACTICE, THE APPEAL IS DEEMED TO BE PROPERLY BEFORE THE AUTHORITY. /3/
AS TO THE AGENCY'S SECOND ARGUMENT THAT THE UNION'S APPEAL IS
PREMATURE BECAUSE THE LOCAL PARTIES REACHED AGREEMENT AS TO SOME OF THE
DISAPPROVED PROVISIONS, IT PROVIDES NO BASIS FOR DISMISSING THE APPEAL.
ALTHOUGH THE LOCAL PARTIES REINSTITUTED BARGAINING SUBSEQUENT TO THE
UNION'S APPEAL, BASED ON THE RECORD ALL MATTERS APPEALED IN THE INSTANT
PETITION FOR REVIEW (EXCEPT ARTICLE 4 - SECTION 4.4A(1), SEE NOTE 1,
SUPRA) REMAIN IN DISPUTE. CONSEQUENTLY, THE AUTHORITY FINDS THAT THE
AGENCY HAS NOT SUPPORTED ITS CLAIM THAT THE APPEAL IS NOT PROPERLY
BEFORE THE AUTHORITY.
ACCORDINGLY, THE AGENCY'S REQUEST THAT THE APPEAL BE DISMISSED IS
DENIED.
PROVISION 1
ARTICLE 1.4 - LAWS AND REGULATIONS
B(7) - MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT IN
ACCORDANCE WITH APPLICABLE
LAWS AND REGULATIONS . . . TO TAKE WHATEVER ACTIONS MAY BE NECESSARY
TO CARRY OUT THE MISSION
OF THE AGENCY DURING EMERGENCIES, WHEN VERIFIED AND DECLARED BY THE
ACTIVITY
SUPERVISOR. (ONLY THE UNDERSCORED LANGUAGE OF THE PROVISION IS IN
DISPUTE.)
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THIS PROVISION IS INCONSISTENT WITH
MANAGEMENT'S RIGHT, UNDER SECTION 7106(A)(2)(D) OF THE STATUTE, TO TAKE
NECESSARY ACTIONS DURING EMERGENCIES, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE PROVISION IS INCONSISTENT WITH THE RIGHT
RESERVED TO MANAGEMENT UNDER SECTION 7106(A)(2)(D) OF THE STATUTE AND,
THEREFORE, IT IS NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT
TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2424.10 (1981)), IT IS ORDERED THAT THE PETITION FOR REVIEW OF THIS
DISPUTED PROVISION BE, AND IT HEREBY IS, DISMISSED.
REASONS: THIS PROVISION LITERALLY WOULD LIMIT THE RIGHT OF
MANAGEMENT OFFICIALS TO TAKE NECESSARY ACTIONS TO CARRY OUT THE AGENCY'S
MISSION DURING EMERGENCIES /4/ ONLY TO SITUATIONS WHEN THE ACTIVITY
SUPERVISOR VERIFIES AND DECLARES THAT AN EMERGENCY EXISTS.
THUS, AS THE AGENCY CONTENDS, MANAGEMENT OFFICIALS WOULD BE PREVENTED
FROM TAKING NECESSARY ACTIONS UNLESS OR UNTIL THE ACTIVITY SUPERVISOR
DECLARED THAT THERE WAS AN EMERGENCY. AS A CONSEQUENCE, IF THE ACTIVITY
SUPERVISOR WAS UNAVAILABLE OR FOR ANY REASON DID NOT VERIFY OR DECLARE
AN EMERGENCY, THE PROVISION WOULD DENY THE AGENCY'S RIGHT TO RESPOND TO
THAT EMERGENCY SITUATION.
THE UNION CONTENDS, HOWEVER, THAT THE INTENT OF THIS PROVISION IS
ONLY TO MAKE CLEAR TO BARGAINING UNIT EMPLOYEES THE SOURCE OF EMERGENCY
DECLARATIONS, I.E., WHO WILL BE TELLING EMPLOYEES THAT AN EMERGENCY
SITUATION EXISTS. FURTHER, ACCORDING TO THE UNION, THE PROVISION WOULD
NOT PREVENT THE ACTIVITY SUPERVISOR FROM DELEGATING THIS AUTHORITY TO
SOMEONE ELSE, AS DETERMINED THROUGH INTERNAL ADMINISTRATIVE PROCEDURES.
THUS, AS THE UNION EXPLAINS THE PROVISION, IT IS INTENDED ONLY TO
REQUIRE MANAGEMENT OFFICIALS TO ADVISE EMPLOYEES AND THE UNION
CONCERNING WHO HAS THE AUTHORITY TO VERIFY AND DECLARE EMERGENCIES.
HOWEVER, THE UNION'S EXPLANATION DOES NOT CORRESPOND TO THE CLEAR AND
UNAMBIGUOUS LANGUAGE OF THE DISPUTED PROVISION AND, THEREFORE, IS NOT
DETERMINATIVE OF WHETHER THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN. /5/
SECTION 7106(A)(2)(D) OF THE STATUTE EXPLICITLY PROVIDES THAT
"NOTHING IN THIS CHAPTER (THE STATUTE) SHALL AFFECT THE AUTHORITY OF ANY
MANAGEMENT OFFICIAL OF ANY AGENCY . . . TO TAKE WHATEVER ACTIONS MAY BE
NECESSARY TO CARRY OUT THE AGENCY MISSION DURING EMERGENCIES." /6/ BY
THIS EXPRESS LANGUAGE CONGRESS INTENDED MANAGEMENT OFFICIALS TO BE ABLE
TO TAKE SUCH ACTIONS WHENEVER AN EMERGENCY EXISTS. THE PROVISION HERE
IN DISPUTE, ON ITS FACE, WOULD DIRECTLY INTERFERE WITH THIS STATUTORY
RIGHT BY REQUIRING THAT A PARTICULAR MANAGEMENT OFFICIAL MUST FIRST
VERIFY AND DECLARE THAT AN "EMERGENCY" EXISTS BEFORE MANAGEMENT COULD
ACT PURSUANT TO SECTION 7106(A)(2)(D). HENCE, THE PROVISION IS
INCONSISTENT WITH MANAGEMENT'S RESERVED RIGHT AND IS NOT WITHIN THE DUTY
TO BARGAIN.
A PROPOSAL EXPLICITLY DRAFTED TO CONFORM TO THE UNION'S STATED
INTENT, HOWEVER, AS PREVIOUSLY SET FORTH, WOULD BE WITHIN THE AGENCY'S
DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE. /7/ THAT IS,
SUCH A PROPOSAL WOULD CONCERN THE PROCEDURES MANAGEMENT WILL FOLLOW IN
EXERCISING ITS RIGHT UNDER SECTION 7106(A)(2)(D), WITHOUT IMPOSING A
LIMITATION AS THE INSTANT PROVISION DOES, SUCH AS THE PRESENCE OR
ABSENCE OF A PARTICULAR MANAGEMENT OFFICIAL, WHICH WOULD INTERFERE
DIRECTLY WITH THE EXERCISE OF THE RIGHT.
PROVISION 2
ARTICLE 4.5 - EXCUSED ABSENCE
B(6) - WHEN A TECHNICIAN HAS BEEN ORDERED TO ACTIVE DUTY UNDER
MILITARY ORDERS OF THE
GOVERNOR OF THE STATE FOR PARTICIPATION IN RESCUE OR PROTECTION WORK
IN CONNECTION WITH FLOOD,
FIRES, OTHER ACTS OF GOD, ABSENCES MAY BE GRANTED NOT TO EXCEED FIVE
WORKDAYS (40 HOURS) FOR
EACH STATE EMERGENCY.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THIS PROVISION IS BARRED FROM NEGOTIATIONS BY
AGENCY-WIDE REGULATIONS AND IS OUTSIDE THE DUTY TO BARGAIN, AS ALLEGED
BY THE AGENCY, UNDER SECTION 7117(A)(2) OF THE STATUTE. /8/
OPINION
CONCLUSION AND ORDER: THE AGENCY HAS NOT DEMONSTRATED THAT A
COMPELLING NEED EXISTS FOR THE REGULATIONS IN QUESTION; THUS, THE
PROVISION IS NOT BARRED FROM NEGOTIATIONS BY THE AGENCY REGULATIONS
ASSERTED BY THE AGENCY. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10 (1981)), IT IS ORDERED
THAT THE AGENCY SHALL RESCIND ITS DISAPPROVAL OF THIS PROVISION, WHICH
WAS BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL. /9/
REASONS: UNDER THIS PROVISION, TECHNICIANS WOULD BE EXCUSED FROM
THEIR CIVILIAN TECHNICIAN DUTIES FOR UP TO FIVE DAYS EACH TIME THEY ARE
ORDERED TO ACTIVE DUTY IN CONNECTION WITH STATE EMERGENCIES IN THE
NATURE OF NATURAL DISASTERS.
THE AGENCY CONTENDS THAT THE PROVISION IS INCONSISTENT WITH NGB
REGULATIONS COVERING LEAVE OR EXCUSED ABSENCES FOR TECHNICIANS BECAUSE
IT FAILS TO REFLECT THE DIFFERENT REGULATORY LEAVE POLICIES WHICH APPLY
TO EMERGENCY OR PROTECTIVE WORK AS COMPARED TO THOSE APPLICABLE TO LAW
ENFORCEMENT DUTIES. /10/ IN PARTICULAR, THE AGENCY CONTENDS THE
PROVISION DOES NOT EXPLICITLY EXCLUDE FROM ITS COVERAGE MILITARY LEAVE
TO WHICH TECHNICIANS ARE ENTITLED WHEN THEY ARE CALLED UPON TO PROVIDE
AID TO ENFORCE THE LAW. THE UNION CONTENDS, IN ESSENCE, THAT THE
PROVISION IS NOT INCONSISTENT WITH THE AGENCY'S REGULATIONS.
UNDER SECTION 7117(A)(2) OF THE STATUTE AND SECTION 2424.11 OF THE
AUTHORITY'S RULES (5 CFR 2424.11(1981)), AN AGENCY HAS THE BURDEN OF
COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR ASSERTIONS THAT ITS
REGULATIONS BAR NEGOTIATION ON CONFLICTING PROPOSALS BECAUSE OF THE
EXISTENCE OF A COMPELLING NEED. /11/ EVEN ASSUMING, ARGUENDO, THAT THE
PROVISION IN DISPUTE IS INCONSISTENT WITH THE REGULATIONS, AS THE AGENCY
ASSERTS, THE CITED REGULATIONS CANNOT STAND AS A BAR TO NEGOTIATIONS.
THE AGENCY HEREIN HAS NOT EVEN ALLEGED THAT A COMPELLING NEED EXISTS FOR
THE REGULATIONS IN QUESTION TO BAR NEGOTIATIONS ON THE DISPUTED
PROVISION AND, THUS, HAS MADE NO SHOWING WHATSOEVER TO SUPPORT SUCH A
FINDING BY THE AUTHORITY.
THEREFORE, THE AGENCY HAS FAILED TO SUPPORT ITS ALLEGATION THAT THE
PROVISION IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) OF THE
STATUTE. ACCORDINGLY, THE PROVISION IS NOT BARRED FROM NEGOTIATIONS.
PROVISION 3
ARTICLE 6.6 - IDENTIFYING & RANKING CANDIDATES
D(1) - THE RANKING PROCEDURE FOR EXCEPTED TECHNICIAN POSITIONS WILL
BE BASED ON THE
FOLLOWING POINT RATING SYSTEM -
LENGTH OF SERVICE AS A PENNSYLVANIA NATIONAL GUARD TECHNICIAN RELATED
TO THE ANNOUNCED
POSITION ONE POINT FOR EACH TWO YEARS; MAXIMUM TEN POINTS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE PROVISION IS
INCONSISTENT WITH REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL (FPM)
AND, IF NOT, WHETHER A COMPELLING NEED EXISTS FOR THE AGENCY REGULATION
ASSERTED AS A BAR TO NEGOTIATIONS UNDER SECTION 7117(A)(2) OF THE
STATUTE. /12/
OPINION
CONCLUSION AND ORDER: THE PROVISION IS NOT INCONSISTENT WITH
REQUIREMENTS PROVIDED IN THE FPM. FURTHER, THE AGENCY HAS NOT
DEMONSTRATED THAT A COMPELLING NEED EXISTS FOR THE AGENCY REGULATION IN
QUESTION TO BAR NEGOTIATIONS ON THE PROVISION UNDER SECTION 7117(A)(2)
OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL RESCIND ITS DISAPPROVAL OF THIS PROVISION, WHICH
WAS BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL. /13/
REASONS: THE PROVISION IN DISPUTE WOULD ESTABLISH A PROCEDURE FOR
RANKING CANDIDATES FOR EXCEPTED TECHNICIAN POSITIONS UNDER WHICH A
TECHNICIAN WOULD RECEIVE ONE POINT FOR EACH TWO-YEAR PERIOD OF SERVICE
AS A PENNSYLVANIA NATIONAL GUARD TECHNICIAN, UP TO A MAXIMUM OF TEN
POINTS, WHERE SUCH SERVICE IS RELATED TO THE ANNOUNCED POSITION. THE
AGENCY CONTENDS THE PROVISION IS INCONSISTENT WITH THE FPM, A SUPPLEMENT
THERETO, AND AN AGENCY REGULATION, ARGUING THAT THESE AUTHORITIES
MANDATE MERIT PROMOTION SYSTEMS REQUIRING SELECTION OF CANDIDATES BASED
ON MERIT AND QUALIFICATIONS AND EXCLUDING USE OF LENGTH OF SERVICE OR
EXPERIENCE AS SELECTION FACTORS.
AS TO THE AGENCY CONTENTION THAT THE PROVISION WOULD VIOLATE MERIT
PROMOTION REQUIREMENTS AND PRINCIPLES CONTAINED IN THE FPM,
SPECIFICALLY, FPM CHAPTER 335, SUBCHAPTER 1-4 AND FPM SUPPLEMENT 335,
SUBCHAPTER S4-1, THE FPM PROVISIONS RELIED UPON BY THE AGENCY APPLY ONLY
TO THE COMPETITIVE SERVICE. /14/ THE PROVISION IN DISPUTE, HOWEVER,
EXPRESSLY APPLIES ONLY TO POSITIONS IN THE EXCEPTED SERVICE. HENCE, THE
FPM PROVISIONS RELIED UPON ARE INAPPLICABLE AND MAY NOT STAND AS A BAR
TO NEGOTIATIONS ON THE DISPUTED PROVISION IN THE PRESENT CASE. /15/
THE REMAINING AGENCY CONTENTION IS THAT THE PROVISION IS BARRED FROM
BARGAINING BY AN AGENCY REGULATION SET FORTH IN TECHNICIAN PERSONNEL
PAMPHLET (TP PAM 911. /16/ AS STATED PREVIOUSLY WITH RESPECT TO
PROVISION 2, AN AGENCY HAS THE BURDEN OF COMING FORWARD WITH AFFIRMATIVE
SUPPORT FOR ASSERTIONS THAT ITS REGULATIONS BAR NEGOTIATION ON
CONFLICTING PROPOSALS BECAUSE A COMPELLING NEED EXISTS. /17/ THE AGENCY
HEREIN, HOWEVER, HAS NOT EVEN ALLEGED THAT A COMPELLING NEED EXISTS FOR
THE REGULATION IN QUESTION TO BAR NEGOTIATIONS ON THIS DISPUTED
PROVISION. THEREFORE, THE AGENCY HAS MADE ABSOLUTELY NO SHOWING THAT
THIS PROVISION IS BARRED FROM NEGOTIATIONS BY AGENCY REGULATIONS, AND,
THE AGENCY'S CONTENTION CANNOT BE SUSTAINED.
PROVISION 4
ARTICLE 9.1 - WAGE SURVEYS
WHEN REQUESTED BY THE WAGE SURVEY LEAD AGENCY, THE EMPLOYER WILL
NOTIFY THE ASSOCIATION TO
SELECT ASSOCIATION REPRESENTATIVES TO PARTICIPATE IN THE WAGE SURVEY.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THIS PROVISION IS INCONSISTENT WITH
MANAGEMENT RIGHTS UNDER SECTION 7106(A)(2)(B) OF THE STATUTE TO ASSIGN
WORK TO EMPLOYEES AND IS, THEREFORE, OUTSIDE THE DUTY TO BARGAIN, AS IN
EFFECT ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE PROVISION IS INCONSISTENT WITH THE RIGHT
OF MANAGEMENT TO ASSIGN WORK TO EMPLOYEES UNDER SECTION 7106(A)(2)(B) OF
THE STATUTE /18/ AND, THEREFORE, IT IS NOT WITHIN THE DUTY TO BARGAIN.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE PETITION FOR
REVIEW OF THIS DISPUTED PROVISION BE, AND IT HEREBY IS DISMISSED. /19/
REASONS: THIS PROVISION PROVIDES THAT IF THE ACTIVITY IS REQUESTED
TO PROVIDE UNION REPRESENTATIVES FOR SERVICE AS DATA COLLECTORS FOR A
LOCAL WAGE SURVEY COMMITTEE, THE UNION HAS THE RIGHT TO SELECT THE UNION
REPRESENTATIVES WHO WILL PARTICIPATE.
PURSUANT TO STATUTORY MANDATE, THE OFFICE OF PERSONNEL MANAGEMENT
(OPM) HAS PRESCRIBED PROCEDURES FOR CONDUCTING WAGE SURVEYS IN FPM
SUPPLEMENT 532.1, SUBCHAPTERS S1-S5. /20/ UNDER THESE PROCEDURES, THE
HEAD OF EACH OF AN AGENCY'S LOCAL ACTIVITIES IS RESPONSIBLE FOR
PROVIDING DATA COLLECTORS AS REQUESTED BY THE LOCAL WAGE SURVEY
COMMITTEE. /21/ THEREFORE, IF SO REQUESTED, LOCAL ACTIVITIES MUST
SELECT EMPLOYEES TO PARTICIPATE IN A WAGE SURVEY AS DATA COLLECTORS.
EMPLOYEES SELECTED AS DATA COLLECTORS PERFORM THE DUTIES ASSOCIATED
WITH DATA COLLECTING EITHER AS THEIR TOTAL WORK ASSIGNMENT OR IN
ADDITION TO THE REGULARLY ASSIGNED DUTIES OF THEIR APPOINTED POSITIONS.
THUS, THE DETERMINATION TO SELECT A PARTICULAR EMPLOYEE FOR WORK AS A
DATA COLLECTOR IS, IN FACT, A DECISION MADE BY LOCAL MANAGEMENT TO
ASSIGN CERTAIN DUTIES TO SUCH AN EMPLOYEE. IN THIS REGARD, UNDER
SECTION 7106(A)(2)(B) OF THE STATUTE, THE AGENCY RETAINS THE RIGHT TO
ASSIGN WORK TO POSITIONS OR EMPLOYEES. AS THE AUTHORITY HAS PREVIOUSLY
STATED, THE EXERCISE OF THIS AUTHORITY, AS CONTRASTED WITH PROCEDURES
WHICH MANAGEMENT OFFICIALS WILL OBSERVE IN EXERCISING IT, OR APPROPRIATE
ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE EXERCISE OF IT,
/22/ IS NOT SUBJECT TO NEGOTIATION. /23/ THE PROVISION IN QUESTION,
HOWEVER, IS NOT CONCERNED WITH PROCEDURES OR APPROPRIATE ARRANGEMENTS.
RATHER, IT WOULD REQUIRE THE AGENCY TO RELINQUISH ITS STATUTORY
AUTHORITY TO ASSIGN WORK, I.E., DATA COLLECTION DUTIES, TO THE UNION.
ACCORDINGLY, THE AGENCY'S ALLEGATION THAT THIS PROVISION IS NOT WITHIN
THE DUTY TO BARGAIN MUST BE SUSTAINED. /24/
PROVISION 5
ARTICLE 10.4 - TRAINING OPTION
TECHNICIANS INVOLVED IN A REDUCTION IN FORCE OR A MAJOR EQUIPMENT
CHANGE AND ASSIGNED TO A
POSITION THAT IS NOT RELATED TO THEIR PAST JOB DESCRIPTION WILL BE
SENT TO A RESIDENT SCHOOL,
IF ONE IS AVAILABLE, FOR RETRAINING. TECHNICIANS WILL HAVE THE
OPTION OF SELECTION OF
TRAINING IN A CIVILIAN/MILITARY STATUS.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE PROVISION IS OUTSIDE THE DUTY TO BARGAIN
UNDER SECTION 7117(A)(2) OF THE STATUTE BECAUSE IT IS INCONSISTENT WITH
AN AGENCY REGULATION, AS ALLEGED BY THE AGENCY.
OPINION
CONCLUSION AND ORDER: THE AGENCY HAS NOT DEMONSTRATED THAT A
COMPELLING NEED EXISTS FOR THE REGULATIONS IN QUESTION; THUS, THE
PROVISION IS NOT BARRED FROM NEGOTIATIONS UNDER SECTION 7117(A)(2) OF
THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL RESCIND ITS DISAPPROVAL OF THIS PROVISION, WHICH
WAS BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL. /25/
REASONS: THE AGENCY CLAIMS THAT THE PORTION OF THE PROVISION IN
DISPUTE HEREIN IS INCONSISTENT WITH NGB REGULATIONS WHICH PROVIDE THAT
DETERMINATIONS AS TO WHETHER TECHNICIANS WILL ATTEND MILITARY SERVICE
SCHOOLS IN THEIR CIVILIAN TECHNICIAN STATUS ARE SUBJECT TO THE APPROVAL
OF THE STATE ADJUTANT GENERAL. /26/
AS MENTIONED PREVIOUSLY WITH RESPECT TO PROVISIONS 2 AND 3, AN AGENCY
HAS THE BURDEN OF COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR ASSERTIONS
THAT ITS REGULATIONS BAR NEGOTIATION ON CONFLICTING PROPOSALS BECAUSE A
COMPELLING NEED EXISTS. /27/ IN THE PRESENT CASE, THE AGENCY MAKES NO
SHOWING WHATSOEVER TO SUPPORT A FINDING BY THE AUTHORITY THAT A
COMPELLING NEED EXISTS FOR THE REGULATION AT ISSUE HEREIN TO BAR
NEGOTIATIONS ON THIS PROVISION. THEREFORE, THE AGENCY'S ALLEGATIONS
THAT THE PROVISION IS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
7117(A)(2) OF THE STATUTE BECAUSE OF AN AGENCY REGULATION CANNOT BE
SUSTAINED.
IT IS EMPHASIZED THAT THIS DECISION RELATES ONLY TO THE ISSUE HERE
PRESENTED TO THE AUTHORITY, THAT IS, WHETHER THE AGENCY HAS DEMONSTRATED
A COMPELLING NEED FOR ITS REGULATION TO BAR NEGOTIATIONS ON A
CONFLICTING PROVISION. NO ISSUE IS PRESENTED OR REACHED WITH RESPECT TO
MILITARY SCHOOL ATTENDANCE REQUIREMENTS, NOT WITHIN THE AGENCY'S
DISCRETION, CONCERNING THE STATUS OF STUDENTS, WHICH REQUIREMENTS MAY
IMPINGE UPON THE APPLICATION OF THE PROVISION. /28/
PROVISIONS 6 AND 7
ARTICLE 8 & 18 - GRIEVANCE PROCEDURES AND ARBITRATION
8.1A - A GRIEVANCE MEANS ANY COMPLAINT - (1) BY A TECHNICIAN
CONCERNING ANY MATTER RELATING
TO THE EMPLOYMENT OF THE TECHNICIAN.
18.1 - THE EMPLOYER OR THE ASSOCIATION MAY INVOKE BINDING ARBITRATION
OVER UNIT TECHNICIAN
GRIEVANCES.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE PROVISIONS ARE
OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE BECAUSE THEY ARE
INCONSISTENT WITH SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT
BY FAILING TO EXPRESSLY INCLUDE APPEALS OF ADVERSE ACTIONS INVOLVING
NATIONAL GUARD TECHNICIANS.
OPINION
CONCLUSION AND ORDER: THE PROVISIONS ARE WITHIN THE DUTY TO BARGAIN
UNDER THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED
THAT THE AGENCY SHALL RESCIND ITS DISAPPROVAL OF THESE PROVISIONS, WHICH
WERE BARGAINED ON AND AGREED TO BY THE PARTIES AT THE LOCAL LEVEL. /29/
REASONS: THE AGENCY CONTENDS THAT NEGOTIATED GRIEVANCE PROCEDURES
MAY NOT COVER GRIEVANCES BY NATIONAL GUARD TECHNICIANS OF ADVERSE
ACTIONS AND THAT THE PROVISIONS IMPROPERLY PROVIDE FOR SUCH GRIEVANCES.
ACCORDING TO THE AGENCY, SUCH GRIEVANCES UNDER THE NEGOTIATED PROCEDURES
WOULD CONFLICT WITH SECTION 709(E) OF THE NATIONAL GUARD TECHNICIANS ACT
OF 1968, WHICH DESIGNATES THE ADJUTANT GENERAL OF THE STATE AS THE FINAL
ARBITER OF SUCH DISPUTES. THE AGENCY'S CONTENTION CANNOT BE SUSTAINED.
BASED ON THE RECORD, IT APPEARS THAT THE UNION INTENDS THE SCOPE AND
COVERAGE OF THE PARTIES' GRIEVANCE PROCEDURE TO INCLUDE GRIEVANCES
CONCERNING ADVERSE ACTIONS. IN THIS REGARD, THE PROVISIONS BEAR NO
MATERIAL DIFFERENCE FROM THE PROPOSAL BEFORE THE AUTHORITY IN NATIONAL
ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-132 AND CALIFORNIA
NATIONAL GUARD, 5 FLRA NO. 25(1981). IN THAT CASE, THE AUTHORITY
CONSIDERED A SIMILAR AGENCY ARGUMENT CONCERNING SECTION 709(E) OF THE
NATIONAL GUARD TECHNICIANS ACT AND DETERMINED THAT A PROPOSED GRIEVANCE
PROCEDURE WHICH INCLUDED WITHIN ITS COVERAGE MATTERS RELATING TO APPEALS
OF ADVERSE ACTIONS INVOLVING NATIONAL GUARD TECHNICIANS WAS WITHIN THE
DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE. SEE ALSO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3486 AND NEW JERSEY
AIR NATIONAL GUARD, 177TH FIGHTER INTERCEPTOR GROUP, POMONA, NEW JERSEY,
5 FLRA NO. 26(1981). THEREFORE, BASED ON THE REASONS FULLY SET FORTH
IN CALIFORNIA NATIONAL GUARD, THE PROVISIONS HERE IN DISPUTE MUST ALSO
BE HELD TO BE WITHIN THE DUTY TO BARGAIN.
ISSUED, WASHINGTON, D.C., DECEMBER 15, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES: ---------------
/1/ IN ITS STATEMENT OF POSITION, THE AGENCY WITHDREW ITS DISAPPROVAL
OF AN ADDITIONAL PROVISION, ARTICLE 4 - SECTION 4.4A(1), WHICH THE UNION
HAD ORIGINALLY INCLUDED IN ITS APPEAL. CONSEQUENTLY, THE DISPUTE AS TO
THIS PROVISION HAS BEEN RENDERED MOOT AND IT IS UNNECESSARY TO CONSIDER
IT FURTHER HEREIN.
/2/ SECTION 7114(C) PROVIDES IN RELEVANT PART AS FOLLOWS:
SEC. 7114. REPRESENTATION RIGHTS AND DUTIES
. . . .
(C)(1) AN AGREEMENT BETWEEN ANY AGENCY AND AN EXCLUSIVE
REPRESENTATIVE SHALL BE SUBJECT TO
APPROVAL BY THE HEAD OF THE AGENCY.
(2) THE HEAD OF THE AGENCY SHALL APPROVE THE AGREEMENT WITHIN 30 DAYS
FROM THE DATE THE
AGREEMENT IS EXECUTED IF THE AGREEMENT IS IN ACCORDANCE WITH THE
PROVISIONS OF THIS CHAPTER
AND ANY OTHER APPLICABLE LAW, RULE, OR REGULATION (UNLESS THE AGENCY
HAS GRANTED AN EXCEPTION
TO THE PROVISION).
/3/ SEE GENERALLY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE
BASE, OHIO, 5 FLRA NO. 15(1981).
/4/ SECTION 7106(A)(2)(D) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 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--
. . . .
(D) TO TAKE WHATEVER ACTIONS MAY BE NECESSARY TO CARRY OUT THE AGENCY
MISSION DURING
EMERGENCIES.
/5/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
2955 AND NATIONAL GUARD BUREAU, OFFICE OF THE ADJUTANT GENERAL, DES
MOINES, IOWA, 5 FLRA NO. 86(1981).
/6/ SEE NOTE 4, SUPRA.
/7/ SECTION 7106(B)(2) PROVIDES:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION(.)
/8/ SECTION 7117(A) PROVIDES IN RELEVANT PART AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
. . . .
(A)(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL
LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY
AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
SUBSECTION ONLY IF THE
AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
COMPELLING NEED (AS
DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
THE RULE OR REGULATION.
/9/ IN SO DECIDING THAT THE SUBJECT PROVISION IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
THE BARGAIN.
/10/ BASED UPON THE RECORD, THE REGULATIONS IN QUESTION PROVIDE IN
RELEVANT PART AS FOLLOWS:
TECHNICIAN PERSONNEL MANUAL SUPPLEMENT 990-2, SUBCHAPTER S11.
SUBCHAPTER S11. EXCUSED ABSENCE S11.5 ADMINISTRATIVE
DISCRETION
. . . .
G. (ADDED) EMERGENCY RESCUE OR PROTECTIVE WORK. WHEN ORDERED TO
ACTIVE DUTY UNDER
MILITARY ORDERS OF THE GOVERNOR OF A STATE FOR PARTICIPATION IN
RESCUE OR PROTECTIVE WORK NOT
INVOLVING LAW ENFORCEMENT DUTIES) IN CONNECTION WITH FIRES, FLOODS,
OR OTHER NATURAL
PHENOMENA, TECHNICIANS MAY BE EXCUSED FOR A PERIOD NOT TO EXCEED 5
WORKDAYS FOR EACH STATE
EMERGENCY OF THIS NATURE. WHEN PROVIDING MILITARY AID TO ENFORCE THE
LAW TECHNICIANS MUST USE
MILITARY LEAVE AUTHORIZED FOR SUCH PURPOSES. AND
TECHNICIAN PERSONNEL MANUAL 600, SUBCHAPTER 14.
SUBCHAPTER 14 (ADDED). LEAVE TO PROVIDE MILITARY AID TO
ENFORCE THE LAW
14-1. INTRODUCTION
A. DEFINITION. THIS ADDITIONAL MILITARY LEAVE IS AUTHORIZED WITHOUT
LOSS OR REDUCTION OF
LEAVE TO WHICH OTHERWISE ENTITLED, CREDIT FOR TIME OR SERVICE, RATING
OF PERFORMANCE OR
EFFICIENCY, FOR THE PURPOSE OF PROVIDING AID TO ENFORCE THE LAW.
14-2. LEGAL BASIS
A. ENTITLEMENT. EACH NATIONAL GUARD TECHNICIAN SERVING UNDER A
PERMANENT APPOINTMENT, WHO
IS AN OFFICER OR ENLISTED MEMBER OF THE NATIONAL GUARD OF THE UNITED
STATES, COMMONWEALTH OF
PUERTO RICO, OR DISTRICT OF COLUMBIA, IS ENTITLED TO MILITARY LEAVE
FOR NOT MORE THAN 22
WORKDAYS IN A CALENDAR YEAR FOR THE PURPOSE DESCRIBED IN 14-1, ABOVE.
/11/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1928
AND DEPARTMENT OF THE NAVY, AIR DEVELOPMENT CENTER, WARMINSTER,
PENNSYLVANIA, 2 FLRA 451(1980) AT 454.
/12/ SEE NOTE 8, SUPRA.
/13/ IN SO DECIDING THAT THE SUBJECT PROVISION IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
THE PROVISION.
/14/ 5 CFR 210.101(B)(1981).
/15/ SEE ASSOCIATION OF CIVILIAN TECHNICIANS, INC., PENNSYLVANIA
STATE COUNCIL AND ADJUTANT GENERAL, DEPARTMENT OF MILITARY AFFAIRS,
PENNSYLVANIA, 4 FLRA NO. 10(1980) AT 5.
/16/ TP PAM 911 PROVIDES IN RELEVANT PART AS FOLLOWS:
3-9. IDENTIFYING QUALIFIED CANDIDATES.
THE ACCOMPLISHMENT OF THE NATIONAL GUARD MISSION REQUIRES THAT THE
BEST QUALIFIED
TECHNICIANS BE PROMOTED; THEREFORE, TECHNICIANS WHO MEET THE MINIMUM
QUALIFICATIONS SHOULD BE
RATES AGAINST THE JOB-RELATED CRITERIA FOR THE POSITION . . . .
AFTER ALL APPROPRIATE
EVALUATION FACTORS THAT MEASURE QUALITY HAVE BEEN APPLIED, LENGTH OF
SERVICE OR LENGTH OF
EXPERIENCE MAY THEN BE APPLIED IF ALL RATINGS OF CANDIDATES ARE
EQUAL.
/17/ SEE NOTE 11, SUPRA AND ACCOMPANYING TEXT.
/18/ SECTION 7106(A)(2)(B) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 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--
. . . .
(B) TO ASSIGN WORK, TO MAKE DETERMINATIONS WITH RESPECT TO
CONTRACTING OUT, AND TO
DETERMINE THE PERSONNEL BY WHICH AGENCY OPERATIONS SHALL BE
CONDUCTED(.)
/19/ IN VIEW OF THE DECISION THAT SECTION 7106(A)(2)(B) OF THE
STATUTE BARS NEGOTIATION OF THE PROVISION, IT IS UNNECESSARY TO CONSIDER
THE REMAINING CONTENTIONS OF THE AGENCY WITH RESPECT TO THE
NONNEGOTIABILITY OF THE PROVISION.
/20/ 5 U.S.C. 5343(C).
/21/ FPM SUPPLEMENT 532.1, SUBCHAPTER S5-3C(2)(C).
/22/ SEE SECTION 7106(B)(2) AND (3) OF THE STATUTE.
/23/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO AND AIR
FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA
604(1980) AT 623, ENFORCED AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF
DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR.
1981); NATIONAL LABOR RELATIONS BOARD UNION, LOCAL 19 AND NATIONAL
LABOR RELATIONS BOARD, REGION 19, 2 FLRA 775(1980) AT 776-77; AND
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1331 AND
DEPARTMENT OF AGRICULTURE, SCIENCE AND EDUCATION ADMINISTRATION, EASTERN
REGIONAL RESEARCH CENTER, PHILADELPHIA, PENNSYLVANIA, 4 FLRA NO. 2(1980)
AT 2-3.
/24/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
1786 AND MARINE CORPS DEVELOPMENT AND EDUCATION COMMAND, QUANTICO,
VIRGINIA, 2 FLRA 423(1980), WHEREIN THE AUTHORITY HELD NEGOTIABLE A
PROVISION WHICH, UNLIKE THE PROVISION HERE IN DISPUTE, ESTABLISHED A
UNION RIGHT TO REPRESENTATION ON WAGE SURVEY TEAMS BUT DID NOT REQUIRE
AGENCY SELECTION OF PARTICULAR EMPLOYEES TO PERFORM DATA COLLECTION
DUTIES AND, THEREFORE, DID NOT INTERFERE WITH MANAGEMENT'S RIGHTS UNDER
SECTION 7106(A)(2)(B) OF THE STATUTE.
/25/ IN SO DECIDING THAT THE SUBJECT PROVISION IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
THE PROVISION.
/26/ THE REGULATION RELIED UPON BY THE AGENCY PROVIDES IN RELEVANT
PART AS FOLLOWS:
TECHNICIAN PERSONNEL MANUAL 400 (410.3)
SUBCHAPTER 3. ESTABLISHING TRAINING PROGRAMS
3-6. SELECTION AND ASSIGNMENT OF EMPLOYEES FOR TRAINING
H. (ADDED) ATTENDANCE AT MILITARY SERVICE SCHOOLS IN A TECHNICIAN
STATUS.
(1) TECHNICIANS MAY BE PERMITTED TO ATTEND MILITARY SERVICE SCHOOLS
IN A TECHNICIAN STATUS
SUBJECT TO THE APPROVAL OF THE STATE ADJUTANT GENERAL OR HIS
DESIGNATED REPRESENTATIVE . . . .
/27/ SEE NOTE 11, SUPRA AND ACCOMPANYING TEXT.
/28/ IN THIS REGARD, THE NGB REGULATION PROVIDES, IN PERTINENT PART,
AS FOLLOWS:
TECHNICIAN PERSONNEL MANUAL 400 (410.3)
SUBCHAPTER 3. ESTABLISHING TRAINING PROGRAMS
3-6. SELECTION AND ASSIGNMENT OF EMPLOYEES FOR TRAINING
H. (ADDED) ATTENDANCE AT MILITARY SERVICE SCHOOLS IN A TECHNICIAN
STATUS.
. . . .
(2) BEFORE TECHNICIANS ARE PERMITTED TO ATTEND SERVICE SCHOOLS IN A
TECHNICIAN STATUS, THEY
MUST BE:
. . . .
(B) ADVISED THAT THEY WILL COMPLY WITH ALL THE REQUIREMENTS OF THE
APPROPRIATE MILITARY
SERVICE COMPONENT, INCLUDING THE WEARING OF THE UNIFORM, TO THE SAME
EXTENT AS IF THEY WERE
ATTENDING IN THEIR NATIONAL GUARD MILITARY STATUS. ALTHOUGH THEY
WILL NOT BE REQUIRED TO
PERFORM INCIDENTAL MILITARY DUTIES SUCH AS CHARGE-OF-QUARTERS,
BARRACKS CHIEF,
OFFICER-OF-THE-DAY, ETC., THEY WILL BE EXPECTED TO PERFORM ADDITIONAL
DUTIES REQUIRED OF ANY
OTHER CIVILIAN CLASS MEMBER.
/29/ IN SO DECIDING THAT THE SUBJECT PROVISIONS ARE WITHIN THE DUTY
TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS
OF THE PROVISIONS.