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11 FLRA NO. 88

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

 

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and presents issues concerning the negotiability of nine Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

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.

 

This proposal, which would require a temporary hiring freeze until all reduction-in-force (RIF) actions have been completed, except for internal placement, bears no material difference from the proposal which the Authority held was outside the duty to bargain in National [ v11 p505 ] Federation of Federal Employees (NFFE) Local 1332 and Headquarters, U.S. Army Materiel Development and Readiness Command, Alexandria, 93 FLRA 611 (1981). In that case, the Authority determined proposed freeze on hiring from outside sources until personnel actions under the RIF were completed concerned a matter negotiable only at the election of the Agency since it was directly and internally related to the statutory right of management to determine numbers and types of employees under section 7106(b)(1) of the Statute. 1 Therefore, for the reasons fully set forth in U.S. Army Materiel Development and Readiness Command, the proposal here in dispute must be held to be negotiable only at the election of the Agency. Since the Agency has elected not to negotiate on this matter, the proposal is not within the duty to bargain.

Union Proposal 2

 

         Article 11, Section 2

         Determination of which Employee(s) will be
         affected will be done in the following manner
         and order:

         a. Volunteers for RIF will be asked for and
         accepted from the area affected.

 

This proposal would require the Agency to layoff particular employees in a RIF, i.e., those who volunteer from the area affected. In agreement with the Agency, the Authority finds that, by requiring such action as to particular employees, the proposal directly interferes with the Agency's discretion under section 7106(a)(2)(A) of the Statute to determine which employees to "layoff, and retain...." National Treasury Employees Union and Internal Revenue Service, 7 FLRA No. 42 (1981), Proposal 5. Therefore, the proposal is outside the duty to bargain. [ v11 p506 ]

Union Proposal 3

 

         Article 11, Section 2

         Determination of which employee(s) will be
         affected will be done in the 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.

 

This proposal would require the Agency to offer employees affected by a RIF all vacant positions that the Agency deems may be filled,

"... so those employees RIF'd will have an opportunity to remain rather than be displaced." 2 In this regard, the proposal bears no material difference from one the Authority held to be outside the duty to bargain in American Federation of Government Employees, AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA No. 13 (1981) appeal docketed AFGE, Local 2782 v. FLRA, No. 81-2386 (D.C. Cir. Dec. 29, 1981). The proposal in that case would have required the agency when it decided to fill a vacant position to select a repromotion eligible employee. The Authority concluded that such a requirement is inconsistent with management's right to choose among candidates under section 7106(a)(2)(C) of the Statute. 3 The proposal In the present case, Likewise, would [ v11 p507 ] directly interfere with the exercise of management's discretion under section 7106(a)(2)(C) to choose among candidates. Thus, for the reasons fully set forth in AFGE Local 2782, the instant proposal is outside the duty to bargain.

Union Proposal 4

 

         Article 11, Section 2

         Determination of which employee(s) will be
         affected will be done in the following manner
         and order:

         d. Reduction in force will be by seniority as
         listed on tenure lists of competitive areas.

 

The Authority held, in Association of Civilian Technicians, Pennsylvania State Council and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50 (1980), that National Guard Bureau (NGB) regulations (TPM 351) concerning RIF procedures for National Guard technicians implement in an essentially nondiscretionary manner the statutory mandate that technicians maintain military membership in the National Guard and hold the military grade specified for their technician positions. In implementing this statutory mandate, NGB regulations require that in a RIF situation, technician RIF displacement rights within and across competitive levels be based on a measurement of both civilian technician and military job performance. Thus, in Association of Civilian Technicians, the Authority found that a compelling need exists for such regulations within the meaning of section 7117(a)(2) of the Statute and Part 2424 of the Authority's Rules and Regulations so as to bar negotiation of conflicting proposals.

Under the terms of the proposal herein, seniority as listed on the tenure lists of competitive areas would be the sole determinant of which employees would be affected by a RIF. Thus, for the reasons fully set forth in Association of Civilian Technicians, the proposal herein, as [ v11 p508 ] claimed by the Agency, is inconsistent with applicable NGB regulations for which there is a compelling need under section 7117(a)(2) of the Statute. Therefore, Proposal 4 is outside the duty to bargain. 4

Union Proposal 5

 

         Article 11, Section 4

         Bumping Consideration

         a. Individual(s) who are affected by RIF may
         bump laterally or down and must be either
         fully qualified, qualified or retrainable to
         the new position.

         Definition of qualifications:

         (1) Fully qualified - requires no training.

         (2) Qualified - may require OJT for up to one
         (1) year before being fully qualified.

         (3) Retrainable - may require, employer
         provided, formal training and OJT not to
         exceed one year.

         (4) Unqualified - cannot meet security
         requirements, training requirements or cannot
         meet physical standards.

         b. Bumping will be done in the following
         order:

         (1) Technicians RIFed will bump the employee
         with the least seniority in the same, or if
         none, next lower pay grade within the work
         area of immediate assignment (shop, work
         area, office).

         (2) Technicians unable to bump within their
         assigned work area can bump into any other
         work area within the competitive area that he
         or she is fully qualified for.

         (3) Technicians not fully qualified for
         another work area will be given the
         opportunity to bump into the work area he or
         she was last qualified in.

 

[ v11 p509 ]

 

         (4) Technicians who are retrainable
         have bump rights into the same or next lower
         grade within the assigned competitive area,
         but must fill the position of the individual
         being bumped out, i.e., that Individual with
         the least tenure.

         (5) Technicians who are RIFed, that are
         unqualified for specific positions of a lower
         grade, will be given the opportunity to bump
         any technician(s) with less seniority in the
         next lower pay grade within the competitive
         area provided he or she Is retrainable to the
         position.

         (6) Those technicians with no position to
         bump into will be given maximum consideration
         for any existing position vacancy in any
         competitive area.

 

Union Proposal 5 would establish displacement rights in a RIF situation. As was stated with reference to Union Proposal 4, NGB regulations for which there Is a compelling need mandate that, in a RIF situation, technician RIF displacement rights within and across competitive levels be based on a measurement of both civilian technician and military job performance. Union Proposal 5 clearly precludes consideration of both civilian technician and military job performance in establishing RIF displacement rights and, therefore, Is inconsistent with applicable NGB regulations for which there is a compelling need under section 7117(a)(2) of the Statute. Accordingly, the proposal is outside the duty to bargain.

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.

 

This proposal would require the Agency, under certain circumstances, to select a former employee who had been RIF'd, if the employee is retrainable to the position being filled. As discussed with reference to Proposal 3, management has the right under section 7106(a)(2)(C) of the Statute to choose among candidates for appointment from promotion certificates or any other appropriate source. By mandating the selection of certain former employees, this proposal directly interferes with management's right under section 7106(a)(2)(C) and is therefore outside the duty to bargain. [ v11 p510 ]

Union Proposal 7

 

         Article 11, Section 7

         The Employer assures the employees of the
         bargaining units that this technician RIF
         procedure will be the sole criteria that will
         be followed and that technicians who continue
         to meet the requirements for military
         membership will be given an opportunity to
         qualify for a new military position in the
         event of military manning document changes
         and will not be discharged from the military
         unit solely as a result of such military
         manning document changes.

 

With respect to the first part of the proposal, the employer would assure the bargaining unit employees that the negotiated technician RIF procedure will be the sole method used by management in carrying out a RIF. As held with respect to Proposals 1 through 6, supra, and 9, infra, the proposed negotiated procedure is inconsistent with various management rights under the Statute and applicable NGB regulations for which there is a compelling need. Therefore, for the reasons set forth with respect to those proposals, the first part of Proposal 7 is outside the duty to bargain. The second portion of the proposal deals with the civilian technicians' maintenance of military status in the National Guard, and specifically provides that civilian technicians will not be discharged when their military status changes. Federal law, i.e., 32 U.S.C. 709(e)(1), 5 requires separation from civilian technician employment when a civilian technician is separated from the National Guard or ceases to hold the military grade specified for his position. This portion of the proposal makes no allowance for the separation of employees pursuant to the provisions of 32 U.S.C. 709(e)(1). The second part of the [ v11 p511 ] proposal is thus inconsistent with Federal law and, therefore, is not within the Agency's duty to bargain under the Statute. 6

Union Proposal 8

 

         Article 11, Section 9

         It is agreed that technicians of GS-10/WS-14
         grades or below who are excluded from the
         bargaining unit, will be allowed to bump back
         into the bargaining unit if their jobs are
         eliminated, (in accordance with) para 3 and 4
         of this Article.

 

Union Proposal 8 seeks to apply bumping and displacement rights into the bargaining unit (discussed with regard to Union Proposal 5) to technicians who are excluded from the bargaining unit. As discussed with regard to Union Proposal 5, NGB regulations in a RIF situation require technician RIF displacement rights within and across competitive levels to be based on a measurement of both civilian technician and military job performance. Union Proposal 8 clearly precludes consideration of both civilian technician and military job performance concerning RIF displacement rights and, therefore, is inconsistent with applicable NGB regulations for which there is a compelling need under section 7117(a)(2) of the Statute. Accordingly, Union Proposal 8 is outside the duty to bargain.

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.

 

As previously quoted herein (at note 4, supra), 32 U.S.C. 709(e)(1) requires a civilian technician to be "promptly separated from his technician employment" If he is separated from the National Guard, or ceases to hold the military grade specified for his position. This proposal, however, would allow for separation from technician employment only for physical requirements or for just cause. Thus, the [ v11 p512 ] proposal would preclude separating technicians for the reasons contained in 32 U.S.C. 709(e)(1), and is, therefore, inconsistent with Federal law and outside the duty to bargain.

Accordingly, based upon the above determinations, pursuant to section 2424.10 of the Authority's Rules and Regulations (5 CFR 2424.10), IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed in its entirety.

 

Issued, Washington, D.C., March 8, 1983

Ronald W. Haughton,    Chairman

Henry B. Frazier III,  Member

Leon B. Applewhaite    Member

FEDERAL LABOR RELATIONS AUTHORITY

 

[ v11 p513 ]

FOOTNOTES

Footnote 1 Section 7106(b)(1) provides: 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...(.)

Footnote 2 Union response to the Agency's statement of position at p. 4.

Footnote 3 Section 7106(a)(2)(c) provides: 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(.)

Footnote 4 In view of the Authority's finding that the NGB regulations at issue implement in an essentially nondiscretionary manner a statutory mandate, the Union's argument concerning prior bargaining history with respect to these regulations is misplaced.

Footnote 5 32 U.S.C. 709(e)(1) provides: 709. Technicians: employment, use, status (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(.)

Footnote 6 Thus, the Authority finds it unnecessary to address the Agency's additional contention based upon 10 U.S.C. 975 and the Union's offer to modify its proposal in response thereto.

 

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