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13:0232(40)UC
The decision of the Authority follows:
13 FLRA No. 40
DEPARTMENT OF DEFENSE,
NATIONAL GUARD BUREAU
Activity
and
Case No. 3-UC-29
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, INDEPENDENT
Petitioner
DEPARTMENT OF DEFENSE,
NATIONAL GUARD BUREAU
Activity
and
Case No. 3-UC-30
NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
Petitioner
DECISION AND ORDER
Upon petitions duly filed with the Federal Labor Relations Authority
under section 7112(d) of the Federal Service Labor-Management Relations
Statute (the Statute), a consolidated hearing was held before a hearing
officer of the Authority. The Authority has reviewed the hearing
officer's rulings made at the hearing and finds that they are free from
prejudicial error. The rulings are hereby affirmed.
Upon the entire record in this case, including the parties'
contentions, the Authority finds:
The National Federation of Federal Employees, Independent (NFFE)
filed the petition in Case No. 3-UC-29 seeking to consolidate 19 units
within the National Guard Bureau (NGB) for which it is the exclusive
representative. The National Association of Government Employees (NAGE)
filed the petition in Case No. 3-UC-30 seeking to consolidate 51 units
within the NGB for which it is the exclusive representative.
The Agency contends that the consolidated units sought, which in
NAGE's case would cover approximately 9,800 out of the Agency's total
civilian workforce of 44,000 employees, and in NFFE's case would cover
approximately 3,800 employees, do not satisfy the appropriate unit
criteria set forth in section 7112(a)(1) of the Statute. /1/ More
specifically, the Agency contends that the employees in the proposed
units do not share a community of interest because they do not share a
common mission, common overall supervision, or similar job
classifications and working conditions, and are not subject to similar
labor relations policies and practices. The Agency further asserts that
the unique employment status of National Guard technicians does not lend
itself to the creation of consolidated units because, while technicians
are Federal government employees for some purposes, they are employed
and their programs are administered by officials of the various states
who have a limited responsibility to the NGB and the Federal government.
Given these circumstances, the Agency asserts that the proposed
consolidated units would not promote effective dealings or efficiency of
the National Guard's operations, as the only effective authority to
operate and maintain National Guard facilities within a given state lies
with state officials who are not directly responsible to the NGB.
The petitioning unions contend that the proposed consolidated units
satisfy the requisite criteria for consolidation under section
7112(a)(1) of the Statute. They contend that the employees sought to be
included in the proposed units share a clear and identifiable community
of interest as evidenced by such factors as a common mission, common
working conditions, and common labor relations programs and policies.
They give particular emphasis to the role played by the NGB in
promulgating common regulations affecting all aspects of a technician's
work experience and the common job classifications established by the
NGB. In this regard, they contend that the proposed consolidated units
would promote effective dealings and efficiency of operations by
requiring negotiations at the level at which such regulations are
developed as opposed to the present system wherein they are limited to
the negotiation of the impact of such regulations at a multiplicity of
facilities at the local level.
The NGB is a joint Bureau of the Department of Army and the
Department of Air Force. As such, it is a staff organization which
provides liaison and coordination between the National Guard units in
each state and the respective Department of Defense components. The NGB
is headed by a Chief who reports to the Chiefs of Staff of the Army and
the Air Force concerning National Guard matters. As a staff
organization, the NGB does not exercise command over any state activity
where the technician employees sought herein are employed. The NGB does
not employ any technicians. Pursuant to section 10 of the National
Guard Technicians Act of 1968 (32 U.S.C. 709) which governs the
operation of the technician program, the NGB has been delegated by the
Secretaries of the Army and the Air Force the responsibility of
promulgating uniform regulations covering the conditions of the
technicians' employment. The NGB acts as the resource manager for
federal money, material and manpower allocated to the National Guard and
it implements Federal military policy as it affects the National Guard.
The National Guard is established in each of the 50 states, the
District of Columbia and Puerto Rico. The chief military officer of
each state is generally known as the adjutant general of that state's
National Guard. In most cases, the adjutant general is appointed by the
state's governor, although the President appoints the Adjutants General
for the District of Columbia and for Puerto Rico. For some 60 years the
adjutants general of the several states have been empowered by federal
law to employ personnel to train and administer the National Guard and
maintain its equipment, and to pay such personnel with Federal funds.
Pursuant to the National Guard Technicians Act of 1968, these employees
were brought into federal employment as excepted service employees with
the title of "technicians." Technicians are covered by the Federal
government's system for purposes of retirement and benefits. However,
as a condition of employment, the vast majority of technicians must be
members of the National Guard and must retain the appropriate military
grade in a state unit in order to maintain their civilian employment.
Technicians are not authorized overtime, they are not entitled to
veterans preference, and they have no appellate rights to the Merit
Systems Protection Board. The approximately four per cent of the
technician work force which is in the Federal competitive service is
assigned to positions, primarily secretarial or administrative, which
are not subject to mobilization.
The National Guard employs approximately 44,700 technicians
nationwide. The technician workforce nationwide is almost equally
divided between Wage Grade employees who are involved in such work as
equipment maintenance, avionics, and electronics, and General Schedule
employees who are engaged in such support activities as base supply,
personnel, training and fiscal management. There is also an almost
equal division nationwide between technicians assigned to the Army
National Guard and those assigned to the Air National Guard. The
statewide proportions of both Wage Grade and General Schedule employees,
and between Army and Air National Guard employees, generally mirror the
nationwide pattern.
Pursuant to the requirement of the National Guard Technicians Act of
1968, the NGB develops extensive regulations affecting all aspects of
the technicians' work life, which are equally applicable to Army and Air
National Guard technicians and which are to be uniformly applied to all
technician employees. The NGB also develops uniform position
descriptions affecting all technician employees. However, the NGB has
no line responsibility for administering the personnel and labor
relations programs for technician employees. The responsibility for
administering these programs lies with the Technician Personnel Officer
within each state who reports directly to the Adjutant General. While
the NGB allocates to each state the funds appropriated for the National
Guard by Congress and the NGB establishes manpower ceilings for each
state, the adjutants general have the authority to reallocate funds they
receive so as to best meet their particular needs. All personnel
programs, including employment, recruiting, training, records retention,
career development, and merit promotion systems, are administered by
state officials. Competitive areas for purposes of both merit
promotions and reductions in force are established by the states. It is
difficult for a technician to move from a position in one state to
another or from a position in an Air National Guard unit to one in an
Army National Guard unit, as not only must there be an available
civilian position, but the employee must find an equivalent military
position. There is no appeal beyond the adjutant general of each state
regarding disciplinary actions or reductions in force. The
responsibility for administering labor relations programs, including
negotiations, rests with the adjutants general. The NGB reviews
contracts for conformance with law and regulation, it offers advice and
assistance to state negotiators in preparing their bargaining positions,
and it may offer assistance to state officials in third party
proceedings. However, the NGB does not participate in collective
bargaining, and the responsibility for negotiating contracts for units
within any particular state lies with the adjutant general and his
subordinates.
NAGE represents 51 bargaining units in 22 states and the District of
Columbia. It represents all the Army and Air National Guard technicians
in 5 states (Florida, Kentucky, Missouri, Nevada, and Tennessee), and
represents a joint unit of Army and Air National Guard technicians in
Washington with 90% of all the technicians included. In six states,
NAGE represents all the Army National Guard technicians, but none of the
Air National Guard employees. In the other states, NAGE represents as
few as 9% of the technicians. NFFE represents 19 bargaining units in
ten states and Puerto Rico. It represents all the technicians in
Louisiana and either all the Army or Air National Guard technicians in 5
states. NFFE represents two joint Army and Air National Guard units,
covering 15% of the employees in South Carolina and over 90% of the
employees in New Mexico. Approximately 75% of all National Guard
technicians are represented by labor organizations. NAGE represents
approximately 22% of the technician workforce and NFFE represents
approximately 8% of these employees. /2/
In Department of Transportation, Washington, D.C., 5 FLRA No. 89
(1981), the Authority dismissed petitions to consolidate units noting
that section 7112(a)(1) of the Statute requires any unit found
appropriate to conform to the three criteria established by that section
and held that these criteria applied as well to unit consolidation
proceedings pursuant to section 7112(d) of the Statute. /3/
In addition to the Department of Transportation case, the Authority
has issued other decisions involving the proposed consolidation of units
under the Statute. /4/ In making its determinations on the
appropriateness of such proposed consolidated units, the Authority
considered several factors. As stated in Department of the Navy, U.S.
Marine Corps, 8 FLRA No. 4 (1982), primary among these factors, in
determining whether there was a community of interest, were: the degree
of commonality and integration of the mission and function of the
components involved; the distribution of the employees involved
throughout the organizational and geographical components of the agency;
the degree of similarity in the occupational undertakings of the
employees in the proposed unit; and the locus and scope of personnel
and labor relations authority and functions.
The Authority finds that the employees in the proposed consolidated
units herein do not share a clear and identifiable community of
interest. The record reveals that NAGE's proposed unit would be limited
to 22% of NGB's technician employees in 22 states and the District of
Columbia, and that NAGE represents all the eligible technicians in only
five states. NFFE's proposed unit would be limited to less than 9% of
the NGB's technician employees in ten states and Puerto Rico, and NFFE
represents all the eligible employees in only one state. While
technicians are all subject to uniform regulations promulgated by the
NGB, they are not subject to common overall supervision inasmuch as the
NGB has no line responsibility for the employees in each state. While
the technicians are all working for the common mission of maintaining
National Guard materiel, training its personnel, and administering its
program, the employees are also subject to the unique missions
established at the state level. Further, there appears to be a near
total lack of job mobility between units of the National Guard. State
control over personnel, labor relations, and working conditions is
statutory and not a matter of delegated authority from the NGB which the
latter could rescind in the face of consolidated units. Given these
facts, the Authority finds that the petitioned for consolidated units
would not ensure a clear and identifiable community of interest among
the employees involved in either proposed unit.
The Authority further finds that it would not promote effective
dealings to require National Guard-wide negotiations for a unit, in
NAGE's case, wholly unrepresented in 28 states and Puerto Rico, and
fully represented in only five states, and for a unit, in NFFE's case,
wholly unrepresented in forty states and the District of Columbia, and
fully represented in only one state. Such units would not be adequately
reflective of the National Guard's organizational structure. Moreover,
as noted above, daily supervision, personnel authority and control of
labor relations lies with the respective state adjutants general. This
has resulted in effective bargaining relationships established at the
state level or below, not only with the petitioners, but with three
other labor organizations as well. Given these circumstances, with
three labor organizations each representing 20-22% of the National
Guard's technicians, a fourth (NFFE) representing 8%, and with another
25% of the technicians being unrepresented, the Authority concludes that
effective dealings with the National Guard, and the efficiency of its
operations, would not be promoted by the proposed consolidated units.
Accordingly, the Authority concludes that the proposed consolidated
units are not appropriate, and will order that the petitions be
dismissed.
ORDER
IT IS ORDERED that the petitions in Case Nos. 3-UC-29 and 3-UC-30 be,
and they hereby are, dismissed. Issued, Washington, D.C., September 30,
1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Sec. 7112. Determination of appropriate units for labor
organization representation
(a)(1) The Authority shall determine the appropriateness of any
unit. The Authority shall determine in each case whether, in
order to ensure employees the fullest freedom in exercising the
rights guaranteed under this chapter, the appropriate unit should
be established on an agency, plant, installation, functional, or
other basis and shall determine any unit to be an appropriate unit
only if the determination will ensure a clear and identifiable
community of interest among the employees in the unit and will
promote effective dealings with, and efficiency of the operations
of, the agency involved.
/2/ Three other labor organizations-- the Association of Civilian
Technicians and the American Federation of Government Employees with
slightly lower percentages than NAGE, and the National Army Air
Technicians Association with 1%-- also represent a portion of the
technician force.
/3/ Section 7112(d) provides as follows:
(d) Two or more units which are in an agency and for which a
labor organization is the exclusive representative may, upon
petition by the agency or labor organization, be consolidated with
or without an election into a single larger unit if the Authority
considers the larger unit to be appropriate. The Authority shall
certify the labor organization as the exclusive representative of
the new larger unit.
/4/ See Army and Air Force Exchange Service, Dallas, Texas, 5 FLRA
No. 90 (1981); Department of Defense, U.S. Army, Corps of Engineers, 5
FLRA No. 91 (1981); Air Force Logistics Command, United States Air
Force, Wright-Patterson Air Force Base, Ohio, 7 FLRA No. 33 (1981);
Department of the Navy, U.S. Marine Corps, 8 FLRA No. 4 (1982); U.S.
Army Training and Doctrine Command, 11 FLRA No. 28 (1983), U.S. Army
Materiel Development and Readiness Command, 11 FLRA No. 36 (1983).