---

29 FLRA NO. 102

ASSOCIATION OF CIVILIAN TECHNICIANS
PENNSYLVANIA STATE COUNCIL

                     Union

      and

ADJUTANT GENERAL OF PENNSYLVANIA

                     Agency

Case No. 0-NG-1379

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and presents issues concerning the negotiability of seven Union proposals. 1

The Agency maintains three Army Aviation Support Facilities (AASF). The facility at Washington, Pennsylvania, supports those military units in western Pennsylvania. Units in eastern Pennsylvania are supported by facilities located at Fort Indiantown Gap 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. Head-quarters 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). The negotiations during which the disputed proposals arose stemmed from the Agency's having required successful applicants for a particular civilian technician position to be militarily compatible--that is, be assigned to a military unit at Fort Indiantown Gap.

For the reasons discussed below, we find that Proposals 6 and 7 are within the duty to bargain; and we dismiss the Union's petition for review as it relates to Proposals 1-5.

II. 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.

A. Positions of the Parties

The Union contends that, in general, this proposal and the other proposals are intended to ameliorate the harmful effects of the civilian/military compatibility requirement on the technicians insofar as their civilian employment is concerned. It further describes the proposal as intended to implement and enforce the Agency's regulation relating to military compatibility.

The Agency contends that this proposal would require it to establish the three AASFs as a single organizational entity. It argues that the proposal would allow technicians to be assigned to an AASF based solely on their CMF--Career Military Field (also known as MOS - Military Occupational Specialty)--and without regard to military unit assignment. The Agency asserts that the proposal is nonnegotiable because it excessively interferes with management's rights to determine its organization, assign and direct employees, assign work and determine the personnel by which Agency operations will be conducted. It contends additionally that the proposal is nonnegotiable because it concerns the military aspects of technician employment and, consequently, does not concern conditions of employment within the meaning of the Statute. It asserts that the proposal also conflicts with an Agency regulation for which a compelling need exists.

B. Analysis and Conclusions

The Union does not explain precisely how the proposal is intended to operate. It is clear that it is intended to overcome the requirement that technicians have both their military and civilian assignments in the same unit or a unit and  facility supporting that unit. For example, currently a technician militarily assigned to a unit supported by the Fort Indiantown Gap AASF must have a civilian assignment to that AASF as opposed to one of the other two AASFs. On its face, the proposal seeks to accomplish its end by requiring the Agency to restructure its organization by eliminating any distinctions between the three AASFs insofar as assigning responsibility for providing support for a particular military unit. Thus there would be no need for a technician to work at a particular AASF in order to achieve military compatibility.

Under section 7106(a)(1) the right of an agency to determine its organization encompasses the discretion to determine its internal administrative and functional structure. See, for example, American Federation of Government Employees, AFL - CIO, Local 3805 and Federal Home Loan Bank Board, Boston District Office, 5 FLRA 693 (1981). This proposal would clearly interfere with that right by requiring the Agency to eliminate the organizational distinctions which it currently makes among the three AASFs in designating them as separate activities with individual responsibilities for providing support for specific military units.

The Union describes all of its proposals as generally intended to ameliorate the harmful effects of the civilian/ military requirements which are imposed by law and implementing agency regulation. See Montana Air National Guard, 20 FLRA 717 (1985) and Martelon v. Temple, 747 F.2d 1348 (10th Cir. 1984). However, it has presented neither a specific claim that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) nor provided support for such a claim. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), we discussed in detail the responsibilities of the parties to raise and address specific matters concerning section 7106(b)(3) in negotiability appeals. Based on the record, we do not reach that issue in the present case. 2

We find that Proposal 1 is nonnegotiable because it conflicts with the Agency's right to determine its organization. In view of this finding, it is unnecessary to address the Agency's other arguments as to the nonnegotiability of this proposal. 

III. 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.)

A. Positions of the Parties

The Union describes the proposal as seeking to implement a requirement found in Agency regulation that military rank inversion not be permitted. It further asserts that the proposal is intended to ameliorate any harmful effects that might be produced by military compatibility requirements.

The Agency contends that the proposal is nonnegotiable because it concerns the military aspects of technician employment. It also asserts that the proposal excessively interferes with its right to determine its organization; to assign and direct employees; to assign work and determine the personnel by which agency operations will be conducted. Additionally, it argues that the proposal concerns conditions of employment of non-unit employees.

B. Analysis and Conclusion

The Authority has previously held that proposals which seek to enforce the Agency's prohibition on military grade inversion are not within the duty to bargain because they concern the military aspects of technician employment. For example, National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau, Adjutant General, 26 FLRA No. 62 (1987) (Proposal 3). This proposal is materially to the same effect in that it seeks to prescribe methods to enforce this prohibition. It is nonnegotiable for the reasons expressed in National Guard Bureau and the decision relied upon therein.

In view of this finding, it is unnecessary to address the other arguments of the parties as to the negotiability of this proposal. As discussed in conjunction with Proposal 1, the question of whether this proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) is not properly before us. 

IV. 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.

A. Positions of the Parties

The Union again makes the same general argument as it raised regarding Proposals 1 and 2, that this proposal is intended to ameliorate any harmful effects which the military compatibility requirement may produce. It describes this proposal as seeking to insure that where employees are transferred there will be no negative impact on the employee's civilian career insofar as advancement, promotion and career enhancement are concerned.

The Agency asserts that this proposal excessively interferes with management's rights to determine organization; to assign and direct employees; to assign work and to determine the personnel by which agency operations will be conducted. It also argues that this proposal is nonnegotiable because it concerns the military aspects of technician employment and, thus, does not concern conditions of employment.

B. Analysis and Conclusion

The Agency interprets the proposal as preventing it from transferring employees to other work sites when the transfer would result in any negative effects on the employee's career.

We do not read the proposal as going so far as to actually prohibit transfers. Rather, it seeks to insure that where transfers occur, the employees will be guaranteed the same level of career opportunities which they had before their transfer. Based on this interpretation, we find that this proposal would have the same effect as proposals which the Authority has held nonnegotiable because they would have required an agency to establish its organizational structure in a manner assuring promotional opportunities for its employees. For example, American Federation of Government  Employees, AFL - CIO, Local 3742 and Department of the Army, Headquarters, 98th Division (Training), Webster, New York, 11 FLRA 189 (1983). This proposal would require that, if the Agency were to transfer an employee to a position which lacked promotional, advancement or enhancement opportunities equivalent to those of the employee's previous position, the Agency would be obligated to redesign the position and/or other aspects of its organizational structure in order to create the same level promotional/advancement/enhancement opportunities in the new position as existed in the employee's previous position. The Authority has found that proposals with such an effect directly interfere with the right of an agency to determine its organization. We reach the same conclusion as to this proposal insofar as it concerns the technician's civilian career. Insofar as it is intended to apply to the progression/enhancement of the technician's military career, we find that it concerns the military aspects of technician employment and does not concern conditions of employment within the meaning of the Statute. See, for example, National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau Adjutant General, 26 FLRA No. 62 (1987) (Proposal 3).

In view of these findings, it is unnecessary to pass upon the Agency's other arguments as to the nonnegotiability of this proposal. Moreover, for the reasons discussed in conjunction with Proposal 1, we do not view the question of whether this proposal is an appropriate arrangement within the meaning of section 7106(b)(3) as being properly before us. Based on the above, we find that Proposal 3 is not within the duty to bargain.

V. 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.  

A. Positions of the Parties

The Union describes these proposals as seeking to negotiate the location where civilian technicians may be transferred. Proposal 4 seeks to "grandfather" currently employed technicians at the three AASFs. Proposal 5 seeks to have new employees "assigned as civilians to two designated work sites." It asserts that the proposals are intended to negotiate the impact of military requirements on the technicians' civilian capacity as opposed to the military decisions themselves.

The Agency argues that the proposals would limit its ability to assign technicians to positions which are compatible with the military units of which they are members. It asserts that Proposal 5 would require it to "restructure" its AASF administration into two geographical, not military, units for compatibility purposes. It contends that these two proposals are nonnegotiable because they excessively interfere with its rights to determine its organization; to assign and direct employees; and to assign work and determine the personnel by which agency operations will be conducted. It also argues that the proposals concern the military aspects of technician employment and, thus, do not concern conditions of employment. Additionally, it argues that the proposals conflict with an Agency regulation for which a compelling need exists.

B. Analysis and Conclusion

It is unclear from the language of the proposals and the record, including the Union's statement of their intended meaning, how these proposals are intended to operate. it appears that Proposal 4 is meant to allow technicians to retain in some unspecified way their civilian employment at the AASF at which they are currently assigned. We adopt this interpretation for purposes of decision. Two means seem to be available which would allow an employee's civilian assignment to remain unchanged:

1) Military assignment could be tailored to correspond to the civilian assignment; or

2) An exception could be made to the compatibility requirement where there is a discrepancy between military and civilian assignment.  

Based on either alternative, we find that Proposal 4 concerns the military aspects of technician employment. Under the first alternative the proposal would dictate a change of military assignment; and under the second, the proposal would dictate an exception to the requirement that the technician hold a compatible military position. The Authority has consistently held that matters pertaining to the military aspects of technician employment do not concern conditions of employment within the meaning of the Statute. For example, National Federation of Federal Employees, Local 1655 and Adjutant General of Illinois, 20 FLRA 829 (1985). Thus, we find that Proposal 4 is not within the duty to bargain.

Proposal 5 is susceptible to different interpretations. The Agency suggests that it would require management to give employees who are assigned to military units in eastern Pennsylvania the option of civilian employment at either Avoca or Fort Indiantown Gap. Under this interpretation, the proposal would effectively require a restructuring of the Agency's organization similar to that discussed in conjunction with holding Proposal I nonnegotiable; or it would require elimination of compatibility requirements insofar as technicians assigned to units in eastern Pennsylvania are concerned. In any event, the proposal is nonnegotiable because it would either interfere with the Agency's discretion to determine its organization or pertain to the military aspects of technician employment.

Proposal 5 may also be interpreted not as giving technicians a choice between Fort Indiantown Gap and Avoca but, rather, as incorporating the Agency's current organizational structure in the agreement. In this regard, the Agency states that military units physically located in the western part of the state are supported by the AASF at Washington, Pa., while those in the eastern part are supported by either Fort Indiantown Gap or Avoca. Agency Statement of Position at 1. Even with this intended meaning, however, the proposal is nonnegotiable. The right to determine organization must necessarily include the ability to modify existing organizational structure. Under this interpretation, the proposal would, in effect, require management to contractually bind itself to continue its current organizational structure for the life of the agreement. Compare National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 591 (1981).

In view of these findings, it is unnecessary to pass upon the Agency's other arguments as to the nonnegotiability  of these proposals. Once again, for the reasons expressed in conjunction with Proposal 1, we do not view the question of whether these proposals constitute appropriate arrangements within the meaning of section 7106(b)(3) as being properly before us. Based on the above, we find that Proposals 4 and 5 are not within the duty to bargain.

VI. Proposal 6

All PDs (Position Description) will state assignment and _ _ _.

A. Positions of the Parties

The petition was submitted with this proposal containing three blocked out characters where the blanks appear. The union does not indicate what meaning or significance is to be attached to the blocked out characters. The petition contains no statement as to the meaning to be attributed to this specific proposal.

The Agency asserts that it construes the blocked out characters as being "MOS" --an acronym for Military Occupational Specialty. It therefore interprets the proposal as requiring that a statement as to the technician's military assignment and MOS be placed in position descriptions. Based on this interpretation, it argues that the proposal concerns the military aspects of technician employment and for that reason is not within the duty to bargain. It further asserts that this proposal is not an "appropriate arrangement" within the meaning of section 7106(b)(3) because it does not concern the exercise of any management right under section 7106(a) or (b)(1).

B. Analysis and Conclusion

We make no determination as to what the blocked out characters which appear in this proposal may have symbolized before they were deleted. We rule upon the proposal as constituted in the Union's petition which was submitted to us. Therefore, we read the proposal as requiring that a statement as to "assignment" be incorporated in the technician position description. This statement could encompass military assignment as well as civilian assignment. Even if this interpretation is so, we do not construe the proposal as concerning the military aspect of technician employment. Rather, the proposal is focused on the contents of the civilian technician's position description. It in no manner  determines or affects the military aspects of the technician's employment. Its relationship to the military aspects of technician employment is limited to a requirement that a statement reflecting existing facts as to military assignment be incorporated in the civilian technician's position description. Compare National Federation of Federal Employees, Local 1694 and Oklahoma Army National Guard, Oklahoma City, Oklahoma, 14 FLRA 183 (1984), in which the Authority found negotiable a proposal to delete from technicians' position descriptions a sentence referring to MOS.

We reject the Agency's assertion that the proposal concerns the military aspects of employment and, consequently, does not concern conditions of employment. Further, it does not affect in any manner the work which may be assigned to technicians. In view of the fact that the Agency acknowledges that the proposal would not interfere with the exercise of its management rights and that there is no basis in the record for concluding that it would, we find that Proposal 6 is within the duty to bargain.

VII. Proposal 7

Grievances deriving from this section will be transmitted to Commanders at 1st step and then to 4th and Arb. to expedite grievance.

A. Positions of the Parties

The Union describes this proposal as seeking expedited consideration of grievances covering the issues involved in the proposals. The Union argues that, assuming that the proposals are negotiable, bargaining concerning the grievance procedure is mandatory.

The Agency interprets the proposal as requiring that any grievance arising from the interpretation/application of any agreement reached on these proposals will be processed through an expedited procedure. It argues that this proposal is non-negotiable because, by virtue of the nature of the proposals, it would subject matters relating to the military aspects of technician employment to the grievance and arbitration procedures.

B. Analysis and Conclusion

Based on the parties' description of this proposal, it would only subject the military aspects of technician employment to the grievance and arbitration procedures if such matters were incorporated in an agreement reached with respect to the foregoing proposals. Inasmuch as we would not find that a proposal which concerned the military aspects of technician employment is within the duty to bargain, the Agency's arguments that such a provision would be incorporated in the agreement to which Proposal 7 applies is not persuasive. we interpret the proposal as seeking the expedited processing of grievances as opposed to seeking to define the scope of the grievance procedure to cover the military aspects of technician employment. Based on this interpretation, we find that Proposal 7 is within the duty to bargain.

VIII. Order

The Union's petition for review as to Proposals 1 through 5 is dismissed. The Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Proposals 6 and 7. 3

Issued, Washington, D.C., October 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

FOOTNOTES

Footnote 1 The Union's response to the Agency's statement of position was untimely filed and was not considered.

Footnote 2 The parties are responsible for creating the record upon which we will resolve negotiability disputes. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). A party failing to assume this burden acts at its peril.

Footnote 3 In finding that these proposals are within the duty to bargain, we make no judgment as to their merits.

---