NFFE Local 1655 and Adjutant General of Illinois (Authority decision, December 11, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NFFE Local 1655 proposed rules for matching Illinois National Guard technicians' civilian jobs with their military skills, grades, and unit assignments. The Authority found that the proposal governed the technicians' military status. The federal labor relations statute covers their civilian employment but excludes members of the uniformed services in that military capacity. The Authority held the proposal outside the duty to bargain and dismissed the union's petition.

Decision snapshot

• Authority: Employee coverage under 5 U.S.C. § 7103(a)(2) and National Guard technician membership under 32 U.S.C. § 709(b).
• Outcome: Proposal outside the duty to bargain; petition dismissed.
• Key point: Military compatibility rules for National Guard technicians fall outside federal civilian bargaining coverage.

Full text (FLRA public release)

[ v20 p829 ]

20:0829(103)NG

The decision of the Authority follows:

20 FLRA No. 103

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1655
Union

and

ADJUTANT GENERAL OF ILLINOIS
Agency

Case No. 0-NG-1143

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 the following disputed portions of a Union proposal:

Technician Military Compatibility

1. The concept of the National Guard technician program is that all
   technicians who are required to be a member of the National Guard will be assigned a military skill that is compatible with their full-time technician job and in the same unit by which employed or a unit that is supported by the activity.

2. Unless otherwise excepted, all technicians must continue to
   maintain proper military membership for the position occupied.

3. Situations of military grade inversion are not permitted.
   Military supervisors may not be militarily junior to their full-time technician.

4. The adjutant general shall approve exceptions in the following
   instances:

A. The military appointment requirements or compatibility criteria change and that change creates an incompatible assignment. This evaluation is applicable only as long as the technician continues to occupy the same military and technician position. A continuous effort must be made to assign the individual to a compatible military position.

B. When technicians are filling positions through temporary promotions or details.

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The employees represented by the Union herein are National Guard technicians who, as a condition of their civilian employment, must become and remain military members of the National Guard and must maintain the military grade specified for their technician positions. 32 U.S.C. Sec. 709(b), 709(e)(1).

The proposal herein concerns military technician compatibility. Section 1 of the proposal deals with military skill, section 2 with proper military membership, section 3 with military grade inversion, and section 4 with exceptions to military compatibility. Consequently, the Authority in agreement with the Agency finds that the proposal concerns the military aspect of civilian technician positions.

The Statute does not cover members of the "uniformed services." /1/ The "uniformed services" are defined by law to include the "armed forces," which term is further defined to include the "Army." /2/ The "Army" is defined to include the Army National Guard. /3/ Members of the Army National Guard, as involved herein, are members of the "uniformed services" and insofar as their status as members of the Guard is concerned, wholly apart from their status as civilian employees of the Guard, they are not covered by the Statute. The subject matter of the Union proposal, i.e., the military aspects of civilian technician employment as summarized above, therefore, is beyond the reach of the Statute. As the Authority has emphasized in this regard, the Statute "prescribes certain rights and obligations with respect to collective bargaining in the civil (as opposed to military) service." Moreover, the Authority has consistently held that matters pertaining to the military aspects of civilian technician employment do not concern conditions of employment within the meaning of the Statute. 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 No. 85 (1985), citing National Federation of Federal Employees, Local 1724 and Utah National Guard, Salt Lake City, Utah, 7 FLRA 732, 734 (1982); Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475, 479 (1983). Contrary to the Union's contention, this conclusion is not altered by the fact that the Agency has enacted regulations on a subject matter, in this case technician military compatibility, over which it is not obligated to bargain or by the fact that the proposal parallels applicable law dealing with military aspects of civilian technician employment. Thus, for the foregoing reasons, the proposal is outside the duty to bargain under the Statute.

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. /4/

Issued, Washington, D.C. December 11, 1985
---
Henry B. Frazier III, Acting
Chairman
---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Section 7103(a)(2)(ii) provides:

Sec. 7103. Definitions; application (a) For the purpose of this chapter--

(2) "employee" means an individual-- but does not include-- (ii) a member of the uniformed services(.)

/2/ 5 U.S.C. Sec. 2101.

/3/ 10 U.S.C. Sec. 3062(c).

/4/ In view of the decision herein, it is unnecessary to address the Agency's additional contention that the Union proposal violates management rights under section 7106. Also, in light of the above disposition, the Union's assertion that the proposal is negotiable under sections 7106(b)(2) and (3) cannot be sustained. Cf., American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lanthrop, California, 19 FLRA No. 118 (1985) (Provision 1) (wherein the Authority held that since the provision in question was inconsistent with a Government-wide regulation rather than a management right, sections 7106(b)(2) and (3) were not applicable).