National Guard Bureau and Association of Civilian Technicians (Authority decision, December 18, 1986)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority finding an unfair labor practice under 5 U.S.C. § 7116. 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

The National Guard Bureau expanded its Mix-of-the-Force policy so Active Guard/Reserve military personnel could fill twelve job classifications previously reserved for civilian technicians. The Association of Civilian Technicians had national consultation rights, but the Bureau issued the policy without giving it notice and time to comment. The Authority found this was a substantive change in personnel policy and that the Bureau's failure to consult violated the federal labor statute. It ordered the Bureau to allow the union to present views on procedures for implementing the policy and to post a notice. The Authority did not order the Bureau to restore the prior policy.

Decision snapshot

• Authority: National consultation rights under 5 U.S.C. § 7113(b)(1).
• Outcome: Unfair labor practice found; consultation and notice ordered.
• Key point: A change allowing military personnel to fill formerly civilian technician positions required advance consultation with the union holding national consultation rights.

Full text (FLRA public release)

[ v24 p577 ]

24:0577(61)CA

The decision of the Authority follows:

24 FLRA No. 61

NATIONAL GUARD BUREAU
Respondent

and

ASSOCIATION OF CIVILIAN
TECHNICIANS
Charging Party/Union

Case No. 3-CA-60128

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority, in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. Briefs for the Authority's consideration were filed by the Respondent and the General Counsel.

The complaint alleges that the National Guard Bureau (Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by instituting a substantive change in conditions of employment without affording the Charging Party, Association of Civilian Technicians (ACT), prior notice and a reasonable time to present its views and recommendations regarding the change, pursuant to its previously granted national consultation rights, as required by section 7113 of the Statute. Specifically, by memorandum to all Adjutants General dated June 21, 1985, the Respondent implemented an expansion of its "Mix-of-the-Force" policy without prior notice to ACT. The expanded policy allows non-bargaining unit Active Guard/Reserve Military personnel to fill certain bargaining unit technician positions formerly occupied solely by civilian technicians.

II. Facts of the Case

At all times material herein, ACT has been granted national consultation rights by the National Guard Bureau under section 7113 of the Statute. By memorandum to the Adjutants General of all States, Puerto Rico, the Virgin Islands, Guam and the Cistrict of Columbia dated June 21, 1985, the National Guard Bureau implemented an expansion of its Mix-of-the-Force policy. /1/ Paragraph 5(b) of the policy announcement listed twelve (12) job classifications which could be filled by Active Guard/Reserve Military personnel. The twelve (12) job classifications were positions which had previously been reserved exclusively for civilian technicians.

III. The Issue

The issue in this case is whether the National Guard Bureau violated section 7116(a)(1) and (5) of the Statute by issuing, without consulting with ACT under section 7113 of the Statute, the June 21, 1985 Memorandum.

VI. Positions of the Parties

The arguments of the parties are essentially the same as those set forth in National Guard Bureau, 22 FLRA No. 90 (1986). In summary, the Agency asserts that it had no obligation to consult with ACT under section 7113 because the memorandum would have no actual immediate impact and little, if any, forseeable impact on bargaining unit employees. The General Counsel argues that through the memorandum the Respondent instituted a substantive change in conditions of employment of certain bargaining unit employees without fulfilling its obligations under section 7113 of the Statute.

V. Analysis

This case, like National Guard Bureau, 22 FLRA No. 90 (1986), involves the application of section 7113 of the Statute. Section 7113(b)(1) of the Statute requires an agency to inform a labor organization having national consultation rights with the agency of any substantive changes in conditions of employment proposed by the agency and to provide the labor organization with reasonable time to present its views and recommendations regarding the changes and to consider such views and recommendations before taking final action.

As noted in National Guard Bureau, in order for the consultation obligation set forth in section 7113(b)(1) of the Statute to apply, there must be a substantive change in conditions of employment. Section 7103(a)(14) of the Statute defines conditions of employment as "personnel policies, practices, and matters, whether established by rule, regulation or otherwise, affecting working conditions(.)"

This case involves the same circumstances and arguments as involved in National Guard Bureau. /2/ For the reasons expressed in that case we find that the Agency's June 21, 1985 policy announcement constituted a substantive change in personnel policy. Since ACT had national consultation rights, the National Guard Bureau was obligated to comply with the provisions of section 7113(b)(1) of the Statute prior to finalizing the changes. Thus, the National Guard Bureau was required to notify ACT and provide ACT with the opportunity to present its views and recommendations and to consider such views or recommendations before it issued the June 21, 1985 Memorandum. This was not done. Therefore, we conclude that the National Guard Bureau failed to comply with its obligation to consult under 7113(b)(1) of the Statute.

VI. Conclusion

The Authority has considered all the facts and circumstances of this case, including the positions of the parties. The Authority concludes that the Respondent failed to fulfill its obligation to consult with ACT pursuant to section 7113(b)(1) of the Statute prior to issuing its June 21, 1985 Memorandum expanding its Mix-of-the-Force policy and, thus, the Respondent violated section 7116(a)(1) and (5) of the Statute. Therefore, the Respondent shall be ordered to provide ACT, pursuant to its national consultation rights under section 7113 of the Statute, with reasonable time to present its views and recommendations concerning procedures pertaining to the impact and implementation of the expanded Mix-of-the-Force policy. /3/

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority's and section 7118 of the Statute, the Authority hereby orders the National Guard Bureau shall:

1. Cease and desist from:

(a) Failing to inform the Association fo Civilian Technicians (ACT) pursuant to ACT's national consultation rights under section 7113 of the Statute, of proposed substantive changes in conditions of employment, and failing to provide ACT with a reasonable period of time to present its views and recommendations regarding the proposed changes.

(b) In any like of related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Statute:

(a) Provide the Association of Civilian Technicians, pursuant to its national consultation rights under section 7113 of the Statute, a reasonable period of time to present its views and recommendations concerning procedures pertaining to the impact and implementation of the expanded Mix-of-the-Force policy, and thereafter, comply with the requirements of section 7113(b)(2) of the Statute.

(b) Post at its facilities copies of the attached Notice or forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, Army National Guard, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken by the National Guard Bureau to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C. December 18, 1986

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

(1) This memorandum is the same memorandum as that which was the focus of the complaint in National Guard Bureau, 22 FLRA No. 90 (1986).

(2) In National Guard Bureau, the parties stipulated to the number of civilian technicians actually assigned to the 12 positions in 19 states in which the union involved in that case held exclusive recognitions. No similar facts were included in the stipulation in this case. In its brief, the Agency has included figures similar to those stipulated to in the previous case as well as its projections as to the "foreseeable" impact of the new policy based on those figures and its estimates of attrition rates. However, in any matter submitted directly to the Authority for decision based on a stipulation of facts, the Authority will consider only facts contained in the stipulation. See, e.g., General Services Administration, 6 FLRA 430 (1981).

(3) In the absence of a request by the General Counsel or ACT for a status quo ante remedy we conclude, in the circumstances of this case, that no such remedy is warranted. See National Guard Bureau, 18 FLRA No. 62, slip op. at 4 n.4 (1985).

NOTICE TO ALL EMPLOYEES

PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail to inform the Association of Civilian Technicians (ACT), pursuant to ACT's national consultation rights under section 7113 of the Statute, of proposed substantive changes in conditions of employment, or fail to provide ACT with a reasonable period of time to present its views and recommendations regarding the proposed changes.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL provide the Association of Civilian Technicians pursuant to its national consultation rights under section 7113 of the Statute, a reasonable period of time to present its views and recommendations concerning procedures pertaining to the impact and implementation of the expanded Mix-of-the-Force policy, and thereafter, comply with the requirements of section 7113(b)(2) of the Statute. (Activity)

Dated:
By: (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: P.O. Box 33758, 1118 18th Street, NW., Room 700, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.