NAGE Local R14-87 and Kansas Army National Guard (Authority decision, March 7, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

The Kansas Army National Guard ended a policy giving civilian technicians six months to obtain a compatible military assignment after a personnel change. An arbitrator ordered the grace period restored temporarily while a related negotiability case was pending. The Authority held that the military assignment requirement under the National Guard Technicians Act did not permit a period of incompatible assignments. It set aside the arbitration award as contrary to law.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and technician requirements under 32 U.S.C. § 709.
• Outcome: Arbitration award set aside.
• Key point: The arbitrator could not impose a grace period for incompatible civilian and military assignments.

Full text (FLRA public release)

[ v17 p120 ]

17:0120(23)AR

The decision of the Authority follows:

17 FLRA No. 23

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-87
Union

and

THE ADJUTANT GENERAL OF KANSAS,
THE KANSAS ARMY NATIONAL GUARD
Agency

Case No. O-AR-510

DECISION

This matter is before the Authority on exceptions to the award of Arbitrator A. Lee Belcher filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The issue before the Arbitrator involved the compatibility of civilian technicians' civilian employment and their military assignments. The employees represented by the Union 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. 709(b), 709(e)(1). In addition, in order that technicians are performing the same work as civilians as they would undertake as military members subsequent to mobilization, technicians' military assignments are generally required to involve the same duties as their corresponding civilian technician positions, that is, the military and civilian assignments must be "compatible." See generally National Association of Government Employees, Local R14-87 and Kansas Army National Guard, Topeka, Kansas, 15 FLRA No. 11 (1984). The grievance in this case arose when the adjutant general rescinded the policy of granting technicians a six-month, compatibility grace period. This policy granted a technician affected by a civilian personnel action that created an incompatible assignment a six-month period in which to obtain a compatible military assignment. On the advice of the National Guard Bureau that a grace period was contrary to law, the adjutant general rescinded that policy and announced that civilian and military assignments must be compatible on the effective date of the change affecting the technician's assignment. As a result a grievance was filed protesting the policy change. At the same time, a bargaining proposal was submitted by the Union essentially proposing a twelve-month grace period. The Agency declared the proposal not to be within the duty to bargain and the Union filed with the Authority a petition for review of a negotiability issue. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, Topeka, Kansas, Case No. O-NG-667. The grievance was not resolved and was submitted to arbitration while the negotiability issue was pending before the Authority.

The Arbitrator determined that the Agency had acted improperly by rescinding the policy of granting the six-month grace period. However, because of his doubt as to the legality of a six-month grace period and because the Arbitrator was of the opinion that this issue would be resolved by the Authority in the negotiability case, the Arbitrator as his award directed that the grace period be reimposed only from the date of the award until the date of the decision by the Authority in the negotiability case.

The Agency in its exceptions to the award essentially argues that the award is deficient because the imposition of a grace period in which a civilian technician is allowed to obtain a compatible military assignment is contrary to the intent and implementing policy of the Technicians Act, 32 U.S.C. 709. The Authority agrees.

In the related negotiability case the Authority ordered the petition for review dismissed because the disputed proposal was outside the duty to bargain. Kansas Army National Guard, 15 FLRA No. 11 (1984). In that case the Authority characterized the requirement that civilian and military assignments be compatible on the effective date of the change affecting the technician's assignment as concerning a military aspect of technician employment-- the timing of military assignments which must be made to maintain compatibility between military and civilian functions. In this regard, the Authority has uniformly held that the military aspects of technician employment are "totally mandated by law." Id. at 2; Association of Civilian Technicians, Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50, 55 (1980). Therefore, in terms of this case, the Authority finds that the Agency has sufficiently established that the mandate intended by the Technicians Act with respect to this military aspect of technician employment precludes the Arbitrator's imposition of a period of time during which a technician could permissibly maintain an incompatible military assignment. Consequently, the award is deficient as contrary to law and is set aside. Issued, Washington, D.C., March 7, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY