American Federation of Government Employees, Local 3742 and Department of the Army, Headquarters, 98th Division (Training) (Authority decision, January 31, 1983)

Final FLRA decision. This is a final Authority order resolving a negotiability appeal. 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 Army’s 98th Division tested converting civilian technician vacancies to active duty military positions. AFGE Local 3742 submitted nine proposals in response. Four concerned the completed test and were moot. The Authority held the remaining five outside the duty to bargain because they would dictate which positions stayed civilian, guarantee advancement opportunities, or limit how vacancies were converted. Those measures would interfere with the Army’s right to determine its organization, so it dismissed the petition.

Decision snapshot

• Authority: Review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Five active proposals nonnegotiable; four others moot; petition dismissed.
• Key point: The Army could decide how its civilian and military positions were organized.

Full text (FLRA public release)

[ v11 p189 ]

11:0189(42)NG

The decision of the Authority follows:

11 FLRA No. 42

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3742
Union

and

DEPARTMENT OF THE ARMY, HEADQUARTERS,
98th DIVISION (TRAINING), WEBSTER,
NEW YORK
Agency

Case No. O-NG-68

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 raises issues relating to the negotiability of nine Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

The nine proposals at issue in the case were presented by the Union in response to implementation by the Agency of a "Military Technician Conversion Program." This program, instituted as a test program at the recommendation of Congress, lasted from March 1979 through June 1980 and was conducted to ascertain whether the military reserve components, i.e., the National Guard, Army and Air Force Reserve, could attract and retain active duty military personnel to fill vacant positions in the reserve component previously held by civilian technicians. Four of the nine proposals herein (set forth in the appendix) relate solely to the now terminated test program and thus became moot as of July 1980. However, as the record in this case also indicates that Congress, after reviewing the results of the test program, authorized the Agency to continue to convert civilian technician positions, the remaining five proposals which are applicable to such conversions are decided herein.

Union Proposal 1

Only entry level positions will be filled by military GS-5 or GS-6.

Union Proposal 5

Guaranteed opportunities for advancement and lateral transfers.

Union Proposal 6

Guaranteed opportunities for women and minorities to advance as civilian technicians.

Union Proposal 7

Guaranteed opportunities for civilian technicians to get a first level management position.

The four Union proposals set out above are designed to require that the Agency establish its organization structure in a manner which will assure promotional opportunities for its civilian technician employees. These proposals, in this respect, are not materially different from Union Proposal I in National Association of Government Inspectors and Quality Assurance Personnel, Unit #2 and Naval Air Engineering Center, Lakehurst, New Jersey, 8 FLRA No. 28 (1982) which the Authority found to conflict with the Agency's right to determine its organization under section 7106(a)(1) of the Statute. See also Congressional Research Employees Association and the Library of Congress, 3 FLRA 736 (1980). Therefore they are outside the duty to bargain.

Union Proposal 8

Prevention of cluster groups.

In the absence of an explanation by the Union of the meaning and purpose of this proposal, the Authority adopts the Agency's description as follows:

We understand that this proposal is intended to prevent all civilian vacancies in any one unit from becoming militarized under the conversion program. The union wants the affected vacancies to be spread out around the Division.

Union Proposal 8, then, would limit the number of civilian positions in any unit which could be converted to positions occupied by military personnel. The proposal in effect would prevent the Agency from making any of its sub-elements a completely military organization, notwithstanding a management determination that such action is necessary. This proposal, like Union Proposal V in Naval Air Engineering Center, supra, would require the Agency to conform to a certain organizational structure and to organize its workforce in a contractually prescribed manner. Therefore, Union Proposal 8 directly interferes with the right of the Agency under section 7106(a)(1) of the Statute, to determine its organization and is outside the duty to bargain.

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.

Issued, Washington, D.C., January 31, 1983

Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

Union Proposal 2

All other positions (from GS-7 - up) be announced for promotion and only if not filled by civilians then they can be used for the test program.

Union Proposal 3

As this is only a test program there will be no abolishment of ART positions on TDA, instead will report only temporary fill by military personnel.

Union Proposal 4

No reassignment or trade-off of incumbered civilian positions unless guaranteed to return to former positions upon completion of test program.

Union Proposal 9

Proposal must have a grandfather clause to protect civilian employees effective as of this date.