55 FLRA No. 196

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.     Statement of the Case

      These cases are before the Authority on negotiability appeals filed by the Texas Association and the Wisconsin Association (hereinafter "the Unions") under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). Each appeal concerns the negotiability of one proposal that has been asserted to be outside the duty to bargain by the Texas National Guard and the Wisconsin National Guard (hereinafter "the Agencies"), respectively.

      For the reasons that follow, we find that the two proposals concern a military aspect of technician employment and, therefore, are outside the duty to bargain. Accordingly, pursuant to the Authority's Regulations, we dismiss the petitions for review. [n1] 

II.     Preliminary Matter

      The parties in ATC, Texas requested that the Authority consolidate ATC, Texas and ATC, Wisconsin for decision. See Record of the Post-Petition Conference (Conference Record), at 2 (May 28, 1999). The two cases concern the same issue, and the parties' arguments and representatives are the same in both cases. Accordingly, we grant the request to consolidate ATC, Texas and ATC, Wisconsin for decision. See National Association of Government Employees, Local R4-45 and U.S. Department of Defense, Defense Commissary Agency, Central Region, Virginia Beach, Virginia and National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Headquarters, Midwest Region, Kelly Air Force Base, Texas, 54 FLRA 218, 219 (1998).

III.     The Proposals

      The proposal in ATC, Texas provides the following:

An employee shall be eligible to apply for, to be selected for, and to be appointed to, a Wage Leader position, or a position that requires work with a Wage Leader, without restriction based on whether the employee's appointment would result in the Wage Leader having a military rank below that of any employee with whom the Wage Leader works.

      The proposal in ATC, Wisconsin provides the following:

A Wage Leader employee shall not, as a condition of employment, be required to hold a military rank which is equal to or exceeds the military ranks of the employees with whom the Wage Leader works. [ v55 p1227 ]

IV.     Positions of the Parties

A.     Agencies

      In both cases, the Agencies assert that the Unions' proposals are outside the duty to bargain on two grounds.

      First, the Agencies contend that the proposals do not concern a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Agencies argue that the proposals "would prevent enforcement for members of the bargaining unit of a grade inversion policy." ATC, Texas Statement of Position (Texas SOP) at 5; ATC, Wisconsin Statement of Position (Wisconsin SOP) at 3. Citing Authority precedent, the Agencies assert that "[i]t is well settled in Authority case law that grade inversion is a military aspect of technician employment and that `matters pertaining to the military aspects of . . . technician employment do not concern conditions of employment within the meaning of the Statute." Texas SOP at 5; Wisconsin SOP at 2.

      Second, the Agencies claim that the proposals affect management's right to assign employees under section 7106(a)(2)(A) of the Statute. According to the Agencies, "[u]nder the proposal[s] management would be precluded from establishing a qualification requirement that a wage leader hold a military rank equal to or higher than the technicians he/she is responsible for leading." Texas SOP at 4; Wisconsin SOP at 3.

B.     Unions

      The Unions assert that the proposals concern conditions of employment. In this regard, the Unions claim that the subject matter of the proposals does not concern a matter that is "specifically provided for by Federal statute," and therefore, the proposals concern conditions of employment within the meaning of the Statute. Texas Response at 4; Wisconsin Response at 4 (quoting 5 U.S.C. § 7103(a)(14)). Specifically, the Unions assert that because 32 U.S.C. § 709(b)(2) grants the Secretary the discretion to determine the military grade that Wage Leaders will hold, the subject matter of the proposals is not "specifically provided for" within the meaning of section 7103(a)(14). In addition, the Unions argue that a decision previously relied on by the Authority in interpreting section 7103(a)(14) to the contrary, National Federation of Federal Employees, Local 1623 v. FLRA, 852 F.2d 1349 (D.C. Cir. 1988) (NFFE, Local 1623), is "not good law." Texas Response at 4; Wisconsin Response at 4. In particular, the Unions assert that the court erroneously found that the matter at issue in that case -- military compatibility -- was not a condition of employment, despite the fact that the matter was within the agency's discretion.

      The Unions further claim that the proposals are not an attempt to bargain over the terms and conditions of military service, because the determination regarding the appropriate military rank of Wage Leaders is a civilian decision concerning a condition of Wage Leaders' civilian employment. In addition, the Unions claim that the National Guard's grade inversion policy at issue is set forth in a regulation for which the Agencies do not assert there is a compelling need. See Texas Response at 4 n.1; Wisconsin Response at 4 n.2.

      Finally, the Unions claim that the proposals do not affect management's right to assign employees under section 7106(a)(2)(A) because they do not restrict either management's determination as to who will serve as a selecting official or the selecting official's discretion to determine who will be selected for a Wage Leader position. See Texas Response at 10-11; Wisconsin Response at 9. In this regard, the Unions assert that the proposals "ha[ve] the effect of broadening competition for Wage Leader positions, not restricting it." Texas Response at 10; Wisconsin Response at 9. The Unions also argue that the proposals are procedures under section 7106(b)(2) because they prescribe the procedure by which management will make selections for Wage Leader positions.

V.     Meaning of the Proposals

      The Texas Association and the Texas National Guard agree that the meaning of the proposal in ATC, Texas is the following: that in selecting a candidate for a Wage Leader position, the selecting official will have "unfettered" discretion to select a Wage Leader with a lower military grade than the employees with whom the Wage Leader will work. Conference Record at 2. The Texas Association and Texas National Guard also agree that the proposal is inconsistent with a National Guard policy guidance, which clarifies that the military grade inversion policy -- prohibiting full time civilian technicians from supervising any individual with a higher military rank than the rank of the supervisor --applies to Wage Leaders. Id.

      Although the language of the proposal in ATC, Texas is not identical to that in ATC, Wisconsin, the Texas Association states that the proposal in ATC, Texas is a clarification intended to avoid a potential ambiguity present in the ATC, Wisconsin proposal -- "that the proposal might be misconstrued as not limiting rank requirements for employees who are not [W]age Leaders." See Conference Record at 1-2. In light of the [ v55 p1228 ] Texas Association's clarification, its express request that the Authority consider ATC, Wisconsin and ATC, Texas together, and the fact that the Unions' explanations and arguments are identical with respect to the proposal in each case, we find that the meanings of the proposals in ATC, Texas and ATC, Wisconsin are the same.

VI.     Analysis and Conclusions

A.     Military Aspects of Conditions of Employment Are Outside the Duty to Bargain

      The Authority has consistently held that National Guard technicians may not bargain concerning "the military aspects of civilian technician employment." Association of Civilian Technicians, Schenectady Chapter and U.S. Department of Defense, National Guard Bureau, New York Air National Guard, Latham New York, 55 FLRA 925, 932-33 (1999) (ACT, New York) (Member Cabaniss, concurring in part as to Proposal 6, and Member Wasserman, dissenting in part as to Proposal 6), appeal filed sub nom. Association of Civilian Technicians, Schenectady Chapter v. FLRA, No. 99-1476 (D.C. Cir. Dec. 28, 1999); National Federation of Federal Employees, Local 1669 and U.S. Department of Defense, Arkansas Air National Guard, 188^th Fighter Wing, Fort Smith, Arkansas, 55 FLRA 63, 65 (1999) (ACT, Arkansas), enforced sub nom. Arkansas National Guard v. FLRA, No. 99-1563, 99-1974 (Oct. 14, 1999); 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 717, 739 (1985) (ACT, Montana). This holding arises only in the unique employment situation of dual status employees. In addressing this issue, the U.S. Court of Appeals for the District of Columbia Circuit explained that "National Guard technicians are both civilian employees and enlistees in National Guard units. The two worlds they simultaneously inhabit are understandably governed by very different rules of employee-employer relations." NFFE, Local 1623, 852 F.2d at 1350.

      Authority precedent holding that National Guard technicians may not bargain concerning military aspects of civilian technician employment has been based on three distinct rationales. First, it has been based on a statutory analysis of 10 U.S.C. § 976(c) [n2] , which prohibits bargaining with, or on behalf of, members of the military. [n3]  Second, it has been based on a statutory analysis of the National Guard Technicians Act of 1968, 32 U.S.C. § 709 et seq. (Technicians Act) [n4] , which provides, among other things, that as a condition of civilian employment, technicians must be members of the National Guard. [n5]  Third, it has been based on the conclusion that military matters do not concern conditions of employment within the meaning of section 7103(a)(14) of the Statute. [n6] 

      The Unions challenge the third basis relied upon in prior Authority decisions. They argue that the "specifically provided for by Federal law" exception to the definition of the term "condition of employment" in section 7103(a)(14) does not apply to situations where an agency can exercise discretion over the matter proposed for bargaining, such as the military grade inversion policy at issue in this case. The Unions assert that NFFE, Local 1623, in which the court addressed this issue, is "not good law," because the court erroneously found that the matter at issue was not a condition of employment, despite the fact that the matter was within the agency's discretion. Texas Response at 4; Wisconsin Response at 4.

      The Unions' argument points to a confusing aspect of the Authority's prior precedent that was clarified in International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681-85 (1995) (BEP), aff'd mem. sub nom. Bureau of Engraving and Printing v. FLRA, 88 F.3d 1279. Consistent with the Union's argument here, in BEP the Authority clarified that the "specifically provided for" exception to the definition of "conditions of [ v55 p1229 ] employment" in section 7103(a)(14) applies only where the statute at issue provides the agency with no discretion. Thus, as the Unions correctly assert, matters within an agency's discretion are not "specifically provided for by Federal law."

      Contrary to the Unions' assertion, however, the clarification in BEP does not mean that NFFE, Local 1623 was incorrectly decided. BEP explained that matters that fall within the definition of "condition of employment" may nevertheless be outside the duty to bargain if bargaining is "inconsistent with any Federal law" under section 7117(a)(1) of the Statute. For example, there is no duty to bargain "where law or applicable regulation vests an agency with sole and exclusive discretion over a matter, [and] it would be contrary to law to require that discretion to be exercised through collective bargaining." BEP, 50 FLRA at 691. See NFFE, Local 1623, 852 F.2d at 1352 (question of compatibility is a military issue, which section 709(b) "left entirely to the discretion of the Secretary of the Army or the Air Force"). [n7]  Therefore, even though a matter does not properly fall within an exception to the definition of "conditions of employment" in section 7103(a)(14), bargaining will nevertheless be foreclosed if a proposal is inconsistent with law.

      The limitation on bargaining over military aspects of civilian technician employment is based on the Technician Act and is also based on section 976 of title 10, which expressly prohibits bargaining over the "terms or conditions" of military service. Contrary to the arguments advanced by the Unions, there is no indication that the section 976 prohibition is limited to only "military decisions[,]" such as the "award of military ranks." Texas Response at 7; Wisconsin Response at 6. Rather, the prohibition applies more broadly to "terms or conditions of service of such members[.]" 10 U.S.C. § 976(c)(2). With respect to dual status technicians, whose day-to-day work lives have both civilian and military components, the prohibition applies to the military aspects of civilian technician employment. Those terms and conditions are outside the duty to bargain without regard to whether or not they are either (1) within the sole discretion of an agency or (2) specifically provided for by law.

      Consistent with the foregoing, the conclusion that National Guard technicians may not negotiate over military aspects of civilian employment is not compelled by the definition of conditions of employment contained in section 7103(a)(14) of the Statute. Instead, the conclusion results from the application of 10 U.S.C. § 976, the Technicians Act, and section 7117(a) of the Statute.

B.     The Instant Proposals Are Outside the Duty to Bargain Because They Concern Military Aspects of Civilian Technician Employment

      Under the military grade inversion policy at issue in this case, a full time civilian technician may not supervise any individual with a higher military rank than the military rank of the supervisor. See ATC, Texas Petition for Review (Texas Petition), Attachment 2, National Guard Regulation 600-25, Chapter 2, paragraph 2-1a. A National Guard policy guidance clarifies that the grade inversion policy applies to Wage Leaders: "the military grade of a technician occupying a Wage Leader position must equal or exceed the military grade of the subordinate personnel." Texas Petition, Attachment 3; ATC, Wisconsin Petition for Review (Wisconsin Petition), Attachment 6.

      The Authority has consistently held that proposals relating to the implementation and application of the military grade inversion policy are outside the duty to bargain because they concern the military aspects of civilian technician employment. See ACT, New York, 55 FLRA at 930; ACT, Pennsylvania, 47 FLRA at 337-38; Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 31 FLRA 824, 827-29 (1988) (Adjutant General of Pennsylvania); National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 517-18 (1987); National Federation of Federal Employees, Local 1655 and Adjutant General of Illinois, 20 FLRA 829, 830-31 (1985). In ACT, New York, 55 FLRA at 930, the Authority recently reiterated this holding, finding two proposals outside the duty to bargain because they concerned the military's policy on inversion of rank. As relevant here, Proposal 4 in ACT, New York would have [ v55 p1230 ] permitted civilian technicians to remain in shop chief positions even if military technicians with higher military rank were assigned to the same shop. Id.

      The legislative history of § 709(b) of title 32 clearly supports the Authority's conclusion that the military grade inversion policy is a military aspect of civilian technician employment. Specifically, the House Report accompanying the Technicians Act as originally introduced explains the necessity of the grade inversion policy as follows:

It has . . . been the practice of the Secretary concerned to designate certain positions as "officer positions," others as "enlisted positions," which can be filled only by individuals who hold the appropriate grade in the National Guard. There is a high correlation between the duties of the technician in his military and civilian capacities. . . . In the interest of efficiency and discipline, a military commander should not be a civilian subordinate of a member of his unit. Such inversions may be prevented by authorizing the Secretary concerned to establish the military grade required for employment in a particular technician position. . . .

H. Rep. No. 13, 90th Cong., 1st Sess. 58-59 (1967) (emphasis added). See also ACT, Montana, 20 FLRA at 725.

      The proposals at issue here would, in effect, prohibit the Agencies from enforcing the grade inversion policy as it applies to Wage Leader positions. See Conference Record at 2. Consistent with the Authority precedent described above, including the Authority's analysis of proposal 4 in ACT, New York, the proposals at issue concern a military aspect of civilian technician employment. [n8] 

      Accordingly, we conclude that the Unions' proposals are outside the duty to bargain under section 7117(a)(1) of the Statute. [n9]  See Act, New York, 55 FLRA 925; ACT, Pennsylvania, 47 FLRA 331.

VII.      Order

      The petitions for review are dismissed.

   The Authority's Regulations governing negotiability appeals were revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999, including Association of Civilian Technicians, Texas Lone Star Chapter 100 and U.S. Department of Defense, National Guard Bureau, State of Texas, Adjutant General's Department, 0-NG-2492 (ATC, Texas). The previous regulations apply to the petition in Association of Civilian Technicians, ATC, Wisconsin 26 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, State of Wisconsin, 0-NG-2485 (ATC, Wisconsin), which was filed prior to April 1, 1999.

   10 U.S.C. § 976(c)(2) provides, in pertinent part, that it shall be "unlawful" to:

negotiate or bargain, or attempt to bargain through any coercive act to negotiate or bargain, with any civilian officer or employee, or any member of the armed forces, on behalf of members of the armed forces, concerning the terms or conditions of service of such members[.]

   See ACT, Montana, 20 FLRA at 739.

   As relevant here, section 709(b) of the Technicians Act, 32 U.S.C. § 709(b), provides:

(b)     Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall:

(1)     be a member of the National Guard;

(2)     hold the military grade specified by the Secretary concerned for that position[.]

   See ACT, Arkansas, 55 FLRA at 63; Association of Civilian Technicians, Pennsylvania State Council and The Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50, 51 n.1 (1980).

   See ACT, New York, 55 FLRA at 932-33; Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, National Guard Bureau, The Adjutant General of Pennsylvania, 47 FLRA 332, 337-38 (1993) (ACT, Pennsylvania ).

   On this point, the Unions incorrectly contend that the court's holding in NFFE, Local 1623 is inconsistent with the court's later decision in Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988) (Illinois National Guard). Contrary to the Unions' assertions, Illinois National Guard did not hold that a matter cannot be found within an agency's unfettered discretion unless the statutory provision at issue contains the phrase "notwithstanding any other provision of law." Texas Response at 6; Wisconsin Response at 5. In this connection, the Authority has consistently held that, in determining whether an agency's discretion is unfettered or "sole and exclusive," the Authority examines the plain wording and the legislative history of the statute being relied on. Association of Civilian Technicians, Mile High Chapter and U.S. Department of Defense, Colorado Air National Guard, 140th Fighter Wing, 53 FLRA 1408, 1412 (1998) (holding that section 709(b)(3) of the Technicians Act -- which does not include the phrase "notwithstanding any other provision of law" -- provides the Secretary with sole and exclusive discretion over military uniforms).

   The Unions argue that the National Guard's grade inversion policy does not foreclose bargaining because it is set forth in a regulation for which the Agencies do not claim there is a compelling need. However, the issue presented in this case is whether the subject matter of the proposals concerns a military aspect of civilian technician employment, not whether the proposals are inconsistent with an agency regulation for which compelling need is asserted.

   In view of this conclusion, we do not address whether the proposals are outside the duty to bargain because they affect management's right to assign work.