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56 FLRA No. 111
Association of Civilian Technicians Montana Air Chapter No. 29 and U.S. Department of Defense National Guard Bureau, Montana National Guard Helena, Montana , Case No. 0-NG-2527 (Decided September 22, 2000)
This case concerned the negotiability of one proposal which the Authority found within the duty to bargain. The Proposal determined the order in which unit employees were listed on retention registers for release in a RIF. Under the proposal, the Agency would be required to place employees in one of three tenure groups: non-probationary permanent employees, probationary permanent employees, and indefinite employees. Within each group, employees would be listed in descending order based on their length of service, augmented by up to 30 years of service based on their last three performance appraisals.
The Authority concluded that the proposal did not conflict with an Agency regulation for which there was a compelling need. The Authority noted that to demonstrate that a proposal is outside the duty to bargain based on conflict with an agency regulation for which there is a compelling need, an agency must: (1) identify a specific agency regulation; (2) show that there is a conflict between the regulation and the proposal; and (3) demonstrate that the regulation is supported by a compelling need within the meaning of section 2424.50 of the Authority's Regulations. In this regard, the Authority found that there was no dispute that TPR 300 (351) was an Agency regulation, that it conflicted with the proposal, and that Agency was asserting compelling need under each of the three examples provided in section 2424.50 of the Authority's Regulations.
The Authority proceeded to examine whether there was compelling need for the Agency regulation. It noted that to establish a compelling need under section 2424.50(a), the Agency must demonstrate that the regulation is essential, as distinguished from helpful or desirable, to the accomplishment of its mission or the execution of its functions in an effective and efficient manner. The Authority concluded that the Agency did not establish a compelling need for TPR 300 (351) under section 2424.50(b) of the Authority's Regulations and ordered the Agency to, upon request, or as otherwise agreed to by the parties, bargain over the Union's proposal.