Association of Civilian Technicians, Wichita Air Capitol Chapter (Union) and United States, Department of Defense, National Guard Bureau, Kansas National Guard, Topeka, Kansas (Agency) (Authority decision, October 22, 2004)

Read the official release (flra.gov)

Final FLRA decision. This order on court remand dismisses a negotiability petition. 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 order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Wichita Air Capitol technicians' union proposed notice, position description, and bargaining procedures for military training assigned to National Guard technicians during civilian work hours. A federal appeals court had rejected the Authority's earlier conclusion that a separate military bargaining statute barred the proposal and sent the case back. On remand, the Authority held that the proposal was not barred by the National Guard Technicians Act and did concern civilian employment. It nevertheless dismissed the petition because one paragraph required detailed written orders before assigning training duties and thus restricted management's right to assign work. The proposal could not be separated into independently negotiable parts. Chairman Cabaniss and Member Pope wrote separate opinions disagreeing with parts of the majority's reasoning.

Decision snapshot

• Authority: 5 U.S.C. §§ 7105(a)(2)(E), 7106(a)(2)(B), and 7106(b)(2).
• Outcome: The petition was dismissed because the nonseverable proposal was held nonnegotiable, upholding the agency's position.
• Key point: Written notice conditions on assigning military training duties made the nonseverable proposal outside the duty to bargain.

Full text (FLRA public release)

[ v60
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60 FLRA No. 73

ASSOCIATION

OF CIVILIAN TECHNICIANS

WICHITA AIR CAPITOL CHAPTER

(Union)

and

UNITED STATES

DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

KANSAS NATIONAL GUARD

TOPEKA, KANSAS

(Agency)

0-NG-2581

(58 FLRA 28 (2002))

(58 FLRA 483 (2003))

_____

DECISION AND ORDER ON REMAND

October 22, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in Association of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, 360 F.3d 195 (D.C. Cir. 2004) (Wichita Air Capitol Chapter) (reviewing 58 FLRA 28 (2002) (ACT, Wichita), reconsideration denied 58 FLRA 483 (2003)). In the original matter, ACT, Wichita, the Union filed a petition for review on a negotiability matter under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review concerned one proposal, consisting of six paragraphs. The Authority denied the Union's request that the proposal be severed on the ground that the request failed to comply with the Authority's regulatory requirements governing severance. The Authority determined that the proposal was nonnegotiable as it was inconsistent with 10 U.S.C. § 976. The D.C. Circuit reversed this determination and remanded the matter of the proposal's negotiability to the Authority for further processing. [n2]

In this decision, we address the additional arguments raised by the parties concerning the proposal. For the reasons that follow, we find that the proposal affects the Agency's right to assign work and is outside the duty to bargain. Accordingly, we dismiss the petition for review.

II. Proposal

9-2b MILITARY TRAINING DUTY:

1. For purposes of this Section, "military training duty" is duty that is (1) required by a written policy or regulation
   that is applicable to members of the National Guard irrespective of whether they are employees, (2) designed to impart or to measure proficiency in a military skill, and (3) required by written policy or regulation to be performed for a specified period of time, or with a specified frequency, or until a specified level of proficiency is achieved. Examples of military training duties are rifle qualification and training in the wear of garments designed to afford protection from chemical weapons (Chem Gear).

2. The agency shall include in an employee's written position description each military training duty that the
   agency expects to assign, as work, to that employee. The agency shall provide contemporaneous written notice to each employee of any amendment of the employee's position description to include a military training duty. The notice shall include the following statement: "Agency representatives are available to meet with you, any other similarly-affected employees, and your Chapter representatives to discuss this amendment, to answer questions, and to listen to any concerns that may be expressed regarding this change. If you would like to have a meeting for this purpose, contact your chapter representatives." Agency representatives shall be available to meet with employees and chapter representatives for this purpose. A military training duty shall be included in an employee's position description no less than four months before that duty is assigned to the employee, unless the agency delivers to the [ v60 p343 ] employee and the chapter a written statement of facts and reasons explaining why the agency did not do so.

3. The agency shall provide the chapter a list of all bargaining unit position descriptions that include any military
   training duties. The list shall identify which military training duties are included in each position description. The agency shall provide the chapter contemporaneous written notice of any change to the listed information. The notice shall include the facts and reasons stated to any bargaining unit employee as the explanation for including a military training duty in the employee's position description less than four months before the employee was assigned the duty.

4. Upon request by the chapter, the agency shall negotiate the impact and implementation of military training
   duty assigned to any employee as work.

5. If the agency assigns an employee to perform, as work, any military training duty, the agency shall assign the
   work by written order that: (1) identifies the employee by name and position; (2) identifies and quotes the portion of the written policy or regulation that requires performance of the duty and specifies the period of time, frequency, or level of proficiency required, (3) describes the specific military skills to be imparted or military proficiency to be tested; (4) states the date, time, and place the duty will begin, and the expected duration of the duty for each separate period of duty time; (5) is delivered to the employee no less than thirty days before the duty will begin, unless the order states facts and reasons explaining why the agency is providing shorter notice; (6) describes the type, severity, and relative frequency of occurrence of any injury or illness that is known to have resulted from past performance of the duty or that is foreseeable; (7) describes precautionary measures that the agency will take and that the employee may take to reduce the risk of injury; (8) describes measures that the agency will take to provide prompt, effective treatment in the event injury does occur; (9) includes the following statement: "Agency representatives are available to meet with you, any other similarly-affected employees, and your chapter representatives to discuss this assignment of work, to answer questions, and to listen to any concerns that may be expressed regarding it. If you would like to have a meeting for this purpose, contact your chapter representatives." Agency representatives shall be available to meet with employees and chapter representatives for this purpose.

6. While the agency may require an employee to wear Chem Gear as an assignment of work, the agency shall
   not require an employee to wear Chem Gear as a method and means of performing work.

III. The Court's Decision

As noted previously, the court held that the proposal was not inconsistent with 10 U.S.C. § 976, which "makes it a crime to bargain on behalf of members of the armed forces over the terms or conditions of their military service." 360 F.3d at 196. Recognizing that "[t]echnicians may engage in collective bargaining" under § 7102 of the Statute, id., the court stated that 10 U.S.C. § 976

does not prohibit bargaining over terms or conditions of National Guard service in all circumstances. It prohibits only bargaining concerning terms or conditions of full-time National Guard duty on behalf of members who are serving on fulltime National Guard duty. When the Guard chooses to assign military training duties to technicians in their civilian capacity, those duties also become terms or conditions of civilian employment. Because the technicians perform those duties while serving in their civilian capacity, they are not, at that time, "serving on full-time National Guard duty." The union thus seeks to bargain not "on behalf of members of the armed forces, concerning the terms or conditions of service of such members," but rather on behalf of civilian technicians concerning the terms or conditions of their civilian employment.

360 F.3d at 198.

The court reiterated that "the substance of the proposal here concerns the performance of duties, albeit of a military nature, assigned during hours of civilian employment." Id. at 199-200.

IV. Positions of the Parties

A. Agency

The Agency argues that the proposal is outside the duty to bargain because it is inconsistent with the National Guard Technicians Act, 32 U.S.C. § 709, does not concern a condition of employment under [ v60 p344 ] § 7103(a)(14) of the Statute and is contrary to § 7106(a)(2)(B) of the Statute.

With respect to its first argument, the Agency claims that technicians must remain proficient in their "military occupational specialty" in order to maintain military membership under 32 U.S.C. § 709. Statement of Position (SOP) at 5-6. The Agency argues that the proposal could undermine compatibility between the "civilian and military job assignments of technicians' dual status employment," arguing that "[t]he performance of military training duties is directly linked to the military compatibility of the technician's position." Id. at 7, 8 (citing NAGE, Local R14-87, AFL-CIO, 18 FLRA 736, 737 (1985) (NAGE) and Agency Regulation TPR 300 (302.7) (setting forth the Agency regulation within that decision)).

The Agency also argues that the Authority has found that "Military Training Duties" are not conditions of employment under § 7103(a)(14), and that technicians may not negotiate over military aspects of their civilian technician employment. SOP at 7-8; (citing ACT, Texas Lone Star Chapter 100, 55 FLRA 1226 (2000) (Lone Star) aff'd ACT, Texas Lone Star Chapter 100 v. FLRA, 250 F.3d 778 (D.C. Cir. 2001)) (ACT, Texas Lone Star); 10 U.S.C. § 976(c); 32 U.S.C. § 709; 5 U.S.C. § 7103(a)(14). The Agency states that negotiation would be inconsistent with § 7103(a)(14) as it would allow for arbitration as to the Agency's decisions and interpretations of military matters. Id., citing Lone Star.

Finally, the Agency maintains that the proposal would "directly and excessively interfere with the right to assign work" under § 7106(a)(2)(B) of the Statute and, further, that it does not constitute a procedure under § 7106(b)(2) of the Statute. Id. at 12. The Agency contends that the proposal would severely hamper its ability to deploy personnel and equipment at their maximum effectiveness given the requirements that it must fulfill under the proposal before it can assign military training duties. In this respect, the Agency contends that the proposal directly and adversely impacts the "military readiness of the unit's war fighting capabilities" in keeping with its responsibilities under the Technician Act to train guard members, to mobilize for deployment, and to maintain military equipment. Id. at 11. The Agency also maintains that the proposal's requirements would "make it virtually impossible to effectively assign military duties to the technician workforce[,]" given the "substantial time frames for each military training duty . . . and meetings with the employee[s] each time a military training duty is assigned." Id. at 11-12. In sum, the Agency argues that the proposal impinges on substantive management decisions by specifying the criteria pursuant to which decisions must be made in line with its obligations under the Technician Act noted above.

B. Union

The Union claims that the Agency's argument that the proposal violates the "military compatibility requirement" of TPR 300(302.7) and 32 U.S.C. § 709, is erroneous. Response at 5. The Union argues that the proposal does not limit the Agency's ability to assign military skills training, during military status, and does not preclude the assignment of these tasks to technicians while serving in a civilian employee status. Id. at 7. Moreover, the Union states that the proposal would not have any force or effect if the Agency were to determine that an emergency has taken place under § 7106(a)(2)(D), and that the proposal would allow immediate training if the Agency were to write a statement of facts and reason for needing such training in the absence of notice.

The Union argues that the Authority previously erred in finding that "military aspects of technician employment" are nonnegotiable. Response at 9 (citing Lone Star, 55 FLRA 1226). It asserts that § 709 does not state that military aspects of technician employment are nonnegotiable and that the Authority only applies such doctrine to proposals that "would violate a statute, regulation or policy[.]" Response at 12. Similarly, the Union asserts that the Authority has never determined that civilian employment procedures, even when they touch upon matters that are military in nature, are nonnegotiable. Response at 11 (citing ACT, Arizona Army Chapter 61, 48 FLRA 412, 417 (1993)).

V. Meaning of the Proposal

As set forth in ACT, Wichita, 58 FLRA at 30, the Union's proposal would require the Agency to include any military training duty assigned as work in a technician's position description, with notice to the Union prior to such inclusion and an opportunity to discuss the inclusion with technicians. It also would require that such military training would be assigned as work only under certain parameters including an opportunity to discuss the Agency's decision with both the Union and technician. The proposal would also require the Agency to engage in impact and implementation bargaining where a technician is assigned a military training duty as work and would restrict the Agency from requiring employees to wear Chem Gear as a methods and means of performing work. [ v60 p345 ]

VI. Analysis and Conclusions

A. The Technicians Act

The Technicians Act requires that National Guard technicians "[h]old the military grade specified by the Secretary concerned for [their] position." 32 U.S.C. § 709(b)(3). The Authority has held that the Agency's rules dictating that technicians have compatible military and civilian job assignments implement this statutory requirement. NAGE, 18 FLRA 736.

The Agency asserts that the proposal is contrary to the Technicians Act because it subjects to negotiation military training duties linked to compatibility. SOP at 7. However, unlike the proposal in NAGE, the proposal in this case does not concern the Agency's determination of what military skills are necessary to maintain compatibility. As the Union points out, the proposal does not limit the Agency's ability to require technicians to have any particular military skills, ranks, or positions. Instead, it requires the inclusion of military training duties in position descriptions, impact and implementation bargaining, and notice of the assignment of such duties. Moreover, the Authority has held specifically that proposals that "military assignment[s] be incorporated in the civilian technician's position description" are within the duty to bargain. ACT, Pennsylvania State Council, 29 FLRA 1292, 1301 (1987). Thus, we reject the Agency's claim that the proposal is inconsistent with compatibility requirements of the Technicians Act.

We also reject the Agency's claim that the proposal is inconsistent with the Technicians Act based on prior Authority holdings that technicians may not bargain over "military aspects of their civilian technician employment." SOP at 7 (citing ACT, Texas Lone Star Ch. 100, 55 FLRA 1226 (2000), aff'd 250 F.3d 778, 784 (D.C. Cir. 2001)). In this regard, the court in ACT, Texas Lone Star found "merit in [the Union's] contention" that the Authority "goes too far in suggesting that any proposal affecting the military aspects of technician employment" is outside the duty to bargain. 250 F.3d at 784. We agree, and find that there is no basis for applying § 7117(a) of the Statute differently with respect to the Technicians Act and other statutes.

The court's decision in this case is instructive on this point. In particular, the court held that 10 U.S.C. § 976, which concerns bargaining over terms of military service:

does not prohibit bargaining over terms or conditions of National Guard service in all circumstances. It prohibits only bargaining concerning terms or conditions of full-time National Guard duty . . . . When the Guard chooses to assign military training duties to technicians in their civilian capacity, those duties also become terms or conditions of civilian employment.

Id. at 198. [n3] Thus, § 976, which specifically addresses collective bargaining, does not have the effect of foreclosing bargaining by technicians while in civilian status. As such, it would be anomalous to find that the Technicians Act, which does not specifically address bargaining, has this effect. Instead, the Technicians Act forecloses bargaining only to the extent that proposals are "inconsistent with" that Act under § 7117(a) of the Statute, and a separate doctrine concerning military aspects of technician employment is not supportable. [n4]

Consistent with the foregoing, the proposal is not inconsistent with the Technicians Act.

B. The Proposal Involves a Condition of Employment

The Agency asserts that the proposal does not involve a condition of employment. SOP at 7-8. In ACT, Lone Star, 55 FLRA 1226, 1228-29 (2000), the Authority determined that it would no longer apply a principle that military aspects of civilian employment do not concern conditions of employment, or are otherwise outside the duty to bargain on that basis alone. As explained fully in ACT, Lone Star, this principle was based on a misinterpretation of 7103(a)(14)(c) of the Statute. Id. Accordingly, we reject the Agency's assertion. [n5] [ v60 p346 ]

C. The Proposal Affects the Right to Assign Work [n6]

1. Analytical Framework for Resolving Negotiability Disputes under § 7106(a) and (b) of the Statute

In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998), the Authority clarified the approach it will follow in resolving negotiability disputes where the parties disagree as to whether a proposal comes within the terms of § 7106(a) or § 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under § 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain. Then, if necessary, the Authority will address those claims that would determine if a proposal is electively negotiable. See, e.g., NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998). Consistent with this sequence, we first consider the claims that the proposal comes within the terms of §§ 7106(a) and 7106(b)(2) and (3).

2. The Proposal Affects Management's Right to Assign Work under § 7106(a)(2)(B) of the Statute

It is well established that the right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). Moreover, the Authority has held that proposals prescribing when a management right may be exercised constitute substantive limitations on the exercise of that right. AFGE, Local 1345, 48 FLRA 168, 174 (1993) (Fort Carson) (citing Dep't of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988) (IRS), reversed and remanded as to other matters, 494 U.S. 922 (1990); United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414, 1419 (D.C. Cir. 1988)).

In Fort Carson, the Authority adopted the view of the U.S. Court of Appeals for the District of Columbia Circuit in IRS that "certain proposals precluding an agency from exercising a management right unless or until other events occurred directly interfered with that right." Id. at 174. In this respect, the Authority found that, in at least some situations, timing is an integral part of the right to assign work. The proposal in Fort Carson effectively prohibited management from assigning any task, no matter how small or large, unless the specific work assignment was currently listed in the position description. In finding that the proposal directly interfered with the agency's right to assign work, the Authority noted that the bargaining unit included medical personnel who reasonably could be required to respond rapidly to a variety of medical situations. The Authority found that even in circumstances which did not constitute medical emergencies, requiring the agency to amend position descriptions before assigning work could effectively prohibit such assignments, and therefore the proposal was nonnegotiable as it directly interfered with the agency's right to assign work. Fort Carson, 48 FLRA at 175 (Proposal 1).

Paragraph 5 of the proposal in this case is similar to the proposal in Fort Carson. Paragraph 5 requires the Agency to assign military training duties as work by written order that must be delivered to the employee no less than 30 days before the duty will begin, unless the order states facts and reasons explaining why the Agency is providing shorter notice. In this written order or notice of assignment, the Agency must identify: the portion of the written policy or regulation that requires performance of the duty and specifies the period of time, frequency, or level of proficiency required; the specific military skills to be imparted or military proficiency to be tested; the date, time, and place the duty will begin; and the expected duration of the duty for each separate period of duty time. Also, the Agency must describe in the order: the type, severity, and relative frequency of occurrence of any injury or illness that is known to have resulted from past performance of the duty or that is foreseeable; the precautionary measures that the Agency will take and that the employee may take to reduce the risk of injury; and the measures that the Agency will take to provide prompt, effective treatment in the event injury does occur. In addition, the Agency must meet, upon request, with employees and Union representatives to discuss the assignment of work of military training duties.

Under paragraph 5, the Agency is effectively prohibited from assigning work involving any military training duty, as defined by the proposal, unless and until the Agency takes several actions that place substantive limitations on the Agency's right to assign [ v60 p347 ] work. It is well established that the Guard is a military organization dedicated to a military mission that provides "trained personnel" for "mobilization in times of war, national emergency or civil disruption." New York Council, Ass'n of Civil Tech. v. FLRA, 757 F.2d 502, 505 (2nd Cir. 1985). In this respect, within the context of mobilization and deployment of troops, timing is an integral if not crucial aspect of the Agency's right to assign work. Within the practical realities of mobilizing and deploying employees under the circumstances mentioned above, paragraph 5 imposes significant requirements that the Agency must meet before assigning such military training duties as work. In this respect, ensuring compliance with these requirements would effectively prohibit the Agency from assigning work in mobilizing and deploying technicians immediately or very quickly. [n7] Thus, we find that paragraph 5 of the proposal substantively restricts management's exercise of its right to assign work.

Under Authority precedent, proposals or provisions that affect the exercise of management's rights under § 7106(a) do not constitute negotiable procedures. See, e.g., National Federation of Federal Employees, Local 1214, 40 FLRA 1181, 1188 (1991). Applying that precedent, which the parties do not challenge, to this case, we find that paragraph 5 of the proposal does not constitute a negotiable proposal under § 7106(b)(2) of the Statute. The Union does not make, and hence we need not address, any claim that paragraph 5 constitutes either an appropriate arrangement under § 7106(b)(3) or involves a matter under § 7106(b)(1) of the Statute. Since paragraph 5 of the proposal is outside the duty to bargain, and as noted earlier the proposal is not severable, we find that the entire proposal is outside the duty to bargain. [n8] See Professional Airways Systems Specialists, District No. 6, PASS/NMEBA, 54 FLRA 1130, 1131 (1998) (if any portion of a proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain).

VII. Order

We dismiss the Union's petition for review.

Appendix

32 U.S.C. § 709

(a) Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsections (b) and (c), persons may be employed as technicians in --

(1) the administration and training of the National Guard; and

(2) the maintenance and repair of supplies issued to the National Guard or the armed forces.

(b) Except as authorized in subsection (c), a person employed under subsection (a) must meet each of the following requirements:

(1) Be a military technician (dual status) as defined in section 10216(a) of title 10.

(2) Be a member of the National Guard.

(3) Hold the military grade specified by the Secretary concerned for that position.

(4) While performing duties as a military technician (dual status), wear the uniform appropriate for the member's grade and component of the armed forces.

File 1: Authority's Decision in 60
FLRA No.
73

File 2: Opinion of Chairman Cabaniss

File 3: Opinion of Member Pope

Footnote # 1 for
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• Authority's Decision

Chairman Cabaniss' and Member Pope's separate opinions are set forth at the end of this decision.

Footnote # 2 for
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• Authority's Decision

The Union did not challenge before the court the Authority's denial of the Union's request that the proposal be severed, and that matter is not before us in this proceeding. In addition, for the reasons expressed by the court (360 F.3d at 197-200), the proposal is not inconsistent with 10 U.S.C. 976(c). As such, the parties' arguments with respect to this statutory provision will receive no further review.

Footnote # 3 for
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• Authority's Decision

Member Pope notes that the Chairman quotes out of context the court's statement that the proposal "could permit bargaining over purely military matters" and implies that this statement supports a conclusion that the proposal is inconsistent with the Technician Act. Dissent at 6, quoting Wichita Air Chapter, 360 F.3d at 200 (emphasis added). In fact, the court stated not only the foregoing, but also that, despite this concern, "[its] job is to enforce the statute as enacted by Congress" and that "[i]f the Guard wishes to insulate all military training duties from collective bargaining, it should either ask Congress to amend section 976" or assign the duties during military time. Id.

Footnote # 4 for
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• Authority's Decision

The decisions in National Federation of FederalEmployees, Local 1623 v. FLRA, 852 F.2d 1349 (D.C. Cir. 1988) (NFFE, Local 1623), and AFGE, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984) (AFGE, Local 2953) do not support a separate military aspects of technician employment doctrine. In this regard, NFFE, Local 1623 concerned the negotiation of civilian-military compatibility, which the Authority and the Court of Appeals found outside the duty to bargain based on the specific terms of the Technicians Act. See ACT, Texas Lone Star Ch. 100, 55 FLRA 1226 (2000), aff'd 250 F.3d 778, 784 (D.C. Cir. 2001) (ACT, Texas Lone Star). AFGE, Local 2953 concerned whether an Agency regulation was supported by a "compelling need" under
§ 7117(a)(2) of the Statute; the court's discussion of the "mandate" of the Technicians Act relates to that specific issue, not the negotiability of military aspects of technician employment in general. See AFGE, Local 2953, 730 F.2d at 1546.

Footnote # 5 for
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• Authority's Decision

This is also consistent with the court's decision in the present matter finding that "the substance of the proposal here concerns the performance of duties . . . assigned during hours of civilian employment." Wichita Air Capitol Chapter, 360 F.3d at 199-200. The court also found that "[w]hen the Guard chooses to assign military training duties to technicians in their civilian capacity, those duties also become terms or conditions of civilian employment." Id. at 198.

Footnote # 6 for
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• Authority's Decision

Chairman Cabaniss joins Member Armendariz in finding that this proposal affects the Agency's right to assign work and does not constitute a procedure or an appropriate arrangement solely for the purpose of issuing this decision and avoiding impasse. See United States Dep't of Agriculture, Rural Development Oklahoma, Stillwater, Okla., 59 FLRA 983, 987 (2004) (separate opinion of Chairman Cabaniss).

Footnote # 7 for
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• Authority's Decision

The portion of paragraph 5 that would excuse the Agency from delivering written notice to employees no less than 30 days before the duty will begin itself affects the Agency's right to assign work by requiring the Agency to state in the order facts and reasons why the Agency is providing shorter notice. Such a requirement places a substantive limitation on the Agency's right to assign work by precluding it from timely assigning a military training duty unless and until it justifies in writing its reasons for providing shorter notice.

Footnote # 8 for
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• Authority's Decision

Both parties agree that paragraph 6 of the proposal concerns a matter that is bargainable at the election of the Agency under
§ 7106(b)(1) of the Statute. Nothing in Authority precedent suggests that this fact affects our conclusion that the proposal as a whole is outside the duty to bargain.

[ v60
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Chairman Cabaniss' dissenting opinion

As I noted in the initial decision, ACT Wichita, I write separately to express my view that the Union's proposal is inconsistent with 32 U.S.C. § 709 and, therefore, outside the duty to bargain under 5 U.S.C. § 7117(a). [n1]

With respect to why I believe the proposal is inconsistent with the Technicians Act, 32 U.S.C. § 709, I believe it is helpful to set forth in full the purposes of the Act. As the District of Columbia Circuit Court has stated, a primary purpose of the Technicians Act is to ensure that the military mission of the Guard will be carried out. [n2] AFGE, Local 2953 v. FLRA, 730 F.2d 1534, 1544 (D.C. Cir. 1984) (AFGE, Local 2953). This was reiterated by the D.C. Circuit in NFFE, Local 1623 v. FLRA, 852 F.2d 1349, 1351 (D.C. Cir. 1988) (Local 1623), which stated, "[w]e have said of the Technicians Act that military preparedness is [its] sine qua non' [an indispensable requisite or condition] and that itsmandate is to preserve the Guard's military effectiveness and efficiency . . . [by] ensuring the Guard's ability to recruit and retain technicians qualified for both their civilian and military roles.'" Citing AFGE, Local 2953, 730 F.2d at 1546. [n3] In this respect, a fundamental aspect of the Guard's military mission is its mandate that its members be prepared at all times to serve as the nation's first line of defense. 32 U.S.C. § 102. Logic dictates that this military mission is advanced where the Guard provides "trained personnel" for "mobilization in time of war, national emergency or civil disruption." New York Council, Ass'n of Civ. Tech. v. FLRA, 757 F.2d 502, 505 (2nd Cir. 1985).

Given the above, under the Technicians Act the Authority must determine whether a proposal would otherwise be inconsistent with the Act because it undermines the Guard's ability to achieve military preparedness. [n4] In making this determination, I reiterate the judicially noted conclusion that in interpreting the Technicians Act, the Authority must be cognizant of the fact that:

Because it is a military organization dedicated to a military mission, certain basic assumptions accompany all legislation that deals with the Guard. These assumptions may be explicitly stated in the legislative history, of a particular act, or may simply be implicit in the fact that the legislation deals with an organization which has no raison d'etre save for the military role it serves. In the congressional debates that led up to the passage of the Technician Act of 1968, many members of Congress explicitly acknowledged [ v60 p349 ] that the efforts to enact the law, which appears on its face only to deal with mundane matters of retirement benefits and the like, proceeded from a concern that enactment of the Technicians Act was essential to assure that the military mission of the Guard would be carried out effectively and efficiently.

AFGE, Local 2953, 730 F.2d at 1544 (emphasis in original). Consistent with the above, the D.C. Circuit has determined that the Act should be interpreted broadly to limit negotiations over military matters noting that "the military side of the National Guard lies wholly outside of the collective bargaining realm." [n5] Local 1623, 852 F.2d at 1353. Moreover, the D.C. Circuit has further noted that when it comes to collective bargaining:

The combined effect of the Labor-Management Act and the Technicians Act is to give National Guard technicians a limited right to negotiate over conditions of employment: But that right is circumscribed by the reality that a technician's military status will often impinge on his civilian status and that, when this happens, the needs of the military must prevail.

Local 1623, 852 F.2d at 1353.

Based on the above, it is clear that an important underlying Congressional purpose for the Technicians Act was to ensure that the Guard retains technicians who are prepared to carry out its military mission. One obvious way to assist the Guard in ensuring its ability to carry out its military mission is to have technicians train and practice in those inherently military skills that will be necessary to possess if called to military status. Accordingly, it is reasonable to conclude that such military training would serve the Agency in not only furthering the Congressional intent for this legislation, i.e., through fostering military retention by allowing technicians to remain proficient in their "military occupational skills" which are required in order to maintain their military membership under the Act, but also in that such training serves to prepare these technicians for skills needed if called upon to act as the nation's first line of defense, which remains the cornerstone of the Agency's military mission. [n6] See 32 U.S.C. § 102. As such, military training not only concerns the Agency's ability to prepare technicians to serve in their military capacity and retain the requisite military membership as specifically required under the Technicians Act, but also ultimately touches upon the Act's underlying purpose, that is to assist the Agency in its ability to carry out its military mission which, by its terms, mandates that its members be prepared at all times to serve as the nation's first line of defense.

Here, the proposal would be inconsistent with the Technicians Act by subjecting the definition of these military training duties to negotiation with the Union and creating barriers to assigning military training to technicians, even where that training is assigned merely to prepare and qualify these technicians to serve in their military capacity. As such, because the proposal subjects implicitly military aspects of technician's employment to collective bargaining, the proposal undermines the Agency's ability to retain qualified technicians who are prepared to carry out its military mission under the Technicians Act.

In my review of this matter I also note the D.C. Circuit's earlier determination in this case that as worded "the union's proposal could permit bargaining over purely military matters -- such as rifle qualification or wearing chemical warfare gear[.]" Wichita Air Capitol Chapter, 360 F.3d at 200 (emphasis added). Our determination in ACT, Wichita, is consistent with this view as we stated that:

The proposal in this case concerns "military training duties," which are defined as duties required for all members of the National Guard, whether or not employees, "designed to impart or measure proficiency in a military skill" and requiring the achievement of "a specified level of achievement." Examples of such duties include "rifle qualifications" and "training in the wear of garments designed to afford protection from chemical weapons." Proposal 9-2b(1). It is clear that the military training duties that are the subject of the proposal are military skills required because an individual is a member of the National Guard -- not skills based in the individual's civilian status.

ACT, Wichita, 58 FLRA at 31.

Thus, I would find this proposal to be inconsistent with Federal law under § 7117(a) of our Statute and outside the duty to bargain.

File 1: Authority's Decision in 60 FLRA No. 73

File 2: Opinion of Chairman Cabaniss

File 3: Opinion of Member Pope

Footnote # 1 for
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• Opinion of Chairman Cabaniss

I assume, without deciding, that the Proposal concerns a condition of employment under § 7103(a)(14) and, as such, do not join with the majority's analysis on that point.

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• Opinion of Chairman Cabaniss

The Act itself was passed largely to guarantee that a national uniform program for covering retirement and fringe benefits for technicians would be implemented. See, i.e., 1968 U.S.C.C.A.N. 3318, 3319. However, the Act did not disturb the notion that technicians "must meet all the mental and physical standards as well as professional qualifications prescribed by the military departments" so that technicians will "be available to enter active Federal service at any time their units are called." Id.

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• Opinion of Chairman Cabaniss

This interpretation of the Act is consistent with the Act's explicit requirement that a civilian technician, unless specifically excluded from this requirement, must maintain military membership in the National Guard. 32 U.S.C. § 709(b)(2).

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• Opinion of Chairman Cabaniss

The majority concludes that because the Technicians Act does not specifically state that "military aspects of technician employment," are outside the duty to bargain, bargaining over military aspects is not inconsistent with Federal law and, thus, not prohibited by 5 U.S.C. § 7117(a). However, I note D.C. Circuit's following comment:

Referring to the express language of the [Technicians] Act, the Union argues that "[t]he FLRA's decision relating to the mandate of the National Guard Act is incorrect, and must be overturned, because it is clearly wrong in light of the plain language of the Act, which mentions nothing at all about `evaluations' or their use." Brief for Appellant at 19. This argument is bootless. The Act need not descend to such detail. The evaluation and rating of personnel are implicit in every military organization, their use is fundamental and need not be explicated. The Union also argues that the mandate of the Act is limited to the narrow requirement--"[T]hat technicians maintain the military grade specified for their purpose..." Id. at 21. We disagree that the mandate of the Act is restricted to such a narrow focus.

We must accordingly reject the Union's attempt to read the Technicians Act as a discrete piece of legislation--a statute that can be read logically as a whole unto itself and have its mandate construed as being limited to one clause only. Such construction is entirely unjustified. The quoted clause is just one component of an elaborate legislative scheme, even as the National Guard is part of the nation's elaborate system of defense, and its mandate must be discerned from the Act as a whole and its legislative history. As the Guard's role cannot properly be understood if separated from the context of our entire national defense, neither can the Technicians Act be correctly comprehended by reference to one clause or if the Act is cut loose from the rest of the statutory scheme governing the National Guard.

AFGE, Local 2953, 730 F.2d at 1544.

As such, while I believe that the Act must always be read in the appropriate context, it is not to be read literally as suggested by the majority, nor read as narrowly as the majority suggests, but should be read in light of the entire statutory scheme surrounding the Guard in addressing whether proposals are inconsistent with it and, thus, outside the duty to bargain under 5 U.S.C. § 7117(a).

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• Opinion of Chairman Cabaniss

In contrast, 10 U.S.C. § 976 prohibits negotiation over duties that will be assigned while a technician is in a military status, i.e., on active duty, while the Technicians Act does not have such limitation.

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The Union does not dispute the Agency's assertion that such "military occupational skills" proficiency is necessary. See SOP at 5-6, Response at 6.

[ v60
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Member Pope concurring in part and dissenting in part:

I agree with the majority that the Union's proposal is not contrary to the Technician Act and that the proposal concerns a condition of employment under the Statute. For the reasons that follow, I do not agree that the proposal is inconsistent with the Agency's right to assign work. In connection with the latter point, I also believe that the majority errs in ignoring the law that applies when, as here, the parties agree that one section of a nonseverable proposal (paragraph 6 in this case) is electively bargainable under § 7106(b)(1) of the Statute.

The majority bases its conclusion that the proposal is inconsistent with the Agency's right to assign work on paragraph 5. That paragraph requires the Agency to assign military training duties by a written order that contains certain information and "is delivered to the employee no less than 30 days before the duty will begin, unless the order states facts and reasons explaining why the agency is providing shorter notice." As explained by the Union, and consistent with its plain terms, paragraph 5 does not prohibit the Agency from requiring that any particular duties be performed in any particular way. Moreover, the paragraph "expressly states that the [A]gency may relieve itself from any time frame in the proposal simply by writing a statement of facts and reasons explaining why it is doing so." Response at 7, 8.

The Authority has held that proposals providing employees notice of work assignments are negotiable procedures under § 7106(b)(2) of the Statute. See United States Department of Defense, Texas National Guard, Austin Tex., 59 FLRA 437, 439 (2003); AFGE, Local 1658, 44 FLRA 1375, 1383 (1992). This is consistent with the principle that proposals "requiring an agency to provide notifications of various matters" and/or "requiring the use of particular forms to record and assess various types of information" are negotiable procedures under § 7106(b)(2). United States Department of Defense, the Adjutant General, National Guard Bureau, Tennessee National Guard, 56 FLRA 588, 591 (2000) (citations omitted).

The majority correctly notes that in AFGE, Local 1345, 48 FLRA 168, 174 (1993) (Ft. Carson), the Authority held that the right to assign work encompasses the right to determine when the work assignments will occur, that in certain circumstances, "timing is an integral part of the right to assign work," and that a proposal that effectively prohibits the assignment of a task may not be a procedure under § 7106(b)(2). However, the majority's conclusion that under paragraph 5 the Agency is "effectively prohibited" from assigning military training duties "unless and until the Agency takes several actions" is not supported by the record. Majority Opinion at 13-14. In this regard, the Union expressly states that the Agency "may exempt itself" from the time limits in the paragraph "if it states facts and reasons for doing so," and that no training exercise must be "held in abeyance" pending impact and implementation bargaining. Petition at 4, Response at 7. See also Proposal, par. 5(5). The Union also states that, to the extent that complying with the paragraph would delay the required start of an exercise, this would constitute an "emergency" within the meaning of § 7106(a)(2)(D) of the Statute, suspending the obligation of the Agency to comply prior to the exercise. See Response at 8, 9, 13.

The Agency did not file a reply to or otherwise contest the foregoing Union explanations of how the paragraph would operate. Moreover, I find no basis -- and the majority provides none -- to construe the proposal to operate in a matter at odds with these explanations. As such, the paragraph permits the Agency to assign work prior to satisfying its various requirements where the Agency deems such assignment necessary and, as a result, is a negotiable procedure under § 7106(b)(2) of the Statute. See AFGE, Local 1658, 44 FLRA at 1383 (requiring notice of overtime held a negotiable procedure where requirement could be suspended for "mission related emergencies").

With respect to the remaining paragraphs of the proposal, I would find that paragraphs 1 through 4 are negotiable. In this regard, paragraph 1 simply sets out a definition of the term "military training duty"; it does not require the Agency to perform any specific action. Paragraph 2 requires the Agency to include military training duties in position descriptions and meet with employees concerning the matter. As with paragraph 5, paragraph 2 permits the Agency to suspend the time frames when it has reason to do so. As such, unlike the situation in Ft. Carson, 48 FLRA at 174-75, the paragraph does not affect the Agency's right to determine when work will be done. Paragraph 3 merely requires the Agency to provide the Union with a list of employees who are assigned military training duties and does not contain any requirements that would affect the assignment of work. Paragraph 4 requires that the Agency bargain over the impact and implementation of the assignment of new military training duties to [ v60 p351 ] employees. Consistent with the Union's explanation of the paragraph, these negotiations would not affect the right to assign work because the proposal does not require the Agency to delay the assignment of work while bargaining takes place. See Response at 7.

Based on the foregoing, taken individually and as a whole, paragraphs 1 through 5 do not affect the Agency's right to assign work and are negotiable.

That leaves paragraph 6, which provides that "[w]hile the [A]gency may require an employee to wear Chem Gear as an assignment of work, the [A]gency shall not require an employee to wear Chem Gear as a methods and means of performing work." While the practical meaning of this paragraph is far from clear, both parties agree it is electively bargainable under § 7106(b)(1) of the Statute. See SOP at 8; Response at 1-2. As such, and as the proposal is not severable, a question is raised whether the negotiability of the entire proposal is controlled by section 6.

Authority precedent -- which the majority completely ignores -- is clear that resolving whether the negotiability of this nonseverable proposal is controlled by paragraph 6 is accomplished by determining whether paragraph 6 is the "dominant requirement" of the proposal. [n1] AFGE, Local 1336, 52 FLRA 794, 796-801 (1996) (Member Armendariz concurring as to result but dissenting as to establishment of standard). [n2] The determination is made by addressing the interrelationship of the separate requirements to determine the requirement on which the other depends for its viability. [n3] Id. Doing so here, I would find that paragraphs 1 through 5 address the assignment of military training duties generally and paragraph 6 addresses the assignment of one such duty. As such, I would find that paragraph 6 depends on the other paragraphs for its vitality and, therefore, is not the dominant requirement. Its negotiability is, thus, determined by paragraphs 1 through 5, which I would find within the duty to bargain. [n4]

For the above reasons, I concur in part and dissent in part.

File 1: Authority's Decision in 60 FLRA No. 73

File 2: Opinion of Chairman Cabaniss

File 3: Opinion of Member Pope

Footnote # 1 for
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• Opinionof Member Pope

I note the majority's unexplained statement that "nothing in Authority precedent" suggests that the parties' agreement that paragraph 6 is bargainable at the Agency's election affects its conclusion that the proposal is nonnegotiable. Majority Opinion at 15 n.8. I do not understand why the majority refuses to specify the "precedent" to which it refers or explain how that precedent supports the majority's conclusion. I also do not understand why the majority insists on ignoring the clearly applicable "dominant requirement" precedent. The majority's failure to do either renders its decision arbitrary on its face. See Atchison, T & S. F. Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973) (citation omitted) (an agency has a "duty to explain its departure from prior norms" and while the agency may change those norms, if it does so, then the reasons for doing so "must be clearly set forth so that the reviewing court may understand the basis of the agency's action and so may judge the consistency of that action with the agency's mandate"). See also, e.g., Local 32, AFGE, AFL-CIO v. FLRA, 774 F.2d 498, 502 (D.C. Cir. 1985) ("[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from tolerably terse to intolerably mute.").

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The dominant requirement test in AFGE, Local 1336, hasbeen subsequently applied in several cases. See Nat'l Fed'n of Fed. Employees, Local 2148, 53 FLRA 427, 436 (1997); Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 52 FLRA 839, 842-44 (1996) (Member Armendariz concurring as to result); Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 52 FLRA 813, 820-21 (1996) (Member Armendariz concurring as to result). See also Int'l Fed'n of Prof'l & Technical Eng'rs, Local 49, 55 FLRA 25, 27 n.3 (1998) (application of dominant requirement test would not change result); Am. Fed'n of Gov't Employees, Council of Prison Locals, Local 171, 52 FLRA 1484, 1507 n.18 (1997) (inability to apply dominant requirement test because of insufficient record). Although the test was not applied in Ass'n of Civilian Technicians, N.Y. State Council, 56 FLRA 444 (2000), the decision is silent as to the reasons for not doing so. In any event, AFGE, Local 1336 has not been reversed.

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This determination gives effect to the holding inAssociation of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) that "§ 7106(b) is indisputably an exception to § 7106(a)," which was adopted by the Authority in VAMC, Lexington, 51 FLRA 386, 392 (1995). In particular, the "dominant requirement" analysis is necessary because "adopting an approach that permits § 7106(a) rights to prevail in all instances over § 7106(b)(1) when two or more requirements are inseparable could substantially deprive VAMC, Lexington of meaning as well as deprive the Statute of its intended flexibility." AFGE, Local 1336, 52 FLRA at 799-800. The majority's refusal to acknowledge, or apply, the "dominant requirement" precedent calls into question its continued support for the principles set forth in VAMC, Lexington, and its progeny.

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• Opinionof Member Pope

In finding the proposal within the duty to bargain, Imake no judgment as to its merits. See NAGE, Local R4-45, 55 FLRA 995, 998 n.6 (1999). In fact, the cumulative effect of the proposal may well render it unreasonable. In my view, however, that issue goes to the merits of the proposal, not its negotiability, and is best resolved -- as a matter of both law and policy -- by the parties at the bargaining table and, if necessary, by the Federal Service Impasses Panel.