20:0717(85)NG - ACT, Montana Air Chapter and Air Force, Montana Air NG, HQ, 120th Fighter Interceptor Group (ADTAC) -- 1985 FLRAdec NG



[ v20 p717 ]
20:0717(85)NG
The decision of the Authority follows:


 20 FLRA No. 85
 
 ASSOCIATION OF CIVILIAN 
 TECHNICIANS, MONTANA 
 AIR CHAPTER
 Union
 
 and
 
 DEPARTMENT OF THE 
 AIR FORCE, MONTANA AIR 
 NATIONAL GUARD, HEADQUARTERS
 120TH FIGHTER INTERCEPTOR 
 GROUP (ADTAC)
 Agency
 
                                   Case No. 0-NG-387
                                        11 FLRA No. 88
 
                       DECISION AND ORDER ON REMAND
 
    By its Order of August 1, 1983, the United States Court of Appeals
 for the District of Columbia Circuit granted the Union's motion to
 summarily reverse the Authority's decision as to two proposals in the
 instant case and to remand them to the Authority for reconsideration in
 light of the Court's decision in American Federation of Government
 Employees, Local 278;  v. Federal Labor Relation;  Authority, 702 F.2d
 1183 (D.C. Cir. 1983), reversing the Authority's decision in American
 Federation of Government Employees, AFL-CIO, Local 2782 and Department
 of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).
 The proposals remanded to the Authority were the following:
 
                           Union Proposal 3 /1/
 
       Article 11, Section 2 Determination of which employer(s) will be
       affected will be done in thy following manner and order:  c.
       Immediately upon determination of individuals that will be
       affected by the RIF, management will screen the manning document
       of the entire unit and offer all vacancies that management deems
       may be filled.  No affected technician will be offered a position
       of higher grade than held at the time of notice other than through
       merit promotion.  The occupancy date must be prior to the
       expiration of the sixty (60) days individual notice.  (The
       underlined portion of the proposal is in dispute.)
 
                             Union Proposal 6
 
       Article 11, Section 5 Those technicians RIFed from employment will
       be notified by mail of any position opening that is expanded
       beyond internal placement and will be given the position if
       retrainable to the position before the hiring of a non-RIFed
       person.  This provision shall apply one (1) year from date
       technician was RIFed.
 
    In the instant case, relying on its original decision in AFGE, Local
 2782 and Bureau of the Census, the Authority held that each of the
 proposals set forth above directly interfered with management's right
 under section 7106(a)(2)(C) to choose among candidates when filling a
 vacant position because they required management to select,
 respectively, employees subject to release pursuant to a RIF and
 individuals with reemployment priority.  In its original decision in
 AFGE, Local 2782 and Bureau of the Census, the Authority held that a
 proposal which required management to select available qualified
 repromotion eligible employees when filling vacant positions in the
 bargaining unit was not negotiable as an "appropriate arrangement" under
 section 7106(b)(3) of the Statute because it directly interfered with
 management's right, under section 7106(a)(2)(C), to choose among
 candidates from appropriate sources in filling a vacancy.  /2/ On
 appeal, the United States Court of Appeals for the District of Columbia
 Circuit held that the Authority's use of the "direct interference" test
 as the basis for determining whether a proposed arrangement for
 adversely affected employees is "appropriate" within the meaning of
 section 7106(b)(3) is contrary to law.  The Court determined that
 section 7106(b)(3) authorized the negotiation of proposals which
 directly interfered with the exercise of management's rights under
 section 7106, as long as that interference was not "excessive." The
 Court remanded the case to the Authority with instructions to employ its
 expertise in the competing practical needs of employees and managers to
 determine whether the proposal at issue therein excessively interfered
 with management's rights under section 7106, and, if it did not, whether
 it nevertheless was inconsistent with applicable Government-wide
 regulations under section 7117(a)(1) of the Statute.  AFGE, Local 2782
 v. FLRA, 702 F.2d 1183, 1188 (1983).
 
    On remand, the Authority found that the proposal applied to employees
 who were demoted through no fault of their own, that it provided for
 management to select only repromotion eligibles who were qualified for
 the vacant positions, and that it did not require management to fill any
 positions.  The Authority determined, based on these facts, that the
 proposal would protect employees by ameliorating the adverse effects of
 management's exercise of its prerogatives, while at the same time
 protecting management's need "to determine the qualification
 requirements of positions, to decide which vacancies to fill and to fill
 those only with fully qualified employees." AFGE, Local 2782 and Bureau
 of the Census, Decision and Order on Remand (May 11, 1984), at 4,
 reconsideration granted by Authority on other grounds, June 22, 1984,
 Decision and Order on Motion for Reconsideration (July 11, 1985), appeal
 docketed, No. 85-1562 (,D.C. Cir.  September 6, 1985).  The Authority
 concluded, therefore, that the proposal would not excessively interfere
 with management's rights under section 7106(a)(2)(C) and, thus, if
 otherwise consistent with law and regulation, that it constituted a
 negotiable "appropriate arrangement" under section 7106(b)(3) of the
 Statute.
 
    Thus, based on the foregoing, the issue before the Authority pursuant
 to the Court's remand in the instant case is whether, in light of the
 Court's decision in AFGE, Local 2782 v. FLRA, Union Proposals 3 and 6
 herein excessively interfere with the exercise of management's rights
 under section 7106 so as to be rendered "inappropriate" for negotiations
 under section 7106(b) (3) of the Statute.  For the reasons set forth
 below, the Authority concludes that, insofar as they are otherwise
 consistent with law and regulation, the proposals are negotiable as
 "appropriate arrangements." /3/
 
    Union Proposal 3, as set forth above, would require management to
 offer employees affected by a RIF all vacant positions that management
 deems may be filled.  By its terms, i.e., the phrase "management deems
 may be filled," and based on the record herein, the proposal would
 reserve to management the right to decide both as to whether to fill
 positions which will remain vacant after the RIF and as to whether any
 of the affected employees are qualified to fill such positions.  Thus,
 the proposal would require management to fill a vacant position with an
 employee who would be affected by a RIF if, in its discretion, it
 determines that the position needs to be filled and that there is an
 employee who is qualified for the position.
 
    As did the proposal in AFGE, Local 2782 and Bureau of the Census,
 Union Proposal 3 in dispute herein protects the needs of employees
 subject to demotion or release as a consequence of a RIF by mitigating
 against the effects of such management action, while at the same time
 protecting management's need to decide whether to fill vacant positions
 and to fill them with persons who are qualified to do the work of those
 positions.  Thus, pursuant to the Court of Appeals' direction, the
 Authority finds, for the reasons set forth in its Decision and Order on
 Remand in AFGE, Local 2782 and Bureau of the Census, that Union Proposal
 3 at issue herein would not excessively interfere with management's
 rights under section 7106(a)(2)(C) of the Statute.  Accordingly, insofar
 as it is otherwise consistent with law and regulation, the proposal
 constitutes a negotiable "appropriate arrangement" for employees
 adversely affected by the exercise of management's rights within the
 meaning of section 7106(b)(3) of the Statute.
 
    As to Union Proposal 6, by its terms it provides that when management
 decides to fill a vacant position and, in doing so, to consider
 candidates other than those available internally, it will select a
 former employee, released pursuant to a RIF action, if that candidate is
 retrainable to the position.  Thus, as with Union Proposal 3, Union
 Proposal 6 would not require management to fill a position, since it
 would only take effect after management has made that decision.
 Moreover, Union Proposal 6 does not require management to select a
 candidate from the reemployment list who is not at all qualified to
 perform the work of the position.  Rather, management need only select a
 candidate who is "retrainable," i.e., an individual who is "sufficiently
 familiar" with the work of the position that it is reasonable to expect
 him or her to reach the full performance or fully qualified level in
 less than a year.  /4/ Thus, the proposal provides for managerial
 judgment as to the degree to which an individual on the reemployment
 list is "trainable." Within the ambit of that judgment, management may
 determine whether such individuals possess enough knowledge of or
 experience in the duties of the position that they will be able
 satisfactorily to perform those duties after a reasonable period of
 training.  /5/ That is, by preserving managerial judgment as to whether
 a given individual would be retrainable to a position in a reasonable
 period of time, Union Proposal 6 in a manner similar to the previous
 proposal, protects the need of management to fill vacant positions with
 qualified employees.  Thus, insofar as it is otherwise consistent with
 law and regulation, this proposal also constituted a negotiable
 "appropriate arrangement" within the meaning of section 7106(b)(3) of
 the Statute.  /6/
 
    Having reached this conclusion, however, it becomes necessary to
 resolve an issue which was not addressed in the Authority's initial
 decision, namely, whether Union Proposals 3 and 6 are nonnegotiable
 under section 7117(a) of the Statute /7/ because they are inconsistent
 with applicable provisions of the National Guard Technicians Act of
 1968, 32 U.S.C. 709(b) and 709(e)(1).  /8/ Those provisions require that
 National Guard technicians, as a condition of their continuing civilian
 employment, must maintain military membership in the National Guard and
 hold the military grade specified for their civilian technician
 positions.  The Agency claims that Union Proposals 3 and 6 would require
 management to place released technicians into vacant positions without
 regard to whether those technicians possess the requisite military grade
 for the positions and, thus, that the proposals are contrary to law.
 /9/
 
    In this regard, the express language of the proposals contains no
 requirement that selection be based upon military compatibility and the
 record as a whole supports the conclusion that the proposals were not
 intended to mandate compatibility.  /10/ Thus, Union Proposals 3 and 6
 herein have the same effect as Union Proposal 3 in Association of
 Civilian Technicians, Pennsylvania State Council and Pennsylvania Army
 and Air National Guard, 14 FLRA 38 (1984), which required that a
 released technician with the oldest release date, who once held a
 position which management has decided to fill, be offered that position
 regardless of whether he currently holds the military grade specified
 for that position.  In that case, the Authority determined that, by
 requiring management to select any qualified technician in inverse order
 of release from employment without regard to whether he currently holds
 the military grade specified for the position to be filled, the proposal
 was inconsistent with law, i.e., the National Guard Technicians Act of
 1968.  Therefore, in similarly requiring the Agency to fill vacant
 positions with, respectively, qualified or retrainable technicians
 without regard to whether they hold the military grade compatible with
 the position to be filled, Union Proposals 3 and 6 herein are
 inconsistent with the Technicians Act.  Thus, for the reasons set forth
 more fully in Pennsylvania Army and Air National Guard, Union Proposals
 3 and 6 are outside the duty to bargain under section 7117(a)(1) of the
 Statute.  /11/
 
    The Union argues, contrary to this conclusion, that notwithstanding
 the statutory requirement regarding military grade, the Secretary of the
 Air Force has the authority, pursuant to 32 U.S.C. 709(b), to grant
 exceptions to that requirement and, thus, the Agency is not precluded
 from negotiating on and agreeing to these proposals.  Based on the
 legislative history of the provision cited by the Union, the Authority
 disagrees.
 
    The National Guard Technicians Act was originally introduced in the
 First Session of the 90th Congress in 1967 as Title II of H.R. 2.  /12/
 With respect to the provision authorizing the Secretary to make
 exceptions to the requirements of military membership and military
 grade, the Report accompanying Title II of H.R. 2 stated as follows:
 /13/
 
       Clause (b) converts to a statutory requirement what has long been
       practice and procedure-- that of requiring the civilian male
       caretakers and clerks, now termed "technicians," to be members of
       the National Guard and to hold the military grade specified by the
       Secretary concerned for the corresponding technician position.
       The requirement for military membership to assure the presence,
       during mobilization, of a hard core of highly qualified
       technicians was strongly endorsed by the House Armed Services
       Committee in its consideration of H.R. 8186, 86th Congress, 1st
       Session (see p. 12, H. Rept.  No. 681, 1959, to accompany H.R.
       8186).  It has also 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.  Thus, the division staff training
       assistant (civilian) is conventionally a lieutenant colonel, the
       division G-3, and the unit administrative supply technician (AST)
       is conventionally the unit first sergeant or supply sergeant.  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.  Proposed 32 U.S.C. 709(b) of
       the bill would so provide.  The right to make exception the the
       foregoing military requirement granted to the Secretary concerned
       in the said clause (b) of section 709 is primarily directed toward
       the female technician secretaries who would normally not be
       expected to fulfill military assignments in the National Guard.
 
    When the legislation was reintroduced in the Senate during the second
 session of the 90th Congress (S. 3865) the language of 709(b) was
 unchanged.  Moreover, the reports which accompanied the bill in the
 Senate and the House both indicate that, as with its predecessor Title
 II above, the authority of the Secretaries of the Army and Air Force to
 make exceptions set forth in 709(b) is intended to be confined to
 certain specific types of positions, e.g., technician secretaries:  /14/
 
          Unless the Secretaries make an exception, the bill provides
       that the technicians as a condition of civilian employment will be
       required to be members of the National Guard and hold a military
       grade required for that position.  In addition, such civil service
       positions would be noncompetitive.  About 95 percent of the
       technicians would hold noncompetitive positions and would be
       required to be members of the Guard as a part of their civilian
       employment.  About 5 percent, or 2,000, would be in a competitive
       Federal status and would constitute principally female employees,
       clerk-typists, and security guards.
 
          The noncompetitive status is necessary for the technicians in
       view of (a) requirement for holding a concurrent military Guard
       status as a condition for employment and (b) the fact that
       civilian employment is terminated where the concurrent military
       status ceases to exist.
 
    Thus, based upon the legislative history of 709(b), it is clear that
 the scope of the Secretary's discretion to make exceptions to the
 requirements of military membership and military grade is extremely
 limited.  It is confined to certain specific types of positions, the
 mobilization of which would serve no military purpose.  /15/ Contrary to
 the Union, therefore, the discretion of the Secretary is not so broad as
 to permit agreement to proposals that, without regard to the
 "compatibility" requirement, provide for the filling of civilian
 technician positions which are essentially or integrally military in
 purpose.  Consequently, as determined above, Union Proposals 3 and 6,
 which would require the Agency to disregard the statutory requirements,
 are inconsistent with law and nonnegotiable.  /16/
 
    For the foregoing reasons, therefore, Union Proposals 3 and 6 are
 outside the duty to bargain.
 
    Turning next to the District of Columbia Circuit's further decision
 in the instant case, Association of Civilian Technicians, Montana Air
 Chapter v. Federal Labor Relations Authority, 756 F.2d 172 (D.C. Cir.
 1985), the Court in that decision reversed and remanded the Authority's
 decision as to Union Proposals 1 and 9. Specifically, as to Union
 Proposal 1, the Court ordered the Authority to consider whether that
 proposal, consistent with the Court's decision in American Federation of
 Government Employees, Local 2782 v. Federal Labor Relations Authority,
 702 F.2d 1183 (D.C. Cir. 1983), constitutes an "appropriate arrangement"
 for employees adversely affected by the exercise of management's rights
 within the meaning of section 7106(b)(3) of the Statute.  With regard to
 Union Proposal 9, the Court directed the Authority to reconsider its
 interpretation and disposition of that proposal.  After careful
 consideration of the record in this case, including the submissions of
 the parties pursuant to the Authority's Notice of Reopened Proceedings,
 the Authority makes the following determinations.  /17/
 
                             Union Proposal 1
 
       Article 11, Section 1 After consultation with the Association,
       notification of RIF will be in the form of a posted written
       general notice as far in advance as possible.  Upon posting of the
       General Notice, the Air or Army Unit will be in a temporary hiring
       freeze until all RIF actions have been completed except for
       internal placement.  (The underlined portion of the proposal is in
       dispute.)
 
    In the instant case, relying on its decision in National Federation
 of Federal Employees (NFFE), Local 1332 and Headquarters, U.S. Army
 Materiel Development and Readiness Command, Alexandria, Virginia, 3 FLRA
 611 (1980), the Authority previously held that Union Proposal 1 was
 directly and integrally related to the numbers, types, and grades of
 employees assigned to a work project, tour of duty, or organizational
 subdivision, a matter which is negotiable at the election of the Agency
 under section 7106(b)(1) of the Statute and which, since the Agency had
 elected not to negotiate, is outside the duty to bargain.  /18/
 
    Specifically, in the U.S. Army Materiel Development and Readiness
 Command decision, the Authority rejected the union's contention that the
 proposed hiring freeze constituted an "appropriate arrangement" for
 employees adversely affected by the exercise of management's rights
 within the meaning of section 7106(b)(3) of the Statute.  /19/ U.S. Army
 Materiel Development and Readiness Command, at 613.  On appeal in the
 instant case, the United States Court of Appeals for the District of
 Columbia Circuit ruled that the Authority's determination that the
 proposed "hiring freeze" did not constitute an "appropriate arrangement"
 under section 7106(b)(3) because it violated management's rights was
 erroneous.  Citing its decision in AFGE, Local 2782 v. FLRA, wherein it
 held that section 7106(b)(3) authorizes the negotiation of proposals
 which directly interfered with the exercise of management's rights under
 section 7106, as long as that interference, based upon the competing
 practical needs of employees and managers, was not "excessive," the
 Court reversed the Authority's determination that Union Proposal 1
 herein was nonnegotiable and remanded the matter to the Authority for
 further proceedings as appropriate.  The issue before the Authority on
 remand, therefore, is whether, consistent with the interpretation of
 section 7106(b)(3) by the District of Columbia Circuit, /20/ the
 proposed "hiring freeze" in Union Proposal 1 excessively interferes with
 management's rights under section 7106 so as to be rendered
 inappropriate for negotiation.
 
    Union Proposal 1 as set forth above, would, upon issuance to
 employees of a general notice of a reduction-in-force (RIF), temporarily
 preclude management from hiring persons from outside the Agency to fill
 vacant positions in the unit.  /21/ Thus;  the proposal would preserve
 those vacancies for the placement of unit employees subject to a RIF who
 may possess assignment rights thereto under applicable Agency
 regulations or who, in the Agency's discretion, could be placed therein.
  /22/ The effect of the proposal, therefore, pending completion of the
 RIF, would be to delay implementation of any management decision to add
 to the workforce by hiring from outside the Agency.  Correlatively, the
 proposal would force management to perform its workload with fewer
 employees than it might otherwise have determined it would require to do
 that work or without the skilled personnel, unavailable internally, it
 deemed necessary.
 
    The essential benefit the proposal affords employees who are affected
 by the RIF is to maximize the possibility that they will retain their
 jobs by preserving all available vacant positions for placement pursuant
 to employee assignment rights.  In this regard, it should be noted that
 the imposition of such a freeze does not guarantee placement of any
 employee in a vacant position, even if such vacancies exist, since the
 employee may not have a right to the position under applicable Agency
 RIF regulations.  On the other hand, as to the impact of the proposal on
 management, by precluding the Agency, regardless of the circumstances,
 from obtaining additional personnel with skills unavailable in the unit,
 management would be unable to provide the staffing it has determined is
 necessary to accomplish the Guard's mission.  For example, as the Agency
 indicates, /23/ it anticipates that in 1988 new aircraft and associated
 equipment will be introduced into the unit, which action could entail a
 reorganization of the unit and the creation of new positions requiring
 skills necessitated by the new equipment.  During a RIF action resulting
 from such a reorganization, the proposal would preclude management,
 where the skills needed to maintain and operate this equipment are
 unavailable in the unit, from obtaining the necessary personnel from
 outside civilian sources or from active duty forces.  As a consequence,
 the Agency maintains, the freeze would prolong the transition of the
 unit to a condition of readiness.  In this regard, the Authority has
 emphasized, in a related context, that the military mission of the
 National Guard requires that it be in a constant state of readiness for
 deployment.  Division of Military and Naval Affairs, State of New York,
 Albany, New York and New York Council, Association of Civilian
 Technicians, 15 FLRA No. 65 (1984), affirmed sub nom.  New York Council,
 Association of Civilian Technicians v. Federal Labor Relations
 Authority, 757 F.2d 502 (2nd Cir. 1985), cert. denied, 54 U.S.L.W. 3225
 (U.S. Oct. 7, 1985) (No. 85-106).  See also American Federation of
 Government Employees, AFL-CIO, Local 2953 v. Federal Labor Relations
 Authority, 730 F.2d 1534, 1544-47 (D.C. Cir. 1984), affirming American
 Federation of Government Employees, AFL-CIO, Local 2953 and National
 Guard Bureau, Office of the Adjutant General, Nebraska, 7 FLRA 87
 (1981).  Thus, even if the delay in staffing positions imposed by the
 proposal was not long, in the case of the National Guard it could,
 during and immediately after such freeze, severely hamper the ability of
 the Guard to rapidly deploy its manpower and equipment at their maximum
 effectiveness.  /24/
 
    Considering the risks to the ability of the National Guard to
 maintain the condition of readiness necessary to its mission, as against
 the uncertain benefits to employees of preserving vacant positions for
 the duration of the RIF, since employees subject to the RIF may not
 possess assignment rights to any of the vacant positions, the Authority
 concludes that the proposed "hiring freeze" set forth in Union Proposal
 1 excessively interferes with management's ability to provide the
 numbers and types of employees to perform the Agency's work.  As such,
 Union Proposal 1 is not an "appropriate arrangement" within the meaning
 of section 7106(b)(3) of the Statute and, thus, is negotiable only at
 the election of the Agency under section 7106(b)(1).  /25/
 
                             Union Proposal 9
 
       Article 22-- Retirement Policies 2. The Employer agrees that all
       job related requirements affecting a technician in his technician
       employment are automatically renewable unless the technician is
       separated for physical requirements or for just cause.
 
    Generally speaking, as relevant herein, the National Guard
 Technicians Act of 1968, Pub.  L. 90-486, 82 Stat. 755, provides that a
 National Guard technician, who is a full-time civilian employee of the
 National Guard, must be a member of the National Guard, 32 U.S.C.
 709(b), /26/ and that a technician who is separated from the Guard shall
 be separated from his employment as a technician, 32 U.S.C. 709(e)(1).
 /27/ See Tennessee v. Dunlop, 426 U.S. 312, 96 S.Ct. 2099, 48 L. Ed. 2d
 660 (1976);  Nesmith v. Fulton, 615 F.2d 196 (5th Cir. 1980).  That is,
 under law, a prerequisite to employment as a civilian technician
 employee of the National Guard is enlistment as a military member of the
 National Guard.  Thus, when the term of enlistment of a civilian
 technician expires, the technician, in order to maintain his civilian
 employment, must reenlist in, and be accepted for reenlistment in, the
 National Guard.  /28/ See Nesmith v. Fulton.
 
    By its plain terms, Union Proposal 9 requires the automatic renewal
 of all job related requirements affecting the employment of Air National
 Guard civilian technicians, absent just cause or failure to meet
 physical requirements.  In particular, the proposal requires that,
 absent the stated factors, any technician whose enlistment has come to
 an end, must automatically be accepted for reenlistment in the Guard.
 /29/ The sole purpose of the proposal, therefore, is to confer
 membership in the Air National Guard, i.e., military status, on
 individuals who currently serve as civilian technicians.  Thus, the
 subject of the proposal concerns a military matter and does not
 directly, but only incidentally, pertain to a technician's civilian
 employment.  Whether a technician may reenlist as a member of the Air
 National Guard, of course, has consequences for the technician's
 civilian employment, but acceptance of that reenlistment is a military
 and not a civilian matter.
 
    The Statute does not cover members of the "uniformed services." /30/
 The "uniformed services" are defined by law to include the "armed
 forces," which term is further defined to include the "Air Force." /31/
 The "Air Force" is defined to include the Air National Guard.  /32/
 
    Members of the Air National Guard, as involved herein, are members of
 the "uniformed services" and insofar as their status as members of the
 Guard is concerned, wholly apart from their status as civilian employees
 of the Guard, they are not covered by the Statute.  The subject matter
 of Union Proposal 9, i.e., reenlistment as a member of the Air National
 Guard, therefore, is beyond the reach of the Statute.  As the Authority
 has emphasized in this regard, the Statute "prescribes certain rights
 and obligations with respect to collective bargaining in the civil (as
 opposed to military) service." National Federation of Federal Employees,
 Local 1724 and Utah National Guard, Salt Lake City, Utah, 7 (1982);
 Association of Civilian Technicians, New York State Council and State of
 New York, Division of Military and Naval Affairs, Albany, New York, 11
 FLRA 475, 479 (1983).
 
    Moreover, the matter of membership in the Air National Guard is
 outside the duty to bargain under section 7103(a)(14)(C) of the Statute
 because it is a matter which is "specifically provided for by Federal
 statute.  /33/ In this regard, the Authority has consistently held that
 the military requirements of civilian technician employment are excluded
 from the scope of the duty to bargain by section 7103(a)(14)(C) because
 they are "totally mandated by law." Association of Civilian Technicians,
 Pennsylvania State Council and the Adjutant General, Department of
 Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50 Irl-9805;
 National Association of Government Employees, Local R14-87 and Kansas
 Army National Guard, Topeka, Kansas, 15 FLRA No. 11 (1984).  As relevant
 herein, not only is membership in the Air National Guard mandated by
 law, 32 U.S.C. 709(b), (e)(1), but the terms and conditions of
 enlistment and reenlistment in the Guard are likewise prescribed by law,
 32 U.S.C. 302, 303, 304.  As are the proposals involved in the Authority
 decisions cited above, these are matters which are reserved by law for
 military determination and action, wholly apart from questions of
 civilian technician employment.  Thus, contrary to the Union's argument,
 the Authority's decisions concerning the exclusion of military matters
 from the duty to bargain is not limited only to certain kinds of
 military decisions.
 
    The Union refers to a portion of the legislative history of the
 National Guard Technicians Act of 1968 as indicating a commitment on the
 part of the National Guard to continue its policy of renewing the
 enlistments of civilian technicians, so as not to force their
 involuntary retirement.  /34/ The Union maintains that its proposal
 would only incorporate that policy into the collective bargaining
 agreement.  In this regard, however, the dispositive factor is that the
 cited policy concerns a military matter, and, for the reasons set forth
 above, is nonnegotiable under the Statute.  As the Agency points out,
 Agency Statement of Position on Remand at 6, if Union Proposal 9 is
 found negotiable, Agency decisions denying reenlistment of unit
 technicians would be subject to review by an arbitrator on grounds,
 e.g., that the denial was not for just cause.  In agreement with the
 Agency, the Authority is of the opinion that Congress did not intend, in
 providing collective bargaining rights for civilian technicians under
 the Statute, to authorize arbitration of the reenlistment decisions of
 the National Guard.
 
    Finally, in agreement with the Agency, the Authority finds that, as
 an attempt to negotiate on membership in the Air National Guard, Union
 Proposal 9 is in violation of 10 U.S.C. 976(c)(2) /35/ That provision
 makes it unlawful for a labor organization to attempt to bargain on
 behalf of members of the armed forces /36/ over the terms and conditions
 of their military service.  /37/ Union Proposal 9 at issue herein
 constitutes an attempt by the Union to negotiate on behalf of the
 members of the Montana Air National Guard regarding their membership in
 the Guard.  As noted above, by providing for automatic reenlistment,
 absent cause or failure to meet physical requirements, the proposal
 requires the Agency to accept unit members' applications for
 reenlistment, conferring upon them membership in the Guard, which, while
 an acknowledged prerequisite to civilian employment, is nevertheless
 essentially a term and condition of military service.  The decision as
 to whether an individual becomes a member of the armed forces is the
 fundamental term and condition of military service, the predicate for
 all other terms and conditions of such service.
 
    In this regard, the Union argues, based upon the statutory definition
 of the term "member of the armed forces," that the prohibition against
 collective bargaining over terms and conditions of military service does
 not apply to "inactive" membership in the National Guard.  /38/ However,
 the Union misinterprets the statutory provision.  Insofar as National
 Guard civilian technicians are concerned, the crucial distinction to be
 made in construing the prohibition is not between an individual's status
 as an active-duty as opposed to an "inactive-duty" member of the Guard,
 but between the individual's service in a military capacity as
 contrasted with his or her employment in a civilian capacity.  As the
 legislative history of the provision makes clear, it was Congress'
 intent that the military aspects of civilian technician employment
 should never be subject to negotiation.  The bill which passed the
 Senate would have precluded membership of National Guard civilian
 technicians in labor organizations by virtue of their status as members
 of the military service.  The bill as amended by the House of
 Representatives, which was passed by the Congress and signed into law by
 the President, by means of the definition set forth in 10 U.S.C. 976(a),
 was intended to preserve the right of civilian technicians to negotiate
 on the terms and conditions of their employment in their civilian
 capacity.  /39/ Thus, the prohibition in 10 U.S.C. 976 against a labor
 organization negotiating on behalf of members of the armed forces
 concerning their terms and conditions of military service extends to the
 military status of civilian technicians, but not to their civilian
 employment.
 
    The Union also argues that the prohibition in 10 U.S.C. 976 does not
 apply to the proposal at issue herein because the proposal does not
 concern "terms or conditions of military service" within the meaning of
 law and regulation, see notes 35 and 37, supra, i.e., it does not
 concern "wages, rates of pay, duty hours, assignments, grievances, or
 disputes." /40/ Contrary to the Union's contention in this regard, as
 noted above, the proposal concerns the fundamental term or condition of
 military service, from which all other terms and conditions are derived,
 namely, membership in the military service itself.
 
    Hence, by purporting to negotiate on membership in the National
 Guard, Union Proposal 9 is inconsistent with the prohibition, as set
 forth in 10 U.S.C. 976, against labor organizations bargaining on behalf
 of members of the armed forces over terms or conditions of military
 service.  The proposal is, therefore, outside the duty to bargain under
 section 7117(a)(1) of the Statute as we11.  /41/ See National Federation
 of Federal Employees, Local 1724 and Utah National Guard, Salt Lake
 City, Utah, 7 FLRA 732, 734 (1982) at note 3.
 
    For the foregoing reasons, Union Proposal 9 is outside the duty to
 bargain under the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review as to Union
 Proposals 1, 3, 6 and 9 be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., November 25, 1985
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ The proposals will be referred to herein by the numbers given
 them in the Authority's initial decision.
 
 
    /2/ Section 7106 provides, in relevant part, as follows:
 
    Section 7106.  Management rights
 
    (a) Subject to subsection (b) of this section, nothing in this
 chapter shall affect the authority of any management official of any
 agency--
 
    (2) in accordance with applicable laws--
 
          (C) with respect to filling positions, to make selections for
       appointments from--
 
          (i) among properly ranked and certified candidates for
       promotion;  or
 
          (ii) any other appropriate source (.)
 
    (b) Nothing in this section shall preclude any agency and any labor
 organization from negotiating--
 
    (3) appropriate arrangements for employees adversely affected by the
 exercise of any authority under this section by such management
 officials.
 
 
    /3/ In this regard, the Agency argues that only proposals which
 "indirectly affect" management rights are negotiable as "appropriate
 arrangements" under section 7106(b)(3) of the Statute.  However, as the
 Union points out, this argument merely restates the "direct
 interference" test which the Court of Appeals directed, as in AFGE,
 Local 2782 v. FLRA, not be applied in this case.
 
 
    /4/ Union's Supplemental Statement of Position at 3;  Union's Reply
 to Agency Supplemental Statement of Position at 8.
 
 
    /5/ Cf.  Federal Personnel Manual, chap. 351, Subchapter 4-6, 4-7.
 While these provisions of the FPM are not applicable to National Guard
 technicians, they are nevertheless analogous to the proposal here in
 dispute in that they provide for an agency's right to reassign an
 employee subject to a RIF action if the employee is able to perform the
 duties of a vacancy position without a significant amount of retraining
 and without undue interruption of the work.  See also 5 CFR 351, Subpart
 G.
 
 
    /6/ Furthermore, the effect upon management's ability to insure that
 fully qualified employees are selected for vacant positions under the
 proposal is primarily one of the delay occasioned by the training which
 would be required.  Such delay is not sufficient to amount to excessive
 interference with management's rights under section 7106(a)(2)(C).  In
 this regard, as the Authority has consistently held, delay in and of
 itself does not rise to the level of direct interference with
 management's rights.  See, e.g., National Treasury Employees Union and
 Department of the Treasury, Internal Revenue Service, 14 FLRA 243, 250
 (1984), citing American Federation of Government Employees, AFL-CIO,
 Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange,
 Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom.  Department
 of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981).
 
 
    /7/ Section 7117(a)(1) provides:
 
    Section 7117.  Duty to bargain in good faith;  compelling need;  duty
 to consult
 
    (a)(1) Subject to paragraph (2) of this subsection, the duty to
 bargain in good faith shall, to the extent not inconsistent with any
 Federal law or any Government-wide rule or regulation, extend to matters
 which are the subject of any rule or regulation only if the rule or
 regulation is not a Government-wide rule or regulation.
 
 
    /8/ 32 U.S.C. 709(b) and 709(e)(1) provide:
 
    Section 709.  Technicians:  employment, use, status
 
    (b) Except as prescribed by the Secretary concerned, a technician
 employed under subsection (a) shall, while so employed, be a member of
 the National Guard and hold the military grade specified by the
 Secretary concerned for that position.
 
    (e) Notwithstanding any other provision of law and under regulations
 prescribed by the Secretary concerned--
 
       (1) a technician who is employed in a position in which National
       Guard membership is required as a condition of employment and who
       is separated from the National Guard or ceases to hold the
       military grade specified for his position by the Secretary
       concerned shall be promptly separated from his technician
       employment by the adjutant general of the jurisdiction
       concerned(.)
 
 
    /9/ See Agency Supplemental Statement of Position at 9-16.  See also
 Agency statement of Position at 2.
 
 
    /10/ In this regard, as discussed infra, the Union contends that
 compatibility of civilian and military positions of National Guard
 technicians is not mandated by law.
 
 
    /11/ The Authority notes that while, as determined above, a proposal
 requiring management to select a reemployment eligible who, though not
 fully qualified for a position may nevertheless be trainable within a
 reasonable period of time, is negotiable as an "appropriate arrangement"
 under section 7106(b)(3), a similar "grace period" to allow a technician
 to obtain a compatible military assignment is nonnegotiable under
 section 7117(a)(1) as inconsistent with law, i.e., the National Guard
 Technicians Act of 1968.  See National Association of Government
 Employees, Local R14-87 and Kansas Army National Guard, Topeka, Kansas,
 15 FLRA No. 11 (1984).  See also National Association of Government
 Employees, Local R14-87 and The Adjutant General of Kansas, The Kansas
 Army National Guard, 17 FLRA No. 23 (1985).
 
 
    /12/ American Federation of Government Employees, AFL-CIO, Local 2953
 v. Federal Labor Relations Authority, 730 F.2d 1534, 1542 (D.C. Cir.
 1984).  The legislation passed the House of Representatives, but Title
 II was removed from the bill by the Senate, which wished to investigate
 further certain aspects of the bill pertaining, among other things, to
 the inclusion of technicians in the Federal civil service retirement
 program. 113 Cong.  Rec.  S16104 (Nov. 8, 1967).  The House conferees
 agreed to this postponement based upon the commitment of the Senate
 conferees to submit the bill during the next year's session.  H.R. Rep.
 No. 925, 90th Cong., 1st Sess. 11 (1967).
 
 
    /13/ H.R. Rep.  No. 13, 90th Cong., 1st Sess. 58-59 (1967).
 
 
    /14/ S. Rep.  No. 1446, 90th Cong., 2nd Sess. 5 (1968).  See also
 H.R. Rep.  No. 1823, 90th Cong., 2nd Sess. 6 (1968).
 
 
    /15/ See, e.g., Simpson v. United States, 467 F. Supp. 1122, 1127
 (S.D. N.Y. 1979), wherein the Court states:
 
       This conclusion (i.e., that Congress did not intend to exempt
       National Guard technicians from the Reserve Officer Personnel Act)
       is supported by the fact that Congress authorized the Secretary of
       the Army to exempt some technicians from the requirement of
       concurrent Guard membership. 32 U.S.C. 709(b);  H.R. Rep.  No.
       1823, 90th Cong. 2d Sess. 6 (1968), reprinted in 3 (1968) U.S.
       Code Cong. & Admin.  News, pp. 3318, 3324.  By providing this
       exemption for those technicians (principally secretaries,
       clerk-typists, and security guards, id.) whose jobs, in the
       opinion of the Secretary, are completely non-military, Congress
       indicated all the more clearly that in its view most technicians
       jobs are integrally military and should be held by individuals who
       meet military standards.
 
 
    /16/ Having reached this conclusion, it is unnecessary to consider
 whether Union Proposals 3 and 6 are also outside the duty to bargain
 under section 7103(a)(14)(C) as alleged by the Agency.
 
 
    /17/ The Union submitted a Supplemental Statement of Position in
 response to the Agency's Statement of Position, claiming it was
 permitted to do so pursuant to section 7117(c)(4) of the Statute.  The
 Agency filed a motion to dismiss the Union's supplemental submission.
 Contrary to the Union's argument, section 7117(c) pertains to the
 initial appeal of a negotiability dispute to the Authority and is
 inapplicable to the remand of the instant case to the Authority by the
 Court of Appeals.  Moreover, the Authority's Notice of Reopened
 Proceedings and Request for Statements of Position specifically provided
 for each party to file a statement of its position addressing the issues
 before the Authority on remand.  The Notice did not provide for
 supplemental, responsive statements and neither of statements and
 neither of the parties requested the opportunity to file such
 statements.  Therefore, the Agency's motion to dismiss the Union's
 supplemental statement is granted and that submission has not been
 considered herein.
 
    In addition, the National Federation of Federal Employees (NFFE),
 which had been granted permission in the instant case to file a brief as
 an amicus curiae by the Court of Appeals, requested and was granted the
 opportunity to submit a statement as an amicus curiae.  The Agency filed
 a motion requesting the Authority to reconsider and deny its grant to
 NFFE of permission to file a statement as an amicus curiae.  Pursuant to
 section 2429.9 of the Authority's Rules and Regulation, the Authority
 may, as it deems appropriate, grant permission for an interested person
 to present an argument as an amicus curiae.  In the circumstances
 herein, namely, that NFFE had participated as an amicus curiae in the
 instant of several units of National Guard civilian technicians, NFFE
 has an interest in the matters at issue herein, the Authority determined
 it was appropriate to grant NFFE permission to file a statement as an
 amicus curiae.  Therefore, the Agency's motion is hereby denied.
 
 
    /18/ Section 7106(b)(1) provides, in relevant part, as follows:
 
    Section 7106.  Management rights
 
    (b) Nothing in this section shall preclude any agency and any labor
 organization from negotiating--
 
    (1) at the election of the agency, on the numbers, types, and grades
 of employees or positions assigned to any organizational subdivision,
 work project, or tour of duty. . . (.)
 
 
    /19/ See note 2, supra.
 
 
    /20/ As noted above in connection with the disposition of Union
 Proposals 3 and 6, in its decision in AFGE, Local 2782 v. FLRA the
 District of Columbia Circuit held that the Authority's use of the
 "direct interference" test as the basis for determining whether a
 proposed arrangement for adversely affected employees is "appropriate"
 within the meaning of section 7106(b)(3) is contrary to law.  Rather,
 the Court viewed section 7106(b)(3) as authorizing the negotiation of
 proposals which directly interfered with the exercise of management
 rights under section 7106, as long as that interference was not
 "excessive." The Court left it to the Authority, with its expertise in
 the competing practical needs of employees and managers, to determine in
 any given case what constitutes "excessive" interference.
 
 
    /21/ In the instant case, under applicable Agency regulations, the
 minimum duration of such a freeze would be 60 days, but could last as
 long as 6 months.  In this regard, TPM Chap. 351, Subchapter 8.a.
 provides, in relevant part, as follows:
 
                    SUBCHAPTER 8. NOTICE TO TECHNICIAN
 
    a. Requirement.  The State Adjutant General must give written notice
 to a competing technician reached for release from his competitive level
 under this chapter.  A reduction-in-force notice is an official,
 personal communication addressed to the technician and issued by the
 Technician Personnel Office.  It is not a general information leaflet or
 a notice on the bulletin board.  Officially recognized labor
 organizations will be kept informed on the progress of the RIF by means
 of frequent meetings.  The technician must receive the notice at least
 60 full days before the date of his release.  The technician should not
 ordinarily receive the notice more than 90 days before the date of
 release unless the State determines that a longer notice will protect
 the technician's rights or avoid administrative hardship.  In the event
 of a major reduction, the notice should be made at least 6 months in
 advance.
 
 
    /22/ Regulations governing assignment rights of civilian technicians
 are set forth in TPM Chap. 351, Subchapter 7.  See also TPM Chap. 351,
 Subchapter 2.  Generally speaking, the right of an employee to a
 position depends upon his or her qualifications for that position and on
 whether the employee holds the military grade compatible with that
 position.  See TPM Chap. 351, Subchapter 4-3.b.(4), Subchapter 7-4.
 
 
    /23/ Agency Statement of Position on Remand at 34.
 
 
    /24/ In this connection, the Authority has reached a fundamentally
 different conclusion as to the effect of the proposed freeze on
 management's decisions concerning the staffing of its positions from
 that set forth by NFFE in its brief amicus curiae.  Amicus Curiae Brief
 for the National Federation of Federal Employees at 3-5.  The arguments
 made there are general in nature and fail to take into account the
 specifically military nature of the Guard mission and the necessity for
 the Guard to be constantly ready to be deployed for the accomplishment
 of that mission.
 
 
    /25/ Contrary to the Union, the fact that the Agency, pursuant to its
 rights under section 7106 of the Statute, has provided in its RIF
 regulations for management to have the option of imposing a "hiring
 freeze" is not of dispositive significance.  See American Federation of
 Government Employees, AFL-CIO, Local 3488 and Federal Deposit Insurance
 Corporation, New York Region, 17 FLRA No. 78 (1985) at note 3;  American
 Federation of Government Employees, AFL-CIO, Local 1603 and Navy
 Exchange, Naval Air Station, Patuxent River, Maryland, 9 FLRA 1039, 1040
 (1982).
 
 
    /26/ See note 8, supra.
 
 
    /27/ See note 8, supra.
 
 
    /28/ 32 U.S.C. 302 provides:
 
    Section 302.  Enlistments, reenlistments, and extensions
 
    (a) Under regulations to be prescribed by the Secretary concerned,
 original enlistments in the National Guard may be accepted for--
 
          (1) any specified term, not less than three years, for persons
       who have not served in an armed force;  or
 
          (2) any specified term, not less than one year, for persons who
       have served in any armed force.
 
    (b) Under regulations to be prescribed by the Secretary concerned,
 reenlistment in the National Guard may be accepted for any specified
 period, or, if the person last served in one of the highest five
 enlisted grades, for an unspecified period.
 
    (c) Enlistments or reenlistments in the National Guard may be
 extended--
 
          (1) under regulations to be prescribed by the Secretary
       concerned, at the request of the member, for any period not less
       than six months;  or
 
          (2) by proclamation of the President, if Congress declares an
       emergency, until six months after termination of that emergency.
 
    Agency regulations, Air National Guard Regulation 39-09, prescribe
 the requirements for enlistment and reenlistment, including the grounds
 for denying reenlistment.  Agency Statement of Position on Remand at 6.
 See also Gallo v. Brown, 446 F. Supp. 45 (D.C.R.I. 1978).
 
 
    /29/ Union Statement of Position on Remand at 6.
 
 
    /30/ Section 7103(a)(2)(ii) provides:
 
    Section 7103.  Definitions;  application
 
    (a) For the purposes of this chapter--
 
    (2) "employee" means an individual--
 
    but does not include--
 
    (ii) a member of the uniformed services(.)
 
 
    /31/ 5 U.S.C. 2101 provides, in relevant part, as follows:
 
    Section 2101.  Civil service;  armed forces;  uniformed services
 
       For the purpose of this title--
 
          (2) "armed forces:  means the Army, Navy, Air Force, Marine
       Corps, and Coast Guard;  and
 
          (3) "uniformed services" means the armed forces, the
       commissioned corps of the Public Health Service, and the
       commissioned corps of the National Oceanic and Atmospheric
       Administration.
 
 
    /32/ 10 U.S.C. 8062(d) provides:
 
    Section 8062.  Policy;  composition;  aircraft authorization
 
       (d) The Air Force consists of--
 
          (1) the Regular Air Force, the Air National Guard of the United
       States, the Air National Guard while in the service of the United
       States, and the Air Force Reserve;
 
          (2) all persons appointed or enlisted in, or conscripted into,
       the Air Force without component;  and
 
          (3) all Air Force units and other Air Force organizations, with
       their installations and supporting and auxiliary combat, training,
       administrative, and logistic elements;  and all members of the Air
       Force, including those not assigned to units;  necessary to form
       the basis for a complete and immediate mobilization for the
       national defense in the event of a national emergency.
 
    See also 10 U.S.C. 8261 which provides as follows:
 
    8261. Air National Guard of United States
 
          (a) Except as provided in subsection (c), to become an enlisted
       member of the Air National Guard of the United States, a person
       must--
 
          (1) be enlisted in the Air National Guard;
 
          (2) subscribe to the oath set forth in section 304 of title 32;
        and
 
          (3) be a member of a federally recognized unit or organization
       of the Air National Guard in the grade in which he is to be
       enlisted as a Reserve.
 
    (b) Under regulations to be prescribed by the Secretary of the Air
 Force, a person who enlists or reenlists in the Air National Guard, or
 whose term of enlistment or reenlistment in the Air National Guard is
 extended, shall be concurrently enlisted or reenlisted, or his term of
 enlistment or reenlistment shall be concurrently extended, as the case
 may be, as a Reserve of the Air Force for service in the Air National
 Guard of the United States.
 
    (c) A member of the Air Force Reserve who enlists in the Air National
 Guard in his reserve grade, and is a member of a federally recognized
 unit or organization thereof, becomes a member of the Air National Guard
 of the United States and ceases to be a member of the Air Force Reserve.
 
 
    /33/ Section 7103(a)(14)(C) of the Statute provides:
 
    Section 7103.  Definitions;  application
 
    (a) For the purpose of this chapter--
 
    (14) "conditions of employment" means personnel policies, practices,
 and matters, whether established by rule, regulation, or otherwise,
 affecting working conditions, except that such term does not include
 policies, practices, and matters--
 
    (C) to the extent such matters are specifically provided for by
 Federal statute(.)
 
 
    /34/ S. Rep.  No. 1446, 90th Cong., 2nd Sess. 12 (1968) states as
 follows:
 
          Under present regulations technicians holding enlisted grades
       are permitted to enlist in the Guard up to age 60.  The committee
       has been informally advised that the National Guard intends to
       continue this policy, with the result that enlisted members should
       not be involuntarily retired through separation of job due to
       military promotion or elimination factors.  In other words, so
       long as an enlisted technician properly performs his job there
       should be no grounds for his involuntary retirement.  Among the
       specific grounds that would not be any basis for involuntary
       retirement would be the voluntary resignation from a military
       status on the part of either a commissioned or enlisted
       technician, thereby causing disqualification for further civilian
       employment, failure on the part of the enlisted technician to
       reenlist in the Guard, or failure on the part of the National
       Guard to accept his reenlistment application if properly
       qualified, or the discharge from enlistment for failure to meet
       military standards.
 
 
    /35/ 10 U.S.C. 976(c)(2) provides:
 
    Section 976.  Membership in military unions, organizing of military
 unions,
 
       and recognition of military unions prohibited (c) It shall be
       unlawful for any person--
 
          (2) to negotiate or bargain, or attempt 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 also 32 CFR 143.4.(b).
 
 
    /36/ 10 U.S.C. 976(a) provides:
 
    976. Membership in military unions, organizing of military unions,
 and recognition of military unions prohibited
 
       (a) In this section:
 
          (1) "Member of the armed forces" means (A) a member of the
       armed forces who is serving on active duty, (B) a member of the
       National Guard who is serving on full-time National Guard duty, or
       (C) a member of a Reserve component while performing inactive-duty
       training.
 
    See also 32 CFR 143.7.(a).
 
 
    /37/ 32 CFR 143.7.(f). provides:
 
    Section 143.7. Definitions.
 
    (f) Terms or Conditions of Military Service.  Terms or conditions of
 military compensation or duty including but not limited to wages, rates
 or pay, duty hours, assignments, grievances, or disputes.
 
 
    /38/ Union Statement of Position on Remand at 9.
 
 
    /39/ H.R. Rep.  No. 95-894 (II), 95th Cong., 2nd Sess. 6-7 (1978)
 (Post Office and Civil Service Committee), reprinted in 1978 U.S. Code
 Cong. and Ad.  News 7575, 7590, states as follows:
 
       S. 274, as passed by the Senate, would also deny to civilian
       technicians the right to representation in collective bargaining.
       This right has been available to such employees since 1968 under
       Executive Order 11491.  The committee was not persuaded by the
       arguments of the National Guard Association that
       collective-bargaining activities by employee representatives
       detracted from the preparedness of the National Guard.  Indeed,
       available information and testimony of the Department of Defense
       indicated that it was in the national interest for these
       dual-status employees to enjoy representation in their civilian
       capacities.
 
          S. 274 is also deficient because it treats civilian technicians
       as if they were full-time members of the military.  As James
       Pierce, president of the National Federation of Federal Employees
       stated:  * * * Civilian technicians * * * are not members of the
       military and they are not subject to the Uniform Code of Military
       Justice, which governs the employment relationship of military
       personnel.  Nor do they receive the benefits of military life.
 
          The committee cannot accept the premise of S. 274 that civilian
       technicians, while serving in their civilian capacity, are members
       of the military.  Yet, certain provisions of the Senate bill
       would, in effect, convert them to this status.  S.274 would deny
       them their existing right to representation in collective
       bargaining.  It would further impose criminal sanctions for
       violations of the act.
 
          Accordingly, the committee has stricken those provisions of the
       bill which would have had the effect of including civilian
       technicians within the provisions of the bill.
 
    See also H.R. Rep.  No. 95-894 (I), 95th Cong., 2nd Sess. 8-9 (1978)
 (Armed Services Committee), reprinted in 1978 U.S. Code Cong. and Ad.
 News 7575, 7580-81, which states as follows:
 
       Subsection (a)-- Definitions
 
          (a)(1)-- paragraph defines a member of the Armed Forces for
       purposes of the new section 975 as one who is serving on active
       duty, or who is a member of a Reserve component while performing
       inactive-duty training.  This definition encompasses the Army,
       Navy, Air Force, Marine Corps, Coast Guard and their Reserve and
       National Guard components.
 
          The committee believes that the prohibition on military labor
       union membership must extend to the personnel of Reserve and
       National Guard components, since they are subject to mobilization
       in the event of a war or national emergency and would be serving
       side by side with active forces personnel.  However, since the
       restriction on their union membership affects first amendment
       rights, the committee believes that the restriction should be
       drawn as narrowly as possible.  To accomplish this, the bill
       provides that Reserve and National Guard personnel shall be
       considered as members of the Armed Forces only "while performing
       inactive-duty training", i.e.,