Association of Civilian Technicians, Schenectady Chapter and U.S. Department of Defense, National Guard Bureau, New York Air National Guard, Latham, New York

[ v55 p925 ]

55 FLRA No. 153

ASSOCIATION OF CIVILIAN TECHNICIANS
SCHENECTADY CHAPTER
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
NEW YORK AIR NATIONAL GUARD
LATHAM, NEW YORK
(Agency)

0-NG-2375

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

September 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of a proposed supplemental agreement comprised of six proposals. [n2] 

      For the reasons that follow, we find that Proposals 1, 2 and 3, which require the Agency to maintain a certain number of positions in the 109th Tactical Airlift Wing (109th), are negotiable at the election of the Agency under section 7106(b)(1) of the Statute. We further find that Proposals 4, 5 and 6, which concern military aspects of technician employment, are outside the duty to bargain. Accordingly, we dismiss the petition for review as to all of these proposals.

II.     Background

      In late 1995, the 109th Tactical Airlift Wing (109th) was assigned, as a part of its mission, the task of providing support to the Antarctic region of the United States. The 109th workforce is comprised of both civilian technicians and Active Guard and Reserve (AGR) personnel. [n3] 

      As a result of the new assignment, the number of AGR personnel assigned to the 109th was substantially increased, as was the number of missions deployed to Antarctica. The supplemental agreement at issue here was offered in response to the substantially increased number of missions to Antarctica; the consequent influx of additional AGR personnel; and the announcement that missions outside the continental United States would no longer be performed by bargaining unit members working in their civilian employment capacity but would instead be performed by them in active duty status.

III.     Proposals 1, 2 and 3

Number of Technician Positions Assigned to the 109th Airlift Wing
1.     Except as provided in paragraph 2, below the [A]gency shall assign to the 109th Airlift Wing a number of bargaining unit technician positions equal to or exceeding the number of these positions assigned to the Wing as of February 1, 1996, unless both of the following two circumstances exist: (1) no AGR positions are assigned to the Wing and (2) the [A]gency reduces the Wing's work load such that fewer employees are needed to accomplish the Wing's missions.
2.     The number of bargaining unit technician positions assigned to the Wing may be less than the number assigned as of February 1, 1996 if the total number of technicians then authorized by Congress is less than the total number of technicians authorized by Congress as of February 1, [ v55 p926 ] 1996. In this circumstance, the number of technician positions assigned to the Wing divided by the number of these positions assigned to the Wing as of February 1, 1996 shall be a fraction equal to or greater than the total number of technicians then authorized by Congress divided by the total number of technicians authorized by Congress as of February 1, 1996.
Number of Technician Employees Assigned to the Wing
3.     The [A]gency shall not reduce the size of the Wing technician workforce by deliberately failing to fill Wing positions required by paragraph 1 or 2, above.

A.     Positions of the Parties

1.     Agency

      The Agency asserts that it is not obligated to bargain over Proposals 1 and 2 because they are inconsistent with its rights to determine its organization; to layoff employees; to determine the personnel by which its operations shall be conducted; and to hire and make selections under section 7106(a) of the Statute.

      The Agency argues, in this regard, that Proposals 1 and 2 would limit its right to determine the number of technicians and AGR personnel required to accomplish the mission of the 109th, "or [to] otherwise determine the [civilian] technician staffing needs of the 109th[.]" Statement of Position at 7. As such, the Agency contends that the proposals would determine the functional structure of the 109th's full-time support. The Agency submits that, as a result, Proposals 1 and 2 are inconsistent with its right to determine its organization under section 7106(a)(1), in exactly the same manner as the proposal in National Treasury Employees Union, Atlanta, Georgia and U.S. Department of the Treasury, Internal Revenue Service, Jacksonville District, 32 FLRA 886 (1988).

      The Agency also maintains that Proposals 1 and 2 would limit its ability to manage its workforce by providing technicians with priority over AGR personnel. Citing International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 138-40 (1987) (Proposals 30 and 31) (Bureau of Engraving), the Agency contends that such proposals violate management's right to layoff employees under section 7106(a)(2)(A).

      In addition, the Agency argues that, if adopted, Proposals 1 and 2 would effectively freeze the number of technician positions in the 109th and, therefore, establish a "floor" governing these positions. The Agency asserts, based on Bureau of Engraving, that the Authority has found similar proposals to be outside the duty to bargain because they require bargaining over the kinds of personnel by which agency operations shall be conducted, in violation of section 7106(a)(2)(B).

      Even assuming that Proposals 1 and 2 fall within the purview of section 7106(b)(1), the Agency argues that they remain outside the duty to bargain because the proposals would effectively "set, by contract, the organization of the 109th by insulating the numbers of technicians assigned to the organization, while decreasing the numbers of AGR members assigned." Statement of Position at 8. Applying American Federation of Government Employees, Local 1336 and Social Security Administration, Mid-America Program Service Center, 52 FLRA 794 (1996) (SSA, Mid-America), the Agency argues that the dominant requirements of the proposals are to dictate the organization of the 109th; to insulate technicians from layoff; and to determine the personnel by which the 109th's operations will be conducted.

      Finally, the Agency asserts that to the extent Proposal 1 mandates that the number of civilian technicians in the 109th could not be reduced while AGR personnel are assigned to the unit, the proposal "would affect and therefore, change the terms and conditions of the military membership of those AGR members by making their very retention subject to maintenance of the current minimum number of technician positions." Id. at 10. Consequently, the Agency submits that Proposal 1 constitutes collective bargaining over the terms and conditions of military membership in violation of 10 U.S.C. § 976.

      As concerns Proposal 3, the Agency maintains that it would require management to fill all vacant technician positions unless the conditions set forth in Proposals 1 or 2 are met. The Agency submits, citing Defense Logistics Agency, Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367, 373 (1986), that because the proposal would abrogate its discretion to fill or not fill vacant positions, Proposal 3 excessively interferes with its rights to hire and assign and to make selections in filling positions, as set forth in section 7106(a)(2)(A) and (C). [ v55 p927 ]

2.     Union

      The Union does not dispute the Agency's assertion that Proposals 1 and 2 violate its management rights set forth in section 7106(a). Rather, the Union claims that these proposals address the number of bargaining unit and technician positions to be assigned to the 109th. The Union argues that the 109th is an Agency subdivision and, therefore, the proposals concern the numbers of positions assigned to an organizational subdivision within the meaning of section 7106(b)(1).

      The Union also asserts that the Agency's reliance on SSA, Mid-America is misplaced because that case concerned proposals that impose two inseparable requirements -- one pertaining to section 7106(a) and the other pertaining to section 7106(b)(1). The Union maintains that the proposals at issue here impose only one requirement and that requirement concerns section 7106(b)(1). As such, the Union contends that the Agency's arguments must be denied.

      As concerns the Agency's contention that Proposal 1 violates 10 U.S.C. § 976, the Union submits that it does not represent or purport to represent AGR members. The Union also submits that the proposal was made on behalf of civilian technicians rather than AGR members. Finally, the Union contends that section 976 does not make the proposal illegal simply because it has an effect on AGR personnel.

      In connection with its third proposal, the Union contends that like Proposals 1 and 2, Proposal 3 concerns the numbers of employees assigned to an organizational subdivision within the meaning of section 7106(b)(1). The Union, therefore, claims that it is within the duty to bargain.

B.     Analysis and Conclusions

1.     Meaning of the Proposals

      The Union did not provide a specific interpretation of the above-stated proposals. However, as plainly worded, each of these proposals addresses the number of technician positions in the 109th. In this regard, Proposal 1 would require the Agency to "assign" to the 109th the same number of technician positions that existed on February 1, 1996. However, this requirement is subject to an exception. Under the exception, the Agency would be permitted to decrease the number of technician positions if:

(1)     there are no AGR positions assigned to the 109th; and
(2)     the Agency has reduced the workload of the 109th so that fewer technicians are needed to accomplish its mission.

      Proposal 2 provides an additional exception to Proposal 1. Under this proposal, the Agency would be able to decrease the number of technician positions in the 109th that existed on February 1, 1996, if the total number of technicians authorized by Congress is less than the total number of technicians that were authorized on February 1, 1996. In this event, Proposal 2 provides a specific formula that the Agency must follow in setting the decreased number of technician positions.

      Finally, Proposal 3 is explicitly linked to Proposals 1 and 2. The plain wording of this proposal would require the Agency to maintain the size of the technician workforce set forth in Proposals 1 and 2 by precluding the Agency from deliberately failing to fill those positions.

2.     Proposals 1, 2, and 3 Concern "Numbers, Types and Grades" of employees assigned to an organizational subdivision under Section 7106(b)(1) of the Statute

      Consistent with American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and U.S. Department of Housing and Urban Development, 54 FLRA 171, 177-78, n.10 (1998), the Authority first addresses whether a proposal affects a management right or rights under section 7106(a) of the Statute, and then whether the proposal concerns a matter over which an agency has a duty to bargain under sections 7106(b)(2) or (b)(3). The Authority then addresses whether the proposal is negotiable at the election of the agency under section 7106(b)(1), if it is required. Id.

      In this case, the Agency asserts, and the Union does not dispute, that Proposals 1 and 2 affect the Agency's right to determine its organization under section 7106(a)(1) of the Statute and that Proposal 3 affects the Agency's rights to hire and assign, and to select employees under sections 7106(a)(2)(A) and (C). The Union also does not claim that any of these proposals constitutes a procedure or an appropriate arrangement, within the meaning of section 7106(b)(2) or (b)(3). Accordingly, we begin with the Union's assertion that these proposals are negotiable at the election of the Agency under section 7106(b)(1).

      Under section 7106(b)(1) of the Statute, proposals relating to the "numbers, types, and grades of employees or positions assigned to any organizational subdivision" are negotiable at the election of the agency. This phrase applies to the "establishment of staffing patterns, or allo- [ v55 p928 ] cation of staff, for the purpose of an agency's organization and the accomplishment of its work." National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 52 FLRA 1024, 1030-31 (1997). The determination of whether, and which, positions assigned to an organizational subdivision will be filled concerns the allocation of staff. See National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 432 (1997) (holding that a proposal requiring bilateral agreement concerning the number of employees or positions assigned to an organizational subdivision, work project or tour of duty comes within the scope of section 7106(b)(1), regardless of whether the proposal would increase, decrease or maintain the number that the agency proposes to assign or has assigned.)

      As explained above, Proposals 1, 2 and 3 require the Agency to maintain a certain number and type of employee in the 109th Tactical Airlift Wing. In addition, the Agency does not dispute, and there is no basis in the record for rejecting, the Union's contention that the 109th Airlift Wing constitutes an "organizational subdivision" within the meaning of section 7106(b)(1). As such, we conclude that the proposals concern the numbers and types of employees assigned to an organizational subdivision under section 7106(b)(1). See id.

      In arriving at this result, we specifically reject the Agency's reliance on SSA, Mid-America in arguing that Proposals 1 and 2 are not negotiable at its election because the dominant requirement of the proposals involves section 7106(a) rights. The dominant requirement test has been applied to resolve disputes involving proposals that impose two or more distinguishable but inseparable requirements. See id., 52 FLRA at 798-800. In our view, Proposals 1 and 2 impose only one requirement: that the Agency assign a certain number of positions in a specific organizational subdivision. Therefore, the dominant requirement test is not implicated by these proposals. [n4]  See National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Fort Lee, Virginia, 54 FLRA 1302, 1306 (1998).

      As these proposals concern the numbers, types and grades of employees assigned to an organizational subdivision, we find that they are negotiable at the election of the Agency.

3.     Proposal 1 Does Not Violate 10 U.S.C. § 976

      Finally, the Agency asserts that the Proposal 1 is outside the duty to bargain because it constitutes an attempt to bargain over the terms and conditions of military membership, in violation of 10 U.S.C. § 976.

      Under 10 U.S.C. § 976(c), it is unlawful for a labor organization to attempt to bargain on behalf of members of the armed forces over the terms and conditions of their military service. [n5]  See, e.g., Montana ACT, 20 FLRA 737-42 (proposal requiring automatic renewal of military membership of dual status technician upon expiration of term of enlistment constitutes negotiation of military matter on behalf of members of the armed forces in violation of 10 U.S.C. § 976(c)(2)). However, the fact that a proposal may affect non-unit employees' conditions of employment, does not, in and of itself, constitute a violation of 10 U.S.C. § 976. See Association of Civilian Technicians, Granite State Chapter and U.S. Department of Defense, National Guard Bureau, New Hampshire Air National Guard, Concord, New Hampshire, 55 FLRA 476, 478 (1999) (New Hampshire ACT). The Authority has noted in this regard that "[n]early every bargaining proposal, if accepted, will have some effect on non-unit personnel." American Federation of State, County & Municipal Employees, Local 2910 and Library of Congress, 53 FLRA 1334, 1338 (1998).

      As more specifically described above, the supplemental agreement at issue here was advanced on behalf of civilian technicians in response to the expanded mission of the 109th and the consequent influx of AGR personnel. Moreover, although it explicitly refers to AGR personnel, as construed, the proposal does not seek to require the Agency to decrease the number of AGR personnel assigned to the 109th. Instead, it seeks to ensure the continued employment of civilian technicians in a changed employment environment and attempts to accomplish this by establishing numerical limits concerning the size of the technician workforce. The proposal does not in any way dictate the number of military personnel assigned to the unit. Accordingly, the proposal does not regulate the number of positions of non-unit, military personnel, but prescribes the circumstances governing a reduction in civilian unit positions. See, e.g., New Hampshire ACT, 55 FLRA at 478 (proposal seeking to limit the amount of involuntary over- [ v55 p929 ] time required of unit employees, as compared with involuntary overtime worked by non-unit personnel, did not prevent the agency from assigning AGR members or unit employees to any particular task and, therefore, was not inconsistent with 10 U.S.C. § 976). See also Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, Adjutant General of Pennsylvania, Fort Indiantown Gap, Annville, Pennsylvania, 54 FLRA 552, 557-58 (1998), 54 FLRA 557 (proposal requiring agency to alter its method of filling positions did not require the agency to select AGR candidates for any particular position and, therefore did not require the agency to negotiate on behalf of the United States concerning the terms of service of military personnel in violation of 10 U.S.C. § 976(e)). [n6] 

      As this proposal does not regulate the number of non-unit positions, it also does not constitute an attempt to bargain collectively over the terms and conditions of military service. In these circumstances, we reject the Agency's assertion that Proposal 1 violates 10 U.S.C. § 976(c). Accordingly, in light of the foregoing, we dismiss the petition for review as to Proposals 1, 2 and 3.

IV.     Proposals 4 and 5

Authority of Small Shop Chiefs
4.     In a Wing shop where the shop chief as of February 1, 1996 was a bargaining unit technician, assignment to the shop of an AGR member having a higher military rank than that shop chief shall neither cause that chief to lose the shop chief position nor diminish that chief's authority during technician working hours. If a small shop chief is required to supervise more personnel than she or he supervised as of February 1, 1996, the shop chief's position will be reviewed and necessary actions will be taken to upgrade the position to an appropriate grade, if conditions warrant the upgrade.
Acting Small Shop Chiefs
5.     In a Wing shop where the shop chief is a bargaining unit technician, the acting shop chief in the shop chief's absence shall be either the bargaining unit technician assigned to the shop who has worked there the longest or another person assigned to the shop who has worked there longer than that technician.

A.     Positions of the Parties

1.     Agency

      The Agency interprets Proposals 4 and 5 as pertaining to its shops with few subordinate personnel because the shop chiefs in its large shops are not bargaining unit members but, rather, are supervisors. According to the Agency, both of these proposals would preclude it from selecting an AGR member to be the chief of a small shop where, prior to the AGR member's assignment, the shop chief was a bargaining unit member. The Agency points out that this circumstance would prevail, regardless of the AGR members' military rank.

      The Agency asserts, citing Authority precedent, that military aspects of technician employment are outside the scope of bargaining because they do not constitute conditions of employment within the meaning of the Statute. The Agency further asserts that pursuant to 32 U.S.C. § 709(b), civilian technicians are required to be members of the National Guard and to hold military ranks commensurate with their technician positions. The Agency argues that, as a result, proposals that address supervisory responsibilities and that are specifically worded to nullify the military concept of "rank in person" concern military aspects of technician employment. Response at 9. Accordingly, the Agency submits that Proposals 4 and 5 do not concern conditions of employment and are, therefore, beyond the scope of bargaining.

      Assuming that these proposals are within the duty to bargain, the Agency maintains that they would affect management's right to assign work under section 7106(a)(2)(A), and its right to determine the personnel by which its operations will be conducted under section 7106(a)(2)(B).

2.     Union

      The Union argues that Proposals 4 and 5 do not concern military aspects of technician employment because they "concern only civilian duties." Response at 3. The Union explains that each of these proposals concerns the qualifications bargaining unit employees must possess to serve in the shop chief position under Proposal 4, or in the acting shop chief position under Proposal 5, during working hours. According to the Union, the phrase "working hours" refers to "hours of civilian work, not military service." Id. In addition, the [ v55 p930 ] Union states that the phrase "shop . . . chief's authority" means the shop chief's civilian authority.

      The Union maintains that as the disputed proposals pertain solely to civilian work they are within the duty to bargain under section 7106(b)(1) because job qualifications concern the types of employees assigned to an organizational subdivision. The Union also asserts that in addition to job qualifications, Proposal 4 addresses a shop chief's grade. The Union points out that this subject is expressly encompassed within section 7106(b)(1). As such, the Union rejects the Agency's claim that Proposals 4 and 5 violate its management rights.

      Finally, the Union argues that "[t]he fact that the proposals affect AGR personnel -- by reserving for civilian employees certain bargaining unit positions already held by civilian employees -- does not render the proposals non-negotiable." Response at 4. The Union explains that this is because the proposals address a matter that vitally affects civilian employees, "namely, their continued assignment to positions they already hold[.]" Id.

B.     Analysis and Conclusions

1.     Meaning of the Proposals

      As worded, Proposal 4 requires that the Agency maintain civilian technicians in shop chief positions even if an AGR member of higher military rank is assigned to the shop.

      Similarly, Proposal 5 requires that in the civilian shop chief's absence, the acting shop chief must be either the bargaining unit member with the greatest shop seniority or another employee assigned to the shop "who has worked there longer than that technician." Petition for Review at 2.

2.     Proposals 4 and 5 Are Outside the Duty to Bargain

      Under the Defense Department's military grade inversion policy, a full-time civilian technician may not supervise any individual with a higher military rank than the military rank of the supervisor. Pursuant to this policy, the Authority has rejected proposals that would permit civilian technicians to supervise employees who, militarily, are senior in rank. See, e.g., Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, National Guard Bureau, The Adjutant General of Pennsylvania, 47 FLRA 332, 337-38 (1993) (ACT).

      Proposals 4 and 5 concern the military's policy on inversion of military rank. More specifically, on its face, Proposal 4 permits civilian technicians to remain in shop chief positions even if an AGR member of higher military rank is assigned to his or her shop. In addition, Proposal 5 sets forth a procedure for designating an acting shop chief which does not take into account the military rank of the civilian technicians or the AGR personnel who are assigned to the shop. Accordingly, consistent with Authority precedent, as set forth in ACT, we conclude that Proposals 4 and 5 do not concern a condition of employment within the meaning of the Statute and, therefore, are outside the duty to bargain. As such, we dismiss the petition for review as to Proposals 4 and 5. [n7] 

V.     Proposal 6

Opportunities for Voluntary Leave under 5 U.S.C. § 6323(d)
6.     If the [A]gency decides to afford bargaining unit technicians an opportunity to request leave under 5 U.S.C. § 6323(d), the [A]gency shall inform them of that opportunity solely by written general announcement, such as a bulletin board posting. The announcement shall not identify by name, position, or any other individual identifier, any technician eligible for the opportunity. The general announcement may state the number of technicians to whom the opportunity applies and the knowledge, skills, and abilities technicians must have to be eligible for the opportunity. The announcement shall state that the opportunity is voluntary. The [A]gency shall not--and the announcement shall state that the [A]gency will not--coerce, pressure, or personally ask any technician to volunteer, and will not impose any adverse consequence, of any kind, on any technician, for choosing not to volunteer. If a technician in response to the general announcement expresses to the [A]gency interest in considering the opportunity afforded, the [A]gency thereafter may communicate directly with that technician concerning that opportunity. [ v55 p931 ]

A.     Positions of the Parties

1.     Agency

      The Agency submits, based on Montana ACT, 20 FLRA at 739, that under 10 U.S.C. § 976(c), it is unlawful for any labor organization to bargain on behalf of members of the armed forces over the terms and conditions of their military service. According to the Agency, in Montana ACT the Authority stated that the crucial distinction in construing the prohibition is between the individual's service in a military capacity as contrasted with the his or her employment in a civilian capacity. The Agency notes that the legislative history of the provision makes clear that it was Congress' intent that military aspects of civilian employment should never be subject to negotiation.

      The Agency contends that Proposal 6 violates 10 U.S.C. § 976 because it would impair the ability of the Agency's military commanders to make reasoned military decisions. According to the Agency, the "opportunity" to use the leave provided by 5 U.S.C. § 6323(d) is actually "the opportunity to take part in an [overseas] deployment of . . . the military unit." Statement of Position at 5. The Agency asserts that Proposal 6 would limit the manner in which it would be permitted to solicit volunteers for overseas deployments by requiring that such solicitations be made only by general written announcement. As such, the Agency maintains that, if adopted, this proposal would constitute collective bargaining on the terms and conditions of a military aspect of technician employment.

2.     Union

      The Union disputes the Agency's claim that Proposal 6 would prevent a military commander from making appropriate military determinations or that it would constrain a military commander in any way. According to the Union, this proposal constrains the Agency only when it acts in its capacity as the employer of bargaining unit employees -- not when the Agency acts within the scope of its military authority. The Union, therefore, maintains that the Agency's argument must be rejected.

B.     Analysis and Conclusions

1.     Meaning of the Proposal

      On its face, Proposal 6 requires that the opportunity to volunteer to perform a military assignment in a particular pay status be made by general announcement and that the Agency may not "coerce, pressure, or personally ask" an individual technician to volunteer for this pay status. According to the Union's explanation of the proposal, the Agency would retain the authority to assign a particular technician to perform a military assignment. [n8] 

      The proposal incorporates by reference a special pay status set out at 5 U.S.C. § 6323(d) (section 6326(d) status). [n9]  As explained in the Agency's response, technicians who volunteer to perform military assignments in section 6323(d) status receive their civilian technician pay for the workweek, but do not receive military pay. In contrast, technicians placed in military status who do not request section 6323(d) pay may use "military leave" under other subsections of section 6323, or other types of leave, such as annual leave, compensatory time, or leave without pay. See 5 U.S.C. §§ 6303, 5543. In these circumstances, the technician who has not requested section 6323(d) status receives full military pay in addition to any technician salary available under the leave statute.

      According to the Union's explanation of the proposal, it would apply to bargaining unit technicians who are ordered to perform, or who volunteer to perform, active duty military assignments. The proposal thus prohibits the Agency, after it has determined to attempt staffing a military mission with technicians in section 6323(d) status, from seeking individual volunteers to participate in the mission in that status. Further, in the event the Agency assigns a particular technician to perform a military mission, the proposal would foreclose the Agency from asking the technician whether he or she was willing to do so in section 6323(d) status. [ v55 p932 ]

2.     Proposal 6 Concerns a Military Aspect of Technician Employment

      The Authority has long held that National Guard technicians may not bargain concerning the "military aspects of technician employment." Montana ACT, 20 FLRA at 739. This principle is based on the statutory prohibition on bargaining with, or on behalf of, members of the military, id. (citing 10 U.S.C. 976(c)), as well as on the conclusion that military matters do not concern conditions of employment within the meaning of the Statute. See Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA 1030, 1036 (1987) (Delaware National Guard); see also ACT, 47 FLRA at 337; National Federation of Federal Employees, Local 1623 v. FLRA, 852 F.2d 1349, 1352 (D.C. Cir. 1988) (NFFE, Local 1623). Cf. Association of Civilian Technicians, Granite State Chapter and U.S. Department of Defense, National Guard Bureau, New Hampshire Air National Guard, Concord, New Hampshire, 55 FLRA 476, 478 (1999); Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, Adjutant General of Pennsylvania, Fort Indiantown Gap, Annville, Pennsylvania, 54 FLRA 552, 557 (1998). As the court explained in NFFE, Local 1623, "the military side of the National Guard lies wholly outside of the collective bargaining realm." Id. at 1353.

      While this rule is clearly stated, its application to particular proposals concerning the day-to-day work life of dual status technicians is not always straightforward, as Proposal 6 illustrates. The proposal would limit officials who are staffing a military mission from soliciting individual volunteers among technicians in civilian status. The mission at issue would be performed by the technician in a military status. The technician who volunteers for the section 6323(d) pay status would continue to receive his or her civilian pay while performing an active duty military assignment and would not receive any military pay. The proposal thus contains aspects that relate to civilian employment in certain respects -- the timing of the solicitation and the source of the technician's pay while on assignment -- and, at the same time, relates to the military aspect of technician employment -- the status of the assignment at issue and the absence of military pay.

      Cases applying the rule distinguishing civilian and military aspects of technician employment provide guidance in sorting out whether a proposal which implicates both civilian and military aspects of technician employment are within the duty to bargain. For example, the Authority has held that certain proposals concerning the wearing of the military uniform by technicians in their civilian capacity concern civilian, rather than military aspects of technician service. Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412 (1993) (Arizona National Guard). In this regard, the Authority held that the status of the employee wearing the uniform was the "decisive consideration," rather than the military nature of the uniform. Id. at 417.

      In Delaware National Guard, 28 FLRA at 1030, the Authority found that eight proposals addressing technician participation in the Agency's Military Education Program were outside the duty to bargain. The Authority held that because the technicians attended this training in military status, all of the proposals relating to the training were outside the duty to bargain, including a proposal for counseling concerning the training options available (Proposal 3), a proposal concerning the civilian duty status of the employee while at training (Proposal 6), and a proposal that the employee be offered the choice of attending the training in a military or civilian pay status (Proposal 4). Id. at 1032.

      Finally, in NFFE, Local 1623, the proposals found by the court to be outside the duty to bargain would have, among other things, created procedures for technician's civilian supervisors to "work with" military personnel officers to address military assignment decisions that would affect their civilian employment. Id. at 1351. The court found that the proposals, which would not have dictated any particular military decision, nevertheless concerned a military aspect of technician employment, observing that:

military officials must have the flexibility to assign Guard personnel as they see fit. Local 1623's proposal would have non-military officials attempt to reverse such personnel decisions by intervening in individual cases and exercising their power of persuasion. This promises to subject the [rule that technicians' military assignments must be compatible with their civilian assignments] to civilian influence . . . .

Id., 852 F.2d at 1352.

      From these decisions, we find that key elements in determining whether a particular proposal involves a military aspect of technician employment are whether the proposal relates to a military assignment (Delaware National Guard), or attempts to influence a military decision (NFFE, Local 1623). The statutory source of the particular entitlement at issue (Arizona National Guard), or the whether the proposal actually operates [ v55 p933 ] during civilian or military assignment is not necessarily dispositive. [n10]  Compare Delaware National Guard with Arizona National Guard.

      Examining Proposal 6 in light of this precedent leads us to conclude that it concerns a military aspect of technician employment. The proposal attempts to influence the determination of the pay status of employees assigned to a military mission by prescribing the manner in which volunteers will be solicited to perform missions in section 6323(d) status. Specifically, the proposal would limit such solicitation to a general announcement and preclude individual solicitation. If the Agency has determined that it wants to staff a military mission with volunteers in 6323(d) status, the proposal limits the Agency's ability to influence which employee will staff the mission in military status. If the Agency decides that it wants a particular technician to perform the mission, the proposal would limit the Agency's ability to communicate directly with that individual to solicit voluntary 6323(d) status. In either event, the proposal relates to the military mission, rather than to civilian employment, and attempts to influence the ability of military commanders to solicit individual volunteers for the mission in that pay status.

      We conclude that the proposal relates to the staffing of a military assignment and attempts to influence a military decision -- which employees will carry out military assignments in section 6323(d) status. The facts that the announcement is made to employees while they are in civilian status, that the proposal would not foreclose the Agency from requiring an employee to perform the assignment in a different military pay status, or that the pay, itself, is civilian pay, do not outweigh these critical military aspects of the proposal. Accordingly, we find that Proposal 6 is outside the duty to bargain because it does not concern a condition of employment.

VI.     Order

      Pursuant to 5 C.F.R. § 2424.10(b), the Union's petition for review is dismissed.


Opinion of Member Cabaniss, concurring in part:

      I write separately regarding Proposal 6 to express an additional rationale as to why this proposal concerns a military aspect of technician employment, and thus is outside the duty to bargain because it does not pertain to a condition of employment.

      The parties disputed before the Authority the meaning to be given this proposal, and the present decision interprets the proposal in the manner noted. While I think that manner of interpretation is consistent with Authority precedent, I also believe the meaning ascribed to the proposal by the Agency is an equally plausible interpretation of how the proposal would operate. Under the Agency's interpretation of the proposal, however, I would still find that the proposal does not pertain to a condition of employment because it concerns a military aspect of technician employment. In that regard, the manner in which the Agency "decides to offer bargaining unit technicians an opportunity to request leave under 5 U.S.C. § 6323(d)" would actually pertain to the Agency's ability to place these technicians in an active duty status, thereby providing them the opportunity to put in for this type of leave. While an agency always has the option of denying a leave request, I am not aware of how an agency could deny any employee the opportunity to request leave. Thus, even under the meaning given by the Agency to this proposal, the proposal would not pertain to a condition of employment and therefore would be outside the duty to bargain.


File 1: Authority's Decision in 55 FLRA No. 153 and Opinion of Member Cabaniss
File 2: Opinion of Member Wasserman


Footnote # 1 for 55 FLRA No. 153 - Authority's Decision

   The separate opinions of Member Cabaniss, concurring with respect to Proposal 6, and Member Wasserman, dissenting with respect to Proposal 6, appear at the end of this decision.


Footnote # 2 for 55 FLRA No. 153 - Authority's Decision

   The Authority's Regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.


Footnote # 3 for 55 FLRA No. 153 - Authority's Decision

   National Guard technicians are employed pursuant to 32 U.S.C. § 709 and possess "dual status." See, e.g., Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717, 732 (1985) (Montana ACT). Dual status technicians are civilian employees, but in order to be employed in technician positions they must maintain a compatible military status in the National Guard. In order to distinguish AGR technicians, who are full-time military personnel, from dual status technicians, who are civilians possessing military status, we will refer to the latter as "civilian technicians" or simply "technicians."


Footnote # 4 for 55 FLRA No. 153 - Authority's Decision

   In arriving at this result, we specifically note that the Agency makes no dominant requirement claim in connection with Proposal 3.


Footnote # 5 for 55 FLRA No. 153 - Authority's Decision

   The text of 10 U.S.C. § 976(c) is set forth in the Appendix to this decision.


Footnote # 6 for 55 FLRA No. 153 - Authority's Decision

   The Agency's argument that the proposal is inconsistent with 10 U.S.C. § 976 relates only to the proposal's effect on full-time AGR personnel. Therefore, it is unnecessary to discuss Authority case law that evaluates whether a proposal concerning dual-status technicians relates to the military or civilian aspects of technician employment. See Proposal 6, infra.


Footnote # 7 for 55 FLRA No. 153 - Authority's Decision

   The Agency also argues that Proposals 4 and 5 violate 10 U.S.C. § 976. However, in light of our disposition of these proposals, we find it unnecessary to address the Agency's contentions.


Footnote # 8 for 55 FLRA No. 153 - Authority's Decision

   According to the Agency, the "real meaning" of the proposal is to restrict its ability to announce any military assignment to technicians because the "opportunity" to use leave is the same as the opportunity to take part in a military mission. Statement of Position at 5. The terms of the proposal and the Union's statement of meaning, however, indicate that the proposal only applies to certain military assignments, rather than to every assignment. The proposal is expressly limited to circumstances where "the agency decides to afford [technicians] the . . . opportunity to request leave under" section 6323(d). Petition for Review at 2. The proposal would not apply in circumstances where a military commander made a military assignment without providing the opportunity to use leave under section 6323(d). See Response at 5


Footnote # 9 for 55 FLRA No. 153 - Authority's Decision

   Section 6323(d) of title 5 provides:

A military reserve technician . . . is entitled at such person's request to leave without loss of, or reduction in, pay . . . [or leave] for