Association of Civilian Technicians, Texas Lone Star Chapter 100 (Texas Association) and U.S. Department of Defense, National Guard Bureau, State of Texas, Adjunct General'S Department (Texas National Guard) and Association of Civilian Technicians, ATC, Wisconsin 26 (Wisconsin Association) and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, State of Wisconsin (Wisconsin National Guard)

[ v56 p432 ]

56 FLRA No. 63

ASSOCIATION OF CIVILIAN TECHNICIANS
TEXAS LONE STAR CHAPTER 100
(Texas Association)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
STATE OF TEXAS
ADJUNCT GENERAL'S DEPARTMENT
(Texas National Guard)

0-NG-2492

and

ASSOCIATION OF CIVILIAN TECHNICIANS
ATC, WISCONSIN 26
(Wisconsin Association)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
DEPARTMENT OF MILITARY AFFAIRS
STATE OF WISCONSIN
(Wisconsin National Guard)

0-NG-2485
(55 FLRA 1226 (2000))

_____

ORDER DENYING MOTION
FOR RECONSIDERATION

June 7, 2000

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      These cases are before the Authority on the Texas Association's and Wisconsin Association's (the Unions') motion for reconsideration of the Authority's Order dismissing the Unions' petitions for review of two proposals. [n1]  Association of Civilian Technicians, Texas Lone Star Chapter 100 and U.S. Department of Defense, National Guard Bureau, State of Texas, Adjutant General's Department and Association of Civilian Technicians, ATC, Wisconsin 26 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, State of Wisconsin, 55 FLRA 1226 (2000) (ACT, Texas and Wisconsin). The Texas National Guard and Wisconsin National Guard (the Agencies) did not file an opposition to the motion.

      For the reasons that follow, we deny the Unions' motion.

II.     Decision in 55 FLRA 1226

      In ACT, Texas and Wisconsin, the Authority found that the Unions' proposals, which would prohibit the Agencies from enforcing the military grade inversion policy as it applies to Wage Leaders, are outside the duty to bargain because they concern a military aspect of technician employment. The military grade inversion policy requires that the military rank of technician supervisors must not be lower than the rank of employees that they supervise.

      The Authority clarified that "the conclusion that National Guard technicians may not negotiate over military aspects of civilian employment is not compelled by the definition of conditions of employment contained in section 7103(a)(14) of the Statute." Id. at 1229. Instead, the Authority held, "the conclusion results from the application of 10 U.S.C. § 976, the Technicians Act, and section 7117(a) of the Statute." [n2]  Id. The Authority stated that the prohibition applies to the military aspects of civilian technician employment "without regard to whether or not they are either (1) within the sole discretion of an agency or (2) specifically provided for by law." Id. Examining the legislative history of 32 U.S.C. § 709(b) [n3]  and applying long standing Authority precedent, the Authority dismissed the petition. See id. at 1229-30. [ v56 p433 ]

III.     Unions' Motion for Reconsideration

      The Unions request reconsideration on the basis that "the Authority's holdings and reasoning are contrary to law." Motion for Reconsideration at 1 (Motion). The Unions argue that the Authority erred in two respects.

      First, the Unions assert that the Authority incorrectly held that 10 U.S.C. § 976(c) prohibits negotiation of military aspects of technician employment. According to the Unions, section 976 applies only to "a member of the National Guard who is serving on full-time National Guard duty[.]" Id. at 3 (quoting 10 U.S.C. § 976(a)(1)) (emphasis in Motion). As such, the Unions assert that "[s]ection 976(c) does not restrict negotiation, on behalf of technicians, of any term or condition that would apply only during the performance of technician employment duties." Id.

      Second, the Unions argue that the Authority incorrectly held that, under 32 U.S.C. § 709, the subject matter of the proposals is within the unfettered discretion of the Agency. Specifically, the Unions assert that "[s]ection 709(b)(3), which gives the [A]gency discretion to determine military grades for technician positions, does not vest that discretion `notwithstanding any other provision of law,' and nothing in the legislative history of the [Technicians A]ct states that the [A]gency's discretion is to be unfettered." Id. at 4.

IV.     Analysis and Conclusions

      Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration of a final decision or order of the Authority bears the heavy burden of establishing that extraordinary circumstances exist to justify this unusual action. See U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 85 (1995). The Authority has found that extraordinary circumstances exist, and has granted reconsideration, in a limited number of situations, including where the Authority had erred in its remedial order, process, conclusion of law, or factual finding. A moving party's disagreement with the conclusion reached by the Authority is insufficient to satisfy the extraordinary circumstances requirement. Id. at 85-87.

A.     The Authority properly held that 10 U.S.C. § 976 prohibits negotiation of "military aspects of civilian employment."

      Section 976(c) prohibits negotiations "on behalf of members of the armed forces, concerning the terms or conditions of service of such members[.]" As set forth in ACT, Texas and Wisconsin, the Authority has consistently held that section 976(c) and 32 U.S.C. § 709(b) prohibit bargaining concerning "the military aspects of technician employment." Association of Civilian Technicians, Schenectady Chapter and U.S. Department of Defense, National Guard Bureau, New York Air National Guard, Latham New York, 55 FLRA 925, 932-33 (1999) (ACT, New York) (Member Cabaniss, concurring in part as to Proposal 6, and Member Wasserman, dissenting in part as to Proposal 6), appeal filed sub nom. Association of Civilian Technicians, Schenectady Chapter v. FLRA, No. 99-1476 (D.C. Cir. Nov. 22, 1999); National Federation of Federal Employees, Local 1669 and U.S. Department of Defense, Arkansas Air National Guard, 188th Fighter Wing, Fort Smith, Arkansas, 55 FLRA 63, 65 (1999), enforced sub nom. Arkansas National Guard v. FLRA, No. 99-1563, 99-1974 (8th Cir. Oct. 14, 1999); Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters, 120th Fighter Interceptor Group, (ADTAC), 20 FLRA 717, 739 (1985) (ACT, Montana).

      The Authority has held that the crucial distinction in applying section 976 is not an individual's status at a particular time, but whether a proposal relates to military service or civilian employment. See id. In this regard, section 976 prohibits bargaining over the "terms and conditions of service" of active duty members of the National Guard and is not limited to those terms only while those individuals are in active duty. Consistent with this plain wording, bargaining is prohibited over terms and conditions relating to active military service, without regard to whether the employee is in a civilian or military capacity. See, e.g., Delaware Chapter, Association of Civilian Technicians and Delaware National Guard, 28 FLRA 1030, 1032-35 (1987). This implements Congress' intent that civilian conditions of employment -- but not conditions of military service -- [ v56 p434 ] be subject to collective bargaining. See ACT, Montana, 20 FLRA at 739.

      The Unions' arguments do not provide a basis for departing from this longstanding precedent. Accordingly, the Unions have failed to establish extraordinary circumstances warranting reconsideration of 55 FLRA 1226.

B.     The Authority did not hold that the grade inversion policy is within the Agency's unfettered discretion.

      In ACT, Texas and Wisconsin, the Authority did not hold that the military grade inversion policy is within the Agency's unfettered discretion. The Authority stated that military aspects of technician employment are "outside the duty to bargain without regard to whether they are . . . within the sole discretion of an agency[.]" 55 FLRA at 1229 (emphasis added). As such, the Unions' claim -- that the Authority incorrectly held that the military grade inversion policy is within the unfettered discretion of the Agency -- fails to establish extraordinary circumstances warranting reconsideration of 55 FLRA 1226. [n4] 

V.     Order

      The Unions' motion for reconsideration is denied.



Footnote # 1 for 56 FLRA No. 63

   The proposal in ACT, Texas provides the following:

An employee shall be eligible to apply for, to be selected for, and to be appointed to, a Wage Leader position, or a position that requires work with a Wage Leader, without restriction based on whether the employee's appointment would result in the Wage Leader having a military rank below that of any employee with whom the Wage Leader works.
The proposal in ACT, Wisconsin provides the following:
A Wage Leader employee shall not, as a condition of employment, be required to hold a military rank which is equal to or exceeds the military ranks of the employees with whom the Wage Leader works.

Footnote # 2 for 56 FLRA No. 63

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

negotiate or bargain, or attempt to 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[.]

Footnote # 3 for 56 FLRA No. 63

   Section 709(b) of the Technicians Act, 32 U.S.C. § 709(b), provides:

(b)     Except as authorized in subsection (c), a person employed under subsection (a) must meet each of the following requirements:
(1)     Be a military technician (dual status) as defined in section 10216(a) of title 10.
(2)     Be a member of the National Guard.
(3)     Hold the military grade specified by the Secretary concerned for that position.
(4)     While performing duties as a military technician (dual status), wear the uniform appropriate for the member's grade and component of the armed forces.

Footnote # 4 for 56 FLRA No. 63

   The Unions also claim that footnote 7 in