File 2: Opinion of Chairman Cabaniss

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Opinion of Chairman Cabaniss, concurring in part and dissenting in part:

      I write separately in concurrence regarding the impact of 32 U.S.C. § 709(b)(3) [n1]  and its reference to "while performing duties as a technician." When Congress took action to include this phrase in the statute, I question whether it meant to codify an interpretation of the statute already provided by NAGE, Local R3-84, 23 FLRA 536, 539 (1986) (NAGE). However, and as already discussed in ACT, Roughrider Chapter, 56 FLRA 256, 257 (2000) (ACT), in the absence of some congressional reference to a different interpretation of this phrase, I am constrained to ascribe that same meaning to the present contract language in question, even though I note that reliance on NAGE in the ACT case appears questionable to some extent. [n2] 

      I would not, however, construe NAGE or ACT to apply to an employee acting as an agency witness. Rather, I would find such conduct to be part of the "duties as a technician" referenced above because that activity is controlled by an agency and is primarily for the benefit of the agency. While it is not necessarily clear that having an employee testify falls under the Agency's right to assign work under § 7106(b)(2), there has been no explanation why the two concepts are supposed to be the s