Mississippi Army National Guard, Jackson, Mississippi (Activity) and Association of Civilian Technicians (Petitioner/Union)

[ v57 p337 ]

57 FLRA No. 68

MISSISSIPPI ARMY NATIONAL GUARD
JACKSON, MISSISSIPPI
(Activity)

and

ASSOCIATION OF CIVILIAN TECHNICIANS
(Petitioner/Union)

AT-RP-00044

_____

DECISION AND ORDER ON
APPLICATION FOR REVIEW

June 29, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members

I.     Statement of the Case

      This case is before the Authority on the Activity's application for review of the Regional Director's (RD's) decision. [n1]  The Petitioner sought to represent the employees of the Mississippi Army National Guard (MSARNG). The RD found that the petitioned for unit constituted an appropriate bargaining unit and ordered an election.

      The Activity filed an application for review of the RD's decision under § 2422.31(a) of the Authority's Regulations on the grounds that the RD's Decision: (1) resolved certain issues without adequate precedent in support thereof; (2) resolved certain issues in contravention of established law; (3) committed prejudicial procedural error; and (4) committed prejudicial error concerning certain factual matters. Application at 5. The Activity also claims that the Authority has no jurisdiction over it. The Petitioner filed an opposition to the application for review.

      For the reasons that follow, we deny the Activity's application for review.

II.     Background and RD's Decision

      National Guard technicians are excepted service, dual status employees who must become and remain members of the National Guard, maintaining the particular military grade specified for their civilian positions. 32 U.S.C. § 709(a) and (b) (the Technicians Act).

      The RD found that the Adjutant General (TAG) serves as the Commander in Chief of the Mississippi National Guard (MSNG), which is composed of two subdivisions--the Air National Guard (MSANG) and the Army National Guard (MSARNG), both of which employ guard technicians.

      The RD found that, pursuant to 5 U.S.C. § 2105, the technicians are Federal employees. When the state National Guards administer the technicians program, they act in their federal capacity. The RD noted that the Authority considered arguments similar to those raised by the Activity in this case in Puerto Rico Air National Guard, 156th Airlift Wing (AMC) Carolina, Puerto Rico, 56 FLRA 174 (2000) (Puerto Rico ANG). The RD found that under the Technicians Act, 32 U.S.C. § 709(c), the MSNG is an activity under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7100 et seq., (the Statute) and that the Authority has jurisdiction in this case. The RD also found that the constitutionality of the application of the Statute to the National Guard had been established based upon existing precedent. The RD found that any military matters relating to the employment of guard technicians are beyond the Authority's purview, but this does not prohibit the establishment of an otherwise appropriate bargaining unit comprised of guard technicians.

      Finally, the RD considered whether the petitioned for unit constituted an appropriate unit based on the criteria set forth in § 7112(a) of the Statute. The RD noted the Activity's argument, in the alternative, that if there were to be a bargaining unit, it would have to include both the MSANG and MSARNG employees. The RD concluded that the Activity ignored the well-established principle that the Authority requires only that a proposed bargaining unit be an appropriate unit, not necessarily the only appropriate unit or the most appropriate unit. The RD concluded that the desired unit is an appropriate one under the Statute and directed that an election be held.

III.     Positions of the Parties

A.     The Activity

      The Activity argues that the Authority lacks subject matter jurisdiction over this matter. The Activity contends that the responsibility to recognize a federal union, as well as to bargain with it, falls upon an "agency" as defined by the Statute. The Activity asserts that § 7103(a)(3) of the Statute defines "agency" as "an [ v57 p338 ] Executive agency" of the federal government. According to the Activity, the MSNG, the Mississippi Military Department (MMD) and TAG are not a part of the Executive Branch of the federal government and, therefore, are not an "agency" as defined by the Statute.

      The Activity maintains that the MSNG is a part of Mississippi's organized militia and that the Governor of Mississippi, not the President, is the Commander in Chief of the MSNG. However, the Activity does admit that the President has certain statutory and constitutional authority over individual national guard members by virtue of their dual enlistment, both in the national guard of their state and the National Guard of the United States of America. See Application at 13 n.5.

      Moreover, the Activity asserts that the MSNG, MMD, and TAG are not a "facility, organizational entity, or geographical subdivision or combination thereof, of any agency" within the meaning of 5 C.F.R. § 2421.5. See Application at 17. Accordingly, the Activity argues that the MSNG, MMD, and TAG have no responsibility to recognize a labor organization purporting to represent MSARNG technicians. The Activity, relying on Printz v. United States, 521 U.S. 898, 935 (1997) (Printz), asserts that "an attempted commandeering of a state official such as TAG" to recognize and bargain with a labor organization "is patently unconstitutional." Application at 21.

      Next, the Activity argues that no bargaining unit may contain any guard technicians employed under 32 U.S.C. § 709 because guard technicians are essentially soldiers and unionization is per se incompatible with their military duties and the MSNG's mission. The Activity asserts that the history of the Technicians Act reveals that guard technicians are only "nominal" federal employees and that they are essentially soldiers, holding positions inherently military in nature. See Application at 23. In this regard, due to the military nature of the technicians' employment, the Activity contends that military personnel decisions involving collective bargaining of guard technicians are not justiciable by the Authority and the courts, pursuant to Feres v. United States, 340 U.S. 135, 142 (1950).

      The Activity also contends that the case as captioned at the hearing was inaccurate. The Activity asserts that neither the Petitioner nor the MSNG moved to add the National Guard Bureau (NGB) or TAG as a Party. [n2]  The Activity contends that the RD improperly added the NGB as a putative party to this proceeding, and that neither TAG nor the NGB were given any advance notice that they would be added as parties on the day of hearing. The Activity asserts that the FLRA's action therefore denied both NGB and TAG their "constitutionally guaranteed rights of due process." Application at 9.

      Finally, the Activity argues that, if there must be a unit, the only appropriate unit would be one consisting of all bargaining unit eligible wage grade and general schedule non-guard technicians employed by the MSNG statewide, including both MSARNG and MSANG technician personnel together. The Activity asserts that the petitioned for unit fails to meet the criteria for an appropriate bargaining unit. According to the Activity, the MSANG and MSARNG technicians share a community of interest. In this regard, the Activity contends that there is a high degree of commonality and integration of mission and function between the MSANG and the MSARNG.

      Additionally, the Activity contends that MSANG and MSARNG technicians are widely distributed throughout the organizational and geographic components of the MSNG and that there is a high degree of similarity between the occupational undertakings of the MSANG and MSARNG technicians. In this regard, the Activity asserts that the technicians from both services possess similar skills and work together on common equipment.

      The Activity argues that the petitioned-for unit would seriously hamper the MSNG's operations and efficiency and would not promote the efficiency of MSNG's military mission. The Activity also argues that the petitioned-for unit would not promote effective dealings with the MSNG or TAG. The Activity notes that the locus and scope of the technician personnel and labor relations oversight and authority is the same for both MSARNG and MSANG technicians.

B.     The Petitioner

      The Petitioner contends that the Activity overlooks that (1) in employing and administering technicians under 32 U.S.C. § 709, TAG by federal law acts as the designee of the federal service secretaries, per 32 U.S.C. § 709(d); (2) by federal law technicians are federal employees of a federal agency, per 32 U.S.C. § 709(e); (3) technicians therefore are employees who have collective bargaining rights under the Statute; and (4) Adjutants General by federal law act as "duly authorized representatives" of the federal agency for purpose [ v57 p339 ] of the Statute. [n3]  See Opposition at 8. According to the Petitioner, the Authority, over a period of many years, has certified at least 28 statewide Air or Army National Guard technician bargaining units, all of which continue to exist.

      The Petitioner asserts that the legislative history of 10 U.S.C. § 976, which prohibits collective bargaining in the military, expressly states that negotiation on behalf of technicians with respect to their performance of technician duties is not prohibited. The Petitioner relies on H.R. Rep. No. 95-894 (I), 95th Cong., 2d Sess. (February 22, 1978) at 5 (noting deletion from final bill of language in the Senate bill that would have applied the prohibitions to technicians and saying "that if unionized civilian technicians are a problem for the National Guard and Reserve components, it is one which should be addressed by independent legislation").

      The Petitioner also asserts that the technicians are federal employees of either the Department of the Army or the Air Force. 32 U.S.C. § 709(e). The Petitioner contends that the NGB is a joint Army and Air Force organization having statutory authority that includes establishing policies and programs for National Guard technicians. According to the Petitioner, the Department of Defense customarily delegates some of its responsibilities for labor relations with technicians to the Adjutants General. The Petitioner explains that when the Adjutants General act as the designated employers of the technicians for purposes of some labor relations matters, the Adjutants General or the state National Guards are "activities" of the federal "agency." Opposition at 7 (citing 5 C.F.R. § 2421.4).

      Finally, the Petitioner contends that the Activity ignores the principle that, to be an appropriate unit, a unit does not have to be the only appropriate unit, it needs to be an appropriate unit. The Petitioner contends that, Activity arguments to the contrary, the MSARNG and MSANG technicians work on different equipment. For example, the Petitioner contends that MSARNG technicians work on tanks while MSANG technicians work on fixed wing air craft. The Petitioner asserts that the petitioned for unit constitutes an appropriate unit.

IV.     Analysis and Conclusions

A.     The MSNG is an "Agency" or an "Activity" that is subject to the Authority's jurisdiction and to the Statute

      The National Guard has both state and federal functions. See New Jersey Air Nat'l Guard v. FLRA, 677 F.2d 276, 278-79 (3d Cir. 1982) (New Jersey National Guard) (the National Guard is hybrid with both state and federal functions). Because the National Guard is not a full-time active force, it employs civilian `technicians' to perform administrative, clerical, and technical tasks. United States Dep't of Defense, Nat'l Guard Bureau, Rhode Island Nat'l Guard, Rhode Island v. FLRA, 982 F.2d 577, 578 (D.C. Cir. 1993). These technicians are federal employees. See 5 U.S.C. § 2105. When the state National Guards administer the technicians program, they act in their federal capacity. See Technicians Act, 32 U.S.C. § 709(d) (the Secretary of the Army or the Air Force, as the case may be, shall designate the adjutants general . . . to . . .  employ and administer the technicians authorized by this section).

      Federal case law makes clear that state National Guard units act as federal agencies in matters concerning the employment of technicians. [n4]  Indeed, the U.S. Court of Appeals for the First Circuit has held that in matters arising under the Statute, the Guard is being sued in its capacity as a federal agency. FLRA v. Puerto Rico Nat'l Guard, No. 99-1293 (1st Cir. Nov. 23, 1999) (unpublished). See also Arkansas Nat'l Guard v. FLRA, No. 99-1563 (8th Cir. Aug. 30, 1999) (unpublished); FLRA v. Arkansas Nat'l Guard, No. 99-1974 (8th Cir. Oct. 14, 1999) (unpublished) (granting FLRA's petition for enforcement against a state National Guard).

      The Activity argues that the Statute is not constitutional to the extent that it applies to guard technicians. However, as set forth above, several circuit courts of appeal have found that national guard technicians may be in bargaining units. Further, we have no authority to review the constitutionality of the Statute. See NTEU v. FLRA, 986 F.2d 537, 540 (D.C. Cir. 1993). [ v57 p340 ]

      The Activity relies on Printz, 521 U.S. at 935, for the contention that the Federal government may not impose duties on state officials and, therefore, cannot compel the state officials to participate in the Federal labor relations program. Printz concerned the implementation of handgun registration under the Brady Handgun Violence Prevention Act. In Printz, the Court held that the Federal Government may not compel the States to enact or administer a federal regulatory program (background checks in that case). However, nothing in Printz is inconsistent with our conclusion that, unlike the program involved in Printz, the National Guard is a federal program, and when the state National Guards administer the technicians program, they act in their federal capacity. In this regard, the Technicians Act gives the guard technicians dual status as Federal civilian employees and as members of the States' national guards/militia. Nothing in the Activity's arguments demonstrates that the State of Mississippi is in any way exempted from or excluded from the Technicians Act while administering the technicians program. Accordingly, the Activity's reliance on Printz is misplaced.

      Therefore, the Activity's contention that the Authority has no jurisdiction over it is without merit and provides no basis for review of the RD's decision. See Puerto Rico ANG, 56 FLRA at 177-78; United States Dep't of Defense, Nat'l Guard Bureau, 55 FLRA 657, 660-61 (1999).

B.     A bargaining unit may contain guard technicians

      The Activity argues that the case involves a military--as opposed to civilian--controversy and that, therefore, the Authority lacks jurisdiction. Military matters are generally not justiciable. See, e.g., Wright v. Park, 5 F.3d 586, 590-91 (1st Cir. 1993). Although the Authority does not have jurisdiction over military matters, it does have jurisdiction over civilian matters that arise under the Statute. As set forth below, this case relates to the civilian aspect of technician employment, and, as a result, we conclude that the Authority has jurisdiction.

      It is well established that there is both a military and a civilian aspect to technician employment. See, e.g., NFFE, Local 1669, 55 FLRA 63, 66-67 (1999) (union proposal regarding technician uniforms relates to civilian aspect of technician employment and, therefore, is within the Guard's duty to bargain), enforced sub nom. FLRA v. Ark. Nat'l Guard, No. 99-1974 (8th Cir. Oct. 14, 1999); NFFE, Local 1623, 28 FLRA 633, 643 (1987) (proposal that relates to technicians' military status relates to military aspect of technician employment and, therefore, is not within the Guard's duty to bargain), aff'd sub nom. NFFE, Local 1623 v. FLRA, 852 F.2d 1349 (D.C. Cir. 1988) (NFFE, Local 1623).

      The long-standing precedent on this point is supported by both the language [n5]  and legislative history [n6]  of the Technicians Act. In addition, the technicians' dual status has been recognized by virtually every court and administrative forum to address the issue. See, e.g., NFFE, Local 1623, 852 F.2d 1349; Kostan v. Ariz. Nat'l Guard, 50 MSPR 182, 186 (1991) (Kostan).

      As explained above, the Authority does not rule on the constitutionality of the Statute. Further, technicians possess the same rights and privileges as other federal employees, except where specifically and expressly limited by law. See NFFE, Local 1623, 852 F.2d at 1350-51 (technicians covered under the Statute); Kostan, 50 MSPR at 186.

      Based on the foregoing, we find that the Activity's contention provides no basis for review of the RD's decision.

C.     The RD committed no prejudicial procedural error by changing the case caption to this proceeding

      The caption in the case was amended by the hearing officer to include the NGB and the TAG, in response to what was believed to be the Activity's request. The Activity now states that its intention was misunderstood--it did not want the NGB or the TAG to be listed in the case caption. Accordingly, we have captioned the [ v57 p341 ] case as originally designated in the petition: Mississippi Army National Guard. We note that the Petitioner has no objection to this caption change.

D.     An appropriate unit need not contain both MSARNG and MSANG technicians

      In his decision, the RD set forth and applied the appropriate criteria for determining whether a petitioned for unit constitutes an appropriate unit. In order for a unit to be considered appropriate, all three criteria--community of interest, effective dealings, and efficiency of agency operations--must be met. The Statute does not require that the proposed unit be the only appropriate unit or the most appropriate unit. AFGE, Local 2004, 47 FLRA 969, 972-73 (1993). Determinations as to each of the three appropriate unit criteria are made on a case-by-case basis. See United States Dep't of the Navy, Fleet and Industrial Supply Center, Norfolk, Va., 52 FLRA 950, 960 (1997) (FISC).

      In its application for review, the Activity does not contest the factual findings made by the RD. [n7]  However, the Activity challenges the RD's determination that the petitioned-for unit comprised solely of MSARNG employees constitutes an appropriate unit. The Activity argues that, if there is to be a bargaining unit, the only appropriate unit would be one that includes both the Army and Air Force components of the National Guard--MSARNG and MSANG.

1.     Community of Interest

      The fundamental premise of the first criterion -- that employees share a clear and identifiable community of interest -- is to "ensure that it is 'possible for them to deal collectively [with management] as a single group.'" See FISC, 52 FLRA at 960 (quoting Dep't of Transp., Fed. Aviation Admin., Southwest Region, Tulsa Airway Facilities Sector, 3 FLRC 235, 239 (1975)). In determining whether employees share a clear and identifiable community of interest, the Authority examines such factors as whether the employees in the proposed unit: are a part of the same organizational component of the agency; support the same mission; are subject to the same chain of command; have similar or related duties, job titles and work assignments; are subject to the same general working conditions; and are governed by the same personnel and labor relations policies that are administered by the same personnel office. See United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602 (1993). In addition, factors such as geographic proximity, unique conditions of employment, distinct local concerns, degree of interchange between other organizational components, and functional or operations separation may be relevant. See Div. of Military and Naval Affairs, New York Nat'l Guard, Latham, N.Y., 56 FLRA 139, 143 (2000); Def. Mapping Agency, Aerospace Ctr., St. Louis, Mo., 46 FLRA 502 (1992).

      The RD found that all MSARNG technicians are subject to common administrative, disciplinary and grievance schemes. The RD also found that most hold the same or similar occupational codes, possess similar skills, and frequently work on similar equipment. See RD's Decision at 11. Based on these factors, the RD found that the MSARNG technicians statewide share a sufficient community of interest to justify a finding that the petitioned for unit is appropriate.

      The Activity contends that only a unit including both MSANG and MSARNG technicians is appropriate because the MSANG technicians share that same community of interest as MSARNG technicians and points to similar personnel authorities, job classifications, and types of assignments. However, the fact that the MSARNG and MSANG technicians may share a community of interest, and thus, could be included in one, state-wide unit, does not establish that the MSARNG employees do not share a separate community of interest. The Statute does not require that the proposed unit be the only or the most appropriate unit, only that it be an appropriate unit. AFGE, Local 2004, 47 FLRA 969, 972-73 (1993). See 5 U.S.C. § 7112 (units may be established on "agency, plant, installation, functional, or other basis"). Thus, the fact that the unit proposed by the Activity is likely appropriate does not mean that the petitioned for unit is inappropriate.

      Moreover, while the Activity asserts that the MSARNG and MSANG technicians have similar occupations and that the technicians may interact, the Activity has failed to demonstrate that the MSARNG and MSANG technicians are so fully integrated that they do not have a separate community of interest. In this regard, the record shows that, pursuant to 32 U.S.C. § 709(e), the MSARNG technicians follow one chain of command and that they are employees of the Department of the Army. The MSANG employees follow a separate chain of command and they are employees of the Department of the Air Force. While the Activity points to certain instances where there is overlap in the [ v57 p342 ] supervision of the two groups of employees, these exceptions do not establish that the MSARNG is not a separate organizational unit with a distinct chain of command.

      Based on the record information, we conclude that although there are similarities between the technicians that could support a unified unit, the Activity has provided no basis from which to conclude that a unit of MSARNG and MSANG technicians is the only appropriate MSNG unit or that the petitioned for unit does not have an appropriate community of interest.

2.     Effective dealings

      The effective dealings criterion pertains to the relationship between management and the exclusive representative selected by the proposed unit. FISC, 52 FLRA at 961. The factors bearing on this criterion include the locus and authority of the office that administers personnel policies affecting the proposed unit and the past collective bargaining experience of the parties. The RD noted that there is no past collective bargaining agreement to consider. RD's Decision at 11.

      The Activity contends that the petitioned for unit of only MSARNG technicians is inconsistent with the effective dealings criterion and would disrupt the MSNG's unified supervisory, grievance and command structure. However, the Activity has not provided concrete examples of how effective labor relations would be undermined by its organizational structure. As noted above, the basic organization and functions of the technician workforce in the MSNG are established along lines which separate the Army and Air Force components. The fact that certain Army and air Force technicians interact on a daily basis, and that there is limited supervisory overlap between the two groups, does not establish that effective labor relations could not be conducted between the Union and the Activity with respect to an MSARNG bargaining unit. Further, the supposed "falsehoods" in the Union's testimony to the RD, cited by the Activity, Application at 49-53, do not relate directly to the question of whether effective labor relations could be established between the two parties.

      The Activity also makes the argument that "[p]erhaps more importantly, however, as discussed above, the interjection of union-rules and organizational intervention with respect to [guard] technicians, is per se inappropriate, and fundamentally incompatible with the MSNG's military mission." Id. at 49. However, as noted above, Congress has made a determination that collective bargaining is appropriate for technicians, and the Authority is not in a position to second-guess this determination. We find that the Activity has not demonstrated that the petitioned-for unit would harm effective dealings.

3.     Efficiency of operations

      The efficiency of operations criterion pertains to whether the structure of the bargaining unit bears a rational relationship to the operational and organizational structure of the agency. FISC, 52