Association of Civilian Technicians, Wichita Air Capitol Chapter (Union) and United States Department of Defense, National Guard Bureau, Kansas National Guard, Topeka, Kansas (Agency)

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58 FLRA No. 9

ASSOCIATION OF CIVILIAN TECHNICIANS
WICHITA AIR CAPITOL CHAPTER
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
KANSAS NATIONAL GUARD
TOPEKA, KANSAS
(Agency)

0-NG-2581

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

September 6, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, 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 one proposal. For the reasons which follow, we find that the Union's proposal is nonnegotiable.

II.     Proposal

9-2b MILITARY TRAINING DUTY:
1.     For purposes of this Section, "military training duty" is duty that is (1) required by a written policy or regulation that is applicable to members of the National Guard irrespective of whether they are employees, (2) designed to impart or to measure proficiency in a military skill, and (3) required by written policy or regulation to be performed for a specified period of time, or with a specified frequency, or until a specified level of proficiency is achieved. Examples of military training duties are rifle qualification and training in the wear of garments designed to afford protection from chemical weapons (Chem Gear).
2.     The agency shall include in an employee's written position description each military training duty that the agency expects to assign, as work, to that employee. The agency shall provide contemporaneous written notice to each employee of any amendment of the employee's position description to include a military training duty. The notice shall include the following statement: "Agency representatives are available to meet with you, any other similarly-affected employees, and your Chapter representatives to discuss this amendment, to answer questions, and to listen to any concerns that may be expressed regarding this change. If you would like to have a meeting for this purpose, contact your chapter representatives." Agency representatives shall be available to meet with employees and chapter representatives for this purpose. A military training duty shall be included in an employee's position description no less than four months before that duty is assigned to the employee, unless the agency delivers to the employee and the chapter a written statement of facts and reasons explaining why the agency did not do so.
3.     The agency shall provide the chapter a list of all bargaining unit position descriptions that include any military training duties. The list shall identify which military training duties are included in each position description. The agency shall provide the chapter contemporaneous written notice of any change to the listed information. The notice shall include the facts and reasons stated to any bargaining unit employee as the explanation for including a military training duty in the employee's position description less than four months before the employee was assigned the duty.
4.     Upon request by the chapter, the agency shall negotiate the impact and implementation of military training duty assigned to any employee as work.
5.     If the agency assigns an employee to perform, as work, any military training duty, the agency shall assign the work by written order that: (1) identifies the employee by name and position; (2) identifies and quotes the portion of the written policy or regulation that requires performance of the duty and specifies the period of time, frequency, or level of proficiency required, (3) describes the specific military skills to be imparted or military proficiency to be tested; (4) states the date, time, and place the duty will begin, and the expected duration [ v58 p29 ] of the duty for each separate period of duty time; (5) is delivered to the employee no less than thirty days before the duty will begin, unless the order states facts and reasons explaining why the agency is providing shorter notice; (6) describes the type, severity, and relative frequency of occurrence of any injury or illness that is known to have resulted from past performance of the duty or that is foreseeable; (7) describes precautionary measures that the agency will take and that the employee may take to reduce the risk of injury; (8) describes measures that the agency will take to provide prompt, effective treatment in the event injury does occur; (9) includes the following statement: "Agency representatives are available to meet with you, any other similarly-affected employees, and your chapter representatives to discuss this assignment of work, to answer questions, and to listen to any concerns that may be expressed regarding it. If you would like to have a meeting for this purpose, contact your chapter representatives." Agency representatives shall be available to meet with employees and chapter representatives for this purpose.
6.     While the agency may require an employee to wear Chem Gear as an assignment of work, the agency shall not require an employee to wear Chem Gear as a method and means of performing work.

III.     Preliminary Matter

      The Union requests severance if the proposal is found nonnegotiable. Specifically, the Union asserts that paragraphs 2, 3, 4, 5 and 6 can all operate individually as separate proposals. It also contends that the third and fourth sentences in paragraph 2, the first and third sentences within paragraph 3, and each requirement, i.e., 1-9, in paragraph 5 could also operate independently.

      The Agency argues that the proposal may only be treated as a whole as it is "integrally related." Statement of Position (SOP) at 13, citing NAGE, Local R14-23, 54 FLRA 1302, 1311 (1998). It contends that when viewed as a whole it is clear that the proposal would serve to only "hamstring the military training of technicians." SOP at 13.

      The Authority's regulations require a union to "support its request with an explanation of how each severed portion of the proposal . . . may stand alone, and how such severed portion would operate." 5 C.F.R. § 2424.2(h); 2424.22(c); 2424.25(d). In this case, the Union states only that various portions of the proposal "are severable," Petition for Review at 6, and are "capable of standing alone." Response at 14. As the Union makes no attempt to explain how the severed portions would stand alone or otherwise operate, we find that the request for severance fails to comply with the regulatory requirements and deny it on that basis.

IV.     Positions of the Parties

A.     Agency

      The Agency argues that the proposal would serve only to "undermine the effectiveness and efficiency of the workforce and degrade the mission-readiness of the organization." SOP at 5. The Agency maintains that the proposal is so broad that it would impact all members of the National Guard, even if they were not employees. Id. at 5. It contends that the proposal is not limited to technicians working in their civilian status, but rather "[b]ased upon the way the union has defined military training duties . . . it is obvious that the Union proposal addresses clearly military matters." Id. at 6. The Agency also maintains that the nature of the proposal, and not the status of the technicians when engaged in such activity, is important in deciding whether the proposal is nonnegotiable under 10 U.S.C. § 976(c). SOP at 6, citing Association of Civilian Technicians, Schenectady Chapter v. FLRA, 230 F.3d 377 (D.C. Cir. 2000) (ACT, Schenectady).

      The Agency claims that technicians must remain proficient in their "military occupational specialty" which is required in order to maintain military membership under 32 U.S.C. § 709. Id. at 5-6. The Agency argues that the proposal could undermine compatibility between the "civilian and military job assignments of technicians' dual status employment," arguing that "[t]he performance of military training duties is directly linked to the military compatibility of the technician's position." Id. at 7,8, citing NAGE, Local R14-87, AFL-CIO, 18 FLRA 736, 737 (1985) and Agency Regulation TPR 300 (302.7) (setting forth the Agency regulation within that decision).

      The Agency also argues that the Authority has found that "Military Training Duties" are not conditions of employment under § 7103(a)(14), and that technicians may not negotiate over military aspects of their civilian technician employment. SOP at 7-8; citing ACT, Texas Lone Star Chapter 100, 55 FLRA 1226 (2000) (Lone Star I) aff'd ACT, Texas Lone Star Chapter 100 v. FLRA, 250 F.3d 778 (D.C. Cir. 2001); 10 U.S.C. § 976(c); 32 U.S.C. § 709; 5 U.S.C. § 7103(a)(14). The Agency states that negotiation [ v58 p30 ] would be inconsistent with § 976(c) and § 7103(a)(14) as it would allow for arbitration as to the Agency's decisions and interpretations of military matters. Id., citing Lone Star.

B.     Union

      The Union argues that this proposal "applies only to assignment of particular duties that the agency, in exercise of its unfettered discretion, chooses to assign to employees as civilian employment work, to be done during civilian employment duty hours, for civilian employment pay." Response at 2. It claims that to the extent the "agency does not choose to assign these duties as civilian employment work, the proposal has no applicability." Id. Therefore, it argues, negotiation cannot be precluded under 10 U.S.C. § 976(c), which only applies to conditions of military service.

      The Union also argues that it is not the nature of the task that is important, but rather that a technician is performing it while working as a civilian. Therefore, the Union contends, "[i]f the technician performs the task as assigned civilian employment work, during civilian employment duty hours, for civilian pay, then the task, when performed at that time, is a condition of civilian employment." Id. at 4. In support, the Union cites ACT, Arizona Army Chapter 61, 48 FLRA 412, 417 (1993) (ACT, Arizona). Further, the Union contends that, to the extent the proposal requires the Agency to include certain information in employees' position descriptions, the inclusion of that information is negotiable. Response at 5, citing ACT, Pennsylvania State Council, 29 FLRA 1292, 1300 (1987) (ACT, Pennsylvania).

      The Union claims that the Agency's argument that the proposal violates the "military compatibility requirement" of TPR 300(302.7) and 32 U.S.C. § 709, is erroneous. Id. The Union argues that the proposal does not limit the Agency's ability to assign military skills training, during military status, nor does the proposal preclude the assignment of these tasks to technicians while serving in a civilian employee status. Id. at 7. Moreover, it states that the proposal would not have any force or affect if the Agency determined that an emergency had taken place under § 7106(a)(2)(D), and that the proposal would allow immediate training if the Agency writes a statement of facts and reason for needing such training in the absence of notice.

      The Union also argues that the Authority previously erred in finding that "military aspects of technician employment" are nonnegotiable. Response at 9, citing Lone Star, 55 FLRA 1226. It asserts that § 976 and § 709 do not state that military aspects of technician employment are nonnegotiable. Similarly, the Union asserts that the Authority has never determined that civilian employment procedures, even when they touch upon matters that are military in nature, are nonnegotiable. Response at 11, citing ACT, Arizona, 48 FLRA at 417.

V.     Meaning of the Proposal

      The Union's proposal would require the Agency to include any military training duty assigned as work in a technician's position description, with notice to the Union prior to such inclusion and an opportunity to discuss the inclusion with technicians. It also would require that such military training would be assigned as work only under certain parameters including an opportunity to discuss the Agency's decision with both the Union and technician. The proposal would also require the Agency to engage in impact and implementation bargaining where a technician is assigned a military training duty as work and would restrict the Agency from requiring employees to wear Chem Gear as a methods and means of performing work.

VI.     Analysis and Conclusions

      Under 10 U.S.C. § 976(c), bargaining over the "terms and conditions" of military service is prohibited. The Authority has previously determined that "terms and conditions" are interpreted in a broad manner so that with respect to dual status technicians, whose day-to-day work lives have both civilian and military components, the prohibition applies to military aspects of civilian technician employment. Those terms and conditions are outside the duty to bargain without regard to whether or not they are either (1) within the sole discretion of an agency or (2) specifically provided for by law. See Lone Star, 55 FLRA at 1229.

      A technician's status at the time a proposal would operate is not critical in applying § 976(c), but rather, the crucial distinction is whether the proposal relates to military service or civilian employment. ACT, Texas Lone Star Chapter 100, 56 FLRA 432, 433 (2000) (Lone Star II) aff'd ACT, Texas Lone Star Chapter 100 v. FLRA, 250 F.3d 778 (D.C. Cir. 2000). This is consistent with ACT, Schenectady, 230 F.3d at 379, which held:

But the status of the technicians at the time of the negotiation cannot matter. No one would claim that § 976(c) permitted the union to bargain about the type of uniform the technicians would wear when they were called to full-time duty (or training, see 32 U.S.C. § 502(a)(1)). What does matter [ v58 p31 ] is the substance of the proposal to be negotiated. See United States Dep't of the Navy v. FLRA, 952 F.2d 1434, 1440-42 (D.C. Cir. 1992).

      Section § 976(c) prohibits negotiations "on behalf of members of the armed forces, concerning the terms or conditions of service of such members." The proposal in this case concerns "military training duties," which are defined as duties required for all members of the National Guard, whether or not employees, "designed to impart or measure proficiency in a military skill" and requiring the achievement of "a specified level of achievement." Examples of such duties include "rifle qualifications" and "training in the wear of garments designed to afford protection from chemical weapons." Proposal 9-2b(1). It is clear that the military training duties that are the subject of the proposal are military skills required because an individual is a member of the National Guard -- not skills based in the individual's civilian status. As a result, it is also clear, that the military training duties constitute a "condition of service" under § 976(c).

      Paragraph 5 of the proposal conditions the assignment of military training duties on a variety of requirements, including bargaining over the impact and implementation of the assignment and 30 days' notice to affected employees. These requirements, among others, clearly "concern" the military training duties that, in turn, constitute the "condition of service" under § 976(c). As a result, we find that paragraph 5, if within the duty to bargain, would require the Agency to "negotiate . . . concerning the terms or conditions of service" of members of the armed forces and, as a result, runs afoul of § 976(c). [n2] Because paragraph 5 of the proposal is inconsistent with § 976(c), it is outside the duty to bargain under §7117 of the Statute and, because the Union's request to sever the proposal is denied, the petition for review as to the entire proposal should be dismissed. [n3] 

VII.     Order

      The petition for review is dismissed.


Appendix

32 U.S.C. § 709

  (a)     Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsections (b) and (c), persons may be employed as technicians in --

      (1)     the administration and training of the National Guard; and

      (2) the maintenance and repair of supplies issued to the National Guard or the armed forces.

  (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.

10 U.S.C. § 976(c)

  (c)     It shall be unlawful for any person--

      (1)     to enroll in a military labor organization any member of the armed forces or to solicit or accept dues or fees for such an organization from any member of the armed forces; or

      (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;

      (3)     to organize or attempt to organize, or participate in, any strike, picketing, march, demonstration, or other similar form of concerted action involving members of the armed forces that is directed against the Government of the United States and that is intended to [ v58 p32 ] induce any civilian officer or employee, or any member of the armed forces, to--

      (A)     negotiate or bargain with any person concerning the terms or conditions of service of any member of the armed forces,

      (B)     recognize any military labor organization as a representative of individual members of the armed forces in connection with any complaint or grievance of any such member arising out of the terms or conditions of service of such member in the armed forces, or

      (C)     make any change with respect to the terms or conditions of service in the armed forces of individual members of the armed forces; or

      (4)     to use any military installation, facility, reservation, vessel, or other property of the United States for any meeting, march, picketing, demonstration, or other similar activity for the purpose of engaging in any activity prohibited by this subsection or by subsection (b) or (d).


File 1: Authority's Decision in 58 FLRA No. 9 and Appendix
File 2: Opinion of Chairman Cabaniss


Footnote # 1<