File 2: Opinion of Chairman Cabaniss

[ v58 p32 ]

Concurring Opinion of Chairman Cabaniss

      I agree in result with the majority's opinion that the proposal is nonnegotiable. However, with respect to the basis for reaching this result, I write separately to express my views regarding those arguments and considerations that further preclude bargaining over these proposals.

      The first matter the Union seeks to negotiate is its proposed definition of a military training duty, in paragraph 1. For the reasons expressed below, I find that the Union's attempt to negotiate what is, and presumably is not, a military training duty, is outside the duty to bargain as it is contrary to the Technicians Act. [n1] 32 U.S.C. § 709 et seq (Act). Given this determination, I would also find it unnecessary to inquire as to whether any of the Union's remaining portions of the proposal may be severed, as those portions either derive their meaning from this proposed definition, or fall under the Union's proposed heading "9-2b Military Training Duty " which derives its meaning from paragraph 1. [n2] See ACT, New York State Council, 56 FLRA 444, 448 (2000); NAGE, Federal Union of Scientists and Engineers, Local R1-144, 42 FLRA 1285, 1293-94 (1991) (proposal which derives meaning from a proposal which is inconsistent with law also found to be nonnegotiable); FOP, Lodge #1F, 57 FLRA 373, 390 (2001) (finding that a union may not include through incorporation matters which could not be included directly through collective bargaining).

      In concluding that this proposal also conflicts with the Technicians Act, I note the D.C. Circuit's decision in NFFE, Local 1623 v. FLRA, 852 F.2d 1349, 1351 (D.C. Cir. 1988) (Local 1623), wherein the court stated that "[w]e have said of the Technicians Act that `military preparedness is [its] sine qua non' [an indispensable requisite or condition] and that its `mandate is to preserve the Guard's military effectiveness and efficiency . . . [by] ensuring the Guard's ability to recruit and retain technicians qualified for both their civilian and military roles.'" Quoting AFGE, Local 2953 v. FLRA, 730 F.2d 1534, 1546 (D.C. Cir. 1984). [n3] I also note that the Authority has previously found that, "National Guard technicians may not bargain concerning military aspects of civilian technician employment." Lone Star, 55 FLRA at 1228, 1229, citing 32 U.S.C. § 709(b) (which requires that a dual status technician be "a member of the National Guard") see also, Lone Star II</