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, 56 FLRA at 433.
It is apparent that an underlying Congressional purpose for the enactment of the Technicians Act was to ensure that the Guard retains technicians who are prepared to carry out its military mission. One obvious way to ensure the Guards ability to carry out its military mission is to have technicians train and practice in those inherently military skills that will be necessary to possess if called to military status. As such, military training touches upon the Act's underlying purpose, that is to assist the Agency in its ability to carry out its military mission. Accordingly, I would find that based on the above, the subject of the Union's proposed definition setting forth the parameters of what is and is not a military training duty, constitutes a military aspect of technician employment and is outside the duty to bargain under 5 U.S.C. § 7117(a).
File 1: Authority's Decision in 58 FLRA No. 9 and Appendix
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 58 FLRA No. 9 - Opinion of Chairman Cabaniss
Footnote # 2 for 58 FLRA No. 9 - Opinion of Chairman Cabaniss
Even if I were to agree with the Union that paragraph 6 was a severable proposal, I note that the parties have agreed that it is only negotiable at the election of the Agency. SOP at 9; Response at 14.
Footnote # 3 for 58 FLRA No. 9 - Opinion of Chairman Cabaniss
This is consistent with the Act itself which requires that a civilian technician maintain military membership in the National Guard. 32 U.S.C. § 709(b)(2). Moreover, the Court also noted that with respect to the relationship between our Statute and the Technicians Act:
The combined effect of the Labor-Management Act and the Technicians Act is to give National Guard technicians a limited right to negotiate over conditions of employment: But that right is circums