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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 same, and I would not define the scope of "performing duties as a technician" under 32 U.S.C. § 709 to confine it to just those matters falling under our Statute's definition of the right to assign work. However, I note by analogy that even an agency's direction to an employee to engage in official travel gives rise to sufficient agency control of the matter to constitute the assignment of work. See AFSCME, Local 3097, 42 FLRA 412, 470 (1991) (official travel constitutes the assignment of work and is primarily for the benefit of the Government). I would, therefore, find that testifying as an agency witness constitutes a type of "duties as a technician" subject to 32 U.S.C. § 709(b)(3). Accordingly, I would find no duty to bargain over that portion of the contract language in question attempting to regulate Agency witnesses because of the conflict with that statute.
File 1: Authority's Decision in 57 FLRA No. 19
File 2: Opinion of Chairman Cabaniss
Footnote # 1 for 57 FLRA No. 19 - Opinion of Chairman Cabaniss
I note this section has been modified to subsequently become 32 U.S.C. § 709(b)(4) by virtue of the National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 524, 113 Stat. 512, 599 (1999).
Footnote # 2 for 57 FLRA No. 19 - Opinion of Chairman Cabaniss
While NAGE addressed, inter alia, proposals dealing with employees as union representatives or witnesses, the rationale in that case only discussed precedent dealing with union representatives and other union-designated employees, and made no attempt to explain or justify why that rationale applied to employees acting merely as witnesses.