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

[ v60 p342 ]

60 FLRA No. 73

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
(58 FLRA 28 (2002))
(58 FLRA 483 (2003))

_____

DECISION AND ORDER ON REMAND

October 22, 2004

_____

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 remand from the United States Court of Appeals for the District of Columbia Circuit in Association of Civilian Technicians, Wichita Air Capitol Chapter v. FLRA, 360 F.3d 195 (D.C. Cir. 2004) (Wichita Air Capitol Chapter) (reviewing 58 FLRA 28 (2002) (ACT, Wichita), reconsideration denied 58 FLRA 483 (2003)). In the original matter, ACT, Wichita, the Union filed a petition for review on a negotiability matter under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review concerned one proposal, consisting of six paragraphs. The Authority denied the Union's request that the proposal be severed on the ground that the request failed to comply with the Authority's regulatory requirements governing severance. The Authority determined that the proposal was nonnegotiable as it was inconsistent with 10 U.S.C. § 976. The D.C. Circuit reversed this determination and remanded the matter of the proposal's negotiability to the Authority for further processing. [n2] 

      In this decision, we address the additional arguments raised by the parties concerning the proposal. For the reasons that follow, we find that the proposal affects the Agency's right to assign work and is outside the duty to bargain. Accordingly, we dismiss the petition for review.

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 [ v60 p343 ] 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 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.     The Court's Decision

      As noted previously, the court held that the proposal was not inconsistent with 10 U.S.C. § 976, which "makes it a crime to bargain on behalf of members of the armed forces over the terms or conditions of their military service." 360 F.3d at 196. Recognizing that "[t]echnicians may engage in collective bargaining" under § 7102 of the Statute, id., the court stated that 10 U.S.C. § 976

does not prohibit bargaining over terms or conditions of National Guard service in all circumstances. It prohibits only bargaining concerning terms or conditions of full-time National Guard duty on behalf of members who are serving on fulltime National Guard duty. When the Guard chooses to assign military training duties to technicians in their civilian capacity, those duties also become terms or conditions of civilian employment. Because the technicians perform those duties while serving in their civilian capacity, they are not, at that time, "serving on full-time National Guard duty." The union thus seeks to bargain not "on behalf of members of the armed forces, concerning the terms or conditions of service of such members," but rather on behalf of civilian technicians concerning the terms or conditions of their civilian employment.

360 F.3d at 198.

      The court reiterated that "the substance of the proposal here concerns the performance of duties, albeit of a military nature, assigned during hours of civilian employment." Id. at 199-200.

IV.     Positions of the Parties

A.     Agency

      The Agency argues that the proposal is outside the duty to bargain because it is inconsistent with the National Guard Technicians Act, 32 U.S.C. § 709, does not concern a condition of employment under [ v60 p344 ] § 7103(a)(14) of the Statute and is contrary to § 7106(a)(2)(B) of the Statute.

      With respect to its first argument, the Agency claims that technicians must remain proficient in their "military occupational specialty" in order to maintain military membership under 32 U.S.C. § 709. Statement of Position (SOP) 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) (NAGE) 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) aff'd ACT, Texas Lone Star Chapter 100 v. FLRA, 250 F.3d 778 (D.C. Cir. 2001)) (ACT, Texas Lone Star); 10 U.S.C. § 976(c); 32 U.S.C. § 709; 5 U.S.C. § 7103(a)(14). The Agency states that negotiation would be inconsistent with § 7103(a)(14) as it would allow for arbitration as to the Agency's decisions and interpretations of military matters. Id., citing Lone Star.

      Finally, the Agency maintains that the proposal would "directly and excessively interfere with the right to assign work" under § 7106(a)(2)(B) of the Statute and, further, that it does not constitute a procedure under § 7106(b)(2) of the Statute. Id. at 12. The Agency contends that the proposal would severely hamper its ability to deploy personnel and equipment at their maximum effectiveness given the requirements that it must fulfill under the proposal before it can assign military training duties. In this respect, the Agency contends that the proposal directly and adversely impacts the "military readiness of the unit's war fighting capabilities" in keeping with its responsibilities under the Technician Act to train guard members, to mobilize for deployment, and to maintain military equipment. Id. at 11. The Agency also maintains that the proposal's requirements would "make it virtually impossible to effectively assign military duties to the technician workforce[,]" given the "substantial time frames for each military training duty . . . and meetings with the employee[s] each time a military training duty is assigned." Id. at 11-12. In sum, the Agency argues that the proposal impinges on substantive management decisions by specifying the criteria pursuant to which decisions must be made in line with its obligations under the Technician Act noted above.

B.     Union

      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. Response at 5. The Union argues that the proposal does not limit the Agency's ability to assign military skills training, during military status, and does not preclude the assignment of these tasks to technicians while serving in a civilian employee status. Id. at 7. Moreover, the Union states that the proposal would not have any force or effect if the Agency were to determine that an emergency has taken place under § 7106(a)(2)(D), and that the proposal would allow immediate training if the Agency were to write a statement of facts and reason for needing such training in the absence of notice.

      The Union 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 § 709 does not state that military aspects of technician employment are nonnegotiable and that the Authority only applies such doctrine to proposals that "would violate a statute, regulation or policy[.]" Response at 12. 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 Army Chapter 61, 48 FLRA 412, 417 (1993)).

V.     Meaning of the Proposal

      As set forth in ACT, Wichita, 58 FLRA at 30, 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. [ v60 p345 ]

VI.     Analysis and Conclusions

A.     The Technicians Act

      The Technicians Act requires that National Guard technicians "[h]old the military grade specified by the Secretary concerned for [their] position." 32 U.S.C. § 709(b)(3). The Authority has held that the Agency's rules dictating that technicians have compatible military and civilian job assignments implement this statutory requirement. NAGE, 18 FLRA 736.

      The Agency asserts that the proposal is contrary to the Technicians Act because it subjects to negotiation military training duties linked to compatibility. SOP at 7. However, unlike the proposal in NAGE, the proposal in this case does not concern the Agency's determination of what military skills are necessary to maintain compatibility. As the Union points out, the proposal does not limit the Agency's ability to require technicians to have any particular military skills, ranks, or positions. Instead, it requires the inclusion of military training duties in position descriptions, impact and implementation bargaining, and notice of the assignment of such duties. Moreover, the Authority has held specifically that proposals that "military assignment[s] be incorporated in the civilian technician's position description" are within the duty to bargain. ACT, Pennsylvania State Council, 29 FLRA 1292, 1301 (1987). Thus, we reject the Agency's claim that the proposal is inconsistent with compatibility requirements of the Technicians Act.

      We also reject the Agency's claim that the proposal is inconsistent with the Technicians Act based on prior Authority holdings that technicians may not bargain over "military aspects of their civilian technician employment." SOP at 7 (citing ACT, Texas Lone Star Ch. 100, 55 FLRA 1226 (2000), aff'd 250 F.3d 778, 784 (D.C. Cir. 2001)). In this regard, the court in ACT, Texas Lone Star found "merit in [the Union's] contention" that the Authority "goes too far in suggesting that any proposal affecting the military aspects of technician employment" is outside the duty to bargain. 250 F.3d at 784. We agree, and find that there is no basis for applying § 7117(a) of the Statute differently with respect to the Technicians Act and other statutes.

      The court's decision in this case is instructive on this point. In particular, the court held that 10 U.S.C. § 976, which concerns bargaining over terms of military service:

does not prohibit bargaining over terms or conditions of National Guard service in all circumstances. It prohibits only bargaining concerning terms or conditions of full-time National Guard duty . . . . When the Guard chooses to assign military training duties to technicians in their civilian capacity, those duties also become terms or conditions of civilian employment.

Id. at 198. [n3] Thus, § 976, which specifically addresses collective bargaining, does not have the effect of foreclosing bargaining by technicians while in civilian status. As such, it would be anomalous to find that the Technicians Act, which does not specifically address bargaining, has this effect. Instead, the Technicians Act forecloses bargaining only to the extent that proposals are "inconsistent with" that Act under § 7117(a) of the Statute, and a separate doctrine concerning military aspects of technician employment is not supportable. [n4] 

      Consistent with the foregoing, the proposal is not inconsistent with the Technicians Act.

B.     The Proposal Involves a Condition of Employment

      The Agency asserts that the proposal does not involve a condition of employment. SOP at 7-8. In ACT, Lone Star, 55 FLRA 1226, 1228-29 (2000), the Authority determined that it would no longer apply a principle that military aspects of civilian employment do not concern conditions of employment, or are otherwise outside the duty to bargain on that basis alone. As explained fully in ACT, Lone Star, this principle was based on a misinterpretation of 7103(a)(14)(c) of the Statute. Id. Accordingly, we reject the Agency's assertion. [n5]  [ v60 p346 ]

C.     The Proposal Affects the Right to Assign Work  [n6] 

1.     Analytical Framework for Resolving Negotiability Disputes under § 7106(a) and (b) of the Statute

      In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998), the Authority clarified the approach it will follow in resolving negotiability disputes where the parties disagree as to whether a proposal comes within the terms of § 7106(a) or § 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under § 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain. Then, if necessary, the Authority will address those claims that would determine if a proposal is electively negotiable. See, e.g., NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998). Consistent with this sequence, we first consider the claims that the proposal comes within the terms of §§ 7106(a) and 7106(b)(2) and (3).

2.     The Proposal Affects Management's Right to Assign Work under § 7106(a)(2)(B) of the Statute

      It is well established that the right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). Moreover, the Authority has held that proposals prescribing when a management right may be exercised constitute substantive limitations on the exercise of that right. AFGE, Local 1345, 48 FLRA 168, 174 (1993) (Fort Carson) (citing Dep't of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880, 882 (D.C. Cir. 1988) (IRS), reversed and remanded as to other matters, 494 U.S. 922 (1990); United States Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414, 1419 (D.C. Cir. 1988)).

      In Fort Carson, the Authority adopted the view of the U.S. Court of Appeals for the District of Columbia Circuit in IRS that "certain proposals precluding an agency from exercising a management right unless or until other events occurred directly interfered with that right." Id. at 174. In this respect, the Authority found that, in at least some situations, timing is an integral part of the right to assign work. The proposal in Fort Carson effectively prohibited management from assigning any task, no matter how small or large, unless the specific work assignment was currently listed in the position description. In finding that the proposal directly interfered with the agency's right to assign work, the Authority noted that the bargaining unit included medical personnel who reasonably could be required to respond rapidly to a variety of medical situations. The Authority found that even in circumstances which did not constitute medical emergencies, requiring the agency to amend position descriptions before assigning work could effectively prohibit such assignments, and therefore the proposal was nonnegotiable as it directly interfered with the agency's right to assign work. Fort Carson, 48 FLRA at 175 (Proposal 1).

      Paragraph 5 of the proposal in this case is similar to the proposal in Fort Carson. Paragraph 5 requires the Agency to assign military training duties as work by written order that must be delivered to the employee no less than 30 days before the duty will begin, unless the order states facts and reasons explaining why the Agency is providing shorter notice. In this written order or notice of assignment, the Agency must identify: 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; the specific military skills to be imparted or military proficiency to be tested; the date, time, and place the duty will begin; and the expected duration of the duty for each separate period of duty time. Also, the Agency must describe in the order: 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; the precautionary measures that the Agency will take and that the employee may take to reduce the risk of injury; and the measures that the Agency will take to provide prompt, effective treatment in the event injury does occur. In addition, the Agency must meet, upon request, with employees and Union representatives to discuss the assignment of work of military training duties.

      Under paragraph 5, the Agency is effectively prohibited from assigning work involving any military training duty, as defined by the proposal, unless and until the Agency takes several actions that place substantive limitations on the Agency's right to assign [ v60 p347 ] work. It is well established that the Guard is a military organization dedicated to a military mission that provides "trained personnel" for "mobilization in times of war, national emergency or civil disruption." New York Council, Ass'n of Civil Tech. v. FLRA, 757 F.2d 502, 505 (2nd Cir. 1985). In this respect, within the context of mobilization and deployment of troops, timing is an integral if not crucial aspect of the Agency's right to assign work. Within the practical realities of mobilizing and deploying employees under the circumstances mentioned above, paragraph 5 imposes significant requirements that the Agency must meet before assigning such military training duties as work. In this respect, ensuring compliance with these requirements would effectively prohibit the Agency from assigning work in mobilizing and deploying technicians immediately or very quickly. [n7] Thus, we find that paragraph 5 of the proposal substantively restricts management's exercise of its right to assign work.

      Under Authority precedent, proposals or provisions that affect the exercise of management's rights under § 7106(a) do not constitute negotiable procedures. See, e.g., National Federation of Federal Employees, Local 1214, 40 FLRA 1181, 1188 (1991). Applying that precedent, which the parties do not challenge, to this case, we find that paragraph 5 of the proposal does not constitute a negotiable proposal under § 7106(b)(2) of the Statute. The Union does not make, and hence we need not address, any claim that paragraph 5 constitutes either an appropriate arrangement under § 7106(b)(3) or involves a matter under § 7106(b)(1) of the Statute. Since paragraph 5 of the proposal is outside the duty to bargain, and as noted earlier the proposal is not severable, we find that the entire proposal is outside the duty to bargain. [n8] See Professional Airways Systems Specialists, District No. 6, PASS/NMEBA, 54 FLRA 1130, 1131 (1998) (if any portion of a proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain).

VII.     Order

      We dismiss the Union's petition for review.


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.


File 1: Authority's Decision in 60 FLRA No. 73
File 2: Opinion of Chairman Cabaniss
File 3: Opinion of Member Pope


Footnote # 1 for 60 FLRA No. 73 - Authority's Decision

   Chairman Cabaniss' and Member Pope's separate opinions are set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 73 - Authority's Decision

   The Union did not challenge before the court the Authority's denial of the Union's request that the proposal be severed, and that matter is not before us in this proceeding. In addition, for the reasons expressed by the court (360 F.3d at 197-200), the proposal is not inconsistent with 10 U.S.C. 976(c). As such, the parties' arguments with respect to this statutory provision will receive no further review.


Footnote # 3 for 60 FLRA No. 73 - Authority's Decision

   Member Pope notes that the Chairman quotes out of context the court's statement that the proposal "could permit bargaining over purely military matters" and implies that this statement supports a conclusion that the proposal is inconsistent with the Technician Act.