File 2: Opinion of Chairman Cabaniss
[ v60 p348 ]
Chairman Cabaniss' dissenting opinion
As I noted in the initial decision, ACT Wichita, I write separately to express my view that the Union's proposal is inconsistent with 32 U.S.C. § 709 and, therefore, outside the duty to bargain under 5 U.S.C. § 7117(a). [n1]
With respect to why I believe the proposal is inconsistent with the Technicians Act, 32 U.S.C. § 709, I believe it is helpful to set forth in full the purposes of the Act. As the District of Columbia Circuit Court has stated, a primary purpose of the Technicians Act is to ensure that the military mission of the Guard will be carried out. [n2] AFGE, Local 2953 v. FLRA, 730 F.2d 1534, 1544 (D.C. Cir. 1984) (AFGE, Local 2953). This was reiterated by the D.C. Circuit in NFFE, Local 1623 v. FLRA, 852 F.2d 1349, 1351 (D.C. Cir. 1988) (Local 1623), which stated, "[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.'" Citing AFGE, Local 2953, 730 F.2d at 1546. [n3] In this respect, a fundamental aspect of the Guard's military mission is its mandate that its members be prepared at all times to serve as the nation's first line of defense. 32 U.S.C. § 102. Logic dictates that this military mission is advanced where the Guard provides "trained personnel" for "mobilization in time of war, national emergency or civil disruption." New York Council, Ass'n of Civ. Tech. v. FLRA, 757 F.2d 502, 505 (2nd Cir. 1985).
Given the above, under the Technicians Act the Authority must determine whether a proposal would otherwise be inconsistent with the Act because it undermines the Guard's ability to achieve military preparedness. [n4] In making this determination, I reiterate the judicially noted conclusion that in interpreting the Technicians Act, the Authority must be cognizant of the fact that:
Because it is a military organization dedicated to a military mission, certain basic assumptions accompany all legislation that deals with the Guard. These assumptions may be explicitly stated in the legislative history, of a particular act, or may simply be implicit in the fact that the legislation deals with an organization which has no raison d'etre save for the military role it serves. In the congressional debates that led up to the passage of the Technician Act of 1968, many members of Congress explicitly acknowledged [ v60 p349 ] that the efforts to enact the law, which appears on its face only to deal with mundane matters of retirement benefits and the like, proceeded from a concern that enactment of the Technicians Act was essential to assure that the military mission of the Guard would be carried out effectively and efficiently.
AFGE, Local 2953, 730 F.2d at 1544 (emphasis in original). Consistent with the above, the D.C. Circuit has determined that the Act should be interpreted broadly to limit negotiations over military matters noting that "the military side of the National Guard lies wholly outside of the collective bargaining realm." [n5] Local 1623, 852 F.2d at 1353. Moreover, the D.C. Circuit has further noted that when it comes to collective bargaining:
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 circumscribed by the reality that a technician's military status will often impinge on his civilian status and that, when this happens, the needs of the military must prevail.
Local 1623, 852 F.2d at 1353.
Based on the above, it is clear that an important underlying Congressional purpose for the Technicians Act was to ensure that the Guard retains technicians who are prepared to carry out its military mission. One obvious way to assist the Guard in ensuring its 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. Accordingly, it is reasonable to conclude that such military training would serve the Agency in not only furthering the Congressional intent for this legislation, i.e., through fostering military retention by allowing technicians to remain proficient in their "military occupational skills" which are required in order to maintain their military membership under the Act, but also in that such training serves to prepare these technicians for skills needed if called upon to act as the nation's first line of defense, which remains the cornerstone of the Agency's military mission. [n6] See 32 U.S.C. § 102. As such, military training not only concerns the Agency's ability to prepare technicians to serve in their military capacity and retain the requisite military membership as specifically required under the Technicians Act, but also ultimately touches upon the Act's underlying purpose, that is to assist the Agency in its ability to carry out its military mission which, by its terms, mandates that its members be prepared at all times to serve as the nation's first line of defense.
Here, the proposal would be inconsistent with the Technicians Act by subjecting the definition of these military training duties to negotiation with the Union and creating barriers to assigning military training to technicians, even where that training is assigned merely to prepare and qualify these technicians to serve in their military capacity. As such, because the proposal subjects implicitly military aspects of technician's employment to collective bargaining, the proposal undermines the Agency's ability to retain qualified technicians who are prepared to carry out its military mission under the Technicians Act.
In my review of this matter I also note the D.C. Circuit's earlier determination in this case that as worded "the union's proposal could permit bargaining over purely military matters -- such as rifle qualification or wearing chemical warfare gear[.]" Wichita Air Capitol Chapter, 360 F.3d at 200 (emphasis added). Our determination in ACT, Wichita, is consistent with this view as we stated that:
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.
ACT, Wichita, 58 FLRA at 31.
Thus, I would find this proposal to be inconsistent with Federal law under § 7117(a) of our Statute and outside the duty to bargain.
Footnote # 1 for 60 FLRA No. 73 - Opinion of Chairman Cabaniss
Footnote # 2 for 60 FLRA No. 73 - Opinion of Chairman Cabaniss
The Act itself was passed largely to guarantee that a national uniform program for covering retirement and fringe benefits for technicians would be implemented. See, i.e., 1968 U.S.C.C.A.N. 3318, 3319. However, the Act did not disturb the notion that technicians "must meet all the mental and physical standards as well as professional qualifications prescribed by the military departments" so that technicians will "be available to enter active Federal service at any time their units are called." Id.
Footnote # 3 for 60 FLRA No. 73 - Opinion of Chairman Cabaniss
This interpretation of the Act is consistent with the Act's explicit requirement that a civilian technician, unless specifically excluded from this requirement, must maintain military membership in the National Guard. 32 U.S.C. § 709(b)(2).
Footnote # 4 for 60 FLRA No. 73 - Opinion of Chairman Cabaniss
The majority concludes that because the Technicians Act does not specifically state that "military aspects of technician employment," are outside the duty to bargain, bargaining over military aspects is not inconsistent with Federal law and, thus, not prohibited by 5 U.S.C. § 7117(a). However, I note D.C. Circuit's following comment:
Referring to the express language of the [Technicians] Act, the Union argues that "[t]he FLRA's decision relating to the mandate of the National Guard Act is incorrect, and must be overturned, because it is clearly wrong in light of the plain language of the Act, which mentions nothing at all about `evaluations' or their use." Brief for Appellant at 19. This argument is bootless. The Act need not descend to such detail. The evaluation and rating of personnel are implicit in every military organization, their use is fundamental