File 2: Opinion of Member Wasserman
[ v55 p934 ]
Opinion of Member Wasserman, dissenting in part:
I disagree with the majority's determination that Proposal 6 is outside the duty to bargain because it concerns a military aspect of technician employment. Instead, I would find that this proposal concerns only the type of leave that technicians are permitted to take from their civilian positions under 5 U.S.C. § 6323(d). I, therefore, respectfully dissent as to Proposal 6.
As set forth in the majority's opinion, Proposal 6 specifically provides, inter alia, that:
If the [A]gency decides to afford bargaining unit technicians an opportunity to request leave under 5 U.S.C. § 6323(d), the [A]gency shall inform them of that opportunity solely by general written announcement, such as a bulletin board posting . . . .
Petition for Review at 2-3.
Based on the Union's explanation of the proposal, as well as the proposal's plain wording, it is clear that it would not become applicable to bargaining unit technicians until after the decision to utilize them in an overseas deployment had already been made. At that point, the proposal would become operative and require the Agency to inform employees that they may volunteer for "military leave" under section 6323(d) by use of a general written announcement. On its face, the proposal does not preclude the Agency from selecting any technician it desires for deployment to active duty overseas. Rather, it simply requires the posting of a notice to inform employees that they may ask for military leave under section 6323(d).
The majority's explanation of the proposal's meaning focuses on an alleged limitation on the Agency's determination to "attempt staffing a military mission with technicians in section 6323(d) status" or, after assignment, to ask an employee whether "he or she was willing to [perform a military mission] in section 6323(d) status." Slip. Op. at 18. In fact, the Agency does not contend that it has any interest in the leave status of a technician who has either volunteered or has been assigned to active military duty. The Agency's actual argument focuses on its perception that the proposal limits control over its military members. In this regard, the Agency states:
Therefore, our interpretation of the real meaning of the proposal is that the [A]gency may only announce to those of its military members who happen to be technicians the opportunity to volunteer to be placed on military orders, in a military status, for OCONUS [Outside the Continental United States] missions by a written general announcement; it cannot name or otherwise identify those military members of the military unit who happen to be technicians as being eligible to take part in the deployment; it cannot directly approach any one of those members who happen to be technicians, requesting or ordering them to military duty, until the member expresses an interest in the deployment; and they cannot make any military decisions which might be "adverse" based on those military members' [sic] who happen to be technicians and who have not expressed a willingness to support the unit's OCONUS deployment(s).
Statement of Position at 5. It is the Agency's view that Proposal 6 violates 10 U.S.C. 976 because it governs the terms and conditions of military membership. Id. at 11.
Even if this proposal is interpreted as a mechanism for soliciting military volunteers, instead of a mechanism for informing employees of a leave entitlement in the event of their deployment, the proposal does not affect their military status. I note, in this connection, that after a technician has been selected to participate in an overseas operation and is placed on active duty, the technician is performing in a military capacity. However, the solicitation of volunteers and the selection process itself occurs while the technicians are employed in their civilian capacities. Once a technician has expressed an interest in an overseas operation, the Agency is in no way precluded from communicating with that technician directly. Nor is the Agency constrained in any way to either accept or reject those who have applied and may otherwise designate those who will be sent overseas.
Based on the foregoing, I conclude that Proposal 6 does not pertain to the terms of the technicians' military employment. Nor does it diminish the military's ability to conduct its affairs, as the Agency contends. Accordingly, I would find that it is within the duty to bargain. [n1] [ v55 p935 ]
10 U.S.C. 976(c) provides:
(c) It shall be unlawful for any person-
(1) to enroll in a military labor organization any member of the armed forces or to solicit or accept dues or fees for such an organization from any member of the armed forces; or
(2) to negotiate or bargain, or attempt through any coercive act to negotiate or bargain, with any civilian officer or employee, or any member of the armed forces, on behalf of members of the armed forces, concerning the terms or conditions of service of such members;
(3) to organize or attempt to organize, or participate in, any strike, picketing, march, demonstration, or other similar form of concerted action involving members of the armed forces that is directed against the Government of the United States and that is intended to induce any civilian officer or employee, or any member of the armed forces, to-
(A) negotiate or bargain with any person concerning the terms or conditions of service of any member of the armed forces,
(B) recognize any military labor organization as a representative of individual members of the armed forces in connection with any complaint or grievance of any such member arising out of the terms or conditions of service of such member in the armed forces, or
(C) make any change with respect to the terms or conditions of service in the armed forces of individual members of the armed forces; or
(4) to use any military installation, facility, reservation, vessel, or other property of the United States for any meeting, march, picketing, demonstration, or other similar activity for the purpose of en