Number 138                    December 2000

COURT DECISIONS  |   FLRA    |   MSPB

Association of Civilian Technicians, Schenectady Chapter v. Federal Labor Relations Authority, No. 99-1476 (D.C. Cir. Nov. 7, 2000).

The D.C. Circuit agrees with the Authority's decision in 55 FLRA No. 153 and finds that 10 U.S.C. 976(c) prohibits bargaining on a proposal on how technicians will be paid while on active duty.

In 55 FLRA No. 153, the Authority split over proposal # 6, which would limit the manner in which volunteers could be solicited to perform military missions in a section 6323(d) status. (A technician who volunteers to perform military assignments in a section 6323(d) status receives civilian technician pay for the workweek, but does not receive military pay. A technician who has not requested section 6323(d) status receives full military pay in addition to any technician salary available under various types of leave available to the technician.) The proposal would limit such solicitation to a general announcement and precluded individual solicitation.

The majority (Member Wasserman dissenting) concluded that the proposal was outside the duty to bargain because it dealt with a military aspect of technician employment. The majority said that "the proposal relates to the staffing of a military assignment and attempts to influence a military decision--which employees will carry out military assignments in section 6323(d) status." In the majority's view, the fact that the announcement would be made to employees while they were in civilian status was not determinative.

On appeal, the D.C. Circuit affirmed the majority's position.

[T]he union thinks its proposal relates only to . . . how the technicians will be informed of the opportunity to volunteer for active duty at special pay. We agree that the proposal does this, but it also does considerably more than the union cares to admit. The FLRA so found and its interpretation deserves judicial respect. . . . On the FLRA's view, the proposal deals with how the technicians will be paid while on active duty--will they, or will they not, receive military pay. . . . The proposal threatens to interfere with the National Guard's discretion to call technicians into action as it sees fit and on such terms as it desires. As a legal matter, we see no difference under 976(c) [i.e., 10 U.S.C. 976(c), under which it is unlawful for a labor organization to attempt to bargain on behalf of members of the armed forces over the terms and conditions of their military service] between the union's proposal and a proposal that would flatly prohibit the National Guard from asking technicians to volunteer for full-time duty without military pay. The statute would quite clearly ban bargaining on the latter. We agree with the FLRA that the statute also bans bargaining on the proposal we have before us.