Association of Civilian Technicians, Wichita Air Capitol Chapter v. Federal Labor Relations Authority, No. 03-1141 (D.C. Cir. March 12, 2004). Review of 58 FLRA No. 9.

The D.C. Circuit reversed the Authority and found that a proposal dealing with the assignment of military training duties during hours of civilian work does not come into conflict with 10 U.S.C. § 976(c). "[S]ection 976(c)(2) prohibits bargaining not on behalf of members of the National Guard, but rather on behalf of members of the National Guard 'who [are] serving on full-time National Guard duty.' Because the union's proposal applies exclusively to those military training duties that the Guard assigns to technicians during hours of civilian work and for civilian pay, it falls outside the terms of section 972(c)(2)."

The lengthy proposal in dispute would require, among other things, that any military training duty (e.g., rifle qualification and training in the wear of garments affording protection from chemical weapons) assigned as work to technicians while serving in a civilian status be included in a technician's position description. Paragraph five of the proposal would require the Guard to assign military training duty by written order that describes the frequency with which such training has resulted in illness or injury and the precautionary measures that will be taken to reduce such risks and the treatment that would provided should an injury occur. It would also prohibit the Guard from requiring technicians to wear chemical gear "as a method and means of performing work."

In 58 FLRA No. 9, the union argued that the proposal didn't run afoul of 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) because the proposal pertained only to military training duties performed on civilian time.

FLRA had disagreed: "A technician's status at the time a proposal would operate is not critical in applying § 976(c), but rather, the crucial distinction is whether the proposal relates to military service or civilian employment." Applying that test to the proposal it found that the requirements imposed by paragraph 5

clearly "concern" the military training duties that, in turn, constitute the "condition of service" under § 976(c). As a result, we find that paragraph 5, if within the duty to bargain, would require the Agency to "negotiate . . . concerning the terms or conditions of service" of members of the armed forces and, as a result, runs afoul of § 976(c). Because paragraph 5 of the proposal is inconsistent with § 976(c), it is outside the duty to bargain under § 7117 of the Statute and, because the Union's request to sever the proposal is denied, the petition for review as to the entire proposal should be dismissed.

On appeal, the court disagreed with FLRA's interpretation of § 976(c).

[S]ection 976(c)(2) prohibits bargaining not on behalf of members of the National Guard, but rather on behalf of members of the National Guard "who [are] serving on full time National Guard duty." Because the union's proposal applies exclusively to those military training duties that the Guard assigns to technicians during hours of civilian work and for civilian pay, it falls outside the terms of section 976(c)(2). . . .

The court accordingly remanded the case to the Authority "for proceedings consistent with this opinion."

The court's decision doesn't prevent FLRA from finding the proposal nonnegotiable on grounds other than that it violates § 976(c)(2). Indeed, in her separate concurring opinion in 58 FLRA No. 9, Chairman Cabaniss found the proposal nonnegotiable on the ground it is contrary to the Technicians Act, 32 USC § 709 et seq. On remand the remaining members may also go that route.