Technician Legislation
LIUNA Senior Legislative Representative, Leo Gannon (right), and Sen. Jack Reed (D-RI), Ranking Member of the Senate Armed Services Committee (SASC), meet to discuss issues affecting workers, including the FY17 Defense Bill and the Natl' Guard technician program. Gannon and Reed are longtime friends and collegues. Both were high school classmates, graduates of Harvard, and former members of the RI State Senate. (Photo taken at LIUNA HQ, Washington, DC - July 1, 2010)
FY17 NDAA: Delays Title 5 Conversion, Provides Techs MSPB Access; TAGs, Governors Furious…Push Repeal    

Senate Also Makes Clear 1964 Civil Rights Act Title VII EEO Discrimination Protections Apply to Dual Status Technicians
by Ben Banchs – benbanchs@liuna-ngdc.org  

New Orleans, LA (October 15, 2016) – Make no mistake about it: Conversion to Title 5 is the law of the land for at least 20% of the current technician workforce…as of today. However, if Governors and Adjutant Generals (AGs) have anything to say about it, that law would be repealed.  

Last year’s defense bill (FY16 NDAA) included a provision that orders the National Guard Bureau (NGB) to begin converting not fewer than 20% of its 50,000-strong dual-status technician workforce from Title 32 to Title 5 employment, beginning January 1, 2017.
The conversion would not only sever military requirements from technician positions (demilitarization), it would also allow employees to appeal civilian administrative actions (i.e., terminations, suspensions, and demotions) beyond the AG, to the Merit Systems Protection Board (MSPB). Guard leaders are not happy with the changes, and are desperately trying to kill Title 5.

The National Guard Bureau (NGB), the Adjutant Generals Association (AGAUS), the National Guard Association (NGAUS), and the Council of Governors (CoG) have strongly opposed the law from inception. For nearly a year now, opponents have been leafletting Congress with ‘white papers’ and call-to-action letters threatening lapses in readiness, increased costs, predicting administrative chaos, and warning of constitutional quandaries if Section 1053 isn’t repealed; none of which are supported by fact. The most emboldened attempt at squashing the law came in January when the CoG sent a letter to Senate Armed Services Committee (SASC) leaders Senator John McCain, Chairman, and Senator Jack Reed, Ranking Member, aggressively calling for repeal, and to some degree insinuating that SASC covertly inserted Section 1053 into the defense bill without giving the NGB nor AGAUS an opportunity to provide input on the legislation.  

McCain and Reed were clearly not impressed, and sent a strongly-worded reply rejecting the CoG’s calls for repeal, dismissing the notion that Section 1053 was passed in secrecy, and encouraging the Governors to take part in the ‘ongoing reporting process’ so that their input could help mold the statutory language. One of the letter’s harshest passages cited SASC’s concern that the technicians program had grown ‘beyond the initial scope and intent of Congress,’ to include a ‘bizarre assortment of positions’ that include ‘entomologists, nurses, architects, social workers, photographers, real estate agents, painters, meteorologists, woodworkers, public affairs, and historians, positions we find difficult to imagine are necessary to the administration and training of the Guard, and which certainly have nothing to do with maintaining and repairing equipment.’

After repeal efforts failed, opponents of Section 1053 asked that language be included in the FY17 NDAA to delay conversion until at least October 1, 2017, under the guise that: 1. It would align the conversion with the beginning of FY18; and, 2. It would allow leaders some time to ensure a smooth transition for affected employees. The House and Senate Armed Services Committees (HASC/SASC) agreed to the proposal as presented, and have included draft language in the FY17 NDAA to delay the conversion. However, we have repeatedly warned HASC/SASC and other members of Congress that calls to delay were merely a veiled attempt to give NGB, AGAUS, NGAUS, and the CoG one more crack at repealing Section 1053. It appears the warnings may be justified as opponents renew their push for a full repeal now, rather than later, during the election season, through the lame duck session, and before the FY17 NDAA is even signed.  

Why Reform is Needed  

For over a decade we have been pushing for reforms to the 100-year old technician program. Aside from being outdated, the program’s two greatest flaws are that it denies employees due process and it fails to guarantee that they will reach civilian retirement age. Additionally, the program denies employees full overtime pay, Veteran’s Preference, and even though technicians are required to maintain military membership as a condition of their civilian employment, they are legally barred from enjoying many of the benefits that their reserve-component counterparts enjoy such as eligibility for recruitment/retention bonuses and TRICARE Reserve Select. Make sure to explore the rest of our website to find out how we got to where we are today, especially about why the conversion to Title 5 is the first big step towards real reform of the National Guard Dual Status technician program. LIUNA will continue to push for legislative reform wherever there’s opportunity for improvement.         

FY17 NDAA – What to Expect       

While the Title 5 conversion represents a departure from the status quo, that change may prove to be minor compared to what’s included in this year’s defense bill. FY17 NDAA is currently in committee and probably will not become law until well after the election, but it contains several new provisions that are extremely encouraging. Section 523 of the SASC version modifies Title 32 by permanently lifting the ban on employee appeals beyond the AG, and allowing all technicians, regardless of whether they’re under Title 32 or Title 5, access to the MSPB. Section 523 also makes it crystal clear that Title VII of the 1964 Civil Rights Act does apply to technicians, and that discrimination complaints will be processed under Equal Employment Opportunity (EEO) laws, a subject that LIUNA has been fighting to rectify for a number of years. In 2013, NGB attempted, unsuccessfully, to include language in the FY14 NDAA to statutorily deny Title VII coverage for technicians. When that effort failed, NGB’s Complaint Management and Adjudication Division (CMAD) decided to just go ahead and assert jurisdiction over discrimination complaints. They published regulations last year that force technicians to seek redress via military channels only, an action that technically violates Federal law. Section 523 would render CMADs recent publications dead on arrival.  

Lastly, you seldom see provisions which all sides can agree on. However, there are two provisions that fall under this category. The first one, which LIUNA first proposed several years ago and is also in SASC’s draft, is Section 525; it would close the Military Leave loophole for technicians who voluntarily seek Active Guard Reserve (AGR) tours. This could potentially save taxpayers $14 million or more per year, and will more than likely pass without opposition. The second comes from HASC, Section 514, and would exempt technicians from future furloughs of Federal civilian employees. This is not the first time this language has been introduced into the HASC mark, but it will probably meet the same fate as previous iterations and be deleted from the final NDAA due to increased costs in Federal spending.    


Copyright 2017 by LIUNA National Guard Council Local 1776