Technician Legislation

Game Changer

FY17 NDAA Limits TAG Authority, Puts National Guard Technicians on Equal Footing with Other Feds

by Ben Banchs
 - benbanchs@liuna-ngdc.org
New Orleans, LA (December 27, 2016) – For nearly fifty years, National Guard technicians have been at the mercy of a system that allowed corruption to fester and made a mockery of due process. That system is no more. Last Friday, President Obama signed into law the National Defense Authorization Act for Fiscal Year 2017 (FY17 NDAA). One of the provisions included in the NDAA was Section 512 – Rights and Protections Available to Military Technicians, which grants technicians full access to the Merit Systems Protection Board (MSPB), to include appeals of civilian adverse actions (i.e., terminations, suspensions, and reductions in grade). Adjutant Generals (AG’s) will no longer have final say in these types of cases, and that’s nothing but good news.

Prior to the FY17 NDAA, technicians did not enjoy the full due process protections guaranteed to their counterparts. Congress initially federalized technicians in 1968 to streamline pay, benefits, and tort protections. However, the law also limited due process protections for technicians by granting the AG final say over all adverse actions. This meant that technicians did not have the right to appeal adverse actions to an arbitrator, the MSPB, or the Office of Special Counsel (OSC). This also meant that they were not protected as whistleblowers since an AG’s decision could not be challenged by anyone, including Federal courts, even if the action was clearly retaliatory and illegal. The result was a program susceptible to fraud, waste, and abuse. To put it plainly, this was the only program where the person who fired you also heard and decided your appeal. This is no longer the case.
The short and long-term impacts will be immediate, and the National Guard Bureau (NGB) has already begun drafting guidance for the states and territories on how to implement the language in Sec. 512. However, NGB’s legal folks either have a reading-comprehension problem or they are trying to cling to the past at any cost, because the guidance, as drafted, is legally deficient. NGB is once again attempting to usurp Federal law by limiting the types of cases that technicians can appeal to the MSPB, and by trying to dictate the timelines when employees can appeal. It’s extremely important for all technicians to know that Federal law trumps existing Agency regulations, and that NGB has no authority over the MSPB appeals process to include which types of cases can be appealed. We highly recommend that if you’ve been served with a disciplinary proposal that you immediately contact the Union so that we may advise you of your rights. We also recommend you go to www.mspb.gov and familiarize yourself with the appeals process, to include the types of cases that can be brought before the MSPB. 

Sec. 512 also makes 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. Again, NGB is going to try and dictate how these types of cases are processed, but the legal reality is that they lack statutory authority. If you find yourself in a situation where you believe you are the victim of discrimination, please contact us, or go to www.eeoc.gov to read about the discrimination complaint process.  

Lastly, it’s important for all technicians to know, whether you’re LIUNA members or not, that these changes would not have happened without the efforts of our full-time representatives at LIUNA and our lobbyist in Washington DC. We still have much work to do, but the passage of these two provisions will allow us to focus in on our next two legislative priorities: access to TRICARE Reserve Select, and exempting technicians from military retention boards. These changes are only possible if we’re a strong organization, and membership is what makes us strong. If you’re a Union member, thank you! If not, we encourage you to take a look and support the Union. Go to our web site at www.liuna-ngdc.org and see what we’ve done, what we’re working on, and what we have planned for the future of the technician program.


Copyright 2017 by LIUNA National Guard Council Local 1776