Technician Legislation

Chairman Sen. John McCain (R-AZ) and Ranking Member Sen. Jack Reed (D-RI)
Senate Armed Services Committee
Reforming the National Guard Technician Program
by Ben Banchs

New Orleans, LA (June 6, 2016) –
For the second year in a row, the Senate Armed Services Committee (SASC) is looking to make much needed changes to the 1968 Technicians Act, the antiquated personnel system that requires technicians maintain concurrent military membership as a condition of employment. The program, which began nearly 50 years ago, is commonly referred to as the ‘dual-status technician’ program. This unique ‘dual-status’ is at the heart of challenges faced by Guard technicians; the two greatest being civilian retirement uncertainty due to military non-retention, and an inability to appeal employment decisions beyond the Adjutants General (AG).
Converting Technicians from Title 32 to Title 5

Last year, as part of their annual defense authorizations, SASC included Sec. 1053 into the Fiscal Year 2016 National Defense Authorization Act (FY16 NDAA). That provision, which became law in November 2015, 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. Converting to Title 5 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).   

The provision was not well received by National Guard leaders. To say that Title 5 is considered a threat to the establishment is putting it mildly. In fact, nothing in recent memory has generated more controversy within the National Guard than the Title 5 conversion. Shortly after the NDAA became law, lobbying factions like the National Guard Association (NGAUS), the Adjutants General Association (AGAUS), and the Council of Governors (CoG) soon combined resources in an effort to repeal Sec. 1053. The three organizations began bombarding Capitol Hill with claims that SASC failed to consult NGB or the Adjutant Generals about Title 5. They also claimed that the conversion was not only unconstitutional, but that it would seriously impact readiness. The insinuation was also made that SASC had somehow pulled a fast one, sneaking Title 5 in under the radar. Lastly, in an effort to generate partisan opposition, Sec. 1053 was labeled a ‘Union’ bill, even though the proposal was a bi-partisan effort initiated by Republican SASC Chairman, Senator John McCain, and Democrat Ranking Member, Senator Jack Reed.  

McCain and Reed were not swayed by the barrage, and issued a stern rebuttal. They made clear that Title 5 was based on recommendations made by the Center for Naval Analysis (CNA), after completing their Congressionally-mandated 2012 study of the technician program. McCain and Reed said that, based on CNA’s report, they were concerned the technician program had ‘grown far beyond the initial scope and intent of Congress.’ They also stated that today’s technician program includes ‘a bizarre assortment’ of position descriptions; positions they found ‘difficult to imagine’ were necessary to the administration and training of the Guard. The Senators went a step further, stating that the positions identified by CNA ‘had nothing to do with maintaining and repairing equipment.’  

The letter also dismissed the Guard’s claims that they did not have an opportunity to weigh in on legislation. Frankly, it was a ludicrous claim to begin with. Sec. 1053 (initially Sec. 1046) was included in SASC’s original FY 16 NDAA draft which came out on May 19, 2015. NGB’s own legislative department reported on the provision’s existence as soon as it was published. In reality, when Sec. 1053 originally came out no one at NGB seemed to take it seriously. Perhaps it was because no one really expected it to actually pass. It wasn’t until October 2015 that NGB, and particularly NGAUS, began sounding the alarm. By then it was too late, and the bill would become law in November when President Obama approved the NDAA.      

There is no doubt the impact Sec. 1053 will have on the Guard is significant, and while the opposition will reluctantly admit that the technician program could use updating, they stop short of saying that Title 5 is the answer. The real reason Guard leaders oppose and openly advocate for repeal is much simpler and, to some extent, more sinister than they’re willing to admit. It has nothing to do with degraded readiness, constitutional quandaries, or Union influence; these are diversionary tactics. The real threat to the status quo comes from the demilitarization of technicians and their newfound access to real due process. If technicians are afforded rights that they never had before then the net result is the Adjutant Generals’, and by extension NGB’s, ability to use (and in some cases abuse) them any way they see fit is greatly diminished. This doesn’t mean AG’s won’t be able to use technicians, it just means they will have to abide by Federal laws and regulations when tasking their civilian workforce or face consequences; something they haven’t had to worry about in nearly half a century.  

32 USC § 709 – the 1968 Technicians Act – delegates authority over technicians to the AG’s. That same law also requires that Guard technicians wear the military uniform to work even though they are civilians, and grants the AG final say over civilian administrative employment actions. Basically, the 1968 Technicians Act created 54 separate federally-funded agencies that enjoy little to no oversight or control by anyone outside of their respective state or territory. This affects everything that involves technicians, from how federally-funded manpower resources are used at the state level, to the administration of technician personnel themselves. In other words, the Federal government pays for the technician workforce, but it has little or no say in how it is managed.    

For individual employees, the AG’s absolute authority promotes a work environment like no other. Under the current system, Guard technicians do not have the right to appeal adverse employment decisions to an arbitrator, the MSPB, or the Office of Special Counsel (OSC). This denial of access to real due process also means technicians are not covered by whistleblower protections. The end result is a program that is often susceptible to fraud, waste, and abuse. In fact, the Government Accountability Office (GAO) reported in December of 2003 (Report # GAO-04-258) that (compared to other Federal employees) Guard technicians face two ‘severe and significant restrictions’ because adverse actions like suspension, furlough without pay, and reductions in rank or compensation cannot be appealed, and even if they could be, the appeal is meaningless because orders are not enforceable against AG’s under the current legal construct.  

Instead of MSPB access, NGB provides technicians due process (or the appearance of such) via their Hearing Examiner Program, a very small and transient group of National Guard officers from across the nation who, in addition to their primary jobs (usually in Human Resources), also volunteer as part-time triers of fact. Individuals who serve as Hearing Examiners are tasked with hearing technician appeals of adverse administrative actions in the same way that an MSPB Administrative Judge (AJ) would. However, there are four very big differences with the way this volunteer program is set up and the way a true appeal body like the MSPB operates. First, most NGB Hearing Examiners have little or no legal training or experience. In fact, there’s no requirement that someone who volunteers to be a Hearing Examiner have any academic legal training whatsoever. Second, Hearing Examiners cannot issue binding decisions in the same way that the MSPB can; they are only allowed to render opinions and recommendations as to the merits of a particular case and the proposed action being taken. Third, an AG is under no legal obligation to follow a Hearing Examiner’s opinion or recommendation even if the AG’s decision is not supported by the facts of the case, and even if it’s contrary to law. Lastly, no one can overturn an AG’s final decision, not even a Federal court, even if the merits of the case are legally unsound.  

To call this is a kangaroo court is putting it mildly. In fact, this is the only program in the Federal government where the person who fires you also hears and decides your appeal, and there’s not a thing anyone can legally do about it…until now. Those technicians who are able to transition to Title 5 employment will have to be treated as regular Federal employees, and this means that AG decisions will not only be up for review and challenge, but that employees will be able to bring legal action in Federal court against AG’s if a particular case calls for it.   

More Changes on the Horizon  

If NGB, NGAUS and AGUS thought FY16’s NDAA was aggressive, they’re going to have their hands full with FY17’s SASC version of the bill. While the Title 5 conversion represented a drastic departure from the status quo, that change may be prove to be minor compared to what’s included in Sec. 523 of the FY17 NDAA draft. The new provision modifies Title 32, permanently lifting the bar 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. Sec. 523 also impacts the processing of Equal Employment Opportunity (EEO) discrimination complaints, 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. Sec. 523 would make it crystal clear that Title VII of the 1964 Civil Rights Act does apply to technicians, and would render CMADs recent publications dead on arrival.
Regarding Title 5, both the House and Senate versions of the FY17 NDAA contain language delaying implementation of the conversion from January to October 2017. The draft language also aligns the conversion of non-dual status technicians with the rest of those being converted, and allows Guard leaders more say on which positions actually convert. The draft bills also include language that requires NGB to provide a report no later than March 1, 2017, on ‘the feasibility and advisability of converting any remaining military technicians (dual status) to personnel performing active Guard and Reserve duty…or other applicable provisions of law.’     

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, is in SASC’s draft, Sec. 525, which 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 the House Armed Services Committee (HASC) draft, Sec. 514, and it would exempt technicians from any future furlough of Federal civilian employees. This is not the first time this type of language is 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 the potential for increased costs in Federal spending.    

There’s one thing for certain…2016 will prove to be just as interesting for technicians as 2015. 



Copyright 2017 by LIUNA National Guard Council Local 1776