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Technician Administration |
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NGB Rescinds Controversial
Language From All Dual-Status Position Descriptions
"...does not fall
within the scope of the National Guard Technician Act of
1968..."
by Ben Banchs
New Orleans, LA (March 11,
2014)
- Guidance recently issued by NGB suggest that management of the
National Guard (NG) dual-status technician (DST) program is taking a step in the right direction.
A
memo issued by NGB's Technician Branch orders all states and
territories to
rescind certain language from all DST position descriptions
(PDs); language that only served to blur the lines of what types
of military duties a dual-status technician can and
can't legally perform while in a civilian status. |
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On March 10, 2014, NGB Technician
Branch Chief COL Susan Niemetz served notice to all Human
Resources Offices (HROs) to delete a 2005 PD Addendum which
basically authorized the assignment of military-type duties to
DSTs of the National Guard during civilian work hours. Niemetz's
most current guidance is just the latest in a string of policy
decisions that are breathing life back into a program once on
the verge of regulatory collapse. The move also serves to
rebuild confidence and bring respect to the Technician Branch, a
section of NGB that for the better part of the last 10 years has
been plagued by poor leadership, and has consistently issued
policy and recommendations that were unclear, contrary to
regulation, and sometimes violated law, much to the detriment of
the overall technician workforce.
To that end, COL Niemetz has had the unenviable task of
righting past wrongs, most of which were committed under the
tenure of COL William Kolbinger. It's hard to describe the
damage that Kolbinger caused National Guard technicians. His
"anything goes" attitude turned NGBs Tech Branch into a place
where policy was concocted to fit the needs of the organization,
even if said policy went against Federal statute and regulation.
In fact, Kolbinger became so bold that he would issue policy by
way of written opinion, or white paper, to the point where he
convinced some states/territories that the Technician Act (32
USC § 709) allowed Adjutant Generals to circumvent OPM
Competitive Hiring procedures, and even USERRA.
Needless to say, COL Niemetz has her work cut out, but so far
she's doing a stellar job. Since assuming the top spot at Tech
Branch, Niemetz has initiated an audit to enforce compatibility
requirements, has rescinded incorrect/illegal policy memoranda,
and voluntarily plunged head-long into the arduous task of
updating all of NGBs Technician Personnel Regulations (TPRs), a
task that's well overdue by almost 20 years. On top of all this,
Niemetz has found a way to do what her two predecessors were
either incapable or unwilling to do...work with (not against)
the Labor Unions representing technicians.
In order to understand the significance of NGBs latest action
one has to first understand how it all started. The rescinded
language was initially added to all National Guard DST PDs in
June 2005 via an NGB PD Release notice to all HROs. The
implementation guidance sent by NGB in 2005 read:
Due to the military nature of National Guard (sic), there
are a variety of infrequent non-occupational specific duties
inherent in all dual status technician positions. To ensure
these duties are a recognized part of all dual status position
descriptions, NGB-J1-TNC has developed a mandatory task
statement for all dual status standards and exception position
descriptions.
The addendum then read as follows (the final sentence was added
in January 2007 at the request (pleadings) of the Labor Unions):
d. OTHER SIGNIFICANT FACTS
Incumbent may be required to prepare for and support the mission
through the accomplishment of duties pertaining to military
training, military readiness, force protection and other mission
related assignments including, but not limited to, training of
traditional Guard members, CWDE/NBC training, exercise
participation (ORE/ORI/UCI/MEI/OCI/IG, etc.), mobility exercise
participation, FSTA/ ATSO exercise participation, SABC training,
LOAC training, weapons qualification training, participation in
military formations, and medical mobility processing within the
guidelines of
NGB/ ARNG/ ANG/State/TAG rules, regulations and laws. These
tasks have no impact on the classification of this position and
should NOT be addressed in any technician's performance
standards.
A quick history lesson
Prior to the 2005 PD addendum the issue of whether technicians
could legitimately and legally be assigned to perform
military-type duties or tasks while on technician status had not
been legally addressed. The general unwritten rule was that
tech-time was for tech duties and that military tasks could only
be performed in a military status (i.e., drill, AT, etc.). The
increased ops tempo after Desert Storm, leading up-to and
following the 9/11 attacks, and the pressure to train more often
for inspections and prepare for deployments, was forcing the
states/territories to invest more and more time on military
training activations albeit without any extra money. So in order
to maximize their military budget while at the same time meeting
the extra training demands, states/territories started assigning
technicians more and more military-type duties during the
civilian work week. This included participation in training
exercises that require the wear and use of combat-specific gear
like Kevlar helmets/armor or Mission Oriented Protective Posture
gear (aka MOPP or chem-gear), and required DSTs to accomplish
other tasks specifically linked to military mobility
requirements, like firing small arms for qualification during
civilian duty hours. In other words, the states/territories were
forcing technicians to perform tasks that were completely
outside the scope of their civilian position
description.
In response to this increased military ops tempo, the
Association of Civilian Technicians (ACT), a Union representing
technicians of the Kansas Air National Guard, attempted to
include language in their collective bargaining agreement (CBA)
addressing the assignment of military duties to DSTs while in a
civilian status. As expected, the proposed language was
challenged by the National Guard as being nonnegotiable, and in
2002 the matter was appealed by the Union to the Federal Labor
Relations Authority (FLRA). While the Union's intentions were
good and justified, the fact is the proposal was rather extreme,
and placed numerous administrative controls on the assignment of
military duties, specifically regarding the wear of chem-gear
during technician work hours. In other words, it was doomed to
fail from the beginning. The Union's appeals lasted for nearly
three years, even making the trip to Federal court and back, and
on April 13, 2005, the FLRA denied the Union's motion for
reconsideration one last time. In the end, the matter was deemed
nonnegotiable because it "substantively affected the Agency's
right to assign work." It was a pretty big blow.
After the FLRA issued their final decision NGB wasted no time
implementing the FLRA decision, and in June 2005 they issued CR
05-1006 adding the now rescinded PD Addendum to all DST PDs. The
case is a classic example of unintended consequences. ACT's
actions, well intended as they might have been, made a bad
situation worse. Again, prior to the FLRAs decision most
states/territories, and even NGB, still (and for the most part)
operated under the unwritten rule that tech-time was for tech
duties and military tasks were to be done while on military
orders. After the FLRA decision, and NGBs issuance of the PD
Addendum, states/territories took things to the next level. Now,
instead of being limited to the statutorily required one weekend
per month and two weeks per year of inactive duty training, the
National Guard had a blank check to force technicians to
participate in military-type activities 365 days per year.
Fast-forward to 2014
While the deletion of the military-duties PD Addendum was
revealed rather unceremoniously, the implications are
potentially far reaching. NGB validates their action by saying
that the addendum was outside the scope of the 1968 Technician
Act, which is absolutely correct. The Technician Act (32 USC §
709) states that the primary purpose of DSTs is to organize,
administer, instruct and train members of the National Guard,
and to maintain and repair equipment issued to the National
Guard (or the armed forces). There's a third purpose listed in
the statute and that's to perform certain "additional duties to
the extent that the performance of those duties does not
interfere with the performance" of the tasks previously
described. Those additional duties may involve
supporting operations or missions undertaken by the technician’s
military unit at the request of the President or the Secretary
of Defense, supporting Federal training operations or Federal
training missions assigned in whole or in part to the
technician’s military unit, and CONUS instruction or training
of active-duty members of the armed forces, members of foreign
military forces, Department of Defense contractor personnel,
or Department of Defense civilian employees. Notice that nowhere
in the Technician Act does it state that technicians will
actually perform military duties.
This means that according to Federal law DSTs can, for example,
participate in the training or instructing of other
personnel, however, instructing others on military subjects and
actually taking part in military training exercises are two
totally different things. One can teach another person how to do
something theoretically or practically, but not actually
participate in the activity being taught. Therefore, a
technician could certainly instruct a class of drilling
Guardsmen on the proper use and wear of chem-gear as part of
his/her official civilian duties, but that technician doesn't
actually don the equipment, nor do they actually perform actual
work for prolonged periods of time while wearing the chem-gear.
This is a huge distinction.
That distinction also extends to supporting operations,
missions, or training of a technician's assigned military unit
while in a technician status because that support should only
extend as far as the technician position description allows. For
example, if a technician working as a pay clerk is asked to
respond to a natural disaster, that technician could
theoretically remain in a civilian status so long as their role
in the emergency response was supportive in nature, and along
the lines of their regular duties (i.e., processing pay).
However, if that same pay clerk is going to be expected to
distribute water and ice to citizens displaced by a natural
disaster, is going to be sleeping in a tent at a remote
location, and the tasks which they are accomplishing have
nothing to do with processing pay, then said technician needs to
be placed in some form of active duty status, whether that be
Federal or State. Otherwise, that pay clerk should remain either
at home station processing pay, or they should be released from
duty. So, while National Guard leaders always like to claim that
the proverbial line between civilian and military is blurry, the
truth is the line itself is much clearer than they want to
admit.
Aside from going against the intent of the Technician Act, the
addendum also went against OPM guidance concerning position
classification standards. The bottom-line is that an employee's
position description is meant to document major duties,
responsibilities, and organizational relationships of a job.
Even though the majority of the National Guard technician
workforce is dual-status, which means they have to be in the
military in order to keep their civilian position, that
does not necessarily mean that they are considered military,
per se, while working in their technician capacity.
In the same way that 32 USC § 709 addresses what a technician's
duties actually are, it also addresses what military aspects a
technician is required to fulfill in order to comply with
Federal law. The fact is that the term "Military Technician" is
deceiving because the military aspects of a
technician's job are actually conditions of their civilian
employment, not vice versa. The only military requirements
that exist in the statute are that a technician be a member of
the National Guard, that he/she hold a rank compatible with
their civilian position, and that technicians wear the military
uniform to work, period. Nowhere does the Technician Act require
that technicians accomplish military duties; it doesn't
require that a technician wear the military uniform outside of
their civilian work hours or participate in formations, for
example. It does not require technicians to be on-duty 24/7,
like their military counterparts, and it definitely does not
compensate technicians like a member of the military considering
technicians pay out-of-pocket for life and health benefits, must
request leave to cover periods of absence due to sickness and
(yes) even military activations, and do not receive tax-free
compensation in the form of housing and subsistence allowances.
In fact, the difference between civilian and military couldn't
be any clearer, and that difference is further reinforced by
the clear and legal divide between what a dual-status
technician can be legally required to do while in a
civilian status, and what is inherently military and only
permissible while the member is in an active or inactive duty
status. For anyone to claim the line is blurry then it is out of
voluntary ignorance, nothing more.
Of course there are those that would argue with this article.
Perhaps they're legitimately confused, or perhaps they slept
through 2013, but if there was still any confusion regarding
whether technicians are civilian or military it was cleared up
last year when all
National Guard Dual Status Technicians were furloughed
for being civilians, along with the rest of their
Federal Civil Service cohorts. So, while many in
management would like to make technicians believe otherwise, the
truth of the matter is that dual-status technicians are, first
and foremost, civilian employees of the Department of
Army or Air Force (10
USC § 10216(a)) who in accordance with Federal law are
managed by the Adjutants General of their respective state
or territory, and as a condition of their civilian
employment are required to be in the National Guard.
The question that every manager, employee, and Union
representative will probably be asking is: what does NGBs
decision ultimately mean? The answer is fairly simple:
dual-status technicians can only be assigned to perform duties
that are directly connected with their civilian position,
regardless of whether that duty is considered to be military in
nature, or not. Union Officials should request to I&I the
deletion of the PD Addendum and use this opportunity to evaluate
whether there are any technicians in their bargaining units that
may be performing duties that are military in nature and/or
outside the scope of their PD. If situations like these are
identified then the Union should work with management to correct
the discrepancy and make sure the technician's duties do not
conflict with the revised guidance. There can be serious and
unforeseen consequences for technicians who are performing
duties outside the scope of their position. At the very least, a
technician who is injured on the job in the course of performing
a job or task not covered by their position risks being denied
coverage under the workers compensation program. It's bad enough
to get injured on the job. It's even worse to find out your
injury is not covered because you were working outside of your
position description.
There is one humorous note and that's concerning the fact that
the Union who got us into this PD mess, ACT, is taking credit
for NGB rescinding the controversial PD language. While the
Unions have been working with NGB on a multitude of topics
affecting technicians, the PD language was just one of those.
The truth is credit goes to COL Niemetz and her team at
Technician Branch for getting this done.
But what about that 72-hour deal, you say? That's a whole other
story.... |
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