The Uniquely Unionized National Guard

By on July 1, 2013 in Current Events with 37 Comments

“The National Guard has a union?  I didn’t know the military could be unionized.”  That’s a response I’ve heard from friends and family over the two decades I have been teaching management/HR seminars to Guard supervisors, managers and union officials.  The status of “Military Technicians” (a term long-debated by the Guard’s most prevalent union – the Association of Civilian Technicians or ACT) was a mystery to me for years, as it is to most Federal HR specialists.

Like many Labor Relations Specialists of my era, I read a series of decisions concerning the Montana Air Guard and ACT.  It concerned the negotiability of wearing military uniforms to work for “Title 32” employees.  At the time those decisions were being published, I never fully appreciated the complexity of the issues that case represented.  Then I was asked to teach classes for the Guard in several states (including Montana) and I became better informed.

What is the plural of “status”?

National Guard Technicians are, with a few exceptions in every state, members of an “excepted service”.  While that term applies to many categories of Feds, Title 32 is unique to the Guard and reserves.  Employees covered under this part of the US Code and Code of Federal Regulations are classified under the General Schedule (GS) and or Federal Wage System (FWS) but must also maintain membership in the National Guard (Army or Air) as a condition of their employment.

This “dual status” means that soldiers and airman must be fit for deployment/military service and disqualified for conditions that would require accommodations for most employees.  Many of the thousands of National Guard members who served in Iraq and Afghanistan were GS, WG, and WS employees who were activated for military service and returned to their civil service job after deployment.

Most members of the National Guard, however, are not full-time employees.  In the past they were referred to as “Weekenders” – people who serve part-time while being employed outside of the Guard.  They agree to be deployed if/when necessary.  Following Hurricane Hugo in 1989, these “Traditionals” were a familiar sight to people living in the Charleston area.  Many of those called up by our governor to serve needed to repair their own homes and care for family members.

As may already be evident, the Guard is a complex hybrid.  It employs military, civil service, military reservists (the Active Guard Reserve or AGR), state employees, and more.  Supervisors, managers, and HR specialists are trained to distinguish among these many statuses and how each is officially treated.  HR specialist in the Guard refer to other Federal employees as “Title 5’s”.  For them, this is one of several employment statuses with differing regulatory guidance.

Unions and uniforms

Non-supervisory National Guard Technicians are commonly unionized employees.  While ACT is the largest union within the Guard, there are others.  For instance, I have worked with the South Dakota Guard, where Air Guard employees are represented by the American Federation of Government Employees (AFGE) and the Army Guard has an agreement with the Laborers International Union of North America (LIUNA).  There are as many as 7 union locals representing employees of the California Guard.

The Montana case from years back concerned whether Technicians must wear military uniforms to work.  There were strong feelings on both sides of the issue.  On one side, were most of those inside the Guard’s leadership across the country.  They believed that wearing of the uniform was an essential component of “dual status” employment.  In their estimation, any GS or WG Technician could be activated into military status at any time.  Moreover, their 40-hour/week jobs were contingent on their willingness and ability to wear those uniforms.

On the other side of the argument were the unions – especially ACT.  Their leaders and members felt the uniform represented only half of a Technician’s status.  When doing their day-to-day duties (on an air base, in Army maintenance facilities, developing logistics plans, or in an HR office) Technicians are paid per Federal schedules and regulations.  If these workers are classified like other Feds, why require them to wear military uniforms?

Caught between these opinions was the Montana Air Guard.  Their leadership agreed to contract provisions that would, with management approval, allow Technicians to work in civilian attire.  Such a provision had gone unnoticed in a 1981 version of their labor-management agreement but when the Montanans agreed to carry the same language into a subsequent document, the fireworks were lit.

Litigation over what’s worn to work

Like most decentralized agencies, the Guard has a headquarters advisory service – the National Guard Bureau (NGB).  “Bureau” as it’s known around the country provides coordination and policy that cross state lines.  NGB also has a staff of subject matter experts including some who advise HR Offices located in each state.

At the time the Montana Air Guard agreed with ACT over the uniform issue, Bureau provided technical assistance in reviewing the completed agreement per 5 U.S.C. Sec. 7114(c)(2) for all of the states.  When the NGB specialists and lawyers saw language allowing civilian attire for Military Technicians, they rejected it, declaring that wearing the uniform for dual status employees to be a management right per 5 U.S.C. Sec. 7106(a)(1)  Assuming that to be the case, providing an option to sport civilian attire was an illegal contract provision and could not remain in the negotiated agreement.

At Bureau’s insistence, the Montana Air Guard repudiated the already-negotiated provision and years of litigation ensued including trips to the Federal Labor Relations Authority’s (FLRA) General Counsel, the FLRA itself, US District Court, and the Circuit Court of Appeals.  In the end, Bureau lost its case and turned to the late Gillespie “Sonny” Montgomery, a Congressman from Mississippi and retired National Guard General.

Montgomery was one a handful of elected officials who actually understood issues relating to dual status Technicians.  He introduced a bill to amend the Technician Act (32 U.S.C. § 709) by requiring the wearing of uniforms for excepted service Technicians while performing their 40-hour/week jobs.  It passed, and that statutory provision ended the controversy concerning whether Technicians would wear military uniforms to work every day.

A peculiar institution

Yes, there are unions in the National Guard, and while actual membership is problematic, most Air and Army Guard Technicians have labor unions representing them while performing their fulltime jobs.  They wear military uniforms to work, but remain dual status employees – a hybrid of civil servants and military members.  While at work they commonly refer to one another by their military rank.

Title 32 has its peculiarities (compensatory time, but no overtime is an example) but mostly works the same as Title 5 – which governs the employment conditions of most Feds.  As in other agencies, unions provide exclusive bargaining representation services for those covered under negotiated agreements.  Grievance and other procedures can be found in the dozens of agreements between union locals/chapters and most states.

In most cases, there are separate Army and Air agreements, as the concerns of each side of the Guard can prove different.  In some states, however, a single union local represents employees across the state.  Consolidated bargaining units across state lines have been rejected as impractical, given the unique legal status of Adjutants General.

Working with the Guard

Over ~25 years working with the Guard in over a dozen states and the District of Columbia, I’ve found management and labor remarkably aligned with the agency’s mission.  There is also an inherent acceptance of leadership built into dual status employees.  Many employees have day-to-day supervisors who on weekends or deployments are their officers.  Union representatives perform their functions in the context of a National Guard that has be redefined (especially on the Army side) due to the many deployments of personnel overseas.

I recently facilitated contract negotiations involving the Oregon National Guard and its single AFGE Local 2986 using interest-based techniques.  I was once again impressed with the common sense of purpose in the room – reflective of both the National Guard and Oregon’s longstanding labor-management partnership.  In less than a full week’s work, most of the issues “at the table” had been resolved to both sides’ satisfaction.

Similarly, I ran a meeting for the South Dakota Army Guard that combined both non-supervisory Technicians and their facility leadership.  I was again reminded how a sense of common mission and commitment to success infects much of the Guard.  The potential for “us” vs. “you” was defeated by a union that took a “hands off” approach – allowing the employees and management space to resolve their own issues.  Moreover, the leadership was fully engaged and attentive to the needs of front-line employees.

Guard leadership consists primarily of Officers (both commissioned and non-commissioned) who have been trained in military schools.  A few weeks ago I was dealing with Colonels who are also GS-15s.  Because of dual status, their familiarity with roles and functions compares well against management in other agencies who never get to military officer training.

That said, the National Guard is far from perfect and the dual status conditions of Technicians lead to many misunderstandings.  Over many years, I have encountered plenty of jerks and incompetents representing both labor and management.  Nothing new there.

As with all Federal agencies, union-management relationships vary from state to state… and even under a single Adjutant General.  Drill weekends and deployments, however, lead National Guard Technicians to a different experience than most Feds.  Their sense of purpose and camaraderie reflects that of so many who serve their country – in and out of uniform.

© 2016 Robbie Kunreuther. All rights reserved. This article may not be reproduced without express written consent from Robbie Kunreuther.

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About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to trainlngfeds.com.

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