ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 99-1476
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
SCHENECTADY CHAPTER,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JUDITH A. HAGLEY
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
A. Parties and Amici
Appearing below in the administrative proceeding before the Federal
Labor Relations Authority (Authority) were the Association of Civilian
Technicians, Schenectady Chapter (union) and the U.S. Department of
Defense, National Guard Bureau, New York Air National Guard, Latham, New
York (agency). The union is the petitioner in this court proceeding;
the Authority is the respondent.
B. Ruling Under Review
The ruling under review in this case is the Authority's Decision and
Order on Negotiability Issues in the Association of Civilian
Technicians, Schenectady Chapter and U.S. Department of Defense,
National Guard Bureau, New York Air National Guard, Latham, New York,
Case No. 0-NG-2375, issued on September 30, 1999. The Authority's
decision is reported at 55 FLRA (No. 153) 925.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority is unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 2
A. The National Guard and Dual-Status Technicians 2
B. Background 3
C. The Authority's Decision 5
STANDARD OF REVIEW 6
SUMMARY OF ARGUMENT 7
ARGUMENT 8
THE AUTHORITY PROPERLY DETERMINED THAT THE
PROPOSAL IS OUTSIDE THE GUARD'S DUTY TO BARGAIN
BECAUSE IT RESTRICTS THE GUARD'S STAFFING
OF A MILITARY MISSION AND THEREFORE CONCERNS
THE MILITARY ASPECTS OF TECHNICIAN EMPLOYMENT 8
CONCLUSION 11
ADDENDUM
Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) A-1
5 U.S.C. § 706(2)(A) A-5
5 U.S.C. § 6323(d) A-6
10 U.S.C. § 976 A-7
10 U.S.C. § 12315 A-10
32 U.S.C. § 709 A-11
TABLE OF AUTHORITIES
AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 6
American Fed'n of Gov't Employees, Local 2953 v. FLRA, 730 F.2d 1534
(D.C. Cir. 1984) 3
Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981) 7
Department of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 7
Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) 7
* National Fed'n of Fed. Employees, Local 1623 v. FLRA,
852 F.2d 1349 (D.C. Cir. 1988) 8
National Treasury Employees Union v. FLRA, 30 F.3d 1510 (D.C. Cir. 1994) 7
Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 7
Overseas Educ. Ass'n v. FLRA, 827 F.2d 814 (D.C. Cir. 1987) 7
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Association of Civ. Techs., Mont. Air Chap. and Dep't of the Air
Force, Mont. Air Nat'l Guard, 20 FLRA 717 (1985) 9
*Authorities upon which we chiefly rely are marked by asterisks.
Association of Civilian Techs., Tex. Lone Star Chapter 100 &
U.S. Dep't of Defense, Nat'l Guard Bureau, State of Tex.,
Adjutant General's Dep't and Ass'n of Civilian Tech., ATC,
Wisc. 26 and U.S. Dep't of Defense, Nat'l Guard Bureau,
Dep't of Mil. Affairs, State of Wisc., 55 FLRA 1226 (2000),
petition for reconsideration denied, 56 FLRA No. 63
(June 7, 2000) and petition for review filed, No. 00-1085
(D.C. Cir. Mar. 13, 2000) 5, 6
* Delaware Chapter, Ass'n of Civilian Techs. and
Delaware Nat'l Guard, 28 FLRA 1030 (1987) 3, 10
National Fed'n of Fed. Employees, Local 1669 and U.S. Dep't of Defense,
Arkansas Air Nat'l Guard, 188th Fighter Wing, Fort Smith, Ark.,
55 FLRA 63 (1999), enf'd sub nom. FLRA v. Arkansas Nat'l Guard,
No. 99-1974 (8th Cir. Oct. 14, 1999) 8, 9
STATUTES
Federal Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) 1
5 U.S.C. § 7105(a)(2)(E) 1, 2
5 U.S.C. § 7117(c) 2
5 U.S.C. § 7123(a) 1, 2
5 U.S.C. § 7123(c) 7
5 U.S.C. § 706(2)(A) 7
5 U.S.C. § 6323(d) passim
* 10 U.S.C. § 976 passim
10 U.S.C. § 12315 3
32 U.S.C. § 709 3
GLOSSARY
The 109th 109th Tactical Airlift Wing
AFGE v. FLRA American Fed'n of Gov't Employees, Local 2953 v. FLRA,
730 F.2d 1534 (D.C. Cir. 1984)
App. Appendix
Authority Federal Labor Relations Authority
Br. Brief for the Petitioner
Delaware National Delaware Chapter, Association of Civilian
Guard Technicians and Delaware National Guard, 28 FLRA 1030 (1987)
The Guard New York Air National Guard
Statute Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp. III 1997)
Union Association of Civilian Technicians, Schenectady Chapter
ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 99-1476
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
SCHENECTADY CHAPTER,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The final decision and order under review in this case was issued
by the Federal Labor Relations Authority (Authority) in 55 FLRA 925
(1999), a copy of which is at Appendix (App.) 4-30. The Authority
exercised jurisdiction over the case pursuant to section 7105(a)(2)
(E) of the Federal Service Labor-Management Relations Statute, 5
U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) (Statute).[1] This
Court has jurisdiction to review the Authority's final decisions
and orders pursuant to section 7123(a) of the Statute.
STATEMENT OF THE ISSUE
Whether a proposal, which would restrict the Guard's
staffing of a military mission by prohibiting the Guard
from communicating with dual-status technicians about
serving voluntarily on a military mission, concerns the
military aspects of technician employment and is,
therefore, outside the Guard's duty to bargain.
STATEMENT OF THE CASE
This case arose as a negotiability proceeding under section 7117(c)
of the Statute. The Association of Civilian Technicians,
Schenectady Chapter (union), which represents technicians employed
by the New York Air National Guard (the Guard), submitted a
bargaining proposal bearing on the staffing of certain active duty
military assignments. The union's proposal prohibits the Guard from
asking technicians, individually, to serve voluntarily on the
mission without military compensation. The Guard declared the
proposal nonnegotiable on the grounds that it was inconsistent with
10 U.S.C. § 976, which prohibits collective bargaining concerning
the conditions of military service. The union appealed to the
Authority for a determination regarding the negotiability of the
proposal. 5 U.S.C. § 7105(a)(2)(E). The Authority determined that
the proposal is nonnegotiable because it relates to the military
aspects of technician employment. Accordingly, the Authority
dismissed the union's negotiability appeal. Pursuant to section
7123(a) of the Statute, the union seeks review of the Authority's
decision.
STATEMENT OF THE FACTS
A. The National Guard and Dual-Status Technicians
The union is the exclusive representative of certain National Guard
dual-status technicians employed by the New York Air National Guard.
Guard technicians are referred to as "dual status" because they are
civilian employees who must - as a condition of their employment -
become and remain military members of the National Guard unit in
which they are employed and must maintain the military rank
specified for their technician positions. See National Guard
Technicians Act, 32 U.S.C. § 709; American Fed'n of Gov't
Employees, Local 2953 v. FLRA, 730 F.2d 1534, 1537 (D.C. Cir. 1984)
(AFGE v. FLRA). Thus, National Guard technicians are unique federal
employees, due to the Guard's military mission and the technicians'
dual status. AFGE v. FLRA, 730 F.2d at 1545.
Although the Guard's dual-status technicians are entitled to
engage in collective bargaining regarding certain subjects, they
are not permitted to negotiate over the military aspects of their
employment. See 10 U.S.C. § 976 (prohibiting labor organizations
from bargaining over the terms and conditions of military
service). Therefore, proposals related to such aspects are
outside the Guard's duty to bargain. See, e.g., Delaware Chapter,
Ass'n of Civilian Techs. and Delaware Nat'l Guard, 28 FLRA 1030,
1034-35 (1987) (Delaware National Guard).
B. Background
The bargaining proposal at issue in this case was advanced on behalf of
dual-status technicians in response to the expanded military mission of the
109th Tactical Airlift Wing (the 109th). App. 13. In the mid-1990s, the
109th was assigned the mission of supporting United States government
activities in Antarctica. As a result of this new assignment, the 109th
increased the number of personnel deployed to that region. Such missions
outside the United States are not performed by technicians in their civilian
employment capacity, but rather in active military duty status. App. 6.
These military missions may be performed by Guard members either
with military pay or, with the member's consent, without military
pay as a volunteer. 10 U.S.C. § 12315. In this regard, dual-status
technicians who opt to volunteer for active duty without military
pay may elect to utilize 5 U.S.C. § 6323(d) leave from their
civilian employment. Under this special pay-status, technicians
receive their civilian pay, but do not receive full military pay.
App. 21. In contrast, technicians who serve on military missions
but do not volunteer for the section 6323(d) pay status receive full
military pay, in addition to their civilian pay. When in this
latter leave status, the technician will generally receive more pay
than when opting for the section 6323(d) status - full military pay
in addition to any available civilian pay. App. 21.
During negotiations for a supplemental agreement, the union
submitted a proposal relating to the military pay status of
technicians who perform certain active duty military assignments.
The proposal prohibits the Guard from communicating directly with
individual technicians concerning their willingness to serve on a
military mission in section 6323(d) pay status. Specifically, the
proposal provides:
If the [A]gency decides to afford bargaining unit technicians an opportunity to
request leave under 5 U.S.C. § 6323(d), the [A]gency shall inform them of that
opportunity solely by written general announcement, such as a bulletin board
posting. The announcement shall not identify by name, position, or any other
individual identifier, any technician eligible for the opportunity. The general
announcement may state the number of technicians to whom the opportunity applies
and the knowledge, skills, and abilities technicians must have to be eligible
for the opportunity. The announcement shall state that the opportunity is
voluntary. The [A]gency shall not - and the announcement shall state that the
[A]gency will not - coerce, pressure, or personally ask any technician to
volunteer, and will not impose any adverse consequence, of any kind, on any
technician, for choosing not to volunteer. If a technician in response to the
general announcement expresses to the [A]gency interest in considering the
opportunity afforded, the [A]gency thereafter may communicate directly with that
technician concerning that opportunity.
App. 18-19.
The Guard declared this proposal nonnegotiable, asserting that it
was prohibited by 10 U.S.C. § 976, which makes it unlawful for a
union to bargain over the terms and conditions of military service.
App. 19. The union filed a negotiability appeal with the Authority.
C. The Authority's Decision
The Authority held the proposal nonnegotiable because it concerned
the military aspects of technician employment.[2] Construing the
proposal, the Authority found that it would affect the Guard's
staffing of a military mission in two respects. First, the proposal
would prohibit the Guard, after it determined to attempt staffing a
military mission with technicians in section 6323(d) status, from
seeking individual volunteers to serve on the mission in that
status. Second, if the Guard assigned a particular technician to
serve on a military mission, the Authority interpreted the proposal
as foreclosing the Guard from asking that technician whether he or
she was willing to do so in section 6323(d) status. App. 21.
The Authority relied on well-established judicial and Authority
precedent to resolve the case. Under this precedent, Guard
technicians may not bargain concerning the military aspects of
technician employment. App. 21-22. In support of this principle,
the Authority cited two rationales - (1) 10 U.S.C. § 976, which
prohibits bargaining with, or on behalf of, members of the military
regarding the conditions of their service, and (2) the conclusion
that military matters do not concern "conditions of employment"
within the meaning of the Statute.[3] App. 22.
The Authority noted that although this principle can be clearly
stated, its application to particular proposals is not always
straightforward. App. 22. Reviewing its precedent distinguishing
civilian from military aspects of technician employment, the
Authority concluded that the "key elements in determining whether a
particular proposal involves a military aspect of technician
employment are whether the proposal relates to a military
assignment, or attempts to influence a military decision." App. 24
(citations omitted).
Applying this framework to the proposal as the Authority interpreted
it, the Authority determined that the proposal is outside the duty
to bargain because it both relates to a military assignment and
attempts to influence a military decision. App. 25. Specifically,
the Authority found that the proposal attempts to influence the
ability of military commanders to solicit, individually, section
6323(d) status volunteers for a military mission. App. 24-25.
Because the proposal relates to the military aspects of technician
employment, the Authority therefore held that it was outside the
Guard's duty to bargain and dismissed the union's negotiability
appeal. App. 25.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." AFGE,
Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998). Authority
action shall be set aside only if it is "arbitrary, capricious,
or an abuse of discretion and . . . otherwise not in accordance
with law." See 5 U.S.C. § 7123(c), incorporating 5 U.S.C. §
706(2)(A); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769,
771-72 (D.C. Cir. 1988).
"Congress has specifically entrusted the Authority with the responsibility
to define the proper subjects for collective bargaining, drawing upon its
expertise and understanding of the special needs of public sector labor
relations." Library of Congress v. FLRA, 699 F.2d 1280, 1289 (D.C. Cir.
1983). With regard to a negotiability decision, like the one under review
in this case, such a "decision will be upheld if the FLRA's construction of
the [Statute] is 'reasonably defensible.'" Overseas Educ. Ass'n v. FLRA, 827
F.2d 814, 816 (D.C. Cir. 1987) (quoting Department of Defense v. FLRA, 659
F.2d 1140, 1162 n.121 (D.C. Cir. 1981)). Courts "also owe deference to the
FLRA's interpretation of [a] union's proposal." National Treasury Employees
Union v. FLRA, 30 F.3d 1510, 1514 (D.C. Cir. 1994).
The instant case involves the Authority's interpretation of its own
organic statute as it relates to another federal law that prohibits
collective bargaining over the terms and conditions of military
service. When the Authority interprets other statutes, although it
is not entitled to deference, the Authority's interpretation should
be followed to the extent the reasoning is "sound." Department of
the Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988).
SUMMARY OF ARGUMENT
The Authority properly determined that a proposal, which would
prohibit the Guard from asking technicians whether they would serve
voluntarily on a military mission without military pay, concerns the
military aspects of a technician's employment and is, therefore,
outside the Guard's duty to bargain.
Section 10 U.S.C. § 976 prohibits unions from bargaining over the
terms and conditions of military service. Dual status technicians -
who perform both military service and civilian employment - cannot
bargain over the conditions of their military service, but only over
conditions of their civilian employment. Heeding the prohibition of
10 U.S.C. § 976, the Authority has held that proposals relating to
the military aspects of technician employment are outside the
Guard's duty to bargain.
In this case, the Authority found that the proposal concerns the
technicians' military service, not their civilian employment. The
proposal (1) relates to a military assignment and (2) restricts
military staffing decisions. For these two reasons, the proposal
concerns conditions of military service and not - as the union
contends - conditions of civilian employment. As such, the proposal
is outside the Guard's duty to bargain, and the union's petition for
review should be dismissed.
ARGUMENT
THE AUTHORITY PROPERLY DETERMINED THAT THE
PROPOSAL IS OUTSIDE THE GUARD'S DUTY TO BARGAIN
BECAUSE IT RESTRICTS THE GUARD'S STAFFING OF A
MILITARY MISSION AND THEREFORE CONCERNS THE
MILITARY ASPECTS OF TECHNICIAN EMPLOYMENT
The union's proposal in this case would restrict how the National Guard
staffs military missions with dual-status technicians. These technicians
are unique federal employees because, although they are subject to military
authority, they also have certain bargaining rights under the Statute. See
National Fed'n of Fed. Employees, Local 1623 v. FLRA, 852 F.2d 1349, 1350-51
(D.C. Cir. 1988). As this Court has explained, however, "the military side
of technicians' employment takes precedence." Id. at 1351. Thus, this
Court has held, "the military side of the National Guard lies wholly outside
of the collective bargaining realm." Id. at 1353.
Consistent with this Court's holdings, it is well established in the
Authority's case law that, "although technicians may negotiate
concerning their 'employment in a civilian capacity,' Congress did
not intend that they be permitted to negotiate over 'the military
aspects of civilian technician employment.'" National Fed'n of Fed.
Employees, Local 1669 and U.S. Dep't of Defense, Ark. Air Nat'l
Guard, 188th Fighter Wing, Fort Smith, Ark., 55 FLRA 63, 65 (1999)
(internal citation omitted), enf'd sub nom. FLRA v. Arkansas Nat'l
Guard, No. 99-1974 (8th Cir. Oct. 14, 1999); see also Association of
Civ. Techs., Mont. Air Chap. & Dep't of the Air Force, Mont. Air
Nat'l Guard, 20 FLRA 717, 739 (1985) (Congress intended 10 U.S.C. §
976 to prohibit collective bargaining over military aspects of
technician employment while preserving the right of dual-status
technicians to negotiate conditions of their employment in their
civilian capacity).
The union challenges neither the principle that it may not bargain
over the military aspects of technician employment nor the
Authority's analytical framework for determining whether a
particular proposal improperly infringes on military matters, i.e.,
"whether the proposal relates to a military assignment, or attempts
to influence a military decision." App. 24 (citations omitted).
Instead, the union challenges the application of this framework to
the proposal at issue.
Contrary to the union's suggestion (Br. at 8, see also Br. at 6),
the proposal in this case does not merely "concern[] communication
with technicians about whether they want to request leave from their
civilian employment." Rather, under the Authority's framework, the
proposal involves the military aspects of technician employment for
several reasons. As the Authority explained, the proposal relates
to the military mission. App. 25. In this regard, the union does
not dispute that the assignment about which the proposal would
prohibit individual communications between the Guard and technicians
is a military assignment.
In addition, the proposal attempts to influence a military decision.
The proposal removes the ability of military commanders to
individually solicit volunteers for the military mission in a
particular (i.e., section 6323(d)) pay status. App. 25. The
proposal thus restricts the staffing of a military mission in two
ways. One, if the Guard determines to staff the military mission
with section 6323(d) volunteers, the proposal limits the Guard's
ability to influence particular individuals to volunteer. Two, if
the Guard decides that it wants a particular technician to perform a
military mission, the proposal nullifies the Guard's ability to
communicate directly with that individual to solicit voluntary
section 6323(d) status. App. 24-25.
Against the backdrop of these realities, the union's description of
the proposal (Br. at 8) - as merely "concern[ing] communication
with technicians about whether they want to request leave from their
civilian employment" - is a simplism. This incomplete portrayal
ignores the fact that the "leave" at issue is leave to serve on a
military mission - and to do so in a particular pay status.
Finally, recognizing that the proposal might operate while the
technicians are in a civilian status, the Authority concluded
that this and similar proposals could nevertheless implicate
military aspects of technician service (App. 24 n.10). To
illustrate this point, the Authority cited Delaware National
Guard, where the proposals concerned technician participation
in the Guard's Military Education Program, including a
proposal for technician counseling regarding training options.
See Delaware National Guard, 28 FLRA at 1032. The Authority
held in that case that all the proposals were outside the duty
to bargain because the technicians attended this training in
military status. Id. at 1034-35. Here, similarly, although
the disputed communications undertaken by the Guard to staff a
military mission might occur while the technicians are serving
in their civilian capacities, the communications are
integrally related to a military assignment and to the
military decisions made to staff that military mission.
Therefore, as the Authority noted (App. 24 & n.10), the period
during which a proposal operates is not conclusive.
In sum, because the proposal relates to the Guard's military mission
and hampers military commanders' abilities to staff those missions,
the proposal concerns the military aspects of technician employment
and is, therefore, outside the Guard's duty to bargain.
Accordingly, this Court should deny the union's petition for
review.
CONCLUSION
The union's petition for review should be denied.
Respectfully submitted,
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JUDITH A. HAGLEY
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
June 13, 2000
CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 28
Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 28, I
certify that the attached brief is proportionately spaced, utilizes 14-point
serif type, and contains 2,969 words.
June 13, 2000
SERVICE LIST
I certify that copies of the Brief For The Federal Labor Relations
Authority have been served this day, by mail, upon the following:
Daniel M. Schember
Gaffney & Schember, P.C.
1666 Connecticut Avenue, NW
Suite 225
Washington, DC 20009
Jennifer A. Baker
Paralegal Specialist
June 13, 1999
STATUTORY ADDENDUM
TABLE OF CONTENTS
1. 5 U.S.C. § 7105(a)(2)(E) A-1
2. 5 U.S.C. § 7117(c) A-2
3. 5 U.S.C. § 7123(a), (c) A-3
4. 5 U.S.C. § 706(2)(A) A-5
5. 5 U.S.C. § 6323(d) A-6
6. 10 U.S.C. § 976 A-7
7. 10 U.S.C. § 12315 A-10
8. 32 U.S.C. § 709 A-11
§ 7105. Powers and duties of the Authority
(a) (2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * * * * * * * *
(E) resolve issues relating to the duty to bargain in good faith under
section 7117(c) of this title;
* * * * * * * * * * * * *
§ 7117. Duty to bargain in good faith; compelling need;
duty to consult
* * * * * * * * * * * * *
(c)(1) Except in any case to which subsection (b) of this section applies,
if an agency involved in collective bargaining with an exclusive
representative alleges that the duty to bargain in good faith does not
extend to any matter, the exclusive representative may appeal the allegation
to the Authority in accordance with the provisions of this subsection.
(2) The exclusive representative may, on or before the 15th day after
the date on which the agency first makes the allegation referred to in
paragraph (1) of this subsection, institute an appeal under this
subsection by-
(A) filing a petition with the Authority; and
(B) furnishing a copy of the petition to the head of the agency.
(3) On or before the 30th day after the date of the receipt by the head
of the agency of the copy of the petition under paragraph (2)(B) of this
subsection, the agency shall-
(A) file with the Authority a statement-
(i) withdrawing the allegation; or
(ii) setting forth in full its reasons supporting the allegation; and
(B) furnish a copy of such statement to the exclusive representative.
(4) On or before the 15th day after the date of the receipt by the
exclusive representative of a copy of a statement under paragraph (3)(B)
of this subsection, the exclusive representative shall file with the
Authority its response to the statement.
(5) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it
shall not include the General Counsel as a party.
(6) The Authority shall expedite proceedings under this subsection to
the extent practicable and shall issue to the exclusive representative
and to the agency a written decision on the allegation and specific
reasons therefor at the earliest practicable date.
* * * * * * * * * * * * *
§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in
the United States court of appeals in the circuit in which the person
resides or transacts business or in the United States Court of Appeals for
the District of Columbia.
* * * * * * * * * * * * *
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
* * * * * * * * * * * * *
Sec. 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms of
an agency action. The reviewing court shall -
* * * * * * * * * * * * *
(2) hold unlawful and set aside agency action, findings, and conclusions
found to be -
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
* * * * * * * * * * * * *
§ 6323. Military leave;
Reserves and National Guardsmen
* * * * * * * * * * * * *
(d) (1) A military reserve technician described in section 8401(30) is entitled
at such person's request to leave without loss of, or reduction in, pay, leave
to which such person is otherwise entitled, credit for time or service, or
performance or efficiency rating for each day, not to exceed 44 workdays in a
calendar year, in which such person is on active duty without pay, as authorized
pursuant to section 12315 of title 10, under section 12301(b) or 12301(d) of
title 10 (other than active duty during a war or national emergency declared by
the President or Congress) for participation in noncombat operations outside the
United States, its territories and possessions.
(2) An employee who requests annual leave or compensatory time to which the
employee is otherwise entitled, for a period during which the employee would
have been entitled upon request to leave under this subsection, may be
granted such annual leave or compensatory time without regard to this
section or section 5519.
§ 976. Membership in military unions, organizing of military unions, and
recognition of military unions prohibited
(a) In this section:
(1) The term ''member of the armed forces'' means (A) a member of the armed
forces who is serving on active duty, (B) a member of the National Guard who
is serving on full-time National Guard duty, or (C) a member of a Reserve
component while performing inactive-duty training.
(2) The term ''military labor organization'' means any organization that
engages in or attempts to engage in -
(A) negotiating or bargaining with any civilian officer or employee, or with
any member of the armed forces, on behalf of members of the armed forces,
concerning the terms or conditions of military service of such members in
the armed forces;
(B) representing individual members of the armed forces before any civilian
officer or employee, or any member of the armed forces, in connection with
any grievance or complaint of any such member arising out of the terms or
conditions of military service of such member in the armed forces; or
(C) striking, picketing, marching, demonstrating, or any other similar form
of concerted action which is directed against the Government of the United
States and which is intended to induce any civilian officer or employee, or
any member of the armed forces, to -
(i) negotiate or bargain with any person concerning the terms or
conditions of military service of any member of the armed forces,
(ii) recognize any organization as a representative of individual
members of the armed forces in connection with complaints and grievances
of such members arising out of the terms or conditions of military
service of such members in the armed forces, or
(iii) make any change with respect to the terms or conditions of
military service of individual members of the armed forces.
(3) The term ''civilian officer or employee'' means an employee, as such term
is defined in section 2105 of title 5.
(b) It shall be unlawful for a member of the armed forces, knowing of the
activities or objectives of a particular military labor organization -
(1) to join or maintain membership in such organization; or
(2) to attempt to enroll any other member of the armed forces as a member of
such organization.
(c) It shall be unlawful for any person -
(1) to enroll in a military labor organization any member of the armed forces
or to solicit or accept dues or fees for such an organization from any member
of the armed forces; or
(2) to negotiate or bargain, or attempt through any coercive act to negotiate
or bargain, with any civilian officer or employee, or any member of the armed
forces, on behalf of members of the armed forces, concerning the terms or
conditions of service of such members;
(3) to organize or attempt to organize, or participate in, any strike,
picketing, march, demonstration, or other similar form of concerted action
involving members of the armed forces that is directed against the Government
of the United States and that is intended to induce any civilian officer or
employee, or any member of the armed forces, to -
(A) negotiate or bargain with any person concerning the terms or conditions
of service of any member of the armed forces,
(B) recognize any military labor organization as a representative of
individual members of the armed forces in connection with any complaint or
grievance of any such member arising out of the terms or conditions of
service of such member in the armed forces, or
(C) make any change with respect to the terms or conditions of service in
the armed forces of individual members of the armed forces; or
(4) to use any military installation, facility, reservation, vessel, or other
property of the United States for any meeting, march, picketing,
demonstration, or other similar activity for the purpose of engaging in any
activity prohibited by this subsection or by subsection (b) or (d).
(d) It shall be unlawful for any military labor organization to represent, or
attempt to represent, any member of the armed forces before any civilian officer
or employee, or any member of the armed forces, in connection with any grievance
or complaint of any such member arising out of the terms or conditions of
service of such member in the armed forces.
(e) No member of the armed forces, and no civilian officer or employee, may -
(1) negotiate or bargain on behalf of the United States concerning the terms
or conditions of military service of members of the armed forces with any
person who represents or purports to represent members of the armed forces, or
(2) permit or authorize the use of any military installation, facility,
reservation, vessel, or other property of the United States for any meeting,
march, picketing, demonstration, or other similar activity which is for the
purpose of engaging in any activity prohibited by subsection (b), (c), or (d).
Nothing in this subsection shall prevent commanders or supervisors from giving
consideration to the views of any member of the armed forces presented
individually or as a result of participation on command-sponsored or authorized
advisory councils, committees, or organizations.
(f) Whoever violates subsection (b), (c), or (d) shall be fined under title 18
or imprisoned not more than 5 years, or both, except that, in the case of an
organization (as defined in section 18 of such title), the fine shall not be
less than $25,000.
(g) Nothing in this section shall limit the right of any member of the armed
forces -
(1) to join or maintain membership in any organization or association not
constituting a ''military labor organization'' as defined in subsection (a)(2)
of this section;
(2) to present complaints or grievances concerning the terms or conditions of
the service of such member in the armed forces in accordance with established
military procedures;
(3) to seek or receive information or counseling from any source;
(4) to be represented by counsel in any legal or quasi-legal proceeding, in
accordance with applicable laws and regulations;
(5) to petition the Congress for redress of grievances; or
(6) to take such other administrative action to seek such administrative or
judicial relief, as is authorized by applicable laws and regulations.
§ 12315. Reserves: duty with or without pay
(a) Subject to other provisions of this title, any Reserve may be ordered to
active duty or other duty -
(1) with the pay and allowances provided by law; or
(2) with his consent, without pay. Duty without pay shall be considered for
all purposes as if it were duty with pay.
(b) A Reserve who is kept on active duty after his term of service expires is
entitled to pay and allowances while on that duty, except as they may be
forfeited under the approved sentence of a court-martial or by non-judicial
punishment by a commanding officer or when he is otherwise in a non-pay status.
§ 709. Technicians: employment, use, status
(a) Under regulations prescribed by the Secretary of the Army or the
Secretary of the Air Force, as the case may be, and subject to subsection
(b) of this section persons may be employed as technicians in -
(1) the administration and training of the National Guard; and (2)
the maintenance and repair of supplies issued to the National Guard or
the armed forces.
(b) A technician employed under subsection (a) shall, while so employed -
(1) be a member of the National Guard;
(2) hold the military grade specified by the Secretary concerned for that
position; and
(3) wear the uniform appropriate for the member's grade and component of the
armed forces while performing duties as a technician.
(c) The Secretary concerned shall designate the adjutants general referred to in
section 314 of this title, to employ and administer the technicians authorized
by this section.
(d) A technician employed under subsection (a) is an employee of the Department
of the Army or the Department of the Air Force, as the case may be, and an
employee of the United States. However, a position authorized by this section is
outside the competitive service if the technician employed therein is required
under subsection (b) to be a member of the National Guard.
(e) Notwithstanding any other provision of law and under regulations prescribed
by the Secretary concerned -
(1) a technician who is employed in a position in which National Guard
membership is required as a condition of employment and who is separated
from the National Guard or ceases to hold the military grade specified for
his position by the Secretary concerned shall be promptly separated from his
technician employment by the adjutant general of the jurisdiction concerned;
(2) a technician who is employed in a position in which National Guard
membership is required as a condition of employment and who fails to meet
the military security standards established by the Secretary concerned for a
member of a reserve component of the armed force under his jurisdiction may
be separated from his employment as a technician and concurrently discharged
from the National Guard by the adjutant general of the jurisdiction
concerned;
(3) a technician may, at any time, be separated from his technician
employment for cause by the adjutant general of the jurisdiction concerned;
(4) a reduction in force, removal, or an adverse action involving discharge
from technician employment, suspension, furlough without pay, or reduction
in rank or compensation shall be accomplished by the adjutant general of the
jurisdiction concerned;
(5) a right of appeal which may exist with respect to clause (1), (2), (3),
or (4) shall not extend beyond the adjutant general of the jurisdiction
concerned; and (6) a technician shall be notified in writing of the
termination of his employment as a technician and, unless the technician is
serving under a temporary appointment, is serving in a trial or probationary
period, or has voluntarily ceased to be a member of the National Guard when
such membership is a condition of employment, such notification shall be
given at least 30 days before the termination date of such employment.
(f) Sections 2108, 3502, 7511, and 7512 [1] of title 5 do not apply to any
person employed under this section. [1] See References in Text note below.
(g)(1) Notwithstanding sections 5544(a) and 6101(a) of title 5 or any other
provision of law, the Secretary concerned may, in the case of technicians
assigned to perform operational duties at air defense sites -
(A) prescribe the hours of duties;
(B) fix the rates of basic compensation; and
(C) fix the rates of additional compensation;
to reflect unusual tours of duty, irregular additional duty, and work on days
that are ordinarily nonworkdays. Additional compensation under this subsection
may be fixed on an annual basis and is determined as an appropriate percentage,
not in excess of 12 percent, of such part of the rate of basic pay for the
position as does not exceed the minimum rate of basic pay for GS-10 of the
General Schedule under section 5332 of title 5.
(2) Notwithstanding sections 5544(a) and 6101(a) of title 5 or any other
provision of law, the Secretary concerned may, for technicians other than
those described in paragraph (1), prescribe the hours of duty for
technicians. Notwithstanding sections 5542 and 5543 of title 5 or any other
provision of law, such technicians shall be granted an amount of
compensatory time off from their scheduled tour of duty equal to the amount
of any time spent by them in irregular or overtime work, and shall not be
entitled to compensation for such work.
(h) Repealed. Pub. L. 103-160, div. A, title V, Sec. 524(d), Nov. 30, 1993, 107
Stat. 1657.)
(i) The Secretary concerned may not prescribe for purposes of eligibility for
Federal recognition under section 301 of this title a qualification applicable
to technicians employed under subsection (a) that is not applicable pursuant to
that section to the other members of the National Guard in the same grade,
branch, position, and type of unit or organization involved.
[1] Sections 7511 and 7512 of title 5, referred to in subsec. (f), which related
to adverse actions against preference eligible employees and comprised
subchapter II of chapter 75 of Title 5, Government Organization and Employees,
were repealed by
Pub. L. 95-454 and replaced by a new subchapter II (Sec. 7511-7514) of chapter
75 relating to removal, suspension for more than 14 days, reduction in grade or
pay, or furlough for 30 days or less. -MISC2-
[1] Pertinent statutory provisions are set forth in the attached Addendum to
this brief.
[2] Member Wasserman dissented, finding that the proposal did not concern the
military aspects of technician employment. App. 27-29.
[3] As the union points out (Brief (Br.) at 8), subsequent to the issuance of
this decision, the Authority clarified the rationales supporting the
determination that military matters are not within the duty to bargain,
explaining that this determination is not compelled by the Statute's definition
of "conditions of employment." Association of Civilian Techs., Tex. Lone Star
Chapter 100 & U.S. Dep't of Defense, Nat'l Guard Bureau, State of Tex., Adjutant
General's Dep't and Ass'n of Civilian Tech., ATC, Wisc. 26 and U.S. Dep't of
Defense, Nat'l Guard Bureau, Dep't of Mil. Affairs, State of Wisc., 55 FLRA 1226
(2000) (a copy of this decision is in the Appendix at 51-62), petition for
reconsideration denied, 56 FLRA No. 63 (June 7, 2000) and petition for review
filed, No. 00-1085 (D.C. Cir. Mar. 13, 2000). As a result, for purposes of the
instant litigation, the Authority relies only on the 10 U.S.C. § 976 basis for
the principle that technicians may not bargain over the military aspects of
their employment.