677 F.2d 276 (3rd Cir. 1982), 81-1592, New Jersey Air Nat. Guard v. Federal Labor Relations Authority

Docket Nº:81-1592.
Citation:677 F.2d 276
Party Name:NEW JERSEY AIR NATIONAL GUARD, 177th Fighter Interceptor Group and Department of Defense, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, AFL-CIO, Local 3486, Intervenor.
Case Date:April 12, 1982
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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677 F.2d 276 (3rd Cir. 1982)

NEW JERSEY AIR NATIONAL GUARD, 177th Fighter Interceptor

Group and Department of Defense, Petitioners,



American Federation of Government Employees, AFL-CIO, Local

3486, Intervenor.

No. 81-1592.

United States Court of Appeals, Third Circuit

April 12, 1982

Argued Feb. 19, 1982.

Rehearing and Rehearing In Banc Denied May 11, 1982.

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J. Paul McGrath, Asst. Atty. Gen., William Kanter, Marc P. Richman, Sandra Wien Simon (argued), Appellate Staff, Dept. of Justice, Washington, D. C., for petitioners.

Dennis T. Guise, Dept. of Military Affairs, Annville, Pa., for amicus curiae Com. of Pa., Pennsylvania Nat. Guard.

Paschon, Feurey & Kotzas, Toms River, N. J., for amicus curiae Adjutants Gen. Assoc. of the United States; Lt. Col. Robert V. Paschon, Toms River, N. J. (argued), Major Terrence Woods, Capt. Michael Kiefer, Capt. C. Roger Lunden, on brief.

Robert J. Freehling, Sol., Mary Elizabeth Medaglia, Associate Sol., Ellen Stern (argued), Federal Labor Relations Authority, Washington, D. C., for respondent.

Joe Goldberg, Staff Counsel, AFGE, Washington, D. C., for intervenor.

Before ADAMS and SLOVITER, Circuit Judges, and STERN, District Judge. [*]


ADAMS, Circuit Judge.

On this appeal from an order of the Federal Labor Relations Authority (FLRA) we must decide whether the New Jersey Air National Guard is obliged to bargain over certain conditions of employment with a union representing National Guard technicians. The FLRA held that the Labor-Management Relations Chapter of the Civil Service Reform Act of 1978 (hereinafter referred to as the "Labor-Management Act"), 5 U.S.C. §§ 7101-7135 (Supp. IV 1980), required the Guard to bargain. The Guard insists that it is precluded from bargaining over the conditions in question by the National Guard Technician Act of 1968 (hereinafter the "Technician Act"), 32 U.S.C. § 709 (1976), which commits these matters to the administratively unreviewable discretion of the adjutant general commanding each state's National Guard units. Because we conclude that Congress intended

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the Technician Act, rather than the Labor-Management Act, to govern in this situation, we grant the Guard's petition for review, set aside the decision of the FLRA, and deny the FLRA's cross-petition for enforcement.


Although this case arises in a statutory framework that is somewhat complex, the facts that give rise to the dispute are uncontested and fairly straightforward.

In 1979, the Guard was engaged in collective bargaining with Local 3486 of the American Federation of Government Employees, AFL-CIO (AFGE). Local 3486 represents civilian technicians working for the Guard's 177th Fighter Interceptor Group. In the course of the negotiations, the parties reached an impasse with respect to several issues bearing on the employment of those technicians: provisions in the collective bargaining agreement for reductions-in-force, grievances by employees, and adverse disciplinary actions by the Guard. 1 The Guard contended that it was unable to bargain over those provisions because they go to matters that are committed by the Technician Act to the discretion of the adjutant general of the New Jersey National Guard. Local 3486 maintained that these matters nevertheless fell within the scope of subjects that must, under the Labor-Management Act, be negotiated. The Guard held to its position, and Local 3486 brought a grievance before the FLRA-the agency charged with implementing the Labor-Management Act and overseeing disputes between the federal government and its employees.

In its order of February 20, 1981, the FLRA decided in favor of Local 3486. The agency held that Congress, when it enacted the Labor-Management Act ten years after the Technician Act, intended the later statute to override the Technician Act to the extent that the two were in conflict, and meant to provide Guard technicians with collective bargaining rights even with respect to matters that had previously been within the administratively unreviewable discretion of the adjutant general. Accordingly, the FLRA ordered the Guard to engage in collective bargaining over the disputed matters. The Guard petitioned this Court for review pursuant to 5 U.S.C. § 7123(a), and the FLRA filed a cross-petition for enforcement under 5 U.S.C. § 7123(b). Local 3486 was permitted to join as an intervenor in the action.


The National Guard occupies a unique position in the federal structure. It is "an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war," and "also may be federalized in addition to its role under state governments, to assist in controlling civil disorders." Gilligan v. Morgan, 413 U.S. 1, 7, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407 (1973). As the successor to the state militias of the nation's early years, see Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965), the Guard fills a role recognized and provided for in the United States Constitution. Art. I, § 8, cl. 16; amend. II. This role does not fit neatly within the scope of either state or

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national concerns; historically the Guard has been, and today remains, something of a hybrid. Within each state the National Guard is a state agency, under state authority and control. At the same time, the activity, makeup, and function of the Guard is provided for, to a large extent, by federal law.

Mirroring this special posture of the Guard is the sui generis status of its employees. In addition to purely military personnel, the Guard employs civilians to perform a wide range of administrative, clerical, and technical tasks. Often the responsibilities and duties of these employees, who are generally referred to as National Guard technicians, correspond directly to those of other civilian employees, yet they arise in a distinctly military context, implicating significant military concerns. See, e.g., NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir. 1980).

To accommodate the civilian interests of these employees without intruding on the Guard's military and security needs, and to recognize by statute the special employee status that had evolved informally, Congress in 1968 enacted the National Guard Technician Act, 32 U.S.C. § 709. In that Act, all Guard technicians, who had previously been employees of the states, were declared to be federal employees, and were thereby afforded the benefits and rights generally provided for federal employees in the civil service. 32 U.S.C. § 709(d). 2 The Act imposed special reservations to that federal civilian employee status, however. Specifically, Guard technicians were required to serve simultaneously as members of the National Guard, id. at § 709(b), and technicians who perform operational duties at air defense sites were subjected to some requirements of irregular additional duty beyond the ordinary workday schedule, id. at § 709(g). In addition, the Act set out a number of conditions of employment, relating to the discipline and discharge of Guard technicians, that were to remain within the final discretion of the adjutants general of the various state National Guards. In particular, the Act provided:

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

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(6) a technician shall be notified in writing of the termination of his employment as a technician and such notification shall be given at least thirty days prior to the termination date of such employment.

(emphasis added). Id. § 709(e).

Under the statutory scheme of section 709(e)-disregarding for the moment any subsequent federal statute that might modify or supersede it in some way-it is clear that the Guard is not obliged to bargain over the matters disputed here. For example, one issue in contention is whether there must be a procedure, consisting of binding arbitration, by which an aggrieved employee can challenge an adverse disciplinary action. Section 709(e)(3) provides that the adjutant general may, "at any time," remove a technician from his technician employment "for cause," and section 709(e)(5) precludes any administrative appeal extending beyond the adjutant general. 3 This plain language unmistakably forecloses any obligation on the part of the Guard to arbitrate dismissals for cause, either before the decision to dismiss is reached, when such a requirement would contravene section 709(e)(3), or as...

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