California Nat. Guard v. Federal Labor Relations Authority, s. 81-7231 and 81-7336

• Decision Date: 27 January 1983
• Docket Number: Nos. 81-7231 and 81-7336,s. 81-7231 and 81-7336
• Citation: 697 F.2d 874
• Parties: 112 L.R.R.M. (BNA) 2941 CALIFORNIA NATIONAL GUARD, and Department of Defense, Petitioners/Cross-Respondents, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 874

697 F.2d 874

112 L.R.R.M. (BNA) 2941

CALIFORNIA NATIONAL GUARD, and Department of Defense, Petitioners/Cross-Respondents, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross-Petitioner.

Nos. 81-7231 and 81-7336.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 1982.

Decided Jan. 27, 1983.

Sandra Wien Simon, Dept. of Justice, Washington, D.C., for petitioners/cross-respondents.

Mary Elizabeth Medaglia, Ellen Stern, F.L.R.A. Washington, D.C., for respondent/cross-petitioner.

On Petition for Review From, and Cross Application for Enforcement of, an Order of the Federal Labor Relations Authority.

Before CHOY, SNEED and SCHROEDER, Circuit Judges.

CHOY, Circuit Judge:

On February 20, 1981, the Federal Labor Relations Authority (Authority) ruled that, under the Labor-Management Relations Chapter of the Civil Service Reform Act of 1978, Pub.L. No. 95-454, Sec. 701, 92 Stat. 1111, 1191-1216 (codified at 5 U.S.C. Secs. 7101-7135 (Supp. IV 1980)) (Labor-Management Act), the National Guard must bargain over the union proposal permitting grievance processing, including binding arbitration, of certain personnel matters related to the National Guard technicians. National Association of Government Employees, Local R12-132 and California National Guard, Case No. O-NG-149, 5 F.L.R.A. No. 25. The California National Guard (Guard), joined by the Department of Defense, petitions this court for a review of the Authority's decision, contending that the decision contravenes the National Guard Technicians Act of 1968, Pub.L. No. 90-486, 82 Stat. 755 (codified at 32 U.S.C. Sec. 709 (1976)) (Technicians Act), which vests in the adjutant general of each state's National Guard the final administrative power over the matters covered in the union proposal. The same issue was raised by the New Jersey Air National Guard in its petition before the Third Circuit, which granted New Jersey Air National Guard's petition and reversed the Authority's decision. New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3d Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 343, 74 L.Ed.2d ---- (1982). The issue in this petition is whether the Technicians Act or the Labor-Management

Act should control the resolution of adverse personnel actions against the Guard technicians. Because we substantially agree with the Third Circuit's treatment of the issue, we grant the Guard's petition and reverse the Authority's decision.

I. Background

During contract negotiations between the Guard and the National Association of Government Employees, Local R12-132, the Guard technicians' union (Union), a dispute arose concerning the negotiability of the following grievance procedure proposed by the union:

Union Proposal

ARTICLE XXIII

NEGOTIATED GRIEVANCE PROCEDURE

....

Section 1. This article establishes the exclusive procedure available to the employees in the unit, the Union and the Employer for resolving all grievances which fall within its scope. Grievances to be processed under this article shall apply to matters of concern or dissatisfaction regarding the interpretation, application or violation of law, regulations, or this agreement; conditions of employment; or relationships with agency supervisors and officials, including prohibited personnel practice charges and disciplinary and adverse actions....

....

Section 2. Where a matter may be raised under an applicable appellate procedure and this negotiated grievance procedure the employee at his discretion may raise the matter under the appellate procedure or this negotiated grievance procedure, but not both.

When the Guard asserted that the Union proposal concerned non-negotiable matters, the Union appealed to the Authority.

The Guard noted to the Authority that, under the Labor-Management Act, the Union's proposal would result in binding arbitration on grievances regarding the technicians' employment. Thus, the Guard contended that it should not be required to bargain over the Union's proposal since the proposal contravenes the Technicians Act, which specifically states that the technicians' right of appeal "shall not extend beyond the adjutant general of the jurisdiction concerned." 32 U.S.C. Sec. 709(e)(5). The Union countered by arguing that Sec. 709(e)(5) merely constitutes an alternative to the negotiated grievance procedure electable by the technicians under the Labor-Management Act. The Authority agreed with the Union and ordered the Guard to bargain. The Guard petitions for a review of the Authority's decision, and the Authority cross-petitions for enforcement of its order. Amici curiae briefs were filed with this court on behalf of the Commonwealth of Pennsylvania, Pennsylvania National Guard, and the Adjutants General Association of the United States. We have jurisdiction under 5 U.S.C. Sec. 7123(a), (b) (Supp. IV 1980).

II. Statutes

The Labor-Management Act is a comprehensive legislative scheme regulating the organizational rights of federal employees. It establishes the Authority as an independent entity in the Executive Branch to administer the statute and provide leadership in establishing policies and guidance relating to federal-service labor-management relations. 5 U.S.C. Sec. 7105(a)(1).

Consistent with the finding of Congress that "labor organizations and collective bargaining in the civil service are in the public interest," 5 U.S.C. Sec. 7101(a), the Labor-Management Act requires an agency to accord exclusive recognition to a union selected as the representative by a majority of employees in an appropriate unit as determined by the Authority. 5 U.S.C. Sec. 7111(a). Thereupon, the agency and union have a duty to meet and negotiate in good faith for the purpose of arriving at a collective bargaining agreement. 5 U.S.C. Sec. 7114(a)(4). The duty to bargain does not compel either party to agree to a proposal. 5 U.S.C. Sec. 7103(a)(12). In addition, the duty to bargain does not cover those matters over which an agency retains decision-making authority, e.g., reductions in grade, suspensions, removals, and other disciplinary actions. 5 U.S.C. Sec. 7106(a). However, 5 U.S.C. Sec. 7106(b)(2) permits an agency and a labor organization to negotiate the procedures that an agency will observe in exercising the decision-making authority. Furthermore, the scope of the duty to bargain extends to conditions of employment, i.e., personnel policies, practices and matters affecting working conditions of unit employees, unless the matters proposed for bargaining are inconsistent with federal law or government-wide rules or regulations, or with agency regulations deemed by the Authority to fill a "compelling need." 5 U.S.C. Secs. 7117(a)(1), 7114(b)(2), and 7103(a)(14).

When a labor organization wishes to subject a particular matter to collective bargaining, it submits a proposal to the appropriate agency. If the agency asserts that the union's proposal involves a matter not within the agency's duty to bargain and, accordingly, refuses to bargain with respect to the proposal, as did the Guard in the present petition, the union may appeal to the Authority. 5 U.S.C. Sec. 7117(c)(1). The Authority must then decide whether the union's proposal is negotiable. If the Authority determines it is, the agency must either negotiate or seek judicial review. 5 U.S.C. Sec. 7123(a).

In a separate section entitled "Grievance Procedures," the Labor-Management Act states that collective bargaining agreements shall provide procedures for the settlement of grievances that, unless otherwise agreed by the parties, must include a provision for binding arbitration, as the final step, to be invoked by either the exclusive representative or the agency. 5 U.S.C. Sec. 7121(a), (b)(3)(C). Where grievances arise under other personnel systems applicable to employees, the section further provides that the employee may, in his discretion, raise them under the existing appellate procedures applicable to those matters, or under the negotiated procedure. 5 U.S.C. Sec. 7121(e)(1). These two provisions under the "Grievance Procedures" section of the Labor-Management Act are cited by the Authority as the basis for ordering the Guard to bargain over the Union proposal.

The Technicians Act was enacted by Congress to perpetuate the major features of the then-existing employment of so-called "caretakers and clerks," to care for material, armament, and equipment of the Army and Air Force National Guard. For over sixty years, the state adjutants general have been empowered by federal law to employ the technicians to train and administer the National Guard and maintain its equipment, and to pay them with federal funds. National Defense Act, Ch. 134, Sec. 90, 39 Stat. 166, 205-06 (1916). Nevertheless, prior to enactment of the Technicians Act in 1968, the technicians were not considered federal employees. Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965). The Technicians Act granted federal employee status to these "technicians," ¹ but as a separate and distinct class of federal employees. Thus, the Technicians Act continued and formalized as statutory conditions of employment most of the existing features of the former program, including (1) the requirement that technicians (with a few limited exceptions) be military members of the National Guard, 32 U.S.C. Sec. 709(b), and (2) the vesting of decisions regarding employment, administration and discipline in the adjutants general of the states. 32 U.S.C. Sec. 709(c). More significant, the Technicians Act, in 32 U.S.C. Sec. 709(e), states: "Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned"--(1) a technician who is separated from the Guard, as a military member, or who fails to maintain the military grade specified for his position, "shall be promptly separated from his technician employment by the adjutant general of the jurisdiction concerned;" (2) if a technician fails to...