730 F.2d 1534 (D.C. Cir. 1984), 81-2384, American Federation of Government Employees AFL-CIO, Local 2953 v. Federal Labor Relations Authority

Docket Nº:81-2384.
Citation:730 F.2d 1534
Case Date:March 30, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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730 F.2d 1534 (D.C. Cir. 1984)


2953, Petitioner,



No. 81-2384.

United States Court of Appeals, District of Columbia Circuit

March 30, 1984

Argued Oct. 28, 1982.

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Petition for Review of an Order of the Federal Labor Relations authority.

Mitchell Jay Notis, Washington, D.C., with whom James R. Rosa, Washington, D.C., was on brief, for petitioner.

William E. Persina, Atty. Federal Labor Relations Authority, Washington, D.C., with whom Elizabeth Medaglia, Acting Sol., Federal Labor Relations Authority, Washington, D.C., was on brief, for respondent.

Before WALD and SCALIA, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

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MacKINNON, Senior Circuit Judge.

When Congress enacted the National Guard Technician Act of 1968 (Pub.L. No. 90-486 Sec. (2)(1), 82 Stat. 755, 32 U.S.C. Sec. 709 (1976)) it provided that all employed technicians shall be members of the National Guard, hold the military grade specified for that position and be considered in some respects as federal employees. As federal employees, they would have available to them the same retirement and fringe benefits available to other federal employees and be covered by the Federal Tort Claims Act. To confer federal employee benefits and tort claims coverage were the principal reasons for the enactment of the statute and in so providing the Congress made it clear that it recognized that the states' authority in other respects would continue as before. This included generally that reductions-in-force, discharges and other personnel actions would be accomplished by the Adjutant General of the National Guard of the particular state and that a right to appeal from such decisions would not extend beyond the state's Adjutant General.

Ten years later, Congress enacted the Civil Service Reform Act of 1978 which, inter alia, requires federal agencies to engage in collective bargaining with Union representatives of employees with respect to some personnel matters. This legislation also provided for the creation of the Federal Labor Relations Authority whose jurisdiction, similar to that exercised by the National Labor Relations Board, includes determining whether certain union proposals are proper subjects of mandatory collective bargaining. The government in general and the National Guard in particular cannot be easily analogized to private sector firms dealing with employees. Neither can national guardsmen be easily analogized to other federal employees because, except for federal benefits and tort claims coverage, it was the intent of Congress in the 1968 Technician Act that they be the equivalent of state employees subject to employment, supervision and control by the state adjutants general. It is in this melee that we must determine whether the union proposal, which is the subject of this litigation, is one which the National Guard of Nebraska is required to consider in collective bargaining. The union proposed to eliminate the consideration of a technician's military performance from reduction-in-force actions. The Guard refused to bargain over this proposal and the Federal Labor Relations Authority upheld the Guard's decision. Crucial to our review and analysis are the employment status that only Congress can create by statute, and the statute which brings the subject employment relationship into being. Because the statute involved in this case, the National Guard Technician Act of 1968, is so specific in its mandate, we find that the decision by the agency is consistent with the intent of the statute. We accordingly affirm the decision of the Federal Labor Relations Authority.


The National Guard Technician Act of 1968 (the "Technician Act") 1 is a special

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act of Congress enacted for the limited purpose of making fringe and retirement benefits of federal employees and coverage under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346, 2671-2680 (1976), available to National Guard technician employees of the various states. It accomplishes this by creating a dual status for such technicians. They are to be considered as federal employees for some purposes but are also to be members of the respective state National Guard units where they serve. Since technicians are members of the state National Guard, Congress was careful to recognize the authority of the state. Thus, the Secretary of the Army is directed to designate that the state adjutants general "employ and administer the technicians," Sec. 709(c); technicians are required to be members of the National Guard and hold the military grade specified for that position, id., (b), (d); the separation of technicians from their employment for failure to meet military security standards, or for other cause is to be effected by the state adjutant general, id. (e)(1), (2), (3); and the adjutant general also is to accomplish a "reduction-in-force, removal, adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation", id., (4). In addition a right of appeal from any action taken under (1), (2), (3), or (4), supra, does "not extend beyond the adjutant general ...", id., (5) (emphasis added).

It thus appears that the scheme of the act is to create the technicians as nominal

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federal employees for a very limited purpose and to recognize the military authority of the states through their Governors and Adjutants General to employ, command and discharge them. The employment, discipline and discharge of technicians remains completely with the state officials, and their day to day activities on the job are controlled at the state level. In addition, no appeal lies from personnel decisions of the adjutants general. This dual status and the legislative history of the Technician Act is discussed and analyzed further, infra.



The passage of the Civil Service Reform Act of 1978 ushered in a new era of labor-management relations within the federal service. Pub.L. 95-454, 92 Stat. 111, 5 U.S.C. Sec. 7101, et seq. (1976). Title VII of the Reform Act established a statutory scheme for collective bargaining between the federal government, as an employer, and labor organizations, as bargaining representatives of federal civilian employees. This title is known as the Federal Service Labor-Management Relations Statute. The Act did not extend to members of the Armed Services. Pursuant to the statute, the Federal Labor Relations Authority ("FLRA" and the "Authority") was created on January 1, 1979, in accordance with Sec. 301 of Reorganization Plan No. 2 of 1978, 3 C.F.R. Secs. 323, 327, 329 (1979). The FLRA is charged with administering the statute and with establishing policy relating to labor-management relations within the federal service. 5 U.S.C. Sec. 7105. Among its responsibilities the FLRA is required to determine the appropriateness of units for collective bargaining, conduct representation elections, and resolve allegations of unfair labor practices. 5 U.S.C. Sec. 7105(a)(2)(A), (B), and (G). When the parties engaged in collective bargaining are unable to agree their differences are resolved by the Federal Service Impasses Panel, an entity within the FLRA. Final orders of the FLRA are subject to judicial review in an appropriate court of appeals. 5 U.S.C. Sec. 7123(a). Similarly, the Authority may petition the court of appeals for temporary relief and enforcement of its orders. 5 U.S.C. Sec. 7123(b).

Federal employees are provided the opportunity to decide whether or not they wish to be represented by a labor organization through procedures administered by the FLRA. 5 U.S.C. Secs. 7102 and 7111. A labor organization securing the majority support of employees within an appropriate bargaining unit is accorded the status of exclusive bargaining representative of the employees in that unit, 5 U.S.C. Sec. 7111(d), and as exclusive representative, is entitled to represent, and negotiate collective bargaining agreements for, employees in its bargaining unit. 5 U.S.C. Sec. 7114.

The statute requires the unions and the agency-employers 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 on the part of the agency is a broad, though not unlimited one. It extends to most conditions of employment, though certain exceptions are made in recognition of the unique circumstances that surround federal employment. The agency-employer need not bargain over matters relating to political activities, some aspects of position classification, and other subjects specifically exempted by federal statute. 5 U.S.C. Sec. 7103(a)(14). 2 Thus the duty to bargain may not be used as a bootstrap to overcome

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explicit limitations established by Congress to protect the prerogatives of the federal government as employer. The Act clearly provides that the duty to bargain does not extend to agency-wide rules for which a "compelling need" exists as determined by FLRA regulations. 5 U.S.C. Sec. 7117(a)(2). 3 This limit on the duty of an agency to bargain recognizes that within every agency there exists a governmental mission which may not be compromised or negotiated away, in whole or in part, at the bargaining table. In this case it should also be recognized that the personnel here are only nominal federal employees and that the subject bargaining proposal is directed at a facet of the employees' status that is not within the federal orbit but is instead completely within those aspects of the Guard's technician status that is completely...

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