Illinois Nat. Guard v. Federal Labor Relations Authority

• Decision Date: 06 September 1988
• Docket Number: 87-1345 and 87-1346,Nos. 87-1290,s. 87-1290
• Parties: 129 L.R.R.M. (BNA) 2422, 272 U.S.App.D.C. 187 ILLINOIS NATIONAL GUARD, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Federation of Federal Employees, Intervenor. WYOMING AIR NATIONAL GUARD and Department of Defense, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. CALIFORNIA NATIONAL GUARD and Department of Defense, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1396

854 F.2d 1396

129 L.R.R.M. (BNA) 2422, 272 U.S.App.D.C. 187

ILLINOIS NATIONAL GUARD, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Federation of Federal Employees, Intervenor.

WYOMING AIR NATIONAL GUARD and Department of Defense, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

CALIFORNIA NATIONAL GUARD and Department of Defense, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

Nos. 87-1290, 87-1345 and 87-1346.

United States Court of Appeals,

District of Columbia Circuit.

Argued April 15, 1988.

Decided Aug. 19, 1988.

As Amended Sept. 6, 1988.

Joseph R. Reyna, Atty., Nat. Guard Bureau, with whom John R. Bolton, Asst. Atty. Gen., Richard K. Willard, Asst. Atty. Gen. ^* , William Kanter, Sandra Wien Simon, Attys., Dept. of Justice and James C. Hise, Atty., Nat. Guard Bureau, Washington, D.C., were on the brief, for petitioners/cross respondents.

James F. Blandford, Atty., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., William E. Persina, Deputy Sol. and Arthur A. Horowitz, Associate Sol., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent/cross-petitioner. Susan Berk, Atty., Federal Labor Relations Authority, Washington, D.C., also entered an appearance for respondent/cross-petitioner.

H. Stephen Gordon and Bruce P. Heppen were on the brief for intervenor, Nat. Federation of Federal Employees. Alice L. Bodley, Washington, D.C., also entered an appearance for intervenor, Nat. Federation of Federal Employees.

Before RUTH BADER GINSBURG, BUCKLEY, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The Federal Labor Relations Authority (FLRA) held that, under the Federal Employees Federal and Compressed Work Schedules Act of 1982 (Schedules Act), the National Guards of three states must bargain with certain of their full-time employees over the establishment of compressed work schedules. The Guards, joined by the Department of Defense, petition for review, arguing that the National Guard Technician Act (Technician Act) exempts them from the bargaining requirements of the Schedules Act; the FLRA cross-petitions to enforce its orders. We conclude that Congress intended for the Technician Act, rather than the Schedules Act, to control in this situation, and hence we grant the petitions for review and deny the FLRA's cross-petitions for enforcement.

I. BACKGROUND

A. The National Guard

The National Guard is the modern Militia reserved to the states by Art. I Sec. 8, cl. 15, 16 of the Constitution. Maryland v. United States, 381 U.S. 41, 46, 85 S.Ct. 1293, 1297, 14 L.Ed.2d 205 (1965). It occupies a unique position in our country's federal structure: the day-to-day operation of National Guard units remains under the control of the states, but since passage of the National Defense Act of 1916, 39 Stat. 166, the Guard has been armed and funded by the federal government, and trained in accordance with federal standards. Pursuant to the 1916 law, as amended in 1933, the National Guard is also part of the United States Army Reserve, and officers of the Guard receive corresponding commissions in the Army Reserve Corps. Thus, it is "an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war," and it "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).

The status of National Guard employees, like that of the Guard itself, is unusual and somewhat complex. In addition to its part-time, purely military personnel, the Guard employs full-time civilian workers, known as National Guard technicians, who "meet the day-to-day administrative, training, and logistic needs of the Guard." Simpson v. United States, 467 F.Supp. 1122, 1124 (S.D.N.Y.1979). While many of their duties are similar to those of employees who work in a typical civilian setting, technicians traditionally have been required to be members of their state National Guard units, and must perform even their civilian tasks "in a distinctly military context, implicating significant military concerns." New Jersey Air National Guard v. FLRA, 677 F.2d 276, 279 (3d Cir.1982) ("New Jersey Guard ").

Although National Guard technicians have been paid with federal funds for over 70 years, they were not federal employees until 1968, when Congress enacted the National Guard Technician Act, Pub.L. No. 90-486, 82 Stat. 755 (codified as amended at 32 U.S.C. Secs. 709, 715 (1982)). That Act grants technicians federal employee status "for the limited purpose of making fringe and retirement benefits of federal employees and coverage under the Federal Tort Claims Act ... available to National Guard technician employees of the various states." American Federation of Government Employees Local 2953 v. FLRA, 730 F.2d 1534, 1537 (D.C.Cir.1984). The Technician Act codifies the requirement that technicians be members of their state National Guard units and hold military grades that correspond to their civilian positions, 32 U.S.C. Sec. 709(b) (1982), and also vests the adjutants general of the various states with final discretion over most matters relating to their employment and termination. Id. at Sec. 709(e). Thus, the employment status of National Guard technicians is a hybrid, both of federal and state, and of civilian and military strains.

Because of their unique status, the Technician Act specifically exempts Guard technicians from several other provisions of title 5 of the U.S. Code that apply to the vast majority of federal government employees. For example, technicians who are fired or suspended from the Guard may not avail themselves of the appeals procedure set forth in section 7513. Id. at Sec. 709(f). Nor does the veterans' preference provided for in sections 2108 and 3502 have any bearing on the selection of National Guard technicians. Id. Most significantly for present purposes, the Technician Act also exempts Guard technicians from the hours of work limitation of section 6101(a), and the overtime pay requirements of section 5544(a). Id. at Sec. 709(g).

B. The Work Schedules Act

In 1978, having found that "trends in the usage of 4-day weeks, flexible hours, and other variations in the workday and workweek in the private sector appear to show sufficient promise to warrant ... experimentation" by the federal government, Congress authorized federal agencies to experiment with flexible and compressed work schedules (referred to collectively as alternative work schedules) over a three-year period. Work Schedules Act of 1978, Pub.L. No. 95-390, 92 Stat. 755 (codified as amended at 5 U.S.C. Sec. 6101 note (1982)). Compressed schedules usually involve a workweek of four 10-hour days or a fortnight of eight 9-hour days and one 8-hour day. Employees with flexible schedules work five 8-hour days per week, but may stagger their arrival and departure times in order to avoid rush hour traffic or to accommodate other personal preferences.

Although Congress found, at the end of the test period, that "improper use of alternative work schedules did have some serious repercussions," including increased costs and decreased productivity, it concluded that "[t]he benefits of these schedules to employees were overwhelming," and that "[t]he benefits of these schedules to government, when utilized in a proper fashion, were also significant." S.Rep. No. 365, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News at 565, 566. Accordingly, in 1982 Congress passed the Schedules Act, which extended the program, and in 1985 made it permanent. 5 U.S.C. Sec. 6101 note (Supp. IV 1986).

The Schedules Act provides that if the employees of an agency are represented by an exclusive bargaining representative, i.e., a union, then the agency must bargain with it over the establishment or the termination of any alternative work schedule. 5 U.S.C. Sec. 6130(a) (1982). If there is no union, the agency cannot impose a compressed work schedule (although it may apparently impose a flexible schedule) without the approval of a majority of the affected employees. Id. at Sec. 6127(b)(1). If the union proposes a compressed schedule that the agency believes will affect it adversely, and the parties bargain to impasse over the issue, then the dispute is referred to the Federal Service Impasses Panel (FSIP), which is required to impose the union's proposed schedule unless the agency shows that it would have an adverse impact on the agency's productivity, output, or costs. Id. at Sec. 6131.

C. The Proceedings Below

In 1986, during contract negotiations between the Illinois National Guard and the union representing its technicians, the union submitted a proposal that would allow the technicians, at their individual election, to work a compressed schedule of four 10-hour days a week. The Guard took the position that the proposal was non-negotiable, and the union appealed to the FLRA pursuant to section 7117 of the Federal Service Labor-Management Relations Statute (the Federal Labor Act). See 5 U.S.C. Sec. 7117 (1982). Before the FLRA, the Guard argued that section 709(g) of the Technician Act, which provides that the Secretary of the Army "may prescribe the hours of duty" for technicians "notwithstanding ... any other provision of law," grants it unfettered discretion to establish their work schedules and is therefore inconsistent with the bargaining requirement of the Schedules Act. Alternatively, the Guard argued that the proposal was nonnegotiable because it would interfere with reserved management rights, and because it was inconsistent with a regulation for which the Guard has a compelling need. See id. at Secs. 7106, 7117.

The FLRA held that the Guard was required to bargain over the proposal. It first...