American Federation of Government Emp. v. Hoffman

• Decision Date: 08 October 1976
• Docket Number: No. 75-1091,75-1091
• Citation: 178 U.S.App.D.C. 1,543 F.2d 930
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES et al., Appellants, v. Martin R. HOFFMAN, Secretary of the Army, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 930

543 F.2d 930

178 U.S.App.D.C. 1

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES et al., Appellants, v. Martin R. HOFFMAN, Secretary of the Army, et al.

No. 75-1091.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 27, 1976.

Decided Sept. 15, 1976.

Rehearing Denied Oct. 8, 1976.

Edward L. Merrigan, Washington, D.C., for appellants.

Mary-Elizabeth Medaglia, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Ellen Lee Park, Asst. U. S. Attys., Washington, D.C., were on the brief, for appellees.

Before WRIGHT, McGOWAN and TAMM, Circuit Judges.

Opinion for the Court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

This appeal from the District Court presents a variety of issues concerning the legality of the Reserve Technician Programs of the Air Force and the Army, under which civilian employees performing support and maintenance functions for the Air Force and Army Reserves are required, as a condition of employment, to maintain active membership in the reserve unit which they are serving. Appellants American Federation of Government Employees (AFGE), a labor organization representing large numbers of these civilian employees, and five individual employees of the Air Force and the Army, challenge the Reserve Technician Programs as

(1) totally lacking statutory authorization;

(2) contrary to several provisions of the federal civil service laws, as well as the National Guard Technicians Act of 1968, 32 U.S.C. § 709 (1970), which appellants interpret as indicating a congressional intent to keep the federal competitive civil service completely separate from the armed forces;

(3) violative of the Veterans' Preference Act of 1944, as amended, 5 U.S.C. §§ 3309-12, 3351, 3363, 3501-04 (1970); and

(4) inconsistent with the Civil Service Commission's initial agreements with the Air Force and the Army establishing the programs.

The District Court concluded that these contentions were without merit. 387 F.Supp. 63 (1974). For the reasons set forth below, we affirm.

I.

A.

In a letter dated June 25, 1957, the Civil Service Commission (CSC) authorized the Air Force to proceed with its Air Reserve Technician plan (hereinafter ART). ¹ The primary goal of the plan was to increase the combat readiness of Air Force Reserve units, as well as their effectiveness in the event of mobilization. Prior to ART, the Air Reserve Flying Centers utilized for training Air Reserve Wings were maintained and operated by Air Force units which were composed of approximately half military and half civilian personnel and were organizationally separate from the reserve wings. ART, by replacing military support personnel with civil servants ² and requiring civilian support personnel to be active reserve members, in effect integrated the support organizations into the Air Reserve Wings. In their civilian capacity, ART incumbents were to provide the basic maintenance and supply functions previously provided by the support organization; in their military capacity, ART employees were to provide training for the remainder of the wing personnel, who reported only on weekends and during summer active duty tours. ³ Since this "hard core" of highly skilled reservists would be available for immediate mobilization, the Air Force anticipated that combat readiness would be enhanced. ⁴

In the letter of authorization, CSC indicated that ART was approved on the basis of two understandings with the Air Force: first, "that the Department of the Air Force will carry out both in letter and spirit the commitments it has made and the safeguards it has promised to apply with respect to employees who would be affected by the Plan"; second, that the Department's activities under the plan would comply with the Veterans' Preference Act of 1944. Appellants' Brief at 19a. In a subsequent letter describing ART to central and regional office officials of CSC, the Commission reiterated that the plan was approved only after it was satisfied "that no civilian employees presently on the roles will be adversely affected." CSC Letter No. 57-45, June 28, 1957, Appellants' Brief at 1a. The letter went on to explain that civilian employees in positions to be included within the ART program would be given a choice: if they already belonged, or were willing to join, the local reserve wing they would be given the opportunity to become Air Reserve Technicians; if they declined or were not eligible for reserve membership, they would be reassigned at the same or higher grade to non-ART jobs in the same geographic area, as jobs became available. With respect to employees choosing the latter course, the CSC noted that the Air Force had committed itself "that there will be no reductions in force, no demotions, and no required transfers to other geographic areas for the purpose of effectuating the ART program." Id. at 3a. At the same time, the Commission's letter made clear that reserve membership was a condition of employment for ART positions, and, subject to the protection afforded incumbents in positions taken over by ART, job openings would be filled by persons eligible for and willing to accept active membership in the reserves.

For purposes of its reduction-in-force regulations, 5 C.F.R. Part 351 (1976), the Commission later determined that ART and non-ART positions should be placed in separate competitive levels, see id. § 351.403, because of the reserve membership requirement. As a consequence of this determination, non-ART personnel subjected to a reduction-in-force, unless willing and able to meet the reserve requirement, would not have the right to "bump" ART personnel, even if the ART employees had lower retention standing. See generally id. §§ 351.401-.705. However, in accordance with the initial understanding between the Air Force and CSC, nonreservist incumbents of ART positions were not placed in a separate competitive level from ART personnel fulfilling the reserve requirement. ⁵ In addition, under the terms of a 1961 agreement between CSC and the Air Force governing assumption of non-ART work by ART organizations, non-ART personnel would not be deemed to occupy a separate competitive level when the ART program took over activities previously performed by non-ART employees. ⁶

The 1961 agreement also provided, however, that the Air Force could "conduct whatever future reductions may be necessary to bring the non-ART activity down to the level which will continue after consolidation" of ART and non-ART functions, and that the separate competitive level approach would be followed in carrying out these reductions. Letter of June 6, 1961, AF Exh. 3, at 21-22, P 1.

The agreement further stated:

Reductions in ART and non-ART positions will be generally proportionate to the reductions in ART and non-ART work which occasioned the personnel reductions. If no specific reduction in work is involved, and the curtailment in numbers of positions results from a general "belt-tightening" or across-the-board type of reduction and reorganization, the reduction in ART and non-ART positions will be generally proportionate. Action will be taken to assure that reductions of this type are not organized so as to discriminate against non-ART and status quo personnel.

Id. P 4.

Appellants John S. Guttenberger, Ronald R. Meadows, and Erwin P. Rolf were non-ART Air Force employees affected by reduction-in-force actions. Guttenberger and Meadows were preference eligible civil servants, see 5 U.S.C. § 2108 (1970), employed as powered ground equipment mechanic leaders at McGuire Air Force Base in New Jersey. Neither was a member of the active reserves. On May 6, 1969, they received notice of a reduction-in-force and were given offers of reassignment to the position of powered ground equipment mechanic. Guttenberger accepted the offer; Meadows refused and was separated on June 29, 1969. ⁷ Both appealed to the CSC's Regional Office in New York, on the grounds that the duties of their positions were being taken over by ART personnel, and ART employees with less job retention rights under the Veterans' Preference Act were being retained in favor of them. By virtually identical letters of August 14, 1969, the Regional Office denied Guttenberger's and Meadows' appeals, asserting that the reduction-in-force was the result of fund limitations, ⁸ and that "(t)he duties formerly performed by you are not being performed by the Air Reserve Technicians but are being absorbed by other civilian employees or military personnel." Appellees' Brief at 33, 36. The letters conceded that ART positions were in a separate competitive level from non-ART positions but noted that this difference in treatment complied with the applicable reduction-in-force regulations. Neither Guttenberger nor Meadows appealed to the CSC Board of Appeals and Review.

Rolf was a preference eligible civilian employee in the position of flightline mechanic at an Air Force Reserve Center in Pittsburgh, Pennsylvania. On January 7, 1969, he was notified of a reduction-in-force eliminating his position. Since Rolf failed to meet the physical requirements for reserve membership he was not offered a transfer to a position as a flightline mechanic in the ART program, and instead accepted the position of warehouseman. Rolf appealed the reduction-in-force to the Philadelphia Regional Office of the CSC, contending that refusal to allow him to transfer to an ART position because of his physical handicap was a violation of the Veterans' Preference Act and the statutory provision governing reductions-in-force, 5 U.S.C. § 3502, and that his position was abolished so that ART could take over the functions he had performed. ⁹ The Regional Office rejected these contentions on the grounds that reserve membership is a requisite for an ART position and Rolf was therefore not qualified for transfer into ART, and that the reduction-in-force resulted from elimination of the non-ART...