Assoc. of Civilization Tech v. Fed. Labor Relations Auth., 00-1245

Decision Date01 June 2001
Docket NumberNo. 00-1245,00-1245
Parties(D.C. Cir. 2001) Association of Civilian Technicians, Texas Lone Star Chapter 100 and Association of Civilian Technicians, Wisconsin Chapter 26 (Army), Petitioners v. Federal Labor Relations Authority, Respondent
CourtU.S. Court of Appeals — District of Columbia Circuit

[Copyrighted Material Omitted]

On Petition for Review of an Order of the Federal Labor Relations Authority

Daniel M. Schember argued the cause and filed the briefs for petitioner.

Judith A. Hagley, Attorney, Federal Labor Relations Authority, argued the cause for respondent. With her on the brief were David M. Smith, Solicitor, and William R. Tobey, Deputy Solicitor.

Before: Edwards, Chief Judge, Williams and Henderson, Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge:

The National Guard Technician Act of 1968, 32 U.S.C. 709(b), provides that, as a condition of civilian employment, technicians must, inter alia, be members of the National Guard and hold the military grade specified by the Secretary concerned. And 709(a) of the Technician Act, 32 U.S.C. 709(a), specifies that persons are employed as technicians "[u]nder regulations prescribed by the Secretary of the Army or the Secretary of the Air Force." Pursuant to this statutory authority, the Departments of the Army and the Air Force have promulgated regulations prohibiting military "grade inversion" in the National Guard. Under this policy, the military grade of a full-time supervisor must equal or exceed the military grade of personnel supervised. The grade inversion policy has been clarified to apply to persons assigned to Wage Leader positions in the National Guard.

In this case, the Association of Civilian Technicians, Texas Lone Star Chapter 100 ("Texas-ACT"), and the Association of Civilian Technicians, Wisconsin Chapter 26 (Army) ("Wisconsin-ACT") (together, the "Unions"), the recognized collective bargaining agents for technicians employed by the Texas National Guard and the Wisconsin National Guard, submitted bargaining proposals that would have allowed for the assignment of technicians to Wage Leader positions without restriction based on the technicians' military grade. When the proposals were found to be nonnegotiable by the Offices of the Adjutant General, the Unions filed negotiability appeals with the Federal Labor Relations Authority ("FLRA" or "Authority").

The Authority found that the duty to bargain in good faith did not extend to the Unions' proposals because National Guard technicians may not negotiate over military aspects of civilian technician employment. See Ass'n of Civilian Technicians, Texas Lone Star Chapter 100, 55 F.L.R.A. (No. 196) 1226 (2000), reprinted in Joint Appendix ("J.A.") 10; Ass'n of Civilian Technicians, Texas Lone Star Chapter 100, 56 F.L.R.A. (No. 63) 432 (2000) (order denying motion for reconsideration), reprinted in J.A. 15. This conclusion was based on the Authority's consideration of three statutory provisions: 10 U.S.C. 976(c)(2), which prohibits bargaining with, or on behalf of, members of the armed forces, concerning the terms or conditions of their service; 7117(a)(1) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7117(a)(1), which prohibits bargaining over matters inconsistent with any federal law; and the aforecited 709 of the Technician Act. See Ass'n of Civilian Technicians, Texas Lone Star Chapter 100, 55 F.L.R.A. at 1229.

We deny the petition for review. The Unions' proposals are outside of the duty to bargain under 5 U.S.C. 7117(a)(1), because they are inconsistent with 709(b). See Ass'n of Civilian Technicians, Texas Lone Star Chapter 100, 55 F.L.R.A. at 1229. The legislative history of 709(b) clearly supports the Authority's conclusion that, in requiring civilian technicians to "[h]old the military grade specified by the Secretary," 709(b) directs a civilian technician to occupy a military grade equal to or exceeding that of subordinate personnel. See, e.g., Ass'n of Civilian Technicians, Mont. Air Chapter, 20 F.L.R.A. (No. 85) 717 (1985), petition for review denied, 809 F.3d 930 (D.C. Cir. 1987) (Table). Because our decision rests principally on 709, we need not reach the Unions' claim that the disputed proposals are negotiable subjects because they do not invite bargaining over a term or condition of military service in violation of 10 U.S.C. 976(c)(2).

I. Background

The Texas and Wisconsin chapters of the Association of Civilian Technicians represent technicians employed by the Texas National Guard and the Wisconsin National Guard (the "Guards"). National Guard technicians are federal civilian employees, but they "perform even their civilian tasks 'in a distinctly military context, implicating significant military concerns.' " Illinois Nat'l Guard v. FLRA, 854 F.2d 1396, 1398 (D.C. Cir. 1988) (quoting New Jersey Air Nat'l Guard v.FLRA, 677 F.2d 276, 279 (3d Cir. 1982)). National Guard technicians are, thus, considered to be "dual status" employees. See 10 U.S.C. 10216; 32 U.S.C. 709(b). As a prerequisite for their employment, technicians must be members of the National Guard unit in which they are employed, maintain the military grade specified for their positions, and wear their military uniforms while working. See 32 U.S.C. 709(b); see also Ass'n of Civilian Technicians, Schenectady Chapter v. FLRA, 230 F.3d 377, 378 (D.C. Cir. 2000).

On March 31, 1995, the Departments of the Army and the Air Force promulgated National Guard Regulation 600-25 and Air National Guard Instruction 36-102, prescribing the Guards' military inversion policy, as follows:

Military grade inversion within the full-time work force is not permitted. The grade inversion concept is inconsistent with the nature of the National Guard. The military grade of the full-time supervisor must equal or exceed the military grade of personnel supervised. Unit of assignment or service component of the individual does not change this policy.

Personnel General: Military Technician Compatibility, NGR 600-25/ANGI 36-102 at 2-1.a. (Mar. 31, 1995), reprinted in J.A. 29, 46.

Nearly three years later, the Chief of the National Guard Bureau for the Departments of the Army and the Air Force issued a policy guidance, clarifying that the military grade inversion policy applied to Wage Leaders. See Memorandum from Steve Nelson, Director for Human Resources, National Guard Bureau, NGB-HRC 690-500 (Jan. 7, 1998), reprinted in J.A. 27. Subsequently, in February 1999, the WisconsinACT submitted the following bargaining proposal to the Wisconsin National Guard:

A Wage Leader employee shall not, as a condition of employment, be required to hold a military rank which is equal to or exceeds the military ranks of the employees with whom the Wage Leader works.

Memorandum from Leslie J. Hackett, President, Wis. Ass'n of Civilian Technicians Chapter 26 Army, to Col. James Krueck, Wis. Nat'l Guard-Human Resources (Feb. 2, 1999), reprinted in J.A. 21. One month later, the Texas-ACT submitted a similar proposal:

An employee shall be eligible to apply for, to be selected for, and to be appointed to, a Wage Leader position, or a position that requires work with a Wage Leader, without restriction based on whether the employee's appointment would result in the Wage Leader having a military rank below that of any employee with whom the Wage Leader works.

Letter from Ronald Webb, President, Ass'n of Civilian Technicians, Texas Lone Star Chapter 100, to Gloria Sassman, Labor Relations Specialist, Texas Adjutant General's Dep't (Mar. 26, 1999), reprinted in J.A. 51-52.

The Offices of the Adjutant General found both proposals to be nonnegotiable. See Memorandum from Col. James A. Krueck, Director, Wis. Nat'l Guard-Human Resources (Feb. 17, 1999), reprinted in J.A. 20; Letter from James D. Bishop, Labor Relations Specialist, Texas Adjutant General's Dep't, to Ronald Webb, President, Ass'n of Civilian Technicians, Texas Lone Star Chapter 100 (Apr. 27, 1999), reprinted in J.A. 53. The Unions then filed negotiability appeals with the Authority.

On January 14, 2000, the Authority issued a Decision and Order dismissing the appeals. The Unions moved for reconsideration, and on June 7, 2000, the Authority denied the motion for reconsideration. The Unions then filed this petition for review.

II. Analysis
A. Standard of review

Our review of an Authority negotiability determination is generally narrow. Am. Fed'n of Gov't Employees v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769, 771 (D.C. Cir. 1988). The Federal Service Labor-Management Relations Statute entrusts the Authority with "resolv[ing] issues relating to the duty to bargain in good faith." 5 U.S.C. 7105(a)(2)(E). Review of a final order of the Authority incorporates 706 of the Administrative Procedure Act. See 5 U.S.C. 7123(c). Thus, when acting "within its authority" and "consistent with the congressional mandate," the Authority's decision may only be set aside if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A); Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 & n.7, 98 n.8 (1983).

When the Authority's decision does not " 'derive[ ] primarily' from its interpretation of part of its enabling statute," however, and when it construes statutes that it does not administer, "its interpretation is not entitled to deference." Dep't of Treasury v. FLRA, 837 F.2d 1163, 1167 & n.5 (D.C. Cir. 1988); see also Illinois Nat'l Guard, 854 F.3d at 1400. In the instant case, the Authority's decision rests, in part, on its interpretation of 10 U.S.C. 976 and 32 U.S.C. 709, legislative enactments that are not part of its enabling statute. "We therefore accord the FLRA's construction of these statutory provisions no deference, although we shall, of course,...

To continue reading

Request your trial
10 cases
  • Association of Civilian Technicians, Inc. v. U.S.
    • United States
    • U.S. District Court — District of Columbia
    • 4 Marzo 2009
    ...employment by the adjutant general" of the relevant state. 32 U.S.C. at §§ 709(b), (f)(1); see also Ass'n of Civilian Technicians v. F.L.R.A., 250 F.3d 778, 780 (D.C.Cir.2001) ("The National Guard Technician Act of 1968, 32 U.S.C. § 709(b), provides that, as a condition of civilian employme......
  • Lipscomb v. Federal Labor Relations Authority, Civ.A. 401CV158LN.
    • United States
    • U.S. District Court — Southern District of Mississippi
    • 19 Diciembre 2001
    ... ... Federal Labor Relations Auth., 239 F.3d 66, 70 (1st Cir.2001). As set forth ... for the state adjutants general," American Fed. Gov't Employees, Local 3936, 239 F.3d at 71 ... ...
  • U.S. Capitol Police v. Office of Compliance
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • 6 Noviembre 2018
    ...and coordinate audits and investigations’ relating to the [agency]." (citation omitted) ); Ass’n of Civilian Technicians v. Fed. Labor Relations Auth. , 250 F.3d 778, 780–81 (D.C. Cir. 2001) ("[P]roposals that would have allowed for the assignment of technicians to Wage Leader positions wit......
  • Department of the Air Force v. F.L.R.A.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 12 Julio 2002
    ...capricious, an abuse of discretion, or otherwise not in accordance with law.'" Ass'n of Civilian Technicians, Tx. Ch. 100 v. FLRA, 250 F.3d 778, 782 (D.C.Cir.2001) (quoting 5 U.S.C. § 706(2)(A); Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 & n. 7, 98 n. 8, 104 S.Ct. 439, 7......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT