Association of Civilian Technicians, Montana Air Chapter v. Federal Labor Relations Authority, 83-1489

• Decision Date: 08 March 1985
• Docket Number: No. 83-1489,83-1489
• Citation: 756 F.2d 172,244 U.S.App.D.C. 151
• Parties: 118 L.R.R.M. (BNA) 3011, 244 U.S.App.D.C. 151 ASSOCIATION OF CIVILIAN TECHNICIANS, MONTANA AIR CHAPTER, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 172

756 F.2d 172

118 L.R.R.M. (BNA) 3011, 244 U.S.App.D.C. 151

ASSOCIATION OF CIVILIAN TECHNICIANS, MONTANA AIR CHAPTER, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

No. 83-1489.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 24, 1985.

Decided March 8, 1985.

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

Daniel M. Schember, Washington, D.C., with whom D. Patrick McKittrick and Phillip R. Kete, Washington, D.C., were on brief, for petitioner.

Robert J. Englehart, Atty., Federal Labor Relations Authority, Washington, D.C., with whom Ruth E. Peters, Sol., and Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent. William E. Persina, Washington, D.C., entered an appearance for Federal Labor Relations Authority.

Clinton D. Wolcott and Bruce P. Heppen, Washington, D.C., were on the brief for amicus curiae, National Federation of Federal Employees, urging reversal.

James E. Mundy, was on the brief for amicus curiae, American Federation of State, County and Municipal Employees, Council 26, urging reversal.

Before ROBINSON, Chief Judge, and WRIGHT and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case presents several issues relating to the scope of an agency's duty to bargain under the Federal Service Labor-Management Relations Statute ("the Statute"). ¹ The petitioner, the Association of Civilian Technicians, Montana Air Chapter ("the Union"), is the exclusive representative of civilian technicians employed by the Montana Air National Guard ("the Guard"). Under the National Guard Technicians Act of 1968 ("the Technicians Act"), ² civilian technicians have a dual status: they are federal employees, who are entitled to corresponding retirement and fringe benefits; they also are required to retain membership in a state National Guard, under the direct supervision of an adjutant general. As federal employees, the technicians have the right to engage in collective bargaining under the Statute.

During the course of negotiations for a new collective bargaining agreement, the Guard alleged that nine Union proposals concerning the rights of employees affected by a reduction in force ("RIF") were outside the Guard's duty to bargain under the Statute. The Union appealed to the Federal Labor Relations Authority ("the FLRA" or "the Authority"), which ruled in favor of the Guard. ³ The Union then brought this petition for review under 5 U.S.C. Sec. 7123.

The Authority's rulings with respect to five of the Union's proposals are before us at this time. ⁴ Proposals 4, 5 and 8 seek to require that reductions in force be conducted on the basis of seniority. We affirm the Authority's holding that these proposals are nonnegotiable under section 7117(a)(2)

                of the Statute because they conflict with a National Guard regulation for which there is a "compelling need."    However, we reverse the Authority's holding that Proposal 1, which seeks to require the Guard to impose a temporary hiring freeze while a RIF is being carried out, is negotiable only at the election of the agency under section 7106(b)(1) of the Statute.  Finally, we find that the Authority failed to properly consider Proposal 9 when it held this Union demand to be inconsistent with the Technicians Act.  Proposal 9 would require the Guard to automatically renew a technician's military grade and enlistment except for "just cause."    We remand for further proceedings with respect to Proposals 1 and 9
                

I. THE SENIORITY RIGHTS PROPOSALS

Union Proposals 4, 5 and 8 are designed to ensure that the retention and placement of employees during a RIF be determined by seniority. Under Proposal 4, "[r]eduction in force will be by seniority as listed on tenure lists of competitive areas." ⁵ Proposal 5 would establish a system of displacement rights, under which an employee potentially affected by a RIF would be permitted to assume the position of an employee with less seniority, so long as the senior employee either was qualified or could be retrained for the new position. ⁶ Proposal 8 similarly would allow certain technicians who had been promoted out of the bargaining unit to "bump" back into it if their present positions were eliminated during a RIF. ⁷

The Authority held each of these three proposals non-negotiable under section 7117(a)(2) of the Statute, which provides that the duty to bargain extends to matters that are the subject of any agency rule or regulation "only if the Authority has determined ... that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation." ⁸ The FLRA found Proposals 4, 5 and 8 inconsistent with a National Guard Bureau regulation, Technician Personnel Manual chapter 351 ("TPM 351"), which provides that employee retention during a RIF is to be determined not by seniority but by combined military and civilian performance evaluation scores. Applying its standards for determining compelling need, which are codified at 5 C.F.R. Sec. 2424.11, ⁹ the Authority held that TPM 351 serves a compelling need under section 2424.11(c) because it "implement[s] in an essentially nondiscriminatory manner the statutory mandate [of sections 709(b) and (e)(1) of the Technicians Act] that technicians maintain As the Union concedes, a panel of this court "affirmed an identical Authority finding as to the same regulation" ¹² last year in American Federation of Government Employees, Local 2953 v. FLRA. ¹³ Local 2953held that, in light of the unique provisions of the Technicians Act assigning the technicians a dual civilian and military function, TPM 351 implemented the mandate of that Act in an essentially nondiscretionary manner by requiring that the technicians' military performance be taken into account in determining employee retention during a RIF.

                military membership in the National Guard and hold the military grade specified for their technician positions." 10   On this basis, the Authority concluded that Proposals 4, 5 and 8 were outside the statutory duty to bargain. 11
                

The petitioner and the amici urge us to overrule Local 2953, maintaining that the decision misconstrues the mandate of the Technicians Act and improperly expands section 2424.11(c)'s exception to the statutory duty to bargain. However, as the Union recognizes, ¹⁴ we are bound by the principle of stare decisis to "abide by a recent decision of one panel of this court unless the panel has withdrawn the opinion or the court en banc has overruled it." ¹⁵ This principle would be undermined if previous decisions were open to reconsideration merely because they were debatable. We find no convincing grounds for reconsidering Local 2953 here, and accordingly find that decision controlling.

In an effort to avoid this result, the Union challenges the constitutionality of section 7117's "compelling need" provision. As previously noted, although section 7117(a)(2) provides that the statutory duty to bargain ordinarily does not extend to matters that are the subject of an agency regulation for which the FLRA determines there is a "compelling need," section 7117(a)(3) provides that such matters are negotiable if "an exclusive representative represents an appropriate unit including not less than a majority of the employees in the issuing agency ... to whom the ... regulation is applicable." ¹⁶ The Union contends that, by according "large" labor organizations certain bargaining rights that are denied smaller organizations, the statute infringes the First Amendment right to freedom of association. Alternatively, the Union contends that the statutory classification lacks a rational relationship to the purpose of the "compelling need" restriction, and thus violates the equal protection principle implicit in the Fifth Amendment. We find these arguments without merit.

First, we reject the Union's argument that the provisions of section 7117 violate the First Amendment. While the First Amendment guarantees the rights of public employees to speak freely and to associate with others, and "protects the right of associations to engage in advocacy on behalf of their members," it imposes no "affirmative obligation on the government ... to recognize [such an] association and bargain with it." ¹⁷ Because the government The Union contends, however, that by making an exception to this rule for the organizations described in section 7117(a)(3), the statutory scheme "grant[s] large associations legal rights denied small associations," thereby violating the freedom of association. ¹⁸ We believe this argument to be flawed in several respects. First, we disagree with the petitioner's view that section 7117 favors "large and powerful" unions over "small and weak" unions. ¹⁹ Section 7117(a)(3) confers broader negotiating rights not simply on the basis of the size of the bargaining unit, but rather on the basis of the size of the bargaining unit in relation to the number of agency employees to whom a particular regulation applies. Thus, to use an example given by the FLRA, subsection (a)(3) would grant the broader bargaining rights to a bargaining unit of 101 employees in a 200-employee agency, but not to a bargaining unit of 50,000 employees in a 101,000-employee agency. ²⁰ Nor is there any necessary correspondence between the size of a bargaining unit and the size of any national union that represents the employees in that unit.

is under no constitutional duty to bargain collectively with labor organizations, it retains the authority to provide that such bargaining shall be limited to a particular class of subjects. Congress exercised this authority in section 7117(a)(2) when it provided that agency regulations for which a compelling need exists would generally be outside the scope of collective bargaining.

Furthermore, the petitioner's...