State of Neb., Military Dept., Office of Adjutant General v. Federal Labor Relations Authority
| Decision Date | 08 February 1983 |
| Docket Number | No. 82-1347,82-1347 |
| Citation | 705 F.2d 945 |
| Parties | 112 L.R.R.M. (BNA) 2695 STATE OF NEBRASKA, MILITARY DEPARTMENT, OFFICE OF THE ADJUTANT GENERAL and Department of Defense, Petitioners, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. Paul McGrath, Asst. Atty. Gen., William Kanter, Sandra Wien Simon, Attys Appellate Staff Civ. Div., Dept. of Justice, Washington, D.C., for petitioners.
James R. Rosa, Gen. Counsel, Mitchell J. Notis, Staff Counsel, American Federation of Government Employees, AFL-CIO Washington, D.C., for amicus curiae American Federation of Government Employees, AFL-CIO.
Elizabeth Medaglia, Associate Sol., William R. Tobey, Atty., Federal Labor Relations Authority, Washington, D.C., for respondent.
Before HEANEY and JOHN R. GIBSON, Circuit Judges, and DUMBAULD, * Senior District Judge.
The Military Department of the State of Nebraska [National Guard] and the United States Department of Defense seek to set aside the decision of the Federal Labor Relations Authority [FLRA] 1 requiring the National Guard to bargain over certain union proposals for a grievance procedure culminating in binding arbitration. The FLRA cross-petitions for enforcement of that decision. Because the National Guard Technicians Act of 1968, 32 U.S.C. Sec. 709(e) (1976), carves out a specific set of adverse personnel actions against Guard technicians appealable to the state adjutants general, to the exclusion of final review by labor arbitrators, we set aside the decision of the FLRA insofar as it conflicts with that statute.
The factual and procedural history underlying this appeal is undisputed. During contract negotiations between the union representing a unit of National Guard technicians 2 in Nebraska, the American Federation of Government Employees [AFGE], AFL-CIO, Local 2953, and the Nebraska National Guard, the union made several proposals concerning grievance and arbitration procedures under which the technicians could contest adverse personnel actions. 3 The Guard alleged that these proposals were nonnegotiable insofar as they provided for binding arbitration of disputes over certain personnel actions. The union appealed to the FLRA for a determination regarding the negotiability of these proposals. 5 U.S.C. Secs. 7105(a)(2)(E) & 7117(c) (Supp. IV 1980).
Before the FLRA, the Guard repeated its allegation of nonnegotiability based on language in the National Guard Technicians Act of 1968 which states "[n]otwithstanding any other provision of law," appeals of specific adverse personnel actions against Guard technicians "shall not extend beyond the adjutant general of the jurisdiction concerned." 4 32 U.S.C. Secs. 709(e) & (e)(5) (1976). The FLRA held that the proposals were negotiable, even though they allowed for alternative grievance and arbitration procedures separate from review by the state adjutants general, at the option of the aggrieved technician. The FLRA based this holding on its earlier decision in National Association of Government Employees, Local R12-132 and California National Guard, 5 F.L.R.A. No. 25 (1981), rev'd sub nom., California National Guard and Department of Defense v. Federal Labor Relations Authority, 697 F.2d 874 (9th Cir. 1983). 5
The parties brought the present appeal for review of the FLRA's finding of negotiability. 5 U.S.C. Secs. 7123(a) & (b) (Supp. IV 1980). The National Guard asserts that FLRA's discussion in California National Guard, and thus the decision in the instant case, is erroneous. It contends that the duty to bargain over even alternative grievance and arbitration procedures, under the Labor-Management Relations Chapter of the Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7121 (Supp. IV 1980), conflicts with the National Guard Technicians Act to the extent that the proposed procedures allow binding arbitration of matters reserved for final determination by the state adjutants general in the technicians statute. The Guard argues that we should resolve this conflict in favor of the earlier, more specific technicians statute, as did the Third Circuit in New Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276 (3d Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 343, 74 L.Ed.2d 384 (1982). The FLRA stands by its decisions in California National Guard and the present case, and urges that we not follow the lead of the New Jersey Air National Guard court.
The FLRA asserts that we must enforce its decision as long as that decision is a reasonable interpretation of the Civil Service Reform Act. It relies in particular on Department of Defense, Army-Air Force Exchange Service v. Federal Labor Relations Authority, 659 F.2d 1140, 1161 (D.C.Cir.1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982), for this assertion. We do not dispute this proposition as a general matter, since the specialization and experience of agencies can be used to provide necessary detail to otherwise broad-brushed legislation susceptible of many interpretations. The Civil Service Reform Act admits of such deference in providing that judicial review of FLRA orders "shall be on the record in accordance with section 706 of this title." 5 U.S.C. Sec. 7123(c) (Supp. IV 1980). Section 706 of Title 5 provides, among other things, that agency action should be upheld unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Administrative Procedure Act [APA], 5 U.S.C. Sec. 706(2)(A) (1976).
We do not understand the FLRA to dispute the proposition that the courts have the final authority to construe statutes and "must reject administrative constructions of [a] statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement." Federal Election Commission v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981) (citations omitted). This final authority is reflected in the language of the APA requiring courts to set aside agency action "otherwise not in accordance with law." 5 U.S.C. Sec. 706(2)(A) (1976). The FLRA does assert, however, that when a statute may be construed in several ways, each of which is reasonably "in accordance with law," we must defer to the interpretation of the agency charged with administering that statute. See Federal Election Commission v. Democratic Senatorial Campaign Committee, supra, 454 U.S. at 42-43, 102 S.Ct. at 47-48; Department of Defense, Army-Air Force Exchange Service v. Federal Labor Relations Authority, supra, 659 F.2d at 1162 n. 121. We do not have such a situation here.
In the present case, we are asked to decide if the Civil Service Reform Act conflicts with the National Guard Technicians Act, and to resolve that conflict if it exists. Because the civil service reform statute did not explicitly refer to or repeal the technicians legislation, this decision requires interpretation of both statutes. The FLRA apparently believes that, by virtue of the general principle of judicial deference just discussed, it has a preferred position in deciding whether the Civil Service Reform Act of 1978 conflicts with the National Guard Technicians Act of 1968 and, assuming such a conflict, in deciding whether the civil service reform legislation repealed by implication any inconsistent provisions in the technicians statute. We disagree.
The opinion of the FLRA regarding the scope of the National Guard Technicians Act is entitled to respect before this Court, but we are not bound by its construction of that statute even if reasonable. See Division of Military and Naval Affairs, State of New York v. Federal Labor Relations Authority, 683 F.2d 45, 48 (2d Cir.1982); Tsosie v. Califano, 651 F.2d 719, 722 (10th Cir.1981). Furthermore, if we find a conflict between the technicians statute and the later civil service reform legislation, we are obligated to resolve it.
The parties do not seriously dispute that, absent the National Guard Technicians Act, the Civil Service Reform Act mandates good faith bargaining by the Guard over proposals such as those here in dispute. To overcome the duty to bargain, we must find that the technicians statute is in actual conflict with this mandate and that the conflict should be resolved in favor of the continuing applicability of the earlier statute. Based on the express language of these statutes, we hold that the Guard's duty, under the Civil Service Reform Act, to bargain over proposals which allow binding arbitration of matters reserved for ultimate determination by the state adjutants general in the technicians act conflicts with that technicians statute. In view of the legislative history and purpose of both acts, we also hold that Congress did not intend to repeal the earlier technicians legislation by enacting the Civil Service Reform Act.
The National Guard Technicians Act provides:
Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned--
(1) a technician who is employed in a position in which National Guard membership is required as a condition of employment and who is separated from the National Guard or ceases to hold the military grade specified for his position by the Secretary concerned shall be promptly separated from his technician employment by the adjutant general of the jurisdiction concerned;
(2) a technician who is employed in a position in which National Guard membership is required as a condition of employment and who fails to meet the military security standards established by the Secretary concerned for a member of a reserve component of the armed...
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