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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 9, 2004 Decided March 12, 2004
No. 03-1141
ASSOCIATION OF CIVILIAN TECHNICIANS,
WICHITA AIR CAPITOL CHAPTER,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
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.
James F. Blandford, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With him on the
brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Federal law makes it a crime to
engage in collective bargaining over the terms or conditions
of military service on behalf of members of the National
Guard who are serving on full-time National Guard duty.
Relying on that law, 10 U.S.C. § 976 (2000), the Federal
Labor Relations Authority declined to order the Guard to
bargain over a union proposal concerning military training
duties assigned to National Guard technicians who serve as
both civilian employees and military members of the Guard.
Because the union’s proposal concerns duties assigned to
technicians while serving in civilian status, not while serving
on full-time National Guard duty, we hold that the statute
does not prohibit bargaining over the proposal and thus grant
the union’s petition for review.
I.
In addition to active-duty military personnel, the National
Guard employs civilian technicians to meet its day-to-day
administrative, clerical, and technical needs. Ass’n of Civil-
ian Techs., Schenectady Chapter v. FLRA, 230 F.3d 377, 378
(D.C. Cir. 2000). Technicians occupy a dual-employment
status: in addition to serving as federal civilian employees,
see 5 U.S.C. § 2105(a)(1)(F) (2000), they must be military
members of the National Guard under the National Guard
Technicians Act, see 32 U.S.C. § 709(b)(2) (2000) (Technicians
Act). Military members of the National Guard must ‘‘assem-
ble for drill and instruction TTT at least 48 times each year’’
and ‘‘participate in training at encampments TTT at least 15
days each year.’’ Id. § 502(a) (2000). The National Guard
may recall members to active duty at any time. See 10
U.S.C. § 12,301 (2000). During periods of full-time National
Guard duty, civilian technicians receive military pay and
benefits.
Technicians may engage in collective bargaining, see 5
U.S.C. § 7102 (2000), but 10 U.S.C. § 976—the statute at
issue in this case—makes it a crime to bargain on behalf of
3
members of the armed forces over the terms or conditions of
their military service. Id. § 976(c)(2). Violations of section
976 are punishable by fines, imprisonment, or both. Id.
§ 976(f).
Petitioner, the Association of Civilian Technicians, Wichita
Air Capitol Chapter, is the exclusive representative of dual-
status National Guard technicians employed by the Kansas
National Guard. During collective bargaining, the union
submitted a proposal concerning the assignment of military
training duties to technicians. Although all members of the
National Guard must undergo such training, the proposal
involves training assigned to technicians while serving in their
civilian capacity. The union’s proposal defines ‘‘military
training duty’’ as:
duty that is (1) required by a written policy or
regulation that is applicable to members of the
National Guard irrespective of whether they are
employees, (2) designed to impart or to measure
proficiency in a military skill, and (3) required by
written policy or regulation to be performed for a
specified period of time, or with a specified frequen-
cy, or until a specified level of proficiency is
achieved.
The proposal gives two examples of military training duty:
‘‘rifle qualification’’ and ‘‘training in the wear of garments
designed to afford protection from chemical weapons (Chem
Gear).’’ It would require the Guard to include in technician
position descriptions any military training duty assigned as
work, to give both technicians and the union notice and an
opportunity to discuss any changes to the listed information,
and, upon union request, to ‘‘negotiate the impact and imple-
mentation of military training duty assigned to any employee
as work.’’ Paragraph five of the proposal would require the
Guard to assign military training duty by written order that
describes, among other things:
the type, severity, and relative frequency of occur-
rence of any injury or illness that is known to have
resulted from past performance of the duty or that
4
is foreseeable; TTT precautionary measures that the
[Guard] will take and that the employee may take to
reduce the risk of injury; TTT [and] measures that
the [Guard] will take to provide prompt, effective
treatment in the event injury does occur.
Paragraph five would also require the Guard to make repre-
sentatives available to technicians ‘‘to discuss [the assigned
military training duty], to answer questions, and to listen to
any concerns.’’ Finally, paragraph six would prohibit the
Guard from requiring technicians to wear chemical gear ‘‘as a
method and means of performing work.’’
Declaring the proposal outside its obligation to bargain, the
Kansas National Guard refused to negotiate, and the union
appealed to the Federal Labor Relations Authority. See 5
U.S.C. § 7117(c) (2000). According to the union, its proposal
did not run afoul of section 976(c) because the proposal
pertained only to military training duties performed on civil-
ian time. The Authority disagreed, holding that the critical
distinction under section 976(c) is not ‘‘[a] technician’s status
at the time a proposal would operate,’’ but rather ‘‘whether
the proposal relates to military service or civilian employ-
ment.’’ Ass’n of Civilian Techs., Wichita Air Capitol Chap-
ter, 58 F.L.R.A. 28, 30 (2002). Applying that test, the Au-
thority explained: ‘‘[i]t is clear that the military training
duties that are the subject of the proposal are military skills
required because an individual is a member of the National
Guard—not skills based in the individual’s civilian status.’’
Id. at 31. ‘‘Because paragraph 5 of the proposal is inconsis-
tent with § 976(c),’’ the Authority concluded, ‘‘it is outside the
[Guard’s] duty to bargain under [5 U.S.C. §] 7117.’’ Id.
FLRA Chairman Cabaniss concurred on the grounds that the
proposal was ‘‘outside the duty to bargain’’ because it was
‘‘contrary to the Technicians Act’’ and concerned ‘‘a military
aspect of technician employment.’’ Id. at 32.
The union now petitions for review. See 5 U.S.C.
§ 7123(a).
5
II.
Section 976(c)(2) provides: ‘‘It shall be unlawful for any
person TTT to negotiate or bargain TTT on behalf of members
of the armed forces, concerning the terms or conditions of
service of such members.’’ 10 U.S.C. § 976(c)(2). Section
976(a)(1) defines ‘‘member of the armed forces’’ as ‘‘(A) a
member of the armed forces who is serving on active duty,
(B) a member of the National Guard who is serving on full-
time National Guard duty, or (C) a member of a Reserve
component while performing inactive-duty training.’’ Id.
§ 976(a)(1). Because Congress has not delegated any respon-
sibility to the Authority for administering section 976, we owe
the agency’s interpretation of the statute no deference. See
Ill. Nat’l Guard v. FLRA, 854 F.2d 1396, 1400 (D.C. Cir.
1988). Although ‘‘we follow the FLRA’s reasoning to the
extent that we deem [it] sound, we review the FLRA’s
decision TTT de novo.’’ Id. (citation and internal quotation
marks omitted).
The union argues, as it did before the Authority, that
section 976(a)(1)’s definition of ‘‘member of the armed forces’’
places a temporal limit on section 976(c)’s prohibition on
bargaining over terms or conditions of military service. As
the union sees it, ‘‘[p]rocedures used to assign technicians
work to be done during hours of civilian employment, for
civilian pay, are not terms [or] conditions of military service,
regardless of the nature of the work assigned.’’ Pet’r’s Br. at
3. According to the union, therefore, because its proposal
concerns duties that, though military in nature, are per-
formed by technicians in their civilian capacity, the statute is
inapplicable. Neither the Authority’s decision nor its brief in
this court responds to the union’s argument. Instead, the
Authority argues that purely military aspects of technicians’
employment—like the military training duties at issue—con-
stitute terms or conditions of military service regardless of
when the training takes place. Based on the statute’s text,
its legislative history, and established canons of statutory
construction, we think the union’s interpretation of section
976 is correct.
6
We begin with the language of the statute. Section
976(a)(1) defines ‘‘member of the armed forces’’ as ‘‘a member
of the National Guard who is serving on full-time National
Guard duty.’’ 10 U.S.C. § 976(a)(1) (emphasis added). If we
import this definition into section 976(c)(2), the provision
reads as follows: ‘‘it shall be unlawful for any person TTT to
negotiate or bargain TTT on behalf of [members of the Nation-
al Guard who are serving on full-time National Guard duty],
concerning the terms or conditions of service of such [mem-
bers who are serving on full-time National Guard duty].’’
The union is thus quite right: section 976(c)(2) prohibits
bargaining not on behalf of members of the National Guard,
but rather on behalf of members of the National Guard ‘‘who
[are] serving on full-time National Guard duty.’’ Because the
union’s proposal applies exclusively to those military training
duties that the Guard assigns to technicians during hours of
civilian work and for civilian pay, it falls outside the terms of
section 976(c)(2).
To be sure, military training duty regardless of when
performed could be viewed as a term or condition of National
Guard service, for technicians, who are required to be mili-
tary members of the Guard, must undergo such training in
order to serve on active military duty. The statute, however,
does not prohibit bargaining over terms or conditions of
National Guard service in all circumstances. It prohibits only
bargaining concerning terms or conditions of full-time Nation-
al Guard duty on behalf of members who are serving on full-
time National Guard duty. When the Guard chooses to
assign military training duties to technicians in their civilian
capacity, those duties also become terms or conditions of
civilian employment. Because the technicians perform those
duties while serving in their civilian capacity, they are not, at
that time, ‘‘serving on full-time National Guard duty.’’ The
union thus seeks to bargain not ‘‘on behalf of members of the
armed forces, concerning the terms or conditions of service of
such members,’’ but rather on behalf of civilian technicians
concerning the terms or conditions of their civilian employ-
ment.
7
The Authority points out that the statute’s purpose is ‘‘to
promote the readiness of the armed forces to defend the
United States,’’ Pub. L. No. 95–610, § 1(b), 92 Stat. 3085
(1978), and argues that the ‘‘military training at issue here,
regardless of when it takes place, is intended to maintain
skills and expertise required of an active duty member of the
military,’’ Resp’t’s Br. at 11. This is certainly true, but
section 976 makes clear that it applies only when members
are serving on full-time National Guard duty. The legislative
history, moreover, reveals that Congress was well aware of
the need to ensure the Guard’s military readiness yet drafted
the statute narrowly. The House Committee on Post Office
and Civil Service rejected Senate provisions that would have
fully included civilian technicians as members of the armed
forces, explaining that it ‘‘was not persuaded by the argu-
ments TTT that collective-bargaining activities by employee
representatives detracted from the preparedness of the Na-
tional Guard.’’ H.R. Rep. No. 95–894(II), at 6 (1978), reprint-
ed in 1978 U.S.C.C.A.N. 7586, 7590. Striking those more
inclusive Senate provisions, the committee rejected ‘‘the
premise TTT that civilian technicians, while serving in their
civilian capacity, are members of the military.’’ Id. at 7. The
House Armed Services Committee, which also had jurisdic-
tion over the bill, shared this view. Although recognizing
that ‘‘the prohibition on military labor union membership
must extend to the personnel of Reserve and National Guard
components, since they are subject to mobilization in the
event of a war or national emergency and would be serving
side by side with active forces personnel,’’ the committee
emphasized section 976’s narrow scope:
[S]ince the restriction on their union membership
affects First Amendment rights, the committee be-
lieves that the restriction should be drawn as nar-
rowly as possible. To accomplish this, the bill pro-
vides that Reserve and National Guard personnel
shall be considered as members of the armed forces
only ‘while performing inactive duty training,’ i.e.
those periods when they are actually in uniform and
engaged in military training or instruction. It is the
8
committee’s belief that this limitation will be suffi-
cient to govern the conduct of reservists while they
are actually engaged in military dutiesTTTT
H.R. Rep. No. 95–894(I), at 8–9 (1978), reprinted in 1978
U.S.C.C.A.N. 7575, 7580–81.
The union’s temporal reading of section 976 also finds
support in the well-established principle that ‘‘penal statutes
are to be construed strictly.’’ United States v. Campos-
Serrano, 404 U.S. 293, 297 (1971). ‘‘When choice has to be
made between two readings of what conduct Congress has
made a crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have spoken in
language that is clear and definite.’’ Id. Although this is not
a criminal case, the Supreme Court has made clear that
‘‘[t]here cannot be one construction for the [regulatory agen-
cy] and another for the Department of Justice. If we should
give [the statute] the broad construction urged by the [agen-
cy], the same construction would likewise apply in criminal
cases.’’ FCC v. Am. Broad. Co., 347 U.S. 284, 296 (1954). So
too here. Absent ‘‘clear and definite’’ guidance from Con-
gress, we will not choose the Authority’s ‘‘harsher alterna-
tive,’’ which would criminalize negotiations on behalf of tech-
nicians concerning work assigned to them in their civilian
capacity.
Contrary to the Authority’s view, nothing in Ass’n of
Civilian Technicians, Schenectady Chapter v. FLRA, 230
F.3d 377 (D.C. Cir. 2000), our only previous decision address-
ing section 976(c), requires a different result. In that case,
we considered whether the statute prohibited negotiations
over a union proposal that would have restricted the Guard’s
ability to communicate with technicians about their eligibility
to volunteer for active duty by taking leave from their civilian
posts while still receiving civilian pay. Interpreting section
976(c), we explained that what ‘‘matter[s] is the substance of
the proposal to be negotiated,’’ not ‘‘the status of the techni-
cians at the time of the negotiation.’’ Id. at 379. Because the
proposal ‘‘deal[t] with how the technicians [would] be paid
while on active duty,’’ we held that section 976(c) barred
9
negotiations. Id. at 380 (emphasis added). By contrast, the
issue in this case is not the technicians’ status at the ‘‘time of
the negotiation,’’ but rather their status at the time the duties
are performed. Unlike the proposal in ACT, Schenectady,
which dealt with the terms of technicians’ pay while on active
duty, i.e., ‘‘during full-time National Guard duty,’’ the sub-
stance of the proposal here concerns the performance of
duties, albeit of a military nature, assigned during hours of
civilian employment.
The Authority also relies on two other decisions, National
Federation of Federal Employees, Local 1623 v. FLRA, 852
F.2d 1349 (D.C. Cir. 1988) and Ass’n of Civilian Technicians,
Texas Lone Star Chapter 100 v. FLRA, 250 F.3d 778 (D.C.
Cir. 2001), to support its interpretation of section 976. Those
cases, however, dealt with technicians’ collective bargaining
rights under the Technicians Act, 32 U.S.C. § 709, not the
criminal statute at issue here.
We share the Authority’s concern that aspects of the
union’s proposal could permit bargaining over purely military
matters—such as rifle qualification or wearing chemical war-
fare gear—‘‘designed to impart or to measure proficiency in a
military skill’’ and mandated for all members of the Guard,
whether or not employed as civilian technicians. But we may
neither ignore section 976’s temporal limit nor distort the
statute to accommodate such concerns. Our job is to enforce
the statute as enacted by Congress. If the Guard wishes to
insulate all military training duties from collective bargaining,
it should either ask Congress to amend section 976, or, more
simply, assign military training duties to technicians while
they are serving on full-time National Guard duty—the time
when all other Guard members perform such training.
The union’s petition for review is granted, the Authority’s
decision is vacated, and this matter is remanded for proceed-
ings consistent with this opinion.
So ordered.