United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2001 Decided June 1, 2001
No. 00-1245
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
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 Au-
thority, 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. s 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 s 709(a) of the Technician
Act, 32 U.S.C. s 709(a), specifies that persons are employed
as technicians "[u]nder regulations prescribed by the Secre-
tary of the Army or the Secretary of the Air Force." Pursu-
ant 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) ("Wis-
consin-ACT") (together, the "Unions"), the recognized collec-
tive bargaining agents for technicians employed by the Texas
National Guard and the Wisconsin National Guard, submitted
bargaining proposals that would have allowed for the assign-
ment of technicians to Wage Leader positions without restric-
tion 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 Tech-
nicians, 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 recon-
sideration), reprinted in J.A. 15. This conclusion was based
on the Authority's consideration of three statutory provisions:
10 U.S.C. s 976(c)(2), which prohibits bargaining with, or on
behalf of, members of the armed forces, concerning the terms
or conditions of their service; s 7117(a)(1) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C.
s 7117(a)(1), which prohibits bargaining over matters incon-
sistent with any federal law; and the aforecited s 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.
s 7117(a)(1), because they are inconsistent with s 709(b).
See Ass'n of Civilian Technicians, Texas Lone Star Chapter
100, 55 F.L.R.A. at 1229. The legislative history of s 709(b)
clearly supports the Authority's conclusion that, in requiring
civilian technicians to "[h]old the military grade specified by
the Secretary," s 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). Be-
cause our decision rests principally on s 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. s 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" employ-
ees. See 10 U.S.C. s 10216; 32 U.S.C. s 709(b). As a
prerequisite for their employment, technicians must be mem-
bers 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.
s 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 incon-
sistent 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 Wisconsin-
ACT 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 Tech-
nicians, 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 recon-
sideration, and on June 7, 2000, the Authority denied the
motion for reconsideration. The Unions then filed this peti-
tion 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. s 7105(a)(2)(E). Review of
a final order of the Authority incorporates s 706 of the
Administrative Procedure Act. See 5 U.S.C. s 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. s 706(2)(A); Bureau of Alcohol, Tobacco and Fire-
arms v. FLRA, 464 U.S. 89, 97 & n.7, 98 n.8 (1983).
When the Authority's decision does not " 'derive[ ] primari-
ly' 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. s 976 and 32 U.S.C. s 709,
legislative enactments that are not part of its enabling stat-
ute. "We therefore accord the FLRA's construction of these
statutory provisions no deference, although we shall, of
course, follow its reasoning to the extent that we deem it
sound." Dep't of Treasury, 837 F.2d at 1167.
B. The proposals at issue are outside of the duty to
bargain
Section 7117(a)(1) of Title 5 specifies that the duty to
bargain in good faith extends to matters "not inconsistent
with any Federal law." 5 U.S.C. s 7117(a)(1). The FLRA
found that the Unions' proposals are inconsistent with
s 709(b) of the Technician Act, 32 U.S.C. s 709(b). We
agree.
Subsections 709(b)(2) and (3) of the Technician Act state
that National Guard technicians must be members of the
National Guard and hold the military grade specified by the
Secretary concerned for that position, that is, the military
grade specified by the Secretary of the Army or the Secre-
tary of the Air Force. These two subsections were contained
in s 202 of H.R. 2, a bill proposed "to strengthen the Reserve
components of the Armed Forces, and clarify the status of
National Guard technicians," as originally introduced. H.R.
Rep. No. 90-13, at 1, 101-02 (1967). In Title II, which
addressed the status of National Guard technicians, the bill as
reported amended clause (b) of s 709 as follows:
Except as prescribed by the Secretary concerned, a
technician employed under subsection (a) shall, while so
employed, be a member of the National Guard and hold
the military grade specified by the Secretary concerned
for that position.
Id. at 101-02. In the Report accompanying the original bill,
the Committee on Armed Services observed that "[c]lause (b)
convert[ed] to a statutory requirement" that which had long
been the practice of the Secretary concerned, namely "to
designate certain positions as 'officer positions,' others as
'enlisted positions,' which [could] be filled only by individuals
who hold the appropriate grade in the National Guard." Id.
at 58. The Committee recognized the "high correlation be-
tween the duties of the technician in his military and civilian
capacities," and concluded that,
[i]n the interest of efficiency and discipline, a military
commander should not be a civilian subordinate of a
member of his unit. Such inversions may be prevented
by authorizing the Secretary concerned to establish the
military grade required for employment in a particular
technician position. Proposed 32 U.S.C. s 709(b) of the
bill would so provide.
Id. at 58-59 (emphasis added).
In the Fall of 1967, the Committee on Armed Services,
considering H.R. 2, agreed to defer action on the section
addressing the status of National Guard technicians until the
second session of the 90th Congress. Senate Comm. on
Armed Services, 90th Cong. 1967-68 Legislative Calendar, at
25 (July 22, 1968). During the second session, the Committee
reported S. 3865, the National Guard Technician Act of 1968.
S. Rep. No. 90-1446 (1968). As with Title II of H.R. 2, a
purpose of the bill was to clarify the technicians' legal status.
Id. at 1. Important for present purposes, s 709 clause (b) of
S. 3865 was identical to that contained in H.R. 2. Id. at 40-
41. The Report accompanying S. 3865 expressed the firm
view that "technicians who are required to be military mem-
bers of the National Guard should occupy a military position
which is compatible with their civilian technician position."
Id. at 20.
The legislative history underlying s 709(b) underscores
three points. First, Congress found compatibility require-
ments to be essential to military "efficiency and discipline."
Second, Congress intended to maintain the long-time practice
of the Secretary "to designate certain positions" to "be filled
only by individuals who hold the appropriate grade in the
National Guard." Third, in requiring National Guard techni-
cians to "[h]old the military grade specified by the Secretary
concerned," s 709(b) aims, inter alia, to preserve the "high
correlation between the duties of the technician in his military
and civilian capacities." Because the Unions' proposals are at
odds with these purposes, they are "inconsistent with [a]
Federal law" and, consequently, outside the duty to bargain
under s 7117(a)(1). See, e.g., Ass'n of Civilian Technicians,
Mont. Air Chapter, 20 F.L.R.A. at 723-27 (examining legisla-
tive history of s 709 and reaching same result).
In short, under the Technician Act, it is clear that a
National Guard technician "must" "hold the military grade
specified by the Secretary concerned for that position," and
that this requirement includes holding a grade that is consis-
tent with the military grade inversion policy. It also appears
undisputed that the Departments of the Army and the Air
Force, implementing the decision of the Secretaries, specified
that there could be no grade inversion in technician Wage
Leader positions. The Authority was therefore fully warrant-
ed in finding that the Unions' proposals were nonnegotiable
under s 7117(a)(1).
The Unions point out that the Authority did not find that
s 709(b) grants the agency unfettered discretion to determine
military grades. See Ass'n of Civilian Technicians, Texas
Lone Star Chapter 100, 56 F.L.R.A. at 434 n.4. They assert,
additionally, that because statutes granting agencies discre-
tion, but not unfettered discretion, are not bars to negotiation,
see, e.g., Dep't of Veterans Affairs, Veterans Admin. Med.
Ctr., Veterans Canteen Serv., 44 F.L.R.A. (No. 16) 162, 163-
65 (1992), their proposals are not prohibited by s 709. This
argument misses the point.
Bargaining over the military grade inversion policy is in-
consistent with a federal law. That, by itself, makes the
proposals nonnegotiable. The Authority made this absolutely
clear when it held that, with regard to a matter that might
otherwise be negotiable as a "condition of employment,"
"bargaining will nevertheless be foreclosed if a proposal is
inconsistent with law." Ass'n of Civilian Technicians, Texas
Lone Star Chapter 100, 55 F.L.R.A. at 1229, reprinted in J.A.
13. Further, in its order denying the motion for reconsidera-
tion, the Authority emphasized that the Unions' proposals are
"outside the duty to bargain without regard to whether they
are ... within the sole discretion of an agency." Ass'n of
Civilian Technicians, Texas Lone Star Chapter 100, 56
F.L.R.A. at 434, reprinted in J.A. 17 (emphasis and ellipsis in
original). We can find no fault with these holdings.
The Unions contend that the Authority's decision goes too
far in suggesting that any proposal affecting the "military
aspects of technician employment" is outside of the duty to
bargain. There is merit in this contention, but we need not
address the issue. The Authority is correct that the disputed
Union proposals are "inconsistent with law" and, therefore,
beyond the bounds of permissible bargaining. We deny the
petition for review on this ground alone.
III. Conclusion
The petition for review is hereby denied.
So ordered.