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Association of Civilian Technicians, Schenectady Chapter, Petitioner v. Federal Labor Relations Authority, Respondent

                  United States Court of Appeals


       Argued September 12, 2000  Decided November 7, 2000 

                           No. 99-1476

              Association of Civilian Technicians, 
                      Schenectady Chapter, 


               Federal Labor Relations Authority, 

      On Petition for Review of a Decision and 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:  Henderson, Randolph, and Garland, Circuit 

     Opinion for the Court filed by Circuit Judge Randolph.

     Randolph, Circuit Judge:  "The National Guard has the 
dual mission of serving both the state in which the Guard unit 
is located and the federal government.  The Guard stands 
ready to preserve peace and order at the command of state 
authorities;  and to provide combat-ready units and to control 
domestic violence at the President's discretion.  See Perpich 
v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 
L. Ed. 2d 312 (1990).  Because the National Guard is not a 
full-time active force, it employs civilian 'technicians' to per-
form administrative, clerical, and technical tasks.  These indi-
viduals are generally required to be members of the National 
Guard unit in which they are employed (32 U.S.C. s 709(b)), 
and must wear their military uniforms while they are work-
ing.  See National Guard Bureau Technician Personnel Reg. 
No. 300, p 7-6 (1987);  New York Council, Ass'n of Civilian 
Technicians v. FLRA, 757 F.2d 502, 505-06 (2d. Cir. 1985).  
As federal 'employees' (5 U.S.C. s 2105(a);  32 U.S.C. 
s 709(d)), the Guard's civilian technicians are entitled to 
engage in collective bargaining regarding certain subjects.  5 
U.S.C. ss 7102, 7103(a)(2) & (a)(3);  American Fed'n of Gov't 
Employees, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 
1984)."  United States Dep't of Defense v. FLRA, 982 F.2d 
577, 578 (D.C. Cir. 1993).

     When called to active duty, as they are with some frequen-
cy, these "dual-status" technicians lose their civilian status 
and become members of the armed forces.  For obvious 
reasons, Congress made it illegal for them or their union to 
bargain over the terms and conditions of military service.  10 
U.S.C. s 976(c).  The issue in this case is whether, in view of 
s 976(c), the Federal Labor Relations Authority correctly 
refused to order bargaining over the following proposal spon-
sored by the technicians' union:

     If the [National Guard Bureau] decides to afford bargain-
     ing unit technicians an opportunity to request leave 
     under 5 U.S.C. s 6323(d), the [National Guard Bureau] 
     shall inform them of that opportunity solely by written 
     general announcement, such as a bulletin board posting.  
     The announcement shall not identify by name, position, 
     or any other individual identifier, any technician eligible 
     for the opportunity.  The general announcement may 
     state the number of technicians to whom the opportunity 
     applies and the knowledge, skills, and abilities techni-
     cians must have to be eligible for the opportunity.  The 
     announcement shall state that the opportunity is volun-
     tary.  The Agency shall not--and the announcement 
     shall state that the Agency will not--coerce, pressure, or 
     personally ask any technician to volunteer, and will not 
     impose any adverse consequence, of any kind, on any 
     technician, for choosing not to volunteer.  If a technician 
     in response to the general announcement expresses to 
     the Agency interest in considering the opportunity af-
     forded, the Agency thereafter may communicate directly 
     with the technician concerning that opportunity.
     The dual-status technicians here belong to the 109th Tacti-
cal Airlift Wing based in upstate New York.  In late 1995, the 
109th became responsible for performing airlift operations for 
scientific expeditions in Antarctica, missions for which dual-
status technicians may be called into active duty to fly with 
the aircraft they maintain.  Technicians called to active duty 
receive regular military pay plus any available civilian pay.  
Or they may volunteer for special pay status, entitling them 
to leave with pay from their federal civilian technician jobs for 
up to 44 days, but no military pay.  See 5 U.S.C. s 6323(d)(1);  
10 U.S.C. s 12315(a).  The bargaining proposal put forward 
by the technicians' union--the Association of Civilian Techni-
cians, Schenectady Chapter--would govern how the National 
Guard Bureau informs dual-status technicians of their eligibil-
ity to volunteer for active duty by taking leave from their 
civilian posts, a special pay status entitling them only to their 
civilian salaries while on leave pursuant to 5 U.S.C. s 6323(d).  
Among other things, the proposal requires the Guard Bureau 
to inform dual-status technicians of this "opportunity" 
through a written posting rather than face-to-face, and to 
avoid placing pressure on any technicians to volunteer.

     The FLRA found the proposal non-negotiable because it 
related to a military assignment and would invite bargaining 
over a military decision, in violation of 10 U.S.C. s 976(c).  
(The FLRA's alternative statutory basis for its decision is 
unnecessary to describe because it has been abandoned.  See 
Association of Civilian Technicians Texas Lone Star Chapter 
100, 55 F.L.R.A. 1226 (2000).)  Section 976(c) is a criminal 
statute.  The FLRA does not administer the provision;  its 
interpretation thus deserves no special respect.  See National 
Ass'n of Gov't Employees v. FLRA, 179 F.3d 946, 950 (D.C. 
Cir. 1999);  see also Illinois Nat'l Guard v. FLRA, 854 F.2d 
1396, 1400 (D.C. Cir. 1988);  New Jersey Air Nat'l Guard, 
177th Fighter Interceptor Group v. FLRA, 677 F.2d 276, 281-
82 n.6 (3d Cir. 1982).

     In the language of s 976(c)(2), no one may bargain or 
negotiate over the "terms or conditions of service of" "mem-
ber[s] of the armed forces."  The phrase "a member of the 
armed forces" is defined 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 mem-
     ber of a Reserve component while performing inactive-
     duty training.
10 U.S.C. s 976(c)(2).

     The union views its proposal as consistent with s 976(c) 
because, in bargaining over the proposal, it would be negotiat-
ing on behalf of civilian technicians, not "members of the 
armed forces."  But the status of the technicians at the time 
of the negotiation cannot matter.  No one would claim that 
s 976(c) permitted the union to bargain about the type of 
uniform the technicians would wear when they were called to 
full-time duty (or training, see 32 U.S.C. s 502(a)(1)).  What 
does matter is the substance of the proposal to be negotiated.  
See United States Dep't of the Navy v. FLRA, 952 F.2d 1434, 
1440-42 (D.C. Cir. 1992).

     On that score the union thinks its proposal relates only to 
conditions of civilian technician employment--that is, how the 

technicians will be informed of the opportunity to volunteer 
for active duty at special pay.  We agree that the proposal 
does this, but it also does considerably more than the union 
cares to admit.  The FLRA so found and its interpretation 
deserves judicial respect.  See National Treasury Employees 
Union v. FLRA, 30 F.3d 1510, 1514 (D.C. Cir. 1994).  On the 
FLRA's view, the proposal deals with how the technicians will 
be paid while on active duty--will they, or will they not, 
receive military pay. Wages are a quintessential term of 
employment.  See Fort Stewart Schs. v. FLRA, 495 U.S. 641, 
644-57 (1990).  The proposal also affects the manner in which 
the Air National Guard recalls a technician to active duty.  
One of the basic characteristics of all members of the Nation-
al Guard, including dual-status technicians, is that they are 
subject to recall at any time pursuant to 10 U.S.C. s 12301.  
The proposal threatens to interfere with the National Guard's 
discretion to call technicians into action as it sees fit and on 
such terms as it desires.  As a legal matter, we see no 
difference under s 976(c) between the union's proposal and a 
proposal that would flatly prohibit the National Guard from 
asking technicians to volunteer for full-time duty without 
military pay.  The statute would quite clearly ban bargaining 
on the latter.  We agree with the FLRA that the statute also 
bans bargaining on the proposal we have before us.

     The petition for judicial review is denied.