Nos. 99-1563 & 99-1974
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_______________________________
ARKANSAS NATIONAL GUARD,
by the Adjutant General of the State
of Arkansas, Major General Don C. Morrow,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR
ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JUDITH A. HAGLEY
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 3
STATEMENT OF THE FACTS 4
I. Background 4
A. The National Guard and Civilian Technicians 4
B. Labor-Management Relations Statutory Scheme 5
II. The Authority's Decision 7
STANDARD OF REVIEW 10
SUMMARY OF ARGUMENT 12
ARGUMENT 13
I. THE AUTHORITY PROPERLY DETERMINED THAT THE
UNION'S PROPOSAL, WHICH REQUIRES THE GUARD TO
SUPPLY CIVILIAN TECHNICIANS "READY TO WEAR"
UNIFORMS, IS WITHIN THE AGENCY'S DUTY TO
BARGAIN UNDER THE STATUTE. 13
A. The Proposal Concerns a Condition of Employment of
Bargaining Unit Employees Because It Relates to the
Technicians' Civilian, Not Military, Employment. 14
1. Petitioner's arguments concerning the military
status of the technicians and the proposal are not
properly before this Court. 16
2. Technicians are civilians. 17
3. The military and civilian aspects of the technician's
employment are separable for the purpose of
determining bargaining obligations. 18
4. Petitioner's "special treatment" argument lacks
merit. 19
5. Provision of the uniform worn by individuals
performing civilian duties is a civilian, not a
military, subject. 20
B. The Negotiability of the Proposal Is Not Precluded by
37 U.S.C. 417-418. 22
II. THE COURT HAS THE STATUTORY POWER TO
ENFORCE AUTHORITY ORDERS PERTAINING TO THE
NATIONAL GUARD. 25
CONCLUSION 27
CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT
RULE 28A 28
ADDENDA
National Fed'n of Fed. Employees, Local 1669 & U.S. Dep't
of Defense, Arkansas Air Nat'l Guard, 188th Fighter
Wing, Fort Smith, Ark., 55 FLRA (No. 18) 63 (Jan. 8, 1999) A-1
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)
and other pertinent statutory and constitutional provisions B-1
TABLE OF AUTHORITIES
American Fed'n of Gov't Employees v. FLRA, 798 F.2d 1525
(D.C. Cir. 1986) 7
American Fed'n of Gov't Employees, Local 1336 v. FLRA, 829 F.2d 683
(8th Cir. 1987) 11
American Fed'n of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85
(D.C. Cir. 1998) 10
American Fed'n of Gov't Employees, Local 3748 v. FLRA, 797 F.2d 612
(8th Cir. 1986) 6, 17
American Fed'n of Gov't Employees, Local 3884 v. FLRA, 930 F.2d 1315
(8th Cir. 1991) 6, 22
Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89
(1983) 5, 6, 11
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) 11
Department of the Treasury, U.S. Customs Serv. v. FLRA, 836 F.2d 1381
(D.C. Cir. 1988) 23
Department of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 11
EEOC v. FLRA, 476 U.S. 19 (1986) 16, 17
Illinois Nat'l Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988) 23
National Fed'n of Fed. Employees, Local 1309 v. Department of the Interior,
119 S. Ct. 1003 (1999) 6, 11
National Fed'n of Fed. Employees, Local 1623 v. FLRA, 852 F.2d 1349
(D.C. Cir. 1988) 2, 7, 18
New Jersey Air Nat'l Guard v. FLRA, 677 F.2d 276 (3d Cir. 1982) 5, 17
New York Council, Association of Civilian Technicians v. FLRA,
757 F.2d 502 (2d Cir. 1985) 20
Overseas Educ. Ass'n, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987) 17
Perpich v. Department of Defense, 496 U.S. 334 (1990) 25
Selective Draft Law Cases, 245 U.S. 366 (1918) 25
State of Nebraska, Military Dep't, Office of the Adjutant General v. FLRA,
705 F.2d 945 (8th Cir. 1983) passim
U.S. Dep't of Agriculture v. FLRA, 836 F.2d 1139 (8th Cir. 1988) 11
U. S. Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Weather
Serv., Silver Spring, Md. v. FLRA, 7 F.3d 243 (D.C. Cir. 1993) 17
U.S. Dep't of Defense, Nat'l Guard Bureau, Rhode Island Nat'l Guard, Rhode
Island v. FLRA, 982 F.2d 577 (D.C. Cir. 1993) passim
U.S. Naval Ordnance Station, Louisville, Ky. v. FLRA, 818 F.2d 545
(6th Cir. 1987) 7
Wright v. Park, 5 F.3d 586 (1st Cir. 1993) 18
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
American Fed'n of Gov't Employees, Local 3013 & U.S. Dep't of Defense,
Nat'l Guard Bureau, Maine Air Nat'l Guard, Augusta, Me.,
40 FLRA 203 (1991) 18
Association of Civilian Technicians, Arizona Army Chapter 61 & U.S.
Dep't of Defense, Nat'l Guard Bureau, Arizona Nat'l Guard,
48 FLRA 412 (1993) passim
Association of Civilian Technicians, Mile High Chap. & U.S. Dep't of
Defense, Colorado Air Nat'l Guard, 140th Fighter Wing, 53 FLRA 1408
(1998) 21
International Ass'n of Machinists & Aerospace Workers, Franklin Lodge
No. 2135 & U.S. Dep't of the Treasury, Bureau of Engraving & Printing,
50 FLRA 677 (1995), aff'd mem. sub nom. Bureau of Engraving &
Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996) 10, 23
Montana Air National Guard, 20 FLRA 717 (1985), pet. for review
denied, Association of Civilian Technicians, Montana Air Chapter v.
FLRA, 809 F.2d 930 (D.C. Cir. 1987) 26
National Fed'n of Fed. Employees, Local 1669 & U.S. Dep't of Defense,
Ark. Air Nat'l Guard, 188th Fighter Wing, Fort Smith, Ark.,
55 FLRA (No. 18) 63 (Jan. 8, 1999) passim
National Treasury Employees Union Chapter 83 & Dep't of the Treasury,
IRS, 35 FLRA 398 (1990) 7
U.S. Dep't of Defense, Nat'l Guard Bureau, Alexandria, Va., 47 FLRA 1213
(1993) 2, 13, 20
CONSTITUTIONAL PROVISIONS & STATUTES
Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135
(1994 & Supp. III 1997) 1
5 U.S.C. § 7103(a)(14) 6
5 U.S.C. § 7103(a)(14)(C) passim
5 U.S.C. § 7105(a) 5
5 U.S.C. § 7105(a)(2)(E) 2, 3, 6
5 U.S.C. § 7105(a)(2)(I) 6
5 U.S.C. § 7106(b)(1) 21
5 U.S.C. § 7117 2, 6, 15, 22
5 U.S.C. § 7117(a)(2) 25
5 U.S.C. § 7123(a) 2
5 U.S.C. § 7123(b) passim
5 U.S.C. § 7123(c) passim
5 U.S.C. § 706(2)(A) 10, 11
5 U.S.C. § 2105 5
5 U.S.C. § 2105(a)(1)(F) 5
5 U.S.C. § 5901 8, 22
10 U.S.C. § 1593 8, 22
37 U.S.C. §§ 415-416 14
37 U.S.C. §§ 417-418 (1994 & Supp. III 1997) passim
Militia Clause of the Constitution, Art. I, § 8, cl. 16 3, 13, 25
National Guard Technicians Act, 32 U.S.C. § 709 (1994 & Supp III 1997) passim
§709(b)(3) 14
STATUTES
1996 Department of Defense Authorization Act, Pub. L. 104-106,
sec. 1038(a), 110 Stat. 432 passim
1997 Department of Defense Authorization Act, Pub. L. 104-201,
sec. 654, 110 Stat. 2583 passim
LEGISLATIVE HISTORY
H.R. Rep. No. 1823, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code
Cong. & Ad. News 3318 5, 17
MISCELLANEOUS
Fed. R. App. P. 17(b)(1)(B) 4
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Nos. 99-1563 & 99-1974
_______________________________
ARKANSAS NATIONAL GUARD,
by the Adjutant General of the State
of Arkansas, Major General Don C. Morrow,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The final decision and order under review in this case was issued by the
Federal Labor Relations Authority ("FLRA" or "Authority") in National
Federation of Federal Employees, Local 1669 & U.S. Department of Defense,
Arkansas Air National Guard, 188th Fighter Wing, Fort Smith, Arkansas, 55
FLRA (No. 18) 63 (Jan. 8, 1999) (Arkansas National Guard), a copy of which
is at FLRA's Addendum (Add.) A 1-6. The Authority exercised jurisdiction
over the case pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III
1997) (Statute).[1]
This Court has jurisdiction over the petition for review and cross-
application for enforcement of the Authority's final decision and order
pursuant to section 7123(a) and (b) of the Statute. Petitioner Arkansas
National Guard ("petitioner" or "Guard") filed its petition for review on
March 8, 1999, within the 60-day time limit provided by section 7123(a) of
the Statute.
STATEMENT OF THE ISSUES
I. Whether the Authority properly determined that the union's proposal, which
requires the Guard to supply civilian technicians with "ready to wear" uniforms,
is within the agency's duty to bargain under the Statute.
Pursuant to Eighth Circuit Rule 28A(f)(2) the most apposite cases are:
Association of Civilian Technicians, Arizona Army Chapter 61 & U.S. Dep't of
Defense, Nat'l Guard Bureau, Arizona Nat'l Guard, 48 FLRA 412 (1993)
National Fed'n of Fed. Employees, Local 1623 v. FLRA, 852 F.2d 1349 (D.C.
Cir. 1988)
National Fed'n of Fed. Employees, Local 1669 & U.S. Dep't of Defense, Ark.
Air Nat'l Guard, 188th Fighter Wing, Fort Smith, Ark., 55 FLRA (No. 18) 63 (Jan.
8, 1999)
U.S. Dep't of Defense, Nat'l Guard Bureau, Alexandria, Va., 47 FLRA 1213
(1993)
The most apposite statutory provisions are:
5 U.S.C. § 7103(a)(14)(C)
5 U.S.C. § 7105(a)(2)(E)
5 U.S.C. § 7117
National Guard Technicians Act, 32 U.S.C. § 709 (1994 & Supp. III 1997)
37 U.S.C. §§ 417-18 (1994 & Supp. III 1997)
II. Whether the Court has the statutory power to enforce Authority orders
pertaining to the Guard.
Pursuant to Eighth Circuit Rule 28A(f)(2) the most apposite cases are:
State of Nebraska, Military Dep't, Office of the Adjutant General v. FLRA,
705 F.2d 945 (8th Cir. 1983)
U.S. Dep't of Defense, Nat'l Guard Bureau, Rhode Island Nat'l Guard, R. I.
v. FLRA, 982 F.2d 577 (D.C. Cir. 1993)
The most apposite constitutional and statutory provisions are:
5 U.S.C. § 7123(b)
Militia Clause of the Constitution, Art. I, § 8, cl.16
STATEMENT OF THE CASE
This case involves a bargaining dispute that arose during contract
negotiations between petitioner and a union[2] that represents approximately
300 civilian technicians employed by the Guard. The union submitted to the
Guard a bargaining proposal that relates to the military uniforms that
civilian technicians are required to wear while performing their technician
duties. The union's proposal would require the Guard to be responsible for
attaching emblems to these uniforms. The Guard alleged that this proposal
is nonnegotiable. The union appealed to the Authority for a determination
regarding the negotiability of this proposal. 5 U.S.C. § 7105(a)(2)(E).
The Authority determined that the proposal is negotiable and, accordingly,
ordered the parties to bargain.
STATEMENT OF THE FACTS[3]
I. Background
A. The National Guard and Civilian Technicians
The union is the exclusive representative of certain National Guard civilian
technicians employed by the Arkansas National Guard. The National Guard
serves both the state in which the Guard unit is located and the federal
government. See U.S. Dep't of Defense, Nat'l Guard Bureau, Rhode Island
Nat'l Guard, R.I. v. FLRA, 982 F.2d 577, 578 (D.C. Cir. 1993) (DOD v.
FLRA). Because the National Guard is not a full-time active force, it
employs "civilian 'technicians' to perform administrative, clerical, and
technical tasks." Id. Guard technicians generally must become and remain
military members of the National Guard unit in which they are employed and
must maintain the military rank specified for their technician positions.
See National Guard Technicians Act, 32 U.S.C. § 709 (Technicians Act); State
of Nebraska, Military Dep't, Office of the Adjutant General v. FLRA, 705
F.2d 945, 946 (8th Cir. 1983) (Nebraska Guard).
The federal employment status of these technicians is governed both by the
Technicians Act[4] and by the civil service laws found in title 5 of the
U.S. Code. Technicians are included in the general definition of "employee"
found at 5 U.S.C. § 2105 and are, therefore, subject to those provisions
unless otherwise specifically excluded. See 5 U.S.C. § 2105(a)(1)(F).
Thus, civilians technicians are a "hybrid class" -- federal civilian
employees who work in a military environment and under the immediate control
of state officers. Nebraska Guard, 705 F.2d at 951.
"[T]he responsibilities and duties of these employees . . . correspond
directly to those of other civilian employees," notwithstanding the fact
that they arise in a military context. New Jersey Air Nat'l Guard v. FLRA,
677 F.2d 276, 279 (3d Cir. 1982) (New Jersey Guard). As relevant to this
case, civilian technicians -- federal employees--have responsibilities and
duties that arise under the Statute. Specifically, the Guard's civilian
technicians are "entitled to engage in collective bargaining regarding
certain subjects." DOD v. FLRA, 982 F.2d at 578. See also Nebraska Guard,
705 F.2d at 952.
B. Labor-Management Relations Statutory Scheme
The Statute governs labor-management relations in the federal service.
Under the Statute, the FLRA's responsibilities include adjudicating unfair
labor practice complaints, negotiability disputes, bargaining unit and
representation election matters, and resolving exceptions to arbitration
awards. See 5 U.S.C. § 7105(a); Bureau of Alcohol, Tobacco & Firearms v.
FLRA, 464 U.S. 89, 93 (1983) (BATF). The Authority thus ensures compliance
with the statutory rights and obligations of federal employees, labor
organizations that represent such federal employees, and federal agencies.
The Authority is further empowered to take such actions as are necessary and
appropriate to effectively administer the Statute's provisions. See 5
U.S.C. § 7105(a)(2)(I); BATF, 464 U.S. at 92-93.
The Authority performs a role analogous to that of the National Labor
Relations Board (NLRB) in the private sector. See BATF, 464 U.S. at 92-93;
American Fed'n of Gov't Employees, Local 3748 v. FLRA, 797 F.2d 612, 613
(8th Cir. 1986). Congress intended the Authority, like the NLRB, "to
develop specialized expertise in its field of labor relations and to use
that expertise to give content to the principles and goals set forth in the
[Statute]." BATF, 464 U.S. at 97. The Authority is "responsible for
implementing the Statute through the exercise of broad adjudicatory,
policymaking, and rulemaking powers." National Fed'n of Fed. Employees,
Local 1309 v. Department of the Interior, 119 S. Ct. 1003, 1006 (1999)
(Department of the Interior).
Under the Statute, the Authority makes determinations as to whether
particular bargaining proposals are within an agency's duty to bargain. See
5 U.S.C. § 7105(a)(2)(E); Department of the Interior, 119 S. Ct. at 1010.
A proposal may be outside an agency's duty to bargain for several reasons.
As relevant to this case, a proposal that is inconsistent with a federal law
is not within an agency's duty to bargain. See 5 U.S.C. § 7117; American
Fed'n of Gov't Employees, Local 3884 v. FLRA, 930 F.2d 1315, 1319 (8th Cir.
1991) (AFGE Local 3884). Further, a proposal that does not relate to
"conditions of employment" as defined by the Statute is not within an
agency's duty to bargain. See 5 U.S.C. § 7103(a)(14). "Conditions of
employment" does not include, inter alia, matters "specifically provided for
by Federal statute." 5 U.S.C. § 7103(a)(14)(C); AFGE Local 3884, 930 F.2d
at 1319. Finally, civilian technicians are not permitted to negotiate over
the military aspects of their employment, and, therefore, proposals related
to such aspects are outside the Guard's duty to bargain. See National Fed'n
of Fed. Employees, Local 1623 v. FLRA, 852 F.2d 1349, 1350-51 (D.C. Cir.
1988) (NFFE Local 1623).
A determination by the Authority that a particular proposal is negotiable
does not mandate its adoption; it only commits the parties to bargain in
good faith over the issue. During bargaining, the agency may continue to
resist the proposal, seek modification of the proposal, or bargain for union
concessions in exchange for agreeing to the proposal. See National Treasury
Employees Union Chapter 83 & Dep't of the Treasury, IRS, 35 FLRA 398, 414
(1990); U.S. Naval Ordnance Station, Louisville, Ky. v. FLRA, 818 F.2d 545,
551 n.7 (6th Cir. 1987); American Fed'n of Gov't Employees v. FLRA, 798 F.2d
1525, 1530 (D.C. Cir. 1986).
II. The Authority's Decision
During contract negotiations, the union submitted the following proposal,
which relates to the military uniforms that technicians are required to wear
while performing their technician duties:
The employer will provide uniforms in a ready to wear fashion. All emblems,
name tags, insignia etc. will be attached, and any cost will be borne by the
agency.
Arkansas National Guard, 55 FLRA at 63. Based on the wording of the proposal and
the union's statement of intent, the Authority found that the proposal means
that the Guard will either (1) provide uniforms with the emblems already
attached or (2) issue chits that could be used at the Guard's sewing service
facilities. Id. at 64.
The Guard acknowledged Authority precedent that had found similar proposals
concerning uniforms and civilian technicians to be within the Guard's duty
to bargain. Arkansas National Guard, 55 FLRA at 65. However, the Guard
argued that a 1996 amendment to the Technicians Act removed this subject
from the Guard's duty to bargain.
In 1996, the Technicians Act was amended to include a requirement that
technicians wear a military uniform while performing their technician
duties.
1996 Department of Defense Authorization Act, Pub. L. 104-106, sec. 1038(a),
110 Stat. 432; 1997 Department of Defense Authorization Act, Pub. L. 104-201,
sec. 654, 110 Stat. 2583 (collectively "the 1996 amendments") (set out in full
at Add. B 13-14). This statutory amendment codifies a long-standing rule that
technicians wear a military uniform while performing their civilian duties.
Arkansas National Guard, 55 FLRA at 63. In addition to this requirement, the
1996 amendments provide that technician officers are entitled to receive uniform
allowances pursuant to 37 U.S.C. § 417 and that technician enlisted personnel
are entitled to receive uniforms or uniform allowances pursuant to 37 U.S.C. §
418. Thus, under the 1996 amendments, uniform allowances and uniforms
previously supplied only for military service are also supplied for technician
duties. Arkansas National Guard, 55 FLRA at 63. Prior to these amendments,
technicians received uniform allowances pursuant to 5 U.S.C. § 5901 and 10
U.S.C. § 1593, which govern uniforms for all Department of Defense employees.
Id. at 63-64.
The Guard argued that the proposal is outside the duty to bargain for three
reasons, all based on the 1996 amendments. Arkansas National Guard, 55 FLRA
at 63-64. First, the Guard argued that the proposal is contrary to 37
U.S.C. §§ 417 and 418. Second, according to the Guard, the 1996 amendments
make the subject of uniforms for technicians a military aspect of technician
employment and, therefore, not a "condition of employment" as defined by the
Statute. Third, the Guard contended that the 1996 amendments "deal
comprehensively with" the subject of uniforms for technicians and,
therefore, the proposal does not concern a "condition of employment" under
the Statute. See 5 U.S.C. § 7103(a)(14)(C). The union argued to the
Authority that the proposal asks for civilian technicians to be provided
"nothing more than what is provided" under sections 417 and 418 to members
of the military. Arkansas National Guard, 55 FLRA at 64.
The Authority rejected each of the Guard's arguments. First, the Authority
found that the proposal was not inconsistent with sections 417 or 418,
noting that nothing in those sections prohibits the Guard from agreeing to
supply "ready to wear" uniforms. Arkansas National Guard, 55 FLRA at 64-65.
Second, relying on established Authority precedent holding that proposals
related to technicians' wearing of uniforms relates to civilian -- rather
than military -- aspects of technician employment, the Authority determined
that the proposal does not relate to a miliary aspect of technician
employment. Id. at 65. As the Authority explained, the decisive
consideration is not the "'military nature of the uniform'" but the "'status
of the personnel who wear the uniform.'" Arkansas National Guard, 55 FLRA
at 65 (quoting Association of Civilian Technicians, Arizona Army Chapter 61
& U.S. Dep't of Defense, Nat'l Guard Bureau, Arizona Nat'l Guard, 48 FLRA
412, 417 (1993) (Arizona National Guard)). After examining the language
and legislative history of the 1996 amendments, the Authority rejected the
Guard's argument that the amendments make the supplying of uniforms a
military matter. As the Authority emphasized, the amendments did not alter
the fact that the technicians are civilian employees and that the "ready to
wear" uniform proposal relates solely to the wearing of the uniform in their
civilian capacity. Arkansas National Guard, 55 FLRA at 66-67.
Finally, the Authority rejected the Guard's argument that the subject of the
proposal was not a "condition of employment" under section 7103(a)(14)(C)
because the matter is "specifically provided for by Federal statute." The
Guard argued that the 1996 amendments were intended to "deal
comprehensively" with the issue of uniforms and uniform allowances, relying
on two prior Authority decisions that found proposals concerning uniform
allowances to be outside the duty to bargain on this ground. Since those
cases were decided, however, the Authority has clarified that the
"comprehensiveness of a statutory scheme is not, in itself, a sufficient
basis to find a matter outside the duty to bargain because the matter is
'specifically provided for by Federal statute' under section 7103(a)(14)
(C)." Arkansas National Guard, 55 FLRA at 67. The appropriate inquiry, as
the Authority explained, is "whether the statute at issue provides the
Agency the discretion to agree to the proposal." Arkansas National Guard, 55
FLRA at 67 (citing International Ass'n of Machinists & Aerospace Workers,
Franklin Lodge No. 2135 & U.S. Dep't of the Treasury, Bureau of Engraving &
Printing, 50 FLRA 677, 685 (1995) (BEP), aff'd mem. sub nom. Bureau of
Engraving & Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996)).
Here, the Guard did not claim that it lacked the discretion to provide
sewing services to technicians under sections 417 and 418. Further, the
union sought for technicians only what the Guard provided to military
personnel. Therefore, the Authority found no basis on which to conclude
that the matter is specifically provided for by federal statute and not a
condition of employment. Arkansas National Guard, 55 FLRA at 67.
Accordingly, the Authority held that the proposal was within the duty to
bargain under the Statute and ordered the Guard to negotiate over the
proposal upon request.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." American Fed'n of
Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998).
Authority action shall be set aside only if "arbitrary, capricious, or an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §
7123(c), incorporating 5 U.S.C. § 706(2)(A); U.S. Dep't of Agriculture v.
FLRA, 836 F.2d 1139, 1141 (8th Cir. 1988) (Department of Agriculture).
Under this standard, unless it appears from the Statute or its legislative
history that the Authority's construction of its enabling act is not one
that Congress would have sanctioned, the Authority's construction should be
upheld. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). A court should defer to the Authority's
construction as long as it is reasonable. See id. at 845; Department of
Agriculture, 836 F.2d at 1141.
The instant case reviews a negotiability determination made by the
Authority. Such determinations, which lie at the heart of the Authority's
expertise, are given considerable deference. "[T]his Court's practice is to
uphold the Authority's negotiability determinations if they are 'reasonably
defensible.'" American Fed'n of Gov't Employees, Local 1336 v. FLRA, 829
F.2d 683, 685 (8th Cir. 1987) (citation omitted).
This case also concerns the Authority's interpretation of its own organic
statute as it relates to another statute, the National Guard Technicians Act
and the 1996 amendments. When the Authority's work requires interpretation
of other statutes, while it is not entitled to deference, the Authority's
interpretation should be given "respect." Nebraska Guard, 705 F.2d at 948;
Department of the Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988)
(Department of the Treasury). In its interpretation of other federal
statutes, the Authority's reasoning should be followed to the extent the
reasoning is "sound." Department of the Treasury, 837 F.2d at 1167.
Further, as the Supreme Court has stated, the Authority is entitled to
"considerable deference" when it exercises its "'special function of
applying the general provisions of the [Statute] to the complexities of
federal labor relations.'" Department of the Interior, 119 S. Ct. at 1011
(quoting BATF, 464 U.S. at 97). As the instant case demonstrates, among the
"complexities of Federal labor relations" that the Authority must address as
part of its everyday work is the interrelationship of the Statute and other
laws governing the federal employment relationship.
SUMMARY OF ARGUMENT
The Authority properly determined that the Guard has a duty to bargain with
its civilian technicians over sewing services for work attire. Although
technicians wear two hats -- i.e. when performing their technician duties,
they are federal civilian employees and when serving their military
obligations, they are Guard members -- this case concerns the civilian, not
the military, aspect of technician employment. Indeed, for years the Guard
has been required to bargain over proposals like the one in this case. Each
of the arguments posited by the Guard in an attempt to avoid its bargaining
obligation fails.
First, the proposal relates to the civilian, as opposed to the military,
aspect of technician employment. Petitioner's arguments to the contrary --
raised for the first time on appeal -- are not properly before this Court
because the Supreme Court has ruled that courts of appeals lack jurisdiction
to consider objections not first raised to the Authority. In any event,
petitioner's arguments lack merit. Congress has specifically provided, as
this Court has recognized, that Guard technicians are federal civilian
employees who have the right to collectively bargain over the non-military
conditions of their employment. Petitioner's arguments -- that everything
about the technician is military -- nullify this congressional mandate.
Because the proposal concerns the provision of uniforms that will be worn by
technicians while performing their civilian duties, the proposal relates to
the civilian side of their employment and, therefore, is within the Guard's
duty to bargain.
Second, nothing in 37 U.S.C. §§ 417-418 is inconsistent with or specifically
provides for "ready to wear" uniforms, the subject of the proposal.
Although these sections provide uniforms and uniform allowances for military
members and civilian technicians, they do not prescribe the condition of the
uniforms so provided. In addition, the Guard admits that it has the
discretion to provide sewing services for military members; therefore, there
is no reason why it does not have the discretion to provide the same
services for its technicians.
Finally, contrary to petitioner's assertion, the Militia Clause of the
Constitution does not preclude this Court from enforcing the Authority's
order in this case. The Militia Clause's reservation to the states of the
right to train their militia is unhampered by the Authority's decision in
this case, which relates to technicians as federal civilian employees. In
fact, no court, including this Court, has ever questioned its power to
enforce the Authority's orders against a state Guard. Accordingly,
petitioner's argument that the Militia Clause prevents this Court from
enforcing the Authority's order should be rejected.
ARGUMENT
I. THE AUTHORITY PROPERLY DETERMINED THAT THE UNION'S PROPOSAL, WHICH REQUIRES
THE GUARD TO SUPPLY CIVILIAN TECHNICIANS "READY TO WEAR" UNIFORMS, IS WITHIN THE
AGENCY'S DUTY TO BARGAIN UNDER THE STATUTE.
Contrary to petitioner's suggestion (e.g., Br. at iii) that it brings to the
Court a military issue implicating national defense policy, this case
involves a routine labor question concerning federal civilian employment.
Specifically, the proposal at issue here concerns who will pay for sewing
services for work attire -- the employer or the employee. The Authority in
this case followed its well-established precedent, which has consistently
held that proposals concerning uniform provision and maintenance are within
the duty to bargain. See, e.g., Arizona Nat'l Guard, 48 FLRA 412 (1993);
U.S. Dep't of Defense, Nat'l Guard Bureau, Alexandria, Va., 47 FLRA 1213
(1993).
Despite the fact that for years the National Guard has been required to
negotiate over such proposals, petitioner asserts that the proposal is not
within the Guard's duty to bargain. First, the Guard makes several
arguments (Br. at 6-9) that the proposal relates to a military aspect of
technician employment. However, because it neglected to present any of
these arguments to the Authority in this case, none of these arguments is
properly before this Court. See 5 U.S.C. § 7123(c). In addition, each
argument lacks merit. Second, the Guard posits (Br. at 3-5) that the
negotiability of this proposal is governed by 37 U.S.C. §§ 415-418. As
explained below, the proposal is neither inconsistent with nor "specifically
provided for" by that statute. Accordingly, the proposal is within the
Guard's duty to bargain, and the Authority's decision should be affirmed.
A. The Proposal Concerns a Condition of Employment of Bargaining Unit
Employees Because It Relates to the Technicians' Civilian, Not Military,
Employment.
Civilian technicians employed by the Guard are required, as a condition of
that employment, to wear the military uniform while performing their
civilian duties. See 32 U.S.C. § 709(b)(3). The Authority properly has
held that matters relating to the provision and maintenance of uniforms worn
by technicians do not relate to the "military aspect" of technician
employment because the uniforms in question are "'worn by technicians as
civilian employees of the National Guard' and the decisive consideration was
not 'the military nature of the uniform,' but 'the status of the personnel
who wear the uniform.'" Arkansas National Guard, 55 FLRA at 65 (quoting
Arizona National Guard, 48 FLRA at 417).
Here, the union proposes that the agency provide "ready to wear" uniforms to
technicians for their civilian -- as opposed to their military -- tours of
duty. Because this proposal relates to matters affecting unit employees
with respect to their civilian duties, the Authority properly considered the
proposal to be one relating to conditions of employment and, therefore,
under Authority precedent, negotiable unless it is shown to be inconsistent
with applicable law, a government-wide regulation, or an agency regulation
for which a compelling need exists. See 5 U.S.C. § 7117.
Petitioner nonetheless contends before this Court that the proposal
concerns "the military aspects" of the technicians' employment and is,
therefore, outside its obligation to bargain under the Statute. Petitioner
does not -- and can not-- deny that the uniforms requested by the union are
to be worn by the technicians in the performance of their technician
duties,[5] and during times when they are subject to most civilian civil
service laws, rules, and practices. Rather, petitioner maintains that the
uniform proposal concerns military matters because: 1) the technician is not
a "civilian" (Br. at 6); 2) the military and civilian aspects of the
technicians' duties are inseparable (Br. at 6); 3) the proposal asks for
"special treatment" (Br. at 8); and
4) "no subject could be more military than care and maintenance of the uniform"
(Br. at 8). As a threshold matter, petitioner failed to make any of these
objections to the Authority, and, accordingly, is barred from making them to
this Court. In addition, each argument is either inaccurate or irrelevant to
the agency's obligation to bargain.[6]
1. Petitioner's arguments concerning the military status of the technicians and
the proposal are not properly before this Court.
In its brief before the Authority, the Guard argued that although the
provision of uniforms used to be a condition of employment, the 1996
amendments made the topic a military matter and therefore not a condition of
employment. App. 68-70. The Authority held that the amendments did not
make the matter a military one -- that the provision of uniforms to an
individual "while employed as a National Guard technician" continues to
relate to the civilian aspect of the technician's employment. Arkansas
National Guard, 55 FLRA at 66. Petitioner does not challenge this
determination on appeal. Instead, petitioner makes new and additional
arguments that it failed to raise to the Authority. These arguments are not
properly before this Court.
It is well-established that a party may not raise before the Court an
argument not presented to the Authority. Pursuant to 5 U.S.C. § 7123(c),
"[n]o objection that has not been urged before the Authority . . . shall be
considered by the court [of appeals] . . . ." The Supreme Court has applied
the plain words of this section and held that "under § 7123(c) review of
'issues that [a party] never placed before the Authority' is barred absent
extraordinary circumstances." EEOC v. FLRA, 476 U.S. 19, 23 (1986)
(citation omitted). Thus, the Court will dismiss arguments that were not
first raised to the Authority. See American Fed'n of Gov't Employees, Local
3748 v. FLRA, 797 F.2d 612, 618 (8th Cir. 1986). Indeed, courts will refuse
to consider even arguments that encompass a "somewhat different twist" to
the argument advanced before the Authority. Overseas Educ. Ass'n, Inc. v.
FLRA, 827 F.2d 814, 820 (D.C. Cir. 1987). The requirements of section
7123(c) apply even as to issues that the Authority raises sua sponte. See
U. S. Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Weather
Serv., Silver Spring, Md. v. FLRA, 7 F.3d 243, 245-46 (D.C. Cir. 1993)
(noting that the party should have filed a motion for reconsideration
concerning an issue raised by the Authority sua sponte). Further, the Guard
has not alleged or demonstrated the existence of any extraordinary
circumstances that would excuse its failure to raise these objections to the
Authority. Accordingly, this Court should decline jurisdiction to hear the
petitioner's arguments and objections that it did not raise to the
Authority. In any event, as shown below, each of these objections lacks
merit.
2. Technicians are civilians.
As this Court has noted, the National Guard technicians are "civilians."
See Nebraska Guard, 705 F.2d at 946 n.2 ("Guard technicians are full-time
civilian employees") (emphasis added); see also New Jersey Guard, 677 F.2d
at 279 ("the Guard employs civilians to perform a wide range of
administrative, clerical, and technical tasks"). Indeed, the legislative
history of the Technicians Act of 1968 expressly refers to the technicians
as civilians. See House Report No. 1823, at 3319 ("The technicians . . .
are full-time civilian employees of the National Guard . . . .").
Therefore, petitioner's assertion that the technician "is not, and never
has been a 'civilian'" (Br. at 6) is plainly false. Wright v. Park, 5 F.3d
586 (1st Cir. 1993), cited by petitioner (Br. at 6), is not to the contrary
and explicitly recognizes, id. at 587, the dual status of the civilian
technician.
3. The military and civilian aspects of the technician's employment
are separable for the purpose of determining bargaining obligations.
Petitioner states, without justification, that determining whether a
particular proposal relates to a civilian or a military aspect of the
technician's job "is of decreasing utility." Br. at 6. Both the Authority
and the D.C. Circuit Court of Appeals disagree. See Arkansas National
Guard, 55 FLRA at 65; NFFE Local 1623, 852 F.2d at 1350-51. Although the
technician is a federal civilian employee, and therefore has the right to
bargain over conditions of employment under the Statute, the Authority
recognizes that that employment takes place in a military environment. The
Authority has accommodated this reality by consistently holding that
technicians may negotiate concerning their employment in a civilian capacity
but are not permitted to negotiate over the military aspects of civilian
technician employment. See Arkansas National Guard, 55 FLRA at 65; NFFE
Local 1623, 852 F.2d at 1350-51. For example, in NFFE Local 1623 a proposal
relating to changes in the technicians' military status was found to be a
military matter and, therefore, outside the agency's duty to bargain. See
also American Fed'n of Gov't Employees, Local 3013 & U.S. Dep't of Defense,
Nat'l Guard Bureau, Maine Air Nat'l Guard, Augusta, Me., 40 FLRA 203, 207
(1991) (proposal relating to qualifications for military position does not
concern conditions of employment). In contrast, here the proposal relates
to sewing services for uniforms worn by technicians while performing
civilian duties -- clearly not a military matter.[7]
The court's and the Authority's line-drawing analysis is useful and
necessary to accommodate both the military interests of the Guard and the
civilian rights of the technicians. Under petitioner's theory, every
bargaining proposal has a military aspect, the logical extension of which is
that technicians have no bargaining rights. To adopt petitioner's analysis
is to write the technicians out of the Statute's coverage. Such a drastic
revision to the relevant statutes must come from Congress.
4. Petitioner's "special treatment" argument lacks merit.
Petitioner's argument that the proposal asks for "special treatment" (Br. at
8) fails for several reasons. First, in prior cases the Authority has
rejected the argument that proposals providing "extra benefit[s]" to
civilian technicians that are not afforded to military members of the
National Guard undermine esprit de corps. See, e.g., Arizona Guard, 48 FLRA
at 421. As the Authority has explained, this argument is just another way
of stating the general claim that collective bargaining by civilian
technicians is incompatible with the military mission of the Guard.
Congress, by providing civilian technicians rights under the Statute, has
disagreed with petitioner's policy argument. Thus, again, it is up to
Congress, not the Authority or the courts, to reassess the technicians'
right to bargain under the Statute.
Second, in this case, the union states, and the agency before the Authority
did not dispute, "that the proposal for the attachment of emblems onto
uniforms seeks the same services as are provided to enlisted personnel."
Arkansas National Guard, 55 FLRA at 67. In other words, the union seeks
only what the military members are provided, not some extra benefit. Thus,
petitioner's argument lacks both a legal and factual foundation.
5. Provision of the uniform worn by individuals performing civilian duties is a
civilian, not a military, subject.
Petitioner asserts -- without any supporting authority -- that a proposal
concerning the provision of sewing services for uniforms worn by technicians
while performing their civilian duties relates to the military rather than
the civilian aspect of their employment. Indeed, petitioner ignores the
numerous Authority decisions that have found proposals concerning the
provision of military uniforms to be negotiable.[8] As the Authority has
reasoned, the decisive issue is not the military nature of the uniform but
the status of the personnel who wear the uniform -- here, the uniforms are
worn by technicians in their capacity as civilian employees. Arkansas
National Guard, 55 FLRA at 65.
Petitioner's reliance on New York Council, Association of Civilian
Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985) (Br. at 8) is misplaced.
There, the court held that the National Guard's requirement that the
technicians wear the military uniform while performing civilian duties was
an exercise of the National Guard's right under section 7106(b)(1) of the
Statute to determine the methods and means of performing the agency's work.
However, section 7106(b)(1) matters are negotiable if the agency so elects.
In that case, the uniform-wearing requirement was not within the mandatory
scope of bargaining only because it constituted a matter over which the
agency may -- but need not -- bargain. That holding does not, therefore,
establish that the uniform-wearing requirement is a "military" matter. To
the contrary, by acknowledging that the matter was permissibly negotiable,
the court assumed that the uniform-wearing requirement did relate to the
technicians' civilian conditions of employment.[9]
In the absence of supporting precedent, petitioner attempts to convince this
Court that proposals concerning the uniform worn by technicians while in
civilian status is part of the technicians' military service because of its
"military objective." Br. at 8. However, everything that the civilian
technician does supports the military objective of the Guard. As noted
above in section I.A.3, the sweeping scope of "military aspect of
employment" advocated by petitioner here, carried to its logical conclusion,
leaves no aspect of the technicians' employment nonmilitary. This Court
should reject petitioner's argument and preserve the technicians' rights as
civil servants to collectively bargain, a right acknowledged by this Circuit
in Nebraska Guard, 705 F.2d at 952.
B. The Negotiability of the Proposal Is Not Precluded by 37 U.S.C. 417-418.
Petitioner states (Br. at 3), without explaining, that the Authority erred
because 1) the proposal violates sections 417 and 418; 2) sections 417 and
418 "deal[] comprehensively with the subject" and therefore the issue is not
negotiable; and
3) Air Force regulations "deal comprehensively with the subject" and therefore
the issue is not negotiable. Each of these conclusory claims lacks merit and
should be dismissed.
First, the Authority found that the proposal was not inconsistent with
sections 417 and 418. Arkansas National Guard, 55 FLRA at 64-65. Under the
Statute, a proposal that is inconsistent with a federal law is not within an
agency's duty to bargain. See 5 U.S.C. § 7117; AFGE Local 3884, 930 F.2d at
1319. However, sections 417 and 418 merely state that if a uniform
allowance is provided under those sections, then an allowance under 5 U.S.C.
§ 5901 and 10 U.S.C. § 1593 would not be permitted. Sections 417 and 418
are silent both as to the condition of the uniforms to be provided and as to
any bargaining obligation regarding the provision of uniforms. Therefore,
as the Authority noted, nothing in section 417 or 418 prohibits an agency
from agreeing to supply uniforms "ready to wear." Arkansas National Guard,
55 FLRA at 64. On appeal, petitioner does not dispute the Authority's
analysis. Therefore, the Authority's conclusion that the proposal is not
inconsistent with sections 417 and 418 should be affirmed.
Second, the Authority rejected the Guard's argument that the subject matter
of the proposal was outside the duty to bargain because it is "specifically
provided for by Federal statute" under 7103(a)(14)(C) and, therefore, not a
condition of employment. Arkansas National Guard, 55 FLRA at 67. Under
Authority precedent, if a statute addressing the subject matter of a
proposal nevertheless provides the agency discretion to agree to the
proposal, then the matter is not "specifically provided for by Federal
statute" and is a condition of employment that must be bargained over. See
BEP, 50 FLRA 677, 685 (1995), aff'd mem. sub nom. Bureau of Engraving and
Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996).
Petitioner did not argue to the Authority and does not suggest to this Court
that it lacks the discretion to provide these services to technicians under
sections 417 and 418.[10] Arkansas National Guard, 55 FLRA at 67. Further,
petitioner does not dispute that the union seeks for civilian technicians
only what the Guard provides to military personnel. Id. Instead,
petitioner -- relying on a legal test that has been rejected by the
Authority -- merely states that the statute "deals comprehensively" with the
subject matter of the proposal. Br. at 3. As the Authority explained, "the
comprehensiveness of a statutory scheme is not, in itself, a sufficient
basis to find a matter outside the duty to bargain because the matter is
'specifically provided for by Federal statute.'" Arkansas National Guard,
55 FLRA at 67. Petitioner must show that it also lacks discretion, and
petitioner has failed to make that showing in this case. Therefore, the
Authority's finding that the proposal was within the duty to bargain because
the subject matter of the proposal was not "specifically provided for by
Federal statute" should be affirmed.
Third and finally, this Court should disregard petitioner's argument
regarding Air Force regulations. Petitioner raises for the first time
before this Court the objection that the proposal is non-negotiable under
7103(a)(14)(C) because Air Force regulations "deal comprehensively with the
subject." Br. at 3. As explained above in section I.A.1, it is well-
established that a party may not raise before the Court an argument not
presented to the Authority. See 5 U.S.C. § 7123(c). When it was before
the Authority, the Guard did not refer in any way to the Air Force
regulations that it relies on here. See App. 65-71. Therefore, the Guard's
arguments concerning the Air Force regulations are not properly before this
Court. See DOD v. FLRA, 982 F.2d at 580 (dismissing argument based on law
not raised to the Authority).
In addition, the Guard's argument that the issue of uniform provision is
provided for by Air Force regulations and therefore not a condition of
employment fails because section "7103(a)(14)(C) demands a statute." DOD v.
FLRA, 982 F.2d at 580. See 7103(a)(14)(C) ("conditions of employment"
"does not include policies, practices, and matters . . . (C) to the extent
such matters are specifically provided for by Federal statute") (emphasis
added).[11] Therefore, because the Statute does not exclude from the
definition of "conditions of employment" matters specifically provided for
by agency regulation, and because the agency failed to raise the Air Force
regulations to the Authority, the Court should reject petitioner's arguments
concerning those regulations.
II. THE COURT HAS THE STATUTORY POWER TO ENFORCE AUTHORITY ORDERS
PERTAINING TO THE NATIONAL GUARD.
In its final argument, petitioner asserts that even if the Court determines
that the Authority's order is in accordance with law, the Militia Clause of
the Constitution, Art. I, § 8, cl.16, precludes this Court from enforcing
the Authority's order. Br. at ix, xi, 10-11. Specifically, petitioner
claims that 1) the Militia Clause reserves to the states the ability to
train Guard members; and 2) the FLRA has no authority over the armed forces
to determine military questions. As a threshhold matter, this objection may
not be considered by the Court because petitioner failed to raise any
Militia Clause objections before the Authority. See 5 U.S.C. § 7123(c) and
section I.A.1 supra. However, even if the Court were to consider this
argument, petitioner's reliance on these two irrefutable assertions do not
affect the Court's enforcement powers in this case.
To be sure, the Militia Clause of the Constitution reserves certain Guard
training functions to the states. See Perpich v. Department of Defense, 496
U.S. 334, 350-51 (1990); Selective Draft Law Cases, 245 U.S. 366, 383
(1918). But petitioner fails to explain how this reservation of authority
over training relates to the Court's enforcement powers under the Statute in
this case. Were the Court to enforce the Authority's order and require
bargaining over sewing services for civilian employees, there would be no
apparent impact on the state Guard's status as the agent to carry out
militia training.
Of course the FLRA lacks "authority to determine military questions" (Br.
at ix) (emphasis added); indeed, this has been explicitly recognized by the
Authority. See, e.g., Arkansas National Guard, 55 FLRA at 65; Montana Air
Nat'l Guard, 20 FLRA 717, 739 (1985) (finding re-enlistment not subject to
negotiation because it was a military matter), pet. for review denied,
Association of Civilian Technicians, Montana Air Chapter v. FLRA, 809 F.2d
930 (D.C. Cir. 1987). But this argument is nothing more than a rehash of
petitioner's assertion that the proposal at issue concerns a military rather
than a civilian matter -- an assertion that the Authority rejected. See
discussion section I.A. supra. As a result, the Court will never reach
this superfluous argument because it will either agree that the proposal
relates to the civilian aspects of technician employment and affirm the
Authority, or instead determine that the proposal relates to military
matters and reverse. In other words, the Court's holding on the primary
issue in this case will moot petitioner's opposition to the enforcement
petition.
Nor can petitioner seriously challenge (Br. at 10) the Court's power to
enforce Authority orders against the Guard. In fact, all relevant
authority is to the contrary. First, section 7123(b) does not limit to
certain agencies the Court's enforcement powers regarding valid Authority
orders. See 5 U.S.C. § 7123(b). Indeed, the Statute expressly provides
that the Authority may petition a court "for the enforcement of any order of
the Authority." Id. (emphasis added). Second, the Authority has on
numerous occasions sought enforcement of its orders against the Guard,
including before this Court, and not once has any court questioned its
ability to enforce Authority orders against the Guard. See, e.g., Nebraska
Guard, 705 F.2d at 952 ("we can protect the exclusivity of review intended
to remain with the state adjutants general while leaving open all other
matters properly negotiable under the Civil Service Reform Act"); DOD v.
FLRA, 982 F.2d at 578 ("the Guard's civilian technicians are entitled to
engage in collective bargaining regarding certain subjects"). Accordingly,
this Court should grant the Authority's petition for enforcement of its
order.[12]
CONCLUSION
The Authority's order should be enforced and the Guard's petition for
review should be denied.
Respectfully submitted,
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JUDITH A. HAGLEY
Attorney
Federal Labor Relations
Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
June 1999
CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 28A
Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 28A, I
certify that the attached brief is proportionately spaced, utilizes 14-point
serif type, and contains 7,767 words. This brief was created in WordPerfect
8.
June 3, 1999
___________________________
Judith A. Hagley
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_______________________________
ARKANSAS NATIONAL GUARD,
by the Adjutant General of the State
of Arkansas, Major General Don C. Morrow,
Petitioner
v. Nos. 99-1563 & 99-1974
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief For The Federal Labor Relations Authority
have been served this day, by mail, upon the following counsel:
Major Douglas House Mark Pryor
Staff Judge Advocate Arkansas Attorney General
Arkansas National Guard Arnold M. Jochums
Camp J.T. Robinson Assistant Attorney General
North Little Rock, AR 72199-9600 200 Tower Building
323 Center Street
Little Rock, AR 72201
Thelma Brown
Paralegal Specialist
June 4, 1999
[1] Pertinent statutory and constitutional provisions are set forth in
Addendum B to this brief.
[2] When the case began, National Federation of Federal Employees Local 1669
(NFFE) represented the technicians in this case. Later, the Laborers
International Union of North America Local 1669 replaced NFFE as the bargaining
representative.
[3] In its brief (Brief of Petitioner (Br.) at xii), petitioner incorrectly
states that "[t]here is no record." Pursuant to Federal Rule of Appellate
Procedure 17(b)(1)(B), the Authority has served and filed a Certified List of
documents that "comprises the complete record of proceedings" in the case under
review in this Court. Certified List of the Federal Labor Relations Authority,
dated March 30, 1999, at 1. Petitioner includes some of these record documents
in its Appendix. The Authority notes, however, that the following documents,
which petitioner includes in its Appendix, are not part of the record and,
therefore, are not properly part of the petitioner's Appendix (App.): Statutes
(App. 4-18); Regulations (App. 19-46); DOD & ACT, Case No. WA-RP-70070 (App.
47-64); Cross-Application for Enforcement of an Order (App. 78-80); and Response
and Answer to Cross-Application for Enforcement (App. 81-84). The last two
documents are pleadings that have been presented to the Court in this case but
are not part of the record because they were not filed with the Authority.
[4] Prior to enactment of the Technicians Act, National Guard technicians were
exclusively employees of their respective states, although their salaries were
paid with federal funds. H.R. Rep. No. 1823, 90th Cong., 2d Sess., reprinted in
1968 U.S. Code Cong. & Ad. News (House Report No. 1823) 3318, 3319. The
Technicians Act converted these technicians to federal civilian employee status.
Id. at 3320.
[5] See Arkansas National Guard, 55 FLRA at 63; Union's Response to Agency
Statement of Position, App. 75-77.
[6] To the extent that the Guard's arguments address the merits -- as opposed
to the negotiability -- of the proposal, those arguments can be raised during
bargaining and are irrelevant to the negotiability question before this Court.
As explained above on page 7, the Authority's determination that a proposal is
negotiable does not obligate an agency to abandon at the bargaining table what
it believes are its best interests.
[7] On appeal, petitioner states that "the Union's proposal is more than just
paying for some sewing services. It calls for uniforms 'ready to wear, etc.'
for Technicians." Br. at 8. Although it is not clear what petitioner means by
this statement, the Authority determined that the proposal meant that the agency
would either provide the uniform "with emblems attached" or issue "chits" to
employees to procure sewing services. Arkansas National Guard, 55 FLRA at 64.
The agency did not dispute this meaning below and petitioner may not do so here
on appeal.
[8] See, e.g. Arizona Nat'l Guard, 48 FLRA 412 (1993); U.S. Dep't of Defense,
Nat'l Guard Bureau, Alexandria, Va., 47 FLRA 1213 (1993).
[9] The uniform-wearing requirement has recently been removed from the
permissive scope of bargaining because federal law, the 1996 amendments, now
mandates the wearing of the uniform. See Association of Civilian Technicians,
Mile High Chap. & U.S. Dep't of Defense, Colorado Air Nat'l Guard, 140th Fighter
Wing, 53 FLRA 1408, 1415 (1998).
[10] In its brief to this Court, petitioner concedes (Br. at 1-2, 4-5) that
it has the discretion to provide sewing services for uniforms. It is well
established that where an agency has discretion under law to act with respect to
conditions of employment, it has an obligation to bargain over the exercise of
that discretion. See Department of the Treasury, U.S. Customs Serv. v. FLRA,
836 F.2d 1381, 1384 (D.C. Cir. 1988). An exception to this rule is where a
statute specifically reserves the exercise of discretion to an agency's sole and
exclusive control. See, e.g., Illinois Nat'l Guard v. FLRA, 854 F.2d 1396, 1405
(D.C. Cir. 1988) (Technicians Act gives the Secretary of the Army "unfettered
discretion" to prescribe hours of work, thus removing the obligation to bargain
over the exercise of that discretion). Because petitioner does not assert that
its discretion is sole and exclusive, it is obligated to bargain over the
exercise of that discretion. Moreover, petitioner could not argue that Congress
has given it sole and exclusive discretion over providing sewing services for
uniforms because sections 417 and 418 do not contain the requisite limiting
language that the court relied on in Illinois National Guard.
[11] Petitioner did not argue below and does not argue here that the proposal
is inconsistent with Air Force regulations and, therefore, not within the duty
to bargain under 7117(a)(2) of the Statute. In any event, agency regulations
are a bar to negotiations only where the regulation is supported by a
"compelling need" under section 7117(a)(2). No such claim has been offered
here.
[12] Petitioner's representation that "an order to enforce is unnecessary"
(Br. at ix) because it states that it will comply with the Court's order is
beside the point. The Authority is entitled to enforcement regardless of
compliance. See 5 U.S.C. § 7123(b).