ORAL ARGUMENT SCHEDULED FOR OCTOBER 18, 2001
No. 00-1485
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
NEW YORK STATE COUNCIL,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JAMES F. BLANDFORD
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR OCTOBER 18, 2001
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici
Appearing below in the administrative proceeding before the Federal
Labor Relations Authority (Authority) were the Association of Civilian
Technicians, New York State Council (Union) and the U.S. Department of
Defense, National Guard Bureau, New York Division of Military and Naval
Affairs, Latham, New York (Agency). The Union is the petitioner in this
court proceeding; the Authority is the respondent.
B. Ruling Under Review
The ruling under review in this case is the Authority's Decision and
Order on Negotiability Issues in ACT, New York State Council, Case No.
0-NG-2373, decision issued on June 19, 2000, reported at 56 F.L.R.A. (No. 66)
444, Order denying Motion for Reconsideration issued September 29, 2000,
reported at 56 F.L.R.A. (No. 145) 868.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority are unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 3
A. Background 3
B. The Authority's Decision 4
STANDARD OF REVIEW 6
SUMMARY OF ARGUMENT 7
ARGUMENT 8
A BARGAINING PROPOSAL THAT WOULD GRANT
ELIGIBILITY TO NATIONAL GUARD CIVILIAN
TECHNICIANS TO APPLY FOR VACANT MILITARY
POSITIONS IS NONNEGOTIABLE BECAUSE THE
PROPOSAL AFFECTS THE GUARD'S RIGHT UNDER
§ 7106(A)(1) OF THE STATUTE TO DETERMINE ITS
ORGANIZATION 8
A. The Right to Determine the Agency's Organization 8
B. Section 5 of the Union's Proposed Agreement Affects the Agency's Right to
Determine its Organization 9
C. The Union's Arguments are Without Merit 11
1. Petitioner's defense of proposed section 3 fails
to address the defects in section 5 12
2. Requiring the Guard to alter its regulations to
protect its management rights is impermissible 13
CONCLUSION 17
CERTIFICATION PURSUANT TO FRAP RULE 32 AND
CIRCUIT RULE 32 18
ADDENDUM
Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) and other
pertinent statutory provisions A-1
National Guard Instruction 36-101 B-1
TABLE OF AUTHORITIES
Am. Fed'n of Gov't Employees, Local 2343 v. FLRA,
144 F.3d 85 (D.C. Cir. 1998) 6
Am. Fed'n of Gov't Employees, Local 2953 v. FLRA,
730 F.2d 1534 (D.C. Cir. 1984) 3
* Dep't of the Treasury, Bureau of Alcohol, Tobacco and
Firearms v. FLRA, 857 F.2d 819 (D.C. Cir. 1988) 14
Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) 6
Nat'l Treasury Employees Union v. FLRA, 30 F.3d 1510
(D.C. Cir. 1994) 7
Overseas Educ. Ass'n v. FLRA, 827 F.2d 814 (D.C. Cir. 1987) 6
Patent Office Prof'l Ass'n v. FLRA, 47 F.3d 1217 (D.C. Cir. 1995) 8
* United States Department of Treasury, Internal Revenue
Service v. FLRA, 494 U.S. 922 (1990) 15
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
* Am. Fed'n of Gov't Employees, Dep't of Educ., Council of
AFGE Locals, 38 F.L.R.A. 1068 (1990), enforcement denied
on other grounds sub nom., United States Dep't of Educ. v.
FLRA, 969 F.2d 1158 (D.C. Cir. 1992) 14, 15
Am. Fed'n of Gov't Employees, Local 1336, 52 F.L.R.A. 794 (1996) 9
American Federation of Government Employees, Local 3509,
46 F.L.R.A. 1590 (1993) 15, 16
Nat'l Fed'n of Fed. Employees, Forest Serv. Council,
46 F.L.R.A. 145 (1992) 14
NTEU, Chapter 213 and 228, 32 F.L.R.A. 578 (1988) 16
* United States Dep't of Defense, Nat'l Guard Bureau, Washington
Army Nat'l Guard, Tacoma, Wash., 45 F.L.R.A. 782 (1992) 10
*Authorities upon which we chiefly rely are marked by asterisks.
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) 1, 2
5 U.S.C. § 7105(a)(2)(E) 1
5 U.S.C. § 7106(a) 8, 14
5 U.S.C. § 7106(a)(1) 2, 4, 6, 7, 8, 14, 15
5 U.S.C. § 7106(a)(2) 15
5 U.S.C. § 7117(c) 2
5 U.S.C. § 7123(a) 2
5 U.S.C. § 7123(c) 6
5 U.S.C. § 706(2)(A) 6
National Guard Technicians Act, 32 U.S.C.A. § 709 (West Supp. 2000) 3
GLOSSARY
ACT Association of Civilian Technicians, New York State Council
Add. Addendum
AFGE v. FLRA Am. Fed'n of Gov't Employees, Local 2953 v. FLRA,
730 F.2d 1534 (D.C. Cir. 1984)
AFGE, Local 3509 American Federation of Government Employees, Local 3509, 46
F.L.R.A. 1590 (1993)
Agency United States Department of Defense, National Guard Bureau, New
York Division of Military And Naval Affairs, Latham, New York
AGR Active Guard and Reserve
ANGI Air National Guard Instruction
Authority Federal Labor Relations Authority
Council of AFGE Am. Fed'n of Gov't Employees, Dep't of Educ., Council
Locals of AFGE Locals, 38 F.L.R.A. 1068 (1990), enforcement denied on
other grounds sub nom., United States Dep't of Educ. v. FLRA, 969 F.2d 1158
(D.C. Cir. 1992)
Guard United States Department of Defense, National Guard Bureau, New
York Division of Military And Naval Affairs, Latham, New York
IRS v. FLRA United States Department of Treasury, Internal Revenue Service
v. FLRA, 494 U.S. 922 (1990)
JA Joint Appendix
National Guard United States Department of Defense, National Guard Bureau,
New York Division of Military And Naval Affairs, Latham, New York
Northeast Sector Northeast Air Defense Sector
Pet. Br. Petitioner's Brief
SA Supplemental Appendix
Statute Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999)
Treasury v. FLRA Dep't of the Treasury v. FLRA, 836 F.2d 1381 (D.C. Cir.
1988)
Union Association of Civilian Technicians, New York State CouncilORAL
ARGUMENT SCHEDULED FOR OCTOBER 18, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 00-1485
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
NEW YORK STATE COUNCIL,
Petitioner
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The decision and order under review in this case was issued by the Federal
Labor Relations Authority (Authority) on June 19, 2000. The Authority's
decision is published at 56 F.L.R.A. 444. The Authority's order denying
petitioner's motion for reconsideration was issued on September 29, 2000,
and is published at 56 F.L.R.A. 868. Copies of these Authority
determinations are included in the Joint Appendix (JA) at JA 5-23 and JA
24-35, respectively. The Authority exercised jurisdiction over the case
pursuant to § 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. V 1999) (Statute).[1]
This Court has jurisdiction to review the Authority's final decisions and
orders pursuant to § 7123(a) of the Statute.
STATEMENT OF THE ISSUE
Whether a bargaining proposal that would grant eligibility to National Guard
civilian technicians to apply for vacant military positions is nonnegotiable
because the proposal affects the Guard's right under § 7106(a)(1) of the
Statute to determine its organization.
STATEMENT OF THE CASE
This case arose as a negotiability proceeding under § 7117(c) of the
Statute. The Authority adjudicated a petition filed by the Association of
Civilian Technicians, New York State Council ("ACT" or "union"). The
petition challenged the claim of the United States Department of Defense,
National Guard Bureau, New York Division of Military and Naval Affairs,
Latham, New York ("National Guard," "Guard," or "agency") that an agreement
proposed by the union was not within the Guard's duty to bargain under the
Statute. The proposed agreement would have required the Guard to convert
certain full-time military positions to positions that could be filled by
civilian technicians. The Authority held that the proposed agreement was
nonnegotiable because it affected the Guard's management right under
§7106(a)(1) of the Statute to determine its organization. Accordingly, the
Authority dismissed the union's petition and, subsequently, denied the
union's motion for reconsideration. Pursuant to § 7123(a) of the Statute,
the union seeks review of the Authority's decision.
STATEMENT OF THE FACTS
A. Background
The union is the exclusive representative of certain National Guard dual-
status technicians employed by the New York Air National Guard. National
Guard technicians are referred to as "dual status" because they are civilian
employees who must - as a prerequisite to their employment - become and
remain military members of the National Guard unit in which they are
employed and maintain the military grade specified for their technician
positions.[2] See National Guard Technicians Act of 1968, as amended, 32
U.S.C.A. § 709 (West Supp. 2000); Am. Fed'n of Gov't Employees, Local 2953
v. FLRA, 730 F.2d 1534, 1537 (D.C. Cir. 1984) (AFGE v. FLRA).
Sometime prior to 1994, the Air Defense mission for the continental United
States was assigned to the Air National Guard. The Air National Guard
created three Air Defense Sectors and in 1994 the Northeast Air Defense
Sector (Northeast Sector) initially became operational. The Northeast
Sector, headquartered at Griffiss Air Force Base, Rome, N.Y., was created as
a unit of the New York Air National Guard. Supplemental Appendix (SA) at 2.
The Northeast Sector has approximately 186 positions. SA at 28. The
Northeast Sector's mission was performed predominantly by full-time Active
Guard and Reserve (AGR) personnel,[3] plus a small number of civilian
technicians. JA at 6.
Subsequently, the Guard determined that the mission of the Northeast Sector
would be performed exclusively by AGR personnel. JA at 6. The previously-
assigned technicians were "grandfathered in," that is, they retained their
civilian status, but were slotted against military positions in lieu of AGR
incumbents. JA at 6-7. In response to the determination to staff the
Northeast Sector only with AGR personnel, the union submitted a proposed
bargaining agreement to address the impact on New York Air National Guard
technicians. After some partially successful negotiations, the agency
declared that seven sections of the proposed agreement were not negotiable.
JA at 44. The union then filed a petition for review of negotiability
issues with the Authority. JA at 39.
B. The Authority's Decision
Considering the disputed sections of the proposed agreement as "an
integrated whole," JA at 14-16, the Authority held it nonnegotiable.
Specifically, the Authority ruled that one of the proposed agreement's
sections, section 5, violated the Guard's right to determine its
organization under § 7106(a)(1) of the Statute. Section 5 provides:
"Technicians employed in the State of New York shall be among those eligible
to apply for any announced, vacant [Northeast Sector] position that may be
filled by a technician." JA at 21.
As pertinent here, the Authority noted that the Guard had organized "the
Northeast Sector . . . to be supported solely by full-time military
personnel." JA at 18. The Authority held that by expanding eligibility for
Northeast Sector vacancies beyond full-time military personnel to civilian
technicians, "section 5 . . . would precipitate a change in the Agency's
organization." Id. For civilian technicians to be eligible to apply for
what the Guard had determined should be exclusively military vacancies,
"section 5 would effectively require the Agency to convert full-time
military positions in the Northeast Sector to positions that can be filled
either by civilian technicians or [military] personnel." Id. The Authority
explained, "[b]y imposing such a requirement, the agreement dictates how the
Agency will be structured to accomplish its mission and functions." JA at
18-19. Such an agreement, the Authority concluded, "affects the Agency's
right to determine its organization" and is therefore outside the Guard's
duty to bargain. JA at 19.
In reaching the conclusion that proposed section 5 violated the agency's
right to determine its organization, the Authority examined the relationship
of section 5 to the proposed agreement's other sections. As particularly
relevant here, the Authority addressed the relationship of section 5 to
section 3, a part of the proposed agreement on which the Authority did not
rule. Operating in tandem with a nationwide Air National Guard
regulation,[4] section 3 would require the Guard to compile a listing of
positions in the Northeast Sector that, at least "theoretically," "may be
filled by" either civilian technicians or military personnel. JA at 15, 20.
The positions so identified would be, as the Guard explained, "future
positions in the Northeast Sector that could be filled by civilian
technicians if management so desired." JA at 7 (emphasis added).
In contrast to section 3's "theoretical" character, the Authority viewed the
agency determinations addressed by section 5 as dealing with actual agency
organizational decisions in particular circumstances. In this connection,
the Authority observed that the Guard, considering the particular mission
and functions of the Northeast Sector, had decided to organize the Northeast
Sector solely along military lines, by adopting an organizational structure
consisting exclusively of full-time military personnel. JA at 18. Because
they are not full-time military personnel, civilian technicians would not be
eligible to apply for vacancies in such an organizational structure. Thus,
section 5's contrary mandate, that civilian technicians be considered
eligible to apply for Northeast Sector vacancies, clearly would require the
Guard to alter the character of the positions in the Northeast Sector by
requiring elimination of the "military only" restriction. Section 5 would
thus dictate an aspect of the Guard's organizational structure. JA at
18-19. The Authority accordingly held that section 5 affected the Guard's
management right to determine its organization under § 7106(a)(1) of the
Statute. JA at 19. Considering the various sections of the proposed
agreement as an integrated whole, the Authority therefore ruled that the
proposed agreement was nonnegotiable. Id.
The Authority subsequently denied the union's request for reconsideration.
JA at 24, 35.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." Am. 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 it is "arbitrary, capricious, or
an abuse of discretion and . . . otherwise not in accordance with law." 5
U.S.C. § 7123(c), incorporating 5 U.S.C. § 706(2)(A).
"Congress has specifically entrusted the Authority with the responsibility
to define the proper subjects for collective bargaining, drawing upon its
expertise and understanding of the special needs of public sector labor
relations." Library of Congress v. FLRA, 699 F.2d 1280, 1289 (D.C. Cir.
1983). With regard to a negotiability decision like the one under review in
this case, such a "decision will be upheld if the FLRA's construction of the
[Statute] is 'reasonably defensible.'" Overseas Educ. Ass'n v. FLRA, 827
F.2d 814, 816 (D.C. Cir. 1987) (citation omitted). Courts "also owe
deference to the FLRA's interpretation of [a] union's proposal." Nat'l
Treasury Employees Union v. FLRA, 30 F.3d 1510, 1514 (D.C. Cir. 1994).
SUMMARY OF ARGUMENT
Section 7106(a)(1) of the Statute reserves to agency management the right to
determine its organization. The right to determine an agency's organization
encompasses the right to determine the functional structure of the agency,
including whether positions associated with a particular mission and
function will be military or civilian in character. In this case, the New
York Air National Guard determined that its Northeast Sector should function
as a military operation staffed exclusively with full-time members of the
military.
The Authority properly dismissed as nonnegotiable an agreement proposed by
the union that would require the Guard to alter its organizational
determination concerning the Northeast Sector. It is not disputed that
section 5 of the proposed agreement would require the Guard to reformulate
its organizational structure for the Northeast Sector so that civilian
technicians, in addition to full-time military personnel, would be eligible
to apply for all vacancies. By so reversing the Guard's determination to
adopt a strictly military organization for the Northeast Sector, section 5
would affect the Guard's right to determine its organization. Accordingly,
the proposed agreement is outside the Guard's obligation to bargain.
The Court should reject petitioner's argument that it is primarily section
3, not section 5 that requires a change in the Northeast Sector's
organization, and that section 3 is negotiable. First, the record does not
support petitioner's argument that section 3 establishes technicians'
eligibility to apply for Northeast Sector vacancies. As it operates in the
proposed agreement, section 3, through the incorporation of a nationwide
National Guard Bureau regulation, merely requires the Guard to compile a
listing of positions that may, as a theoretical matter, be filled by
civilian technicians. Section 3 does not, by its terms, mandate that
eligibility for any particular vacancies be extended beyond full-time
military personnel, to civilian employees.
Also meritless is petitioner's argument that section 3 is negotiable because
the Guard need only modify a nationwide regulation in order to freely
exercise its organizational rights. It is well established that bargaining
proposals that impose substantive conditions on the exercise of a management
right affect that right and thereby render the proposal nonnegotiable.
Further, the Statute does not empower unions, through the collective
bargaining process, to enforce limitations, including agency regulations, on
the management rights found in §7106(a)(1) of the Statute.
For all these reasons, the Authority properly concluded that the union's
proposed agreement is outside the agency's obligation to bargain.
ARGUMENT
A BARGAINING PROPOSAL THAT WOULD GRANT ELIGIBILITY TO NATIONAL GUARD CIVILIAN
TECHNICIANS TO APPLY FOR VACANT MILITARY POSITIONS IS NONNEGOTIABLE BECAUSE THE
PROPOSAL AFFECTS THE GUARD'S RIGHT UNDER § 7106(A)(1) OF THE STATUTE TO
DETERMINE ITS ORGANIZATION
A. The Right to Determine the Agency's Organization
Section 7106(a)(1) of the Statute reserves to agency management the right to
determine an agency's organization. Bargaining proposals that affect a
right reserved to agency management under § 7106(a) are outside the agency's
obligation to bargain. Patent Office Prof'l Ass'n v. FLRA, 47 F.3d 1217,
1220 (D.C. Cir. 1995). Management's right to determine its organization
under section 7106(a)(1) encompasses the right to determine the
administrative and functional structure of the agency, including the
relationship of personnel through lines of authority and the distribution of
responsibilities for delegated and assigned duties. See, e.g., Am. Fed'n of
Gov't Employees, Local 1336, 52 F.L.R.A. 794, 802 (1996). That is, this
right includes the authority to determine how an agency will structure
itself to accomplish its mission and functions. Id.
In this case, the Guard determined that the Northeast Sector should function
as a military operation staffed exclusively with full-time members of the
military. This determination clearly falls within the agency's right to
determine the functional structure of its organization. Accordingly, any
bargaining proposal that would affect the agency's ability to so structure
its operations would affect the agency's right to determine its organization
and therefore be outside the obligation to bargain. As we demonstrate
below, section 5 of the proposed agreement at issue here would, if adopted,
alter the agency's organizational determination that the Northeast Sector be
structured solely with full-time military positions. Accordingly, the
proposed agreement affects the agency's reserved right to determine its
organization and is outside the agency's obligation to bargain.
B. Section 5 of the Union's Proposed Agreement Affects the Agency's Right to
Determine its Organization
The Authority reasonably determined that the union's proposed agreement was
nonnegotiable because proposed section 5 affected the Guard's management
right to determine its organization. As discussed above, and not disputed
by petitioner, an agency's right to determine its organization includes the
right to determine what functional structure to adopt to accomplish agency
missions and functions. Consistent with Authority precedent, and as also
not disputed by petitioner, this encompasses the right to determine whether
positions associated with a particular mission and function will be military
or civilian in character. See United States Dep't of Defense, Nat'l Guard
Bureau, Washington Army Nat'l Guard, Tacoma, Wash., 45 F.L.R.A. 782, 787
(1992) (holding that the agency's right to determine its organization
includes the discretion to determine "that [a] vacant . . . position would
be designated and filled as a military position, not a civilian position").
As the Authority found, e.g., JA at 6, 18, the Guard determined that the
Northeast Sector would be organized solely with full-time military
positions. This organizational determination implicitly rendered the
Guard's civilian technicians ineligible for all Northeast Sector vacancies,
because civilian technicians are not full-time military personnel.
By effectively reversing the Guard's determination to adopt a strictly
military organization for the Northeast Sector, section 5 would affect the
Guard's right to determine its organization. Specifically, section 5 would
require the Guard to reformulate its organizational structure for the
Northeast Sector so that civilian technicians, in addition to full-time
military personnel, would be eligible to apply for all vacancies.
In this connection, section 5 pertinently provides: "Technicians . . .
shall be among those eligible to apply for any announced, vacant [Northeast
Sector] position that may be filled by a technician." JA at 46. As the
Authority found, section 5's reference to positions "that may be filled by a
technician" incorporates the list of positions that the Guard would be
required by section 3 to compile. E.g., Id. at 15. Discussing this list of
positions that "theoretically" could be filled by civilian technicians "if
management so desired," Id. at 15, 7, the Guard explained in its submission
to the Authority that "many, if not most, categories of full time positions
which are found in the various units of the Air National Guard across the
nation can, pursuant to ANGI 36-101, be filled by technicians." SA at 8.
Thus, with section 3's general listing of positions that "may be filled by
technicians" as a reference, JA at 17, section 5 would sweep aside the
Guard's determination to establish positions in the Northeast Sector for
which only full-time military personnel would be eligible, substituting
instead section 5's requirement that civilian technicians also be eligible.
As the Authority held (Id. at 18-19), "[b]y imposing such a requirement, the
agreement dictates how the Agency will be structured to accomplish its
mission and functions." This improperly affects management's right to
determine its organization.
C. The Union's Arguments Are Without Merit
Petitioner defends its proposed agreement by claiming that a section of the
agreement not ruled on by the Authority, section 3, does not suffer from the
defects that the Authority found objectionable in a different section of the
proposed agreement, section 5. As discussed in more detail below, the Court
should reject petitioner's arguments for a variety of reasons. First, to
the extent that petitioner claims that the Authority erred because of flaws
in a nonexistent ruling, petitioner's point is irrelevant. The Authority
held that section 5, not section 3 of the proposed agreement violated the
Guard's right to determine its organization. Petitioner's related argument,
that section 3, not section 5 establishes technicians' eligibility to apply
for Northeast Sector vacancies is not supported by the record. Second, and
in any event, even if section 5 and section 3 serve redundant purposes,
petitioner's defense, that the Guard should be required to amend its
regulations to remedy a defect in the union's bargaining agreement, would
place an improper limitation on the Guard's exercise of its management
rights.
1. Petitioner's defense of proposed section 3 fails to address the defects
in section 5
Petitioner acknowledges (Petitioner's Brief (Pet. Br.) at 4) that the
Authority held the proposed agreement nonnegotiable because "[t]he FLRA
reasoned that section 5 of the proposal requires organizational change . . .
." However, rather than address the Authority's ruling on section 5,
petitioner frames its defense of the proposed agreement by asserting the
negotiability of section 3. E.g., Pet. Br. at 8-9.
In this regard, petitioner contends that section 5's effect on the Guard's
organization is only derivative, and that it is primarily section 3 that
"requires organizational change." Id. Nevertheless, petitioner asserts,
because section 3 changes the Guard's organization "only by requiring
compliance with a regulation," section 3 should not render the proposed
agreement nonnegotiable. Id. at 9. Citing case law arising in other
contexts, petitioner argues that there is nothing wrong with requiring an
agency to comply with its own regulations, even if requiring such compliance
affects agency organizational determinations. Pet. Br. at 8-9.
The Court should reject petitioner's argument. The record does not support
petitioner's assertion that section 3 and the Guard regulation section 3
incorporates would require the Guard to alter its determination to staff the
Northeast Sector exclusively with military positions. As the Authority
found, section 3 and the Guard regulation on which section 3 is based, ANGI
36-101, merely require the agency to compile a listing of the positions that
"theoretically" could be filled by technicians. JA at 15.
Such a "theoretical" listing, addressing "categories of full[-]time
positions," JA at 8, "that may be filled by technicians," JA at 17, is
inherently different from the actual organizational determinations the Guard
must make when it is considering how to structure a particular function like
the Northeast Sector. Thus, for example, the presence of the
"grandfathered" civilian technicians in the Northeast Sector indicates that
there are categories of Northeast Sector jobs that technicians could, if the
Guard so desired, fill. However, there is no reason, and indeed it would be
illogical, to convert this organizational option that the Guard might
consider into the organizational mandate that petitioner reads into section
3 and ANGI 36-101. In other words, the fact that civilian technicians could
perform the duties of certain positions in the Northeast Sector does not
imply that technicians must be deemed eligible for such vacancies, in the
face of a Guard determination, for other reasons, that a purely military
organizational structure is preferable, as occurred in this case.
The Court should therefore reject petitioner's claim that section 3, and
compliance with ANGI 36-101, requires the Guard to alter its organizational
determination that the functional structure of the Northeast Sector should
consist solely of military positions. Rather, as the Authority held, it is
section 5, by its own terms and without a regulatory gloss, that intrudes
improperly on the Guard's right to determine this aspect of its
organization.
2. Requiring the Guard to alter its regulations to protect its management
rights is impermissible
The Court should also reject petitioner's contention that its proposed
bargaining agreement should be held negotiable because the Guard can avoid
an infringement on its right to determine its organization "simply by
changing [its] regulation." Pet. Br. at 9. Petition concedes in this
regard that absent a change in the Guard's regulation, ANGI 36-101, the
proposed agreement would require a change to the Guard's organization.
E.g., Pet. Br. at 5.
Petitioner's argument conflicts with a proposition, well established in the
Authority's case law, that bargaining proposals that impose conditions on
the exercise of a management right improperly infringe on the right, and are
nonnegotiable. E.g., Nat'l Fed'n of Fed. Employees, Forest Serv. Council,
46 F.L.R.A. 145, 150 (1992) (Proposals that impose conditions on the
exercise of a management right interfere with that right.). In the instant
case, the union's proposed agreement permits the Guard to exercise its
management right to determine its organization at the Northeast Sector, a
unit of the New York Air National Guard, only on the condition that a
nationwide National Guard Bureau regulation is amended. Such a limitation
places impermissible restrictions on the exercise of the right, and
consistent with the Authority's case law, should be rejected. See also
Dep't of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857
F.2d 819, 821-22 (D.C. Cir. 1988) (A proposal that places unreasonably
burdensome constraints on the exercise of a §7106(a) management right is
outside the obligation to bargain.).
Additionally, to the extent that petitioner argues that its proposed
agreement is negotiable because it merely requires the Guard "to organize
itself in accordance with its own regulation," Pet. Br. at 9, petitioner
misapprehends the nature of the management rights set forth in § 7106(a)(1).
The Authority has held that "§ 7106(a) does not, by its terms, subject the
exercise of management's rights under § 7106(a)(1) to compliance with
applicable laws and regulations." Am. Fed'n of Gov't Employees, Dep't of
Educ., Council of AFGE Locals, 38 F.L.R.A. 1068, 1076 (1990) (Council of
AFGE Locals), enforcement denied on other grounds sub nom., United States
Dep't of Educ. v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992).
The Authority's holding in that case was based on the Supreme Court's
decision in United States Department of Treasury, Internal Revenue Service
v. FLRA, 494 U.S. 922 (1990) (IRS v. FLRA). In IRS v. FLRA, the Court held
that "the [Statute] does not empower unions to enforce . . . 'external
limitations' on management rights," such as laws and regulations, except to
the extent that the Statute itself authorizes those limitations. See id. at
931. The Court was addressing the wording of a different provision of the
Statute than that involved here, § 7106(a)(2), which requires that the
management rights set forth therein be exercised "in accordance with
applicable laws." The Court held that "insofar as union powers under §
7106(a) are concerned, other than the limitations imposed by 'applicable
laws,'" no other restrictions on the exercise of management's rights set
forth in § 7106(a)(2) are bargainable. Id.
Because § 7106(a)(1), involved in this case, does not contain such a
limitation, the Authority has concluded that unions may not seek to subject
the exercise of the management rights set forth in § 7106(a)(1), such as the
right to determine an agency's organization, to compliance with applicable
laws and regulations. Council of AFGE Locals, 38 F.L.R.A. at 1076.
Accordingly, even if the union's proposed agreement in this case represented
nothing more than an attempt to impose the limitations of agency regulations
on the exercise of the Guard's right to determine its organization, the
proposed agreement would still not be bargainable under the Statute.
Finally, the cases upon which petitioner relies (Pet Br. at 7) are
distinguishable. For example, in American Federation of Government
Employees, Local 3509, 46 F.L.R.A. 1590, 1616-18 (1993) (AFGE Local 3509),
the disputed provision was only intended to provide employees with
information as to what policies the employer had adopted. 46 F.L.R.A. at
1617. Ruling for the union, the Authority explained that such negotiable
provisions "simply memorialize[] for informational purposes an agency's
unilateral decision with respect to the exercise of a management right" but
make "clear that the agency remain[s] free at any time . . . to change that
decision. . . ." Id. at 1618. Here in contrast, the proposed agreement is
not intended to inform employees of the Guard's organizational
determinations concerning the Northeast Sector. Rather, the proposed
agreement requires the Guard to alter those determinations, unless certain
other substantive actions are taken with respect to the content of a
nationwide regulation. The Authority's case law does not provide any
support for holding that such a proposed agreement is negotiable.
NTEU, Chapter 213 and 228, 32 F.L.R.A. 578 (1988), cited by petitioner (Pet.
Br. at 8) is also inapposite. Unlike the instant case, the provision ruled
nonnegotiable there, by restating in the parties' contract agency
regulations bearing on the exercise of management rights, would have
required the agency to exercise those rights in conformance with that
contractual restatement, even if the agency were subsequently to alter those
regulations. Id. at 586. Because the circumstances of the instant case are
entirely different, the Authority's discussion in NTEU, Chapter 213 and 228
is inapplicable and does not support petitioner's assertions.
CONCLUSION
The union's petition for review should be denied.
Respectfully submitted,
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JAMES F. BLANDFORD
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
August 2, 2001
CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 32
Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 32, I
certify that the attached brief is proportionately spaced, utilizes 14-point
serif type, and contains 4348 words.
___________________________
James F. Blandford
Aug. 2, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
ASSOCIATION OF CIVILIAN TECHNICIANS,
NEW YORK STATE COUNCIL,
Petitioner
v. No. 00-1485
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
_______________________________
SERVICE LIST
I certify that copies of the Brief for the Federal Labor Relations
Authority, Motion For Leave To File Supplemental Appendix For the Respondent
Federal Labor Relations Authority, and Supplemental Appendix for the Federal
Labor Relations Authority have been served this day, by mail, upon the
following:
Daniel M. Schember
Gaffney & Schember, P.C.
1666 Connecticut Ave., NW,
Suite 225
Washington, D.C. 20009
Jennifer Baker
Paralegal Specialist
August 2, 2001
TABLE OF CONTENTS
1. 5 U.S.C. § 7105(a)(2)(E) A-1
2. 5 U.S.C. § 7106(a)(1), (2) A-2
3. 5 U.S.C. § 7117(c) A-3
4. 5 U.S.C. § 7123(a), (c) A-5
5. 5 U.S.C. § 706(2)(A) A-8
6. National Guard Instruction 36-101 B-1§ 7105. Powers and duties of the
Authority
* * * * * * *
(a)(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * *
(E) resolve issues relating to the duty to bargain in good faith under
section 7117(c) of this title;
* * * * * * *
§ 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this chapter shall
affect the authority of any management official of any agency-
(1) to determine the mission, budget, organization, number of employees, and
internal security practices of the agency; and
* * * * * * *
(2) in accordance with applicable laws-
(A) to hire, assign, direct, layoff, and retain employees in the agency, or
to suspend, remove, reduce in grade or pay, or take other disciplinary
action against such employees;
(B) to assign work, to make determinations with respect to contracting out,
and to determine the personnel by which agency operations shall be
conducted;
(C) with respect to filling positions, to make selections forappointments
from-
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency
mission during emergencies.
§ 7117. Duty to bargain in good faith; compelling need; duty to consult
* * * * * * *
(c)(1) Except in any case to which subsection (b) of this section applies,
if an agency involved in collective bargaining with an exclusive
representative alleges that the duty to bargain in good faith does not
extend to any matter, the exclusive representative may appeal the allegation
to the Authority in accordance with the provisions of this subsection.
(2) The exclusive representative may, on or before the 15th day after the
date on which the agency first makes the allegation referred to in paragraph
(1) of this subsection, institute an appeal under this subsection by-
(A) filing a petition with the Authority; and
(B) furnishing a copy of the petition to the head of the agency.
(3) On or before the 30th day after the date of the receipt by the head of
the agency of the copy of the petition under paragraph (2)(B) of this
subsection, the agency shall-
(A) file with the Authority a statement-
(i) withdrawing the allegation; or
(ii) setting forth in full its reasons supporting the allegation; and
(B) furnish a copy of such statement to the exclusive representative.
(4) On or before the 15th day after the date of the receipt by the exclusive
representative of a copy of a statement under paragraph (3)(B) of this
subsection, the exclusive representative shall file with the Authority its
response to the statement.
(5) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it shall
not include the General Counsel as a party.
(6) The Authority shall expedite proceedings under this subsection to the
extent practicable and shall issue to the exclusive representative and to
the agency a written decision on the allegation and specific reasons
therefor at the earliest practicable date.
* * * * * * * § 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.
* * * * * * *
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
* * * * * * *
§ 706. Scope of Review
To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms of
an agency action. The reviewing court shall -
* * * * * * *
(2) hold unlawful and set aside agency action, findings, and conclusions found
to be -
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;
* * * * * * *
[1] Pertinent statutory provisions are set forth in the attached Addendum
(Add.) to this brief.
[2] In order to distinguish National Guard technicians from full-time
military personnel, we will refer to the technicians as "civilian technicians"
or simply "technicians."
[3] In contrast to the dual status technicians, AGR personnel are full-time
members of the military.
[4] Air National Guard Instruction (ANGI) 36-101, set forth at Add. B-1 and JA
22.