ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 99-1476 _______________________________ ASSOCIATION OF CIVILIAN TECHNICIANS, SCHENECTADY CHAPTER, 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 JUDITH A. HAGLEY Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000 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, Schenectady Chapter (union) and the U.S. Department of Defense, National Guard Bureau, New York Air National Guard, 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 the Association of Civilian Technicians, Schenectady Chapter and U.S. Department of Defense, National Guard Bureau, New York Air National Guard, Latham, New York, Case No. 0-NG-2375, issued on September 30, 1999. The Authority's decision is reported at 55 FLRA (No. 153) 925. C. Related Cases This case has not previously been before this Court or any other court. Counsel for the Authority is 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 2 A. The National Guard and Dual-Status Technicians 2 B. Background 3 C. The Authority's Decision 5 STANDARD OF REVIEW 6 SUMMARY OF ARGUMENT 7 ARGUMENT 8 THE AUTHORITY PROPERLY DETERMINED THAT THE PROPOSAL IS OUTSIDE THE GUARD'S DUTY TO BARGAIN BECAUSE IT RESTRICTS THE GUARD'S STAFFING OF A MILITARY MISSION AND THEREFORE CONCERNS THE MILITARY ASPECTS OF TECHNICIAN EMPLOYMENT 8 CONCLUSION 11 ADDENDUM Relevant portions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) A-1 5 U.S.C. § 706(2)(A) A-5 5 U.S.C. § 6323(d) A-6 10 U.S.C. § 976 A-7 10 U.S.C. § 12315 A-10 32 U.S.C. § 709 A-11 TABLE OF AUTHORITIES AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 6 American Fed'n of Gov't Employees, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984) 3 Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981) 7 Department of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 7 Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) 7 * National Fed'n of Fed. Employees, Local 1623 v. FLRA, 852 F.2d 1349 (D.C. Cir. 1988) 8 National Treasury Employees Union v. FLRA, 30 F.3d 1510 (D.C. Cir. 1994) 7 Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 7 Overseas Educ. Ass'n v. FLRA, 827 F.2d 814 (D.C. Cir. 1987) 7 DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY Association of Civ. Techs., Mont. Air Chap. and Dep't of the Air Force, Mont. Air Nat'l Guard, 20 FLRA 717 (1985) 9 *Authorities upon which we chiefly rely are marked by asterisks. Association of Civilian Techs., Tex. Lone Star Chapter 100 & U.S. Dep't of Defense, Nat'l Guard Bureau, State of Tex., Adjutant General's Dep't and Ass'n of Civilian Tech., ATC, Wisc. 26 and U.S. Dep't of Defense, Nat'l Guard Bureau, Dep't of Mil. Affairs, State of Wisc., 55 FLRA 1226 (2000), petition for reconsideration denied, 56 FLRA No. 63 (June 7, 2000) and petition for review filed, No. 00-1085 (D.C. Cir. Mar. 13, 2000) 5, 6 * Delaware Chapter, Ass'n of Civilian Techs. and Delaware Nat'l Guard, 28 FLRA 1030 (1987) 3, 10 National Fed'n of Fed. Employees, Local 1669 and U.S. Dep't of Defense, Arkansas Air Nat'l Guard, 188th Fighter Wing, Fort Smith, Ark., 55 FLRA 63 (1999), enf'd sub nom. FLRA v. Arkansas Nat'l Guard, No. 99-1974 (8th Cir. Oct. 14, 1999) 8, 9 STATUTES Federal Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) 1 5 U.S.C. § 7105(a)(2)(E) 1, 2 5 U.S.C. § 7117(c) 2 5 U.S.C. § 7123(a) 1, 2 5 U.S.C. § 7123(c) 7 5 U.S.C. § 706(2)(A) 7 5 U.S.C. § 6323(d) passim * 10 U.S.C. § 976 passim 10 U.S.C. § 12315 3 32 U.S.C. § 709 3 GLOSSARY The 109th 109th Tactical Airlift Wing AFGE v. FLRA American Fed'n of Gov't Employees, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 1984) App. Appendix Authority Federal Labor Relations Authority Br. Brief for the Petitioner Delaware National Delaware Chapter, Association of Civilian Guard Technicians and Delaware National Guard, 28 FLRA 1030 (1987) The Guard New York Air National Guard Statute Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) Union Association of Civilian Technicians, Schenectady Chapter ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 99-1476 _______________________________ ASSOCIATION OF CIVILIAN TECHNICIANS, SCHENECTADY CHAPTER, 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 final decision and order under review in this case was issued by the Federal Labor Relations Authority (Authority) in 55 FLRA 925 (1999), a copy of which is at Appendix (App.) 4-30. 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 to review the Authority's final decisions and orders pursuant to section 7123(a) of the Statute. STATEMENT OF THE ISSUE Whether a proposal, which would restrict the Guard's staffing of a military mission by prohibiting the Guard from communicating with dual-status technicians about serving voluntarily on a military mission, concerns the military aspects of technician employment and is, therefore, outside the Guard's duty to bargain. STATEMENT OF THE CASE This case arose as a negotiability proceeding under section 7117(c) of the Statute. The Association of Civilian Technicians, Schenectady Chapter (union), which represents technicians employed by the New York Air National Guard (the Guard), submitted a bargaining proposal bearing on the staffing of certain active duty military assignments. The union's proposal prohibits the Guard from asking technicians, individually, to serve voluntarily on the mission without military compensation. The Guard declared the proposal nonnegotiable on the grounds that it was inconsistent with 10 U.S.C. § 976, which prohibits collective bargaining concerning the conditions of military service. The union appealed to the Authority for a determination regarding the negotiability of the proposal. 5 U.S.C. § 7105(a)(2)(E). The Authority determined that the proposal is nonnegotiable because it relates to the military aspects of technician employment. Accordingly, the Authority dismissed the union's negotiability appeal. Pursuant to section 7123(a) of the Statute, the union seeks review of the Authority's decision. STATEMENT OF THE FACTS A. The National Guard and Dual-Status Technicians The union is the exclusive representative of certain National Guard dual-status technicians employed by the New York Air National Guard. Guard technicians are referred to as "dual status" because they are civilian employees who must - as a condition of their employment - 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; American Fed'n of Gov't Employees, Local 2953 v. FLRA, 730 F.2d 1534, 1537 (D.C. Cir. 1984) (AFGE v. FLRA). Thus, National Guard technicians are unique federal employees, due to the Guard's military mission and the technicians' dual status. AFGE v. FLRA, 730 F.2d at 1545. Although the Guard's dual-status technicians are entitled to engage in collective bargaining regarding certain subjects, they are not permitted to negotiate over the military aspects of their employment. See 10 U.S.C. § 976 (prohibiting labor organizations from bargaining over the terms and conditions of military service). Therefore, proposals related to such aspects are outside the Guard's duty to bargain. See, e.g., Delaware Chapter, Ass'n of Civilian Techs. and Delaware Nat'l Guard, 28 FLRA 1030, 1034-35 (1987) (Delaware National Guard). B. Background The bargaining proposal at issue in this case was advanced on behalf of dual-status technicians in response to the expanded military mission of the 109th Tactical Airlift Wing (the 109th). App. 13. In the mid-1990s, the 109th was assigned the mission of supporting United States government activities in Antarctica. As a result of this new assignment, the 109th increased the number of personnel deployed to that region. Such missions outside the United States are not performed by technicians in their civilian employment capacity, but rather in active military duty status. App. 6. These military missions may be performed by Guard members either with military pay or, with the member's consent, without military pay as a volunteer. 10 U.S.C. § 12315. In this regard, dual-status technicians who opt to volunteer for active duty without military pay may elect to utilize 5 U.S.C. § 6323(d) leave from their civilian employment. Under this special pay-status, technicians receive their civilian pay, but do not receive full military pay. App. 21. In contrast, technicians who serve on military missions but do not volunteer for the section 6323(d) pay status receive full military pay, in addition to their civilian pay. When in this latter leave status, the technician will generally receive more pay than when opting for the section 6323(d) status - full military pay in addition to any available civilian pay. App. 21. During negotiations for a supplemental agreement, the union submitted a proposal relating to the military pay status of technicians who perform certain active duty military assignments. The proposal prohibits the Guard from communicating directly with individual technicians concerning their willingness to serve on a military mission in section 6323(d) pay status. Specifically, the proposal provides: If the [A]gency decides to afford bargaining unit technicians an opportunity to request leave under 5 U.S.C. § 6323(d), the [A]gency shall inform them of that opportunity solely by written general announcement, such as a bulletin board posting. The announcement shall not identify by name, position, or any other individual identifier, any technician eligible for the opportunity. The general announcement may state the number of technicians to whom the opportunity applies and the knowledge, skills, and abilities technicians must have to be eligible for the opportunity. The announcement shall state that the opportunity is voluntary. The [A]gency shall not - and the announcement shall state that the [A]gency will not - coerce, pressure, or personally ask any technician to volunteer, and will not impose any adverse consequence, of any kind, on any technician, for choosing not to volunteer. If a technician in response to the general announcement expresses to the [A]gency interest in considering the opportunity afforded, the [A]gency thereafter may communicate directly with that technician concerning that opportunity. App. 18-19. The Guard declared this proposal nonnegotiable, asserting that it was prohibited by 10 U.S.C. § 976, which makes it unlawful for a union to bargain over the terms and conditions of military service. App. 19. The union filed a negotiability appeal with the Authority. C. The Authority's Decision The Authority held the proposal nonnegotiable because it concerned the military aspects of technician employment.[2] Construing the proposal, the Authority found that it would affect the Guard's staffing of a military mission in two respects. First, the proposal would prohibit the Guard, after it determined to attempt staffing a military mission with technicians in section 6323(d) status, from seeking individual volunteers to serve on the mission in that status. Second, if the Guard assigned a particular technician to serve on a military mission, the Authority interpreted the proposal as foreclosing the Guard from asking that technician whether he or she was willing to do so in section 6323(d) status. App. 21. The Authority relied on well-established judicial and Authority precedent to resolve the case. Under this precedent, Guard technicians may not bargain concerning the military aspects of technician employment. App. 21-22. In support of this principle, the Authority cited two rationales - (1) 10 U.S.C. § 976, which prohibits bargaining with, or on behalf of, members of the military regarding the conditions of their service, and (2) the conclusion that military matters do not concern "conditions of employment" within the meaning of the Statute.[3] App. 22. The Authority noted that although this principle can be clearly stated, its application to particular proposals is not always straightforward. App. 22. Reviewing its precedent distinguishing civilian from military aspects of technician employment, the Authority concluded that the "key elements in determining whether a particular proposal involves a military aspect of technician employment are whether the proposal relates to a military assignment, or attempts to influence a military decision." App. 24 (citations omitted). Applying this framework to the proposal as the Authority interpreted it, the Authority determined that the proposal is outside the duty to bargain because it both relates to a military assignment and attempts to influence a military decision. App. 25. Specifically, the Authority found that the proposal attempts to influence the ability of military commanders to solicit, individually, section 6323(d) status volunteers for a military mission. App. 24-25. Because the proposal relates to the military aspects of technician employment, the Authority therefore held that it was outside the Guard's duty to bargain and dismissed the union's negotiability appeal. App. 25. STANDARD OF REVIEW The standard of review of Authority decisions is "narrow." AFGE, 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." See 5 U.S.C. § 7123(c), incorporating 5 U.S.C. § 706(2)(A); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988). "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) (quoting Department of Defense v. FLRA, 659 F.2d 1140, 1162 n.121 (D.C. Cir. 1981)). Courts "also owe deference to the FLRA's interpretation of [a] union's proposal." National Treasury Employees Union v. FLRA, 30 F.3d 1510, 1514 (D.C. Cir. 1994). The instant case involves the Authority's interpretation of its own organic statute as it relates to another federal law that prohibits collective bargaining over the terms and conditions of military service. When the Authority interprets other statutes, although it is not entitled to deference, the Authority's interpretation should be followed to the extent the reasoning is "sound." Department of the Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988). SUMMARY OF ARGUMENT The Authority properly determined that a proposal, which would prohibit the Guard from asking technicians whether they would serve voluntarily on a military mission without military pay, concerns the military aspects of a technician's employment and is, therefore, outside the Guard's duty to bargain. Section 10 U.S.C. § 976 prohibits unions from bargaining over the terms and conditions of military service. Dual status technicians - who perform both military service and civilian employment - cannot bargain over the conditions of their military service, but only over conditions of their civilian employment. Heeding the prohibition of 10 U.S.C. § 976, the Authority has held that proposals relating to the military aspects of technician employment are outside the Guard's duty to bargain. In this case, the Authority found that the proposal concerns the technicians' military service, not their civilian employment. The proposal (1) relates to a military assignment and (2) restricts military staffing decisions. For these two reasons, the proposal concerns conditions of military service and not - as the union contends - conditions of civilian employment. As such, the proposal is outside the Guard's duty to bargain, and the union's petition for review should be dismissed. ARGUMENT THE AUTHORITY PROPERLY DETERMINED THAT THE PROPOSAL IS OUTSIDE THE GUARD'S DUTY TO BARGAIN BECAUSE IT RESTRICTS THE GUARD'S STAFFING OF A MILITARY MISSION AND THEREFORE CONCERNS THE MILITARY ASPECTS OF TECHNICIAN EMPLOYMENT The union's proposal in this case would restrict how the National Guard staffs military missions with dual-status technicians. These technicians are unique federal employees because, although they are subject to military authority, they also have certain bargaining rights under the Statute. See National Fed'n of Fed. Employees, Local 1623 v. FLRA, 852 F.2d 1349, 1350-51 (D.C. Cir. 1988). As this Court has explained, however, "the military side of technicians' employment takes precedence." Id. at 1351. Thus, this Court has held, "the military side of the National Guard lies wholly outside of the collective bargaining realm." Id. at 1353. Consistent with this Court's holdings, it is well established in the Authority's case law that, "although technicians may negotiate concerning their 'employment in a civilian capacity,' Congress did not intend that they be permitted to negotiate over 'the military aspects of civilian technician employment.'" National Fed'n of Fed. Employees, Local 1669 and U.S. Dep't of Defense, Ark. Air Nat'l Guard, 188th Fighter Wing, Fort Smith, Ark., 55 FLRA 63, 65 (1999) (internal citation omitted), enf'd sub nom. FLRA v. Arkansas Nat'l Guard, No. 99-1974 (8th Cir. Oct. 14, 1999); see also Association of Civ. Techs., Mont. Air Chap. & Dep't of the Air Force, Mont. Air Nat'l Guard, 20 FLRA 717, 739 (1985) (Congress intended 10 U.S.C. § 976 to prohibit collective bargaining over military aspects of technician employment while preserving the right of dual-status technicians to negotiate conditions of their employment in their civilian capacity). The union challenges neither the principle that it may not bargain over the military aspects of technician employment nor the Authority's analytical framework for determining whether a particular proposal improperly infringes on military matters, i.e., "whether the proposal relates to a military assignment, or attempts to influence a military decision." App. 24 (citations omitted). Instead, the union challenges the application of this framework to the proposal at issue. Contrary to the union's suggestion (Br. at 8, see also Br. at 6), the proposal in this case does not merely "concern[] communication with technicians about whether they want to request leave from their civilian employment." Rather, under the Authority's framework, the proposal involves the military aspects of technician employment for several reasons. As the Authority explained, the proposal relates to the military mission. App. 25. In this regard, the union does not dispute that the assignment about which the proposal would prohibit individual communications between the Guard and technicians is a military assignment. In addition, the proposal attempts to influence a military decision. The proposal removes the ability of military commanders to individually solicit volunteers for the military mission in a particular (i.e., section 6323(d)) pay status. App. 25. The proposal thus restricts the staffing of a military mission in two ways. One, if the Guard determines to staff the military mission with section 6323(d) volunteers, the proposal limits the Guard's ability to influence particular individuals to volunteer. Two, if the Guard decides that it wants a particular technician to perform a military mission, the proposal nullifies the Guard's ability to communicate directly with that individual to solicit voluntary section 6323(d) status. App. 24-25. Against the backdrop of these realities, the union's description of the proposal (Br. at 8) - as merely "concern[ing] communication with technicians about whether they want to request leave from their civilian employment" - is a simplism. This incomplete portrayal ignores the fact that the "leave" at issue is leave to serve on a military mission - and to do so in a particular pay status. Finally, recognizing that the proposal might operate while the technicians are in a civilian status, the Authority concluded that this and similar proposals could nevertheless implicate military aspects of technician service (App. 24 n.10). To illustrate this point, the Authority cited Delaware National Guard, where the proposals concerned technician participation in the Guard's Military Education Program, including a proposal for technician counseling regarding training options. See Delaware National Guard, 28 FLRA at 1032. The Authority held in that case that all the proposals were outside the duty to bargain because the technicians attended this training in military status. Id. at 1034-35. Here, similarly, although the disputed communications undertaken by the Guard to staff a military mission might occur while the technicians are serving in their civilian capacities, the communications are integrally related to a military assignment and to the military decisions made to staff that military mission. Therefore, as the Authority noted (App. 24 & n.10), the period during which a proposal operates is not conclusive. In sum, because the proposal relates to the Guard's military mission and hampers military commanders' abilities to staff those missions, the proposal concerns the military aspects of technician employment and is, therefore, outside the Guard's duty to bargain. Accordingly, this Court should deny the union's petition for review. CONCLUSION The union'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 13, 2000 CERTIFICATION PURSUANT TO FRAP RULE 32 AND CIRCUIT RULE 28 Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 28, I certify that the attached brief is proportionately spaced, utilizes 14-point serif type, and contains 2,969 words. June 13, 2000 SERVICE LIST I certify that copies of the Brief 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 Avenue, NW Suite 225 Washington, DC 20009 Jennifer A. Baker Paralegal Specialist June 13, 1999 STATUTORY ADDENDUM TABLE OF CONTENTS 1. 5 U.S.C. § 7105(a)(2)(E) A-1 2. 5 U.S.C. § 7117(c) A-2 3. 5 U.S.C. § 7123(a), (c) A-3 4. 5 U.S.C. § 706(2)(A) A-5 5. 5 U.S.C. § 6323(d) A-6 6. 10 U.S.C. § 976 A-7 7. 10 U.S.C. § 12315 A-10 8. 32 U.S.C. § 709 A-11 § 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; * * * * * * * * * * * * * § 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. * * * * * * * * * * * * * Sec. 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; * * * * * * * * * * * * * § 6323. Military leave; Reserves and National Guardsmen * * * * * * * * * * * * * (d) (1) A military reserve technician described in section 8401(30) is entitled at such person's request to leave without loss of, or reduction in, pay, leave to which such person is otherwise entitled, credit for time or service, or performance or efficiency rating for each day, not to exceed 44 workdays in a calendar year, in which such person is on active duty without pay, as authorized pursuant to section 12315 of title 10, under section 12301(b) or 12301(d) of title 10 (other than active duty during a war or national emergency declared by the President or Congress) for participation in noncombat operations outside the United States, its territories and possessions. (2) An employee who requests annual leave or compensatory time to which the employee is otherwise entitled, for a period during which the employee would have been entitled upon request to leave under this subsection, may be granted such annual leave or compensatory time without regard to this section or section 5519. § 976. Membership in military unions, organizing of military unions, and recognition of military unions prohibited (a) In this section: (1) The term ''member of the armed forces'' means (A) a member of the armed forces who is serving on active duty, (B) a member of the National Guard who is serving on full-time National Guard duty, or (C) a member of a Reserve component while performing inactive-duty training. (2) The term ''military labor organization'' means any organization that engages in or attempts to engage in - (A) negotiating or bargaining with any civilian officer or employee, or with any member of the armed forces, on behalf of members of the armed forces, concerning the terms or conditions of military service of such members in the armed forces; (B) representing individual members of the armed forces before any civilian officer or employee, or any member of the armed forces, in connection with any grievance or complaint of any such member arising out of the terms or conditions of military service of such member in the armed forces; or (C) striking, picketing, marching, demonstrating, or any other similar form of concerted action which is directed against the Government of the United States and which is intended to induce any civilian officer or employee, or any member of the armed forces, to - (i) negotiate or bargain with any person concerning the terms or conditions of military service of any member of the armed forces, (ii) recognize any organization as a representative of individual members of the armed forces in connection with complaints and grievances of such members arising out of the terms or conditions of military service of such members in the armed forces, or (iii) make any change with respect to the terms or conditions of military service of individual members of the armed forces. (3) The term ''civilian officer or employee'' means an employee, as such term is defined in section 2105 of title 5. (b) It shall be unlawful for a member of the armed forces, knowing of the activities or objectives of a particular military labor organization - (1) to join or maintain membership in such organization; or (2) to attempt to enroll any other member of the armed forces as a member of such organization. (c) It shall be unlawful for any person - (1) to enroll in a military labor organization any member of the armed forces or to solicit or accept dues or fees for such an organization from any member of the armed forces; or (2) to negotiate or bargain, or attempt through any coercive act to negotiate or bargain, with any civilian officer or employee, or any member of the armed forces, on behalf of members of the armed forces, concerning the terms or conditions of service of such members; (3) to organize or attempt to organize, or participate in, any strike, picketing, march, demonstration, or other similar form of concerted action involving members of the armed forces that is directed against the Government of the United States and that is intended to induce any civilian officer or employee, or any member of the armed forces, to - (A) negotiate or bargain with any person concerning the terms or conditions of service of any member of the armed forces, (B) recognize any military labor organization as a representative of individual members of the armed forces in connection with any complaint or grievance of any such member arising out of the terms or conditions of service of such member in the armed forces, or (C) make any change with respect to the terms or conditions of service in the armed forces of individual members of the armed forces; or (4) to use any military installation, facility, reservation, vessel, or other property of the United States for any meeting, march, picketing, demonstration, or other similar activity for the purpose of engaging in any activity prohibited by this subsection or by subsection (b) or (d). (d) It shall be unlawful for any military labor organization to represent, or attempt to represent, any member of the armed forces before any civilian officer or employee, or any member of the armed forces, in connection with any grievance or complaint of any such member arising out of the terms or conditions of service of such member in the armed forces. (e) No member of the armed forces, and no civilian officer or employee, may - (1) negotiate or bargain on behalf of the United States concerning the terms or conditions of military service of members of the armed forces with any person who represents or purports to represent members of the armed forces, or (2) permit or authorize the use of any military installation, facility, reservation, vessel, or other property of the United States for any meeting, march, picketing, demonstration, or other similar activity which is for the purpose of engaging in any activity prohibited by subsection (b), (c), or (d). Nothing in this subsection shall prevent commanders or supervisors from giving consideration to the views of any member of the armed forces presented individually or as a result of participation on command-sponsored or authorized advisory councils, committees, or organizations. (f) Whoever violates subsection (b), (c), or (d) shall be fined under title 18 or imprisoned not more than 5 years, or both, except that, in the case of an organization (as defined in section 18 of such title), the fine shall not be less than $25,000. (g) Nothing in this section shall limit the right of any member of the armed forces - (1) to join or maintain membership in any organization or association not constituting a ''military labor organization'' as defined in subsection (a)(2) of this section; (2) to present complaints or grievances concerning the terms or conditions of the service of such member in the armed forces in accordance with established military procedures; (3) to seek or receive information or counseling from any source; (4) to be represented by counsel in any legal or quasi-legal proceeding, in accordance with applicable laws and regulations; (5) to petition the Congress for redress of grievances; or (6) to take such other administrative action to seek such administrative or judicial relief, as is authorized by applicable laws and regulations. § 12315. Reserves: duty with or without pay (a) Subject to other provisions of this title, any Reserve may be ordered to active duty or other duty - (1) with the pay and allowances provided by law; or (2) with his consent, without pay. Duty without pay shall be considered for all purposes as if it were duty with pay. (b) A Reserve who is kept on active duty after his term of service expires is entitled to pay and allowances while on that duty, except as they may be forfeited under the approved sentence of a court-martial or by non-judicial punishment by a commanding officer or when he is otherwise in a non-pay status. § 709. Technicians: employment, use, status (a) Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection (b) of this section persons may be employed as technicians in - (1) the administration and training of the National Guard; and (2) the maintenance and repair of supplies issued to the National Guard or the armed forces. (b) A technician employed under subsection (a) shall, while so employed - (1) be a member of the National Guard; (2) hold the military grade specified by the Secretary concerned for that position; and (3) wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician. (c) The Secretary concerned shall designate the adjutants general referred to in section 314 of this title, to employ and administer the technicians authorized by this section. (d) A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard. (e) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned - (1) a technician who is employed in a position in which National Guard membership is required as a condition of employment and who is separated from the National Guard or ceases to hold the military grade specified for his position by the Secretary concerned shall be promptly separated from his technician employment by the adjutant general of the jurisdiction concerned; (2) a technician who is employed in a position in which National Guard membership is required as a condition of employment and who fails to meet the military security standards established by the Secretary concerned for a member of a reserve component of the armed force under his jurisdiction may be separated from his employment as a technician and concurrently discharged from the National Guard by the adjutant general of the jurisdiction concerned; (3) a technician may, at any time, be separated from his technician employment for cause by the adjutant general of the jurisdiction concerned; (4) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned; (5) a right of appeal which may exist with respect to clause (1), (2), (3), or (4) shall not extend beyond the adjutant general of the jurisdiction concerned; and (6) a technician shall be notified in writing of the termination of his employment as a technician and, unless the technician is serving under a temporary appointment, is serving in a trial or probationary period, or has voluntarily ceased to be a member of the National Guard when such membership is a condition of employment, such notification shall be given at least 30 days before the termination date of such employment. (f) Sections 2108, 3502, 7511, and 7512 [1] of title 5 do not apply to any person employed under this section. [1] See References in Text note below. (g)(1) Notwithstanding sections 5544(a) and 6101(a) of title 5 or any other provision of law, the Secretary concerned may, in the case of technicians assigned to perform operational duties at air defense sites - (A) prescribe the hours of duties; (B) fix the rates of basic compensation; and (C) fix the rates of additional compensation; to reflect unusual tours of duty, irregular additional duty, and work on days that are ordinarily nonworkdays. Additional compensation under this subsection may be fixed on an annual basis and is determined as an appropriate percentage, not in excess of 12 percent, of such part of the rate of basic pay for the position as does not exceed the minimum rate of basic pay for GS-10 of the General Schedule under section 5332 of title 5. (2) Notwithstanding sections 5544(a) and 6101(a) of title 5 or any other provision of law, the Secretary concerned may, for technicians other than those described in paragraph (1), prescribe the hours of duty for technicians. Notwithstanding sections 5542 and 5543 of title 5 or any other provision of law, such technicians shall be granted an amount of compensatory time off from their scheduled tour of duty equal to the amount of any time spent by them in irregular or overtime work, and shall not be entitled to compensation for such work. (h) Repealed. Pub. L. 103-160, div. A, title V, Sec. 524(d), Nov. 30, 1993, 107 Stat. 1657.) (i) The Secretary concerned may not prescribe for purposes of eligibility for Federal recognition under section 301 of this title a qualification applicable to technicians employed under subsection (a) that is not applicable pursuant to that section to the other members of the National Guard in the same grade, branch, position, and type of unit or organization involved. [1] Sections 7511 and 7512 of title 5, referred to in subsec. (f), which related to adverse actions against preference eligible employees and comprised subchapter II of chapter 75 of Title 5, Government Organization and Employees, were repealed by Pub. L. 95-454 and replaced by a new subchapter II (Sec. 7511-7514) of chapter 75 relating to removal, suspension for more than 14 days, reduction in grade or pay, or furlough for 30 days or less. -MISC2- [1] Pertinent statutory provisions are set forth in the attached Addendum to this brief. [2] Member Wasserman dissented, finding that the proposal did not concern the military aspects of technician employment. App. 27-29. [3] As the union points out (Brief (Br.) at 8), subsequent to the issuance of this decision, the Authority clarified the rationales supporting the determination that military matters are not within the duty to bargain, explaining that this determination is not compelled by the Statute's definition of "conditions of employment." Association of Civilian Techs., Tex. Lone Star Chapter 100 & U.S. Dep't of Defense, Nat'l Guard Bureau, State of Tex., Adjutant General's Dep't and Ass'n of Civilian Tech., ATC, Wisc. 26 and U.S. Dep't of Defense, Nat'l Guard Bureau, Dep't of Mil. Affairs, State of Wisc., 55 FLRA 1226 (2000) (a copy of this decision is in the Appendix at 51-62), petition for reconsideration denied, 56 FLRA No. 63 (June 7, 2000) and petition for review filed, No. 00-1085 (D.C. Cir. Mar. 13, 2000). As a result, for purposes of the instant litigation, the Authority relies only on the 10 U.S.C. § 976 basis for the principle that technicians may not bargain over the military aspects of their employment.