Illinois National Guard v. Federal Labor Relations Authority

854 F.2d 1396, 272 U.S. App. D.C. 187, 129 L.R.R.M. (BNA) 2422, 1988 U.S. App. LEXIS 11457
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 19, 1988
DocketNos. 87-1290, 87-1345 and 87-1346
StatusPublished
Cited by6 cases

This text of 854 F.2d 1396 (Illinois National Guard v. Federal Labor Relations Authority) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Illinois National Guard v. Federal Labor Relations Authority, 854 F.2d 1396, 272 U.S. App. D.C. 187, 129 L.R.R.M. (BNA) 2422, 1988 U.S. App. LEXIS 11457 (D.C. Cir. 1988).

Opinion

D.H. GINSBURG, Circuit Judge:

The Federal Labor Relations Authority (FLRA) held that, under the Federal Employees Federal and Compressed Work Schedules Act of 1982 (Schedules Act), the National Guards of three states must bargain with certain of their full-time employees over the establishment of compressed work schedules. The Guards, joined by the Department of Defense, petition for review, arguing that the National Guard Technician Act (Technician Act) exempts them from the bargaining requirements of the Schedules Act; the FLRA cross-petitions to enforce its orders. We conclude that Congress intended for the Technician Act, rather than the Schedules Act, to control in this situation, and hence we grant the petitions for review and deny the FLRA’s cross-petitions for enforcement.

I. Background

A. The National Guard

The National Guard is the modern Militia reserved to the states by Art. I § 8, cl. 15, 16 of the Constitution. Maryland v. Unit[189]*189ed States, 381 U.S. 41, 46, 85 S.Ct. 1293, 1297, 14 L.Ed.2d 205 (1965). It occupies a unique position in our country’s federal structure: the day-to-day operation of National Guard units remains under the control of the states, but since passage of the National Defense Act of 1916, 39 Stat. 166, the Guard has been armed and funded by the federal government, and trained in accordance with federal standards. Pursuant to the 1916 law, as amended in 1933, the National Guard is also part of the United States Army Reserve, and officers of the Guard receive corresponding commissions in the Army Reserve Corps. Thus, it is “an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war,” and it “also may be federalized in addition to its role under state governments, to assist in controlling civil disorders.” Gilligan v. Morgan, 413 U.S. 1, 7, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407 (1973).

The status of National Guard employees, like that of the Guard itself, is unusual and somewhat complex. In addition to its part-time, purely military personnel, the Guard employs full-time civilian workers, known as National Guard technicians, who “meet the day-to-day administrative, training, and logistic needs of the Guard.” Simpson v. United States, 467 F.Supp. 1122, 1124 (S.D.N.Y.1979). While many of their duties are similar to those of employees who work in a typical civilian setting, technicians traditionally have been required to be members of their state National Guard units, and must perform even their civilian tasks “in a distinctly military context, implicating significant military concerns.” New Jersey Air National Guard v. FLRA, 677 F.2d 276, 279 (3d Cir.1982) (“New Jersey Guard ”).

Although National Guard technicians have been paid with federal funds for over 70 years, they were not federal employees until 1968, when Congress enacted the National Guard Technician Act, Pub.L. No. 90-486, 82 Stat. 755 (codified as amended at 32 U.S.C. §§ 709, 715 (1982)). That Act grants technicians federal employee status “for the limited purpose of making fringe and retirement benefits of federal employees and coverage under the Federal Tort Claims Act ... available to National Guard technician employees of the various states.” American Federation of Government Employees Local 2953 v. FLRA, 730 F.2d 1534, 1537 (D.C.Cir.1984). The Technician Act codifies the requirement that technicians be members of their state National Guard units and hold military grades that correspond to their civilián positions, 32 U.S.C. § 709(b) (1982), and also vests the adjutants general of the various states with final discretion over most matters relating to their employment and termination. Id. at § 709(e). Thus, the employment status of National Guard technicians is a hybrid, both of federal and state, and of civilian and military strains.

Because of their unique status, the Technician Act specifically exempts Guard technicians from several other provisions of title 5 of the U.S. Code that apply to the vast majority of federal government employees. For example, technicians who are fired or suspended from the Guard may not avail themselves of the appeals procedure set forth in section 7513. Id. at § 709(f). Nor does the veterans’ preference provided for in sections 2108 and 3502 have any bearing on the selection of National Guard technicians. Id. Most significantly for present purposes, the Technician Act also exempts Guard technicians from the hours of work limitation of section 6101(a), and the overtime pay requirements of section 5544(a). Id. at § 709(g).

B. The Work Schedules Act

In 1978, having found that “trends in the usage of 4-day weeks, flexible hours, and other variations in the workday and workweek in the private sector appear to show sufficient promise to warrant ... experimentation” by the federal government, Congress authorized federal agencies to experiment with flexible and compressed work schedules (referred to collectively as alternative work schedules) over a three-year period. Work Schedules Act of 1978, Pub.L. No. 95-390, 92 Stat. 755 (codified as amended at 5 U.S.C. § 6101 note (1982)). Compressed schedules usually involve a [190]*190workweek of four 10-hour days or a fortnight of eight 9-hour days and one 8-hour day. Employees with flexible schedules work five 8-hour days per week, but may stagger their arrival and departure times in order to avoid rush hour traffic or to accommodate other personal preferences.

Although Congress found, at the end of the test period, that “improper use of alternative work schedules did have some serious repercussions,” including increased costs and decreased productivity, it concluded that “[t]he benefits of these schedules to employees were overwhelming,” and that “[t]he benefits of these schedules to government, when utilized in a proper fashion, were also significant.” S.Rep. No. 365, 97th Cong., 2d Sess. 4 (1982), reprinted in 1982 U.S.Code Cong. & Admin.News at 565, 566. Accordingly, in 1982 Congress passed the Schedules Act, which extended the program, and in 1985 made it permanent. 5 U.S.C. § 6101 note (Supp. IV 1986).

The Schedules Act provides that if the employees of an agency are represented by an exclusive bargaining representative, i.e., a union, then the agency must bargain with it over the establishment or the termination of any alternative work schedule. 5 U.S.C. § 6130(a) (1982). If there is no union, the agency cannot impose a compressed work schedule (although it may apparently impose a flexible schedule) without the approval of a majority of the affected employees. Id. at § 6127(b)(1).

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854 F.2d 1396, 272 U.S. App. D.C. 187, 129 L.R.R.M. (BNA) 2422, 1988 U.S. App. LEXIS 11457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/illinois-national-guard-v-federal-labor-relations-authority-cadc-1988.