On Petition for Review of an Order of the Federal Labor Relations Authority
Before: Sentelle, Tatel, and Roberts, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
Federal law makes it a crime to engage in collective bargaining over the terms or conditions of military service on behalf of members of the National Guard who are serving on full-time National Guard duty. Relying on that law, 10 U.S.C. § 976 (2000), the Federal Labor Relations Authority declined to order the Guard to bargain over a union proposal concerning military training duties assigned to National Guard technicians who serve as both civilian employees and military members of the Guard. Because the union's proposal concerns duties assigned to technicians while serving in civilian status, not while serving on full-time National Guard duty, we hold that the statute does not prohibit bargaining over the proposal and thus grant the union's petition for review.
In addition to active-duty military personnel, the National Guard employs civilian technicians to meet its day-to-day administrative, clerical, and technical needs. Ass'n of Civilian Techs., Schenectady Chapter v. FLRA, 230 F.3d 377, 378 (D.C. Cir. 2000). Technicians occupy a dual-employment status: in addition to serving as federal civilian employees, see 5 U.S.C. § 2105(a)(1)(F) (2000), they must be military members of the National Guard under the National Guard Technicians Act, see 32 U.S.C. § 709(b)(2) (2000) (Technicians Act). Military members of the National Guard must "assemble for drill and instruction ... at least 48 times each year" and "participate in training at encampments ... at least 15 days each year." Id. § 502(a) (2000). The National Guard may recall members to active duty at any time. See 10 U.S.C. § 12,301 (2000). During periods of full-time National Guard duty, civilian technicians receive military pay and benefits.
Technicians may engage in collective bargaining, see 5
U.S.C. § 7102 (2000), but 10 U.S.C. § 976 -- the statute at
issue in this case -- makes it a crime to bargain on behalf of
members of the armed forces over the terms or conditions of
their military service. Id. § 976(c)(2). Violations of section
976 are punishable by fines, imprisonment, or both. Id.
Petitioner, the Association of Civilian Technicians, Wichita Air Capitol Chapter, is the exclusive representative of dualstatus National Guard technicians employed by the Kansas National Guard. During collective bargaining, the union submitted a proposal concerning the assignment of military training duties to technicians. Although all members of the National Guard must undergo such training, the proposal involves training assigned to technicians while serving in their civilian capacity. The union's proposal defines "military training duty" as:
duty that is (1) required by a written policy or regulation that is applicable to members of the National Guard irrespective of whether they are employees, (2) designed to impart or to measure proficiency in a military skill, and (3) required by written policy or regulation to be performed for a specified period of time, or with a specified frequency, or until a specified level of proficiency is achieved.
The proposal gives two examples of military training duty: "rifle qualification" and "training in the wear of garments designed to afford protection from chemical weapons (Chem Gear)." It would require the Guard to include in technician position descriptions any military training duty assigned as work, to give both technicians and the union notice and an opportunity to discuss any changes to the listed information, and, upon union request, to "negotiate the impact and implementation of military training duty assigned to any employee as work." Paragraph five of the proposal would require the Guard to assign military training duty by written order that describes, among other things:
the type, severity, and relative frequency of occurrence of any injury or illness that is known to have resulted from past performance of the duty or that is foreseeable; ... precautionary measures that the [Guard] will take and that the employee may take to reduce the risk of injury; ... [and] measures that the [Guard] will take to provide prompt, effective treatment in the event injury does occur.
Paragraph five would also require the Guard to make representatives available to technicians "to discuss [the assigned military training duty], to answer questions, and to listen to any concerns." Finally, paragraph six would prohibit the Guard from requiring technicians to wear chemical gear "as a method and means of performing work."
Declaring the proposal outside its obligation to bargain, the Kansas National Guard refused to negotiate, and the union appealed to the Federal Labor Relations Authority. See 5 U.S.C. § 7117(c) (2000). According to the union, its proposal did not run afoul of section 976(c) because the proposal pertained only to military training duties performed on civilian time. The Authority disagreed, holding that the critical distinction under section 976(c) is not "[a] technician's status at the time a proposal would operate," but rather "whether the proposal relates to military service or civilian employment." Ass'n of Civilian Techs., Wichita Air Capitol Chapter, 58 F.L.R.A. 28, 30 (2002). Applying that test, the Authority explained: "[i]t is clear that the military training duties that are the subject of the proposal are military skills required because an individual is a member of the National Guard -- not skills based in the individual's civilian status." Id. at 31. "Because paragraph 5 of the proposal is inconsistent with § 976(c)," the Authority concluded, "it is outside the ...