UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


ASSN CIV TECH

v.

FLRA


99-1476a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: "The National Guard has the  dual mission of
serving both the state in which the Guard unit  is located and the
federal government. The Guard stands  ready to preserve peace and
order at the command of state  authorities; and to provide
combat-ready units and to control  domestic violence at the
President's discretion. See Perpich  v. Department of Defense, 496
U.S. 334, 110 S. Ct. 2418, 110  L. Ed. 2d 312 (1990). Because the
National Guard is not a  full-time active force, it employs civilian
'technicians' to per- form administrative, clerical, and technical
tasks. These indi- viduals are generally required to be members of the
National  Guard unit in which they are employed (32 U.S.C. s 709(b)), 
and must wear their military uniforms while they are work- ing. See
National Guard Bureau Technician Personnel Reg.  No. 300, p 7-6
(1987); New York Council, Ass'n of Civilian  Technicians v. FLRA, 757
F.2d 502, 505-06 (2d. Cir. 1985).  As federal 'employees' (5 U.S.C. s
2105(a); 32 U.S.C.  s 709(d)), the Guard's civilian technicians are
entitled to  engage in collective bargaining regarding certain
subjects. 5  U.S.C. ss 7102, 7103(a)(2) & (a)(3); American Fed'n of
Gov't  Employees, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 
1984)." United States Dep't of Defense v. FLRA, 982 F.2d  577, 578


When called to active duty, as they are with some frequen- cy, these
"dual-status" technicians lose their civilian status  and become
members of the armed forces. For obvious  reasons, Congress made it
illegal for them or their union to  bargain over the terms and
conditions of military service. 10  U.S.C. s 976(c). The issue in this
case is whether, in view of  s 976(c), the Federal Labor Relations
Authority correctly  refused to order bargaining over the following
proposal spon- sored by the technicians' union:


If the [National Guard Bureau] decides to afford bargain- ing unit
technicians an opportunity to request leave  under 5 U.S.C. s 6323(d),
the [National Guard Bureau] 


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 techni-
cians must have to be eligible for the opportunity. The  announcement
shall state that the opportunity is volun- tary. The Agency shall
not--and the announcement  shall state that the Agency 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 Agency interest
in considering the opportunity af- forded, the Agency thereafter may
communicate directly  with the technician concerning that


The dual-status technicians here belong to the 109th Tacti- cal Airlift
Wing based in upstate New York. In late 1995, the  109th became
responsible for performing airlift operations for  scientific
expeditions in Antarctica, missions for which dual- status technicians
may be called into active duty to fly with  the aircraft they
maintain. Technicians called to active duty  receive regular military
pay plus any available civilian pay.  Or they may volunteer for
special pay status, entitling them  to leave with pay from their
federal civilian technician jobs for  up to 44 days, but no military
pay. See 5 U.S.C. s 6323(d)(1);  10 U.S.C. s 12315(a). The bargaining
proposal put forward  by the technicians' union--the Association of
Civilian Techni- cians, Schenectady Chapter--would govern how the
National  Guard Bureau informs dual-status technicians of their
eligibil- ity to volunteer for active duty by taking leave from their 
civilian posts, a special pay status entitling them only to their 
civilian salaries while on leave pursuant to 5 U.S.C. s 6323(d). 
Among other things, the proposal requires the Guard Bureau  to inform
dual-status technicians of this "opportunity"  through a written
posting rather than face-to-face, and to  avoid placing pressure on


The FLRA found the proposal non-negotiable because it  related to a
military assignment and would invite bargaining  over a military
decision, in violation of 10 U.S.C. s 976(c).  (The FLRA's alternative
statutory basis for its decision is  unnecessary to describe because
it has been abandoned. See  Association of Civilian Technicians Texas
Lone Star Chapter  100, 55 F.L.R.A. 1226 (2000).) Section 976(c) is a
criminal  statute. The FLRA does not administer the provision; its 
interpretation thus deserves no special respect. See National  Ass'n
of Gov't Employees v. FLRA, 179 F.3d 946, 950 (D.C.  Cir. 1999); see
also Illinois Nat'l Guard v. FLRA, 854 F.2d  1396, 1400 (D.C. Cir.
1988); New Jersey Air Nat'l Guard,  177th Fighter Interceptor Group v.
FLRA, 677 F.2d 276, 281- 82 n.6 (3d Cir. 1982).


In the language of s 976(c)(2), no one may bargain or  negotiate over
the "terms or conditions of service of" "mem- ber[s] of the armed
forces." The phrase "a member of the  armed forces" is defined as:


(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 mem- ber of a Reserve component while performing
inactive- duty training.


10 U.S.C. s 976(c)(2).


The union views its proposal as consistent with s 976(c)  because, in
bargaining over the proposal, it would be negotiat- ing on behalf of
civilian technicians, not "members of the  armed forces." But the
status of the technicians at the time  of the negotiation cannot
matter. No one would claim that  s 976(c) permitted the union to
bargain about the type of  uniform the technicians would wear when
they were called to  full-time duty (or training, see 32 U.S.C. s
502(a)(1)). What  does matter is the substance of the proposal to be
negotiated.  See United States Dep't of the Navy v. FLRA, 952 F.2d
1434,  1440-42 (D.C. Cir. 1992).


On that score the union thinks its proposal relates only to  conditions
of civilian technician employment--that is, how the 


technicians will be informed of the opportunity to volunteer  for
active duty at special pay. We agree that the proposal  does this, but
it also does considerably more than the union  cares to admit. The
FLRA so found and its interpretation  deserves judicial respect. See
National Treasury Employees  Union v. FLRA, 30 F.3d 1510, 1514 (D.C.
Cir. 1994). On the  FLRA's view, the proposal deals with how the
technicians will  be paid while on active duty--will they, or will
they not,  receive military pay. Wages are a quintessential term of 
employment. See Fort Stewart Schs. v. FLRA, 495 U.S. 641,  644-57
(1990). The proposal also affects the manner in which  the Air
National Guard recalls a technician to active duty.  One of the basic
characteristics of all members of the Nation- al Guard, including
dual-status technicians, is that they are  subject to recall at any
time pursuant to 10 U.S.C. s 12301.  The proposal threatens to
interfere with the National Guard's  discretion to call technicians
into action as it sees fit and on  such terms as it desires. As a
legal matter, we see no  difference under s 976(c) between the union's
proposal and a  proposal that would flatly prohibit the National Guard
from  asking technicians to volunteer for full-time duty without 
military pay. The statute would quite clearly ban bargaining  on the
latter. We agree with the FLRA that the statute also  bans bargaining


The petition for judicial review is denied.