Appendix — Association of Civilian Technicians, Inc. v. Federal Labor Relations Authority

\ \ Supreme Court, U.S.

yy FILED

02 288 auc 202002

No.

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

ASSOCIATION OF CIVILIAN TECHNICIANS, INC., ~

Petitioner,

V.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent.

. ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

Daniel M. Scheraber———

Gaffney & Schember, P.C.

1666 Connecticut Avenue, N.W.

Suite 225

Washington, D.C. 20009

202/328-2244

August 20, 2002 Counsel of Record for Petitioner

TABLE OF CONTENTS

Court of Appeals opinion

District Court opinion

District Court order

Federal Labor Relations Authority opinion

Federal Labor Relations Authority

Regional Director opinion

Court of Appeals rehearing denial

Statutes and regulation

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APPENDIX A

United States Court of Appeals for the District of Columbia

Circuit

Argued February 7, 2002 Decided March 22, 2002

No. 01-5170

Association of Civilian Technicians, Inc.,

Appellant

V.

Federal Labor Relations Authority,

Appellee

_ Appeal from the United States District Court

for the District of Columbia

(No. 99cv02562)

Daniel M. Schember argued the cause and filed the

briefs for appellant.

William E. Persina, Attorney, Federal Labor Relations

Authority, argued the cause for the appellee. With him on

the brief were David M. Smith, Solicitor, and William R.

Tobey, Deputy Solicitor.

Before: Tatel and Garland, Circuit Judges, and Williams,

Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: This case presents a

straightforward question of statutory interpretation: Does

the statute that gives federal courts of appeals jurisdiction to

review decisions of the Federal Labor Relations Authority

"other than . . . order[s] . . . involving an appropriate unit

determination," leave district courts free to review such

determinations pursuant to the Administrative Procedure

Act? Answering no, we affirm the district court's dismissal

of this challenge to an appropriate unit determination.

I.

National Guard "dual status technicians" (mechanics,

machinists, and supply technicians) are federal employees

who, pursuant to the National Guard Technicians Act

(NGTA), 32 U.S.C. § 709, are separately employed and

supervised by the Adjutant General of their respective State

Guards. As a condition of employment, they must maintain

membership in the state unit of the National Guard for

which they work. Jd. § 709(b). For collective bargaining

purposes, dual status technicians are represented by

appellant, the Association of Civilian Technicians. Though

a national union, the Association bargains separately on

behalf of each state-based unit.

This case began when the Association filed a petition

with the Federal Labor Relations Authority seeking to have

dual status technician bargaining units consolidated into a

single, national unit. The Federal Labor Relations Act

(FLRA) directs the Authority to determine whether unit

determination petitions are "appropriate," based on such

factors as whether the determination "will ensure a clear and

identifiable community of interest among the employees in

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the unit and will promote effective dealings with, and

efficiency of the operations of the agency involved." 5

U.S.C. § 7112(a). Applying these standards, the Authority's

Regional Director denied the petition. On review, the

Authority acknowledged that some evidence—particularly

the "interchange" of technicians among State

Guards—supported the appropriateness of the proposed

national unit. The Authority, however, affirmed the

Regional Director's conclusion that more evidence justified

maintaining state-based units: Each National Guard state

unit has "an individual mission unique to its state or

territory"; the NGTA invests Adjutants General with

“overall authority over all personnel and labor relations

matters in their respective State Activities"; and national

collective bargaining would be_ ineffective because

"authority over the day-to-day employment of the

technicians . . . is designated by statute to the states." The

Association urged the Authority to consider the increased

bargaining rights that consolidation would purportedly bring

to union members, but the agency declined to do so,

agreeing with the Regional Director that the statutory

obligation to "ensure employees the fullest freedom in

exercising the rights guaranteed under this chapter," id.,

applies only to units already determined to be appropriate.

On the basis of this analysis, the Authority denied the

petition for review.

invoking section 702 of the Administrative Procedure

Act—"[a] person . . . aggrieved by agency action . . . is

entitled to judicial review thereof," id. § 702—the

Association sued the Authority in the United States District

Court for the District of Columbia, arguing that the unit

determination was “arbitrary [and] capricious," id. §

706(a)(2)(A). The district court dismissed the case for lack

of jurisdiction, relying on FLRA section 7123: "Any person

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aggrieved by any final order of the [Federal Labor

Relations] Authority other than an order under . . . section

7112 of this title (involving an appropriate unit

determination), may . . . institute an action for judicial

review of the Authority's order in the [appropriate] United

States court of appeals." Jd. § 7123(a) (emphasis added).

The district court concluded that this exception deprives not

just courts of appeals, but all federal courts, of jurisdiction

to review appropriate unit determinations.

The Association appeals. Our review is de novo. Nat'l

Taxpayers Union v. United States, 68 F.3d 1428, 1432

(D.C. Cir. 1995) ("In a case . .. involving a District Court's

dismissal of a complaint for lack of subject matter

jurisdiction, our standard of review is de novo.").

Il.

Notwithstanding eighty-two pages of briefing, this case

is not difficult. FLRA section 7123 gives courts of appeals

jurisdiction to review Authority decisions "other than... .

order[s] under . . . section 7112 of this title (involving an

appropriate unit determination)." 5 U.S.C. § 7123(a). The

APA expressly provides that its general review provisions

pursuant to which the Association filed this suit, do not

apply where "statutes preclude judicial review." Jd. §

701(a)(1); cf. id. § 702 ("Nothing herein . . . confers

authority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the relief. . .

sought."). Because FLRA section 7123 "precludes judicial

review" of appropriate unit determinations, the district court

properly held that it lacked jurisdiction to hear this case.

Pointing out that FLRA section 7123 mentions only

"courts of appeals," the Association insists that the

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provision does not bar district courts from reviewing

appropriate unit determinations. Like the district court, we

disagree. We cannot imagine that Congress, having vested

in courts of appeals exclusive jurisdiction to review all

Authority decisions except those relating to appropriate unit

determinations, would have intended that such

determinations could nevertheless be reviewed by district

_ courts. See Columbia Power Trades Council v. United

States Dep't of Energy, 671 F.2d 325, 327 (9th Cir. 1982)

("At no point does the Act entitle a party to petition a

district court for relief. Given the broad purpose of the

Act[,] . . . and the limited role of the judiciary in this

statutory scheme, it is manifestly the expressed desire of

Congress to create an exclusive Statutory scheme.")

(footnote omitted).

Although FLRA section 7123's clarity makes resort to

legislative history unnecessary, we think it worth noting that

the Joint Committee Report on the bill that became the

FLRA declared: "As in the private sector, there will be no

judicial review of the Authority's determination of the

appropriateness of bargaining units." H.R. Rep. No. 95-

1717, at 153 (1978). The Report does not say that there

will be "no circuit court review"; it says there will be "no

judicial re-view.". Moreover, the Joint Committee's

comparison to the "private sector" demonstrates that

Congress had in mind a review scheme identical to the

NLRB's, and the Supreme Court has determined that the

National Labor Relations Act's preclusion of direct court of

appeals review of certain matters also bars district court

APA review. See NLRB v. United Food & Commercial

Workers Union, Local 23, 484 U.S. 112, 133 (1987). "It

would be absurd," the Supreme Court declared, to allow

district court review of settlement determinations when the

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NLRA expressly precludes direct review of such

determinations in courts of appeals. /d.

In holding that FLRA section 7123 precludes direct

review of Authority appropriate unit determinations, we

emphasize that the Association remains free to obtain

indirect judicial review by refusing to bargain, drawing an

unfair labor practice charge, and appealing that charge to

the Authority and then to a court of appeals. See, e.g.,

Dep't of Energy v. FLRA, 880 F.2d 1163, 1163-65, 1164

n.3 (10th Cir. 1989) (reviewing the Authority's unit

determination in the context of an unfair labor practice

proceeding). It is in this way, as the Joint Committee

indicated, see supra at 4-5, that the FLRA parallels the

NLRA. The Association claims that the existence of this

indirect method of review implies that direct review should

be available as well, but we rejected a virtually identical

argument in Physicians National House Staff Ass'n v.

Fanning, where a union sought APA review of an NLRB

denial of a certification petition. 642 F.2d 492, 495 (D.C.

Cir. 1980). Pointing out that the denial occurred in the

course of an unreviewable representation proceeding, we

rejected the union's argument that the district court

nevertheless had jurisdiction because the union's only other

means of review was through an onerous unfair labor

practice proceeding. Our analysis in Fanning applies here

as well:

[I]t may be unlikely that the correctness of these deci-

sions may be tested in an unfair labor practice proceed-

ing reviewable in a court of appeals, but we think this is

not a reason to permit District Court review. Congress

has considered the likelihood that some Board decisions

in representation proceedings may evade all judicial re-

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view. Nevertheless, it has rejected attempts to provide

review in such cases.

Id. at 499.

Undeterred by all this "clear and convincing evidence" of

Congressional intent to preclude judicial review, Abbott

Labs. v. Gardner, 387 U.S. 136, 141 (1967) (citation and

internal quotation marks omitted), the Association offers

four unpersuasive arguments in support of its belief that the

district court nevertheless had jurisdiction to entertain its

challenge to the appropriate-unit determination in this case.

Citing a Supreme Court case, McNary v. Haitian Refugee

Center, Inc., 498 U.S. 479 (1991), and a decision of this

circuit, Crowley Caribbean Transportation, Inc. v. Pefia, 37

F.3d 671 (D.C. Cir. 1994), the Association first argues that

two aspects of the Authority's decision amount to "broad

legal interpretation[s]" that the district court had jurisdiction

to review even though they were embedded in an otherwise

unreviewable decision. Appellant's Opening Br. at 24. The

"broad legal determinations" the Association has ir. mind are

the Authority's holding that the NGTA invests Adjutants

General with responsibility for personnel and labor relations

matters in their respective state activities, and the agency's

finding that an increase in employee rights resulting from

consolidation is not a relevant factor in appropriate unit

determinations. The Supreme Court, however, has generally

rejected "the principle that if the agency gives a reviewable

reason for otherwise unreviewable action, the action

becomes reviewable." Interstate Commerce Comm'n v.

Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987)

(citation and internal quotation marks omitted). Although

the cases the Association cites reveal limited exceptions to

this principle, those exceptions are inapplicable here. In

McNary, the Supreme Court held that a district court could

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exercise subject matter jurisdiction over a general due

process challenge to the Immigration and Naturalization

Service's administration of "Special Agricultural Worker"

status, even though the controlling statute made individual

status determinations unreviewable. 498 U.S. at 494. Just

because district courts may in some cases review generic,

constitutional challenges to otherwise unreviewable agency

actions hardly means that the district court in this case had

jurisdiction over the Association's non-constitutional,

individualized claim. Nor does our assumption in Crowley

that a district court might have jurisdiction over an agency's

articulation of its general enforcement policy, 37 F.3d at

677, support the Association's argument that district courts

may review any agency legal interpretation made in the

context of otherwise unreviewable individual adjudications.

On the contrary, Crowley echoes the Supreme Court's

"square[ ] reject[ion of] the notion of carving reviewable

legal rulings out from the middle of non-reviewable

actions." Jd. at 676 (citing Bhd. of Locomotive Eng'rs, 482

U.S. at 283).

The Association next argues that the Authority's findings

regarding the scope of Adjutant General responsibility and

the relevance of increased employee rights are reviewable

pursuant to the "rule" giving federal courts authority to

review agency decisions that "erroneously disclaim

jurisdiction to enforce the law[.]" Appellant's Opening Br.

at 33. In support of this proposition, the Association cites a

Ninth Circuit decision, Montana Air Chapter No. 29 v.

FLRA, 898 F.2d 753 (1990). That case, however, as well

as a similar decision of this circuit, International

Longshoremen's Ass'n v. National Mediation Board, 785

F.2d 1098, 1100 (D.C. Cir. 1986), held that agency

nonenforcement decisions, normally unreviewable, see

Heckler v. Chaney, 470 U.S. 821, 832 (1985), may be

9a

reviewed if they rest on the agency's erroneous belief that it

lacks jurisdiction. That rule does not apply here, for the

Authority neither disclaimed jurisdiction nor declined to

enforce the FLRA. On the contrary, the agency

affirmatively exercised its statutory jurisdiction, evaluated

the merits of the consolidation petition, and concluded that

the proposed unit was not appropriate.

Third, the Association attempts to bring this case within

the ambit of Adams v. Richardson, which held that district

courts may exercise jurisdiction over agency action that

amounts to "an abdication of . . . Congress' clear statement

of an affirmative enforcement duty." 480 F.2d 1159, 1162

(D.C. Cir. 1973). Citing the agency's same two rulings

about Adjutant General responsibility and the relevance of

increased bargaining rights, the Association argues that the

Authority abdicated its responsibility "to determine

appropriate bargaining units" and "to enforce [the] mandate

of [section 7112 of the Act].". Appellant's Opening Br. at

34-35. In our view, these two rulings do not come close to

the "abdication" that justified district court jurisdiction in

Adams. In that case, the Secretary of Health, Education,

and Welfare declined to enforce an entire statutory scheme,

Title VI of the Civil Rights Act of 1964. Adams, 480 F.2d

at 1161. The evidence showed that the Secretary, in

violation of an unambiguous statutory directive that HEW

"effectuate the provisions of . . . this title," 42 U.S.C. §

2000d-1, failed to take appropriate action to terminate

federal funding to segregated school systems, a failure we

called "a dereliction of duty," Adams, 480.F.2d at 1163.

The record in this case reflects no such dereliction. As we

indicated above, the Authority exercised jurisdiction over

the consolidation petition and ruled against the Association.

The Association's claim that the agency abdicated its

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enforcement responsibility represents nothing more than

substantive disagreement with the agency's legal rulings.

Finally, the Association argues that the Authority's ruling

amounts to the kind of "open violation of statutory

authority" that the Supreme Court found reviewable in

Leedom v. Kyne, 358 U.S. 184, 188 (1958). "The

invocation of Leedom jurisdiction," we have emphasized, "is

extraordinary; to justify such jurisdiction, there must be a

specific provision of the Act which, although it is clear and

mandatory, was nevertheless violated by the [agency]."

Council of Prison Locals v. Brewer, 735 F.2d 1497, 1501

(D.C. Cir. 1984) (citations and internal quotation marks

omitted). In this case, the Association points to no clear

violation of an unambiguous statutory provision. Instead,

its arguments—that the Authority openly violated the clear

mandate of the Act by determining that the NGTA prohibits

nationwide consolidation of bargaining units and (again) by

failing to include increased bargaining rights as a factor in

its decision—merely repeat its disagreement with the

agency's ruling. This falls well short of the requirements for

Leedom jurisdiction. "That the [agency] may have made an

error of fact or law is insufficient; the [agency] must have

acted without statutory authority." Fanning, 642 F.2d at

496.

The dismissal of this case for want of jurisdiction is

affirmed.

So ordered.

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APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

ASSOCIATION OF CIVILIAN

TECHNICIANS, INC.,

Plaintiff,

Vv. Civil Action No.

99-2562 (GK)

FEDERAL LABOR

RELATIONS AUTHORITY, Filed

Mar 31, 2001

Defendant.

MEMORANDUM OPINION

Plaintiff Association of Civilian Technicians, a labor

union representing a large number of National Guard ~

civilian technicians throughout the nation, brings this

action against the Federal Labor Relations Authority.

Plaintiff requests that this Court review a decision of the

Authority which denied Plaintiff's petition to consolidate

into a single unit various bargaining units of National

Guard civilian technicians. Defendant has moved for

dismissal, contending that this Court lacks subject matter

jurisdiction to entertain Plaintiff's complaint.

This matter is before the Court on Defendant’s Motion

to Dismiss, or, in the Alternative, for Summary

Judgment.! Upon consideration of the Motion, the

| Plaintiff has also filed a motion for summary judgment (which can

be found at pages 12 to 28 of its Memorandum in Support of its

Opposition to Defendant's Motion to Dismiss). However,

12a

Opposition, the Reply, and the entire record herein, for

the reasons stated below, Defendant’s Motion to Dismiss

[#5] is granted.

I. PROCEDURAL BACKGROUND

Plaintiff Association of Civilian Technicians ("ACT")

currently represents a majority of the National Guard

civilian technicians employed in the United States.?

Defendant the Federal Labor Relations Authority

(“Authority”) is the federal agency responsible for

administering the Federal Service Labor-Management

Relations Statute, 5 U.S.C. §§ 7101-7135 (the "Statute"),

which contains the exclusive statutory scheme governing

labor relations between federal agencies and their

employees. See Andrade v. Lauer, 729 F.2d 1475, 1487

(D.C. Cir. 1984). The Authority is composed of three

members, pursuant to § 7104 (a) of the Statute; it has

delegated certain responsibilities, including the authority

to conduct hearings and issue decisions and orders, to its

Regional Directors (“RDs”), pursuant to § 7105 (e) (1).

A labor union or federal agency may petition the

Authority to consolidate into a single unit numerous

bargaining units. See 5 U.S.C. § 7112(d).

consideration of Plaintiff's motion for summary judgment has been

stayed, pending the Court's resolut.ion of Defendant's Motion to

Dismiss.

2 National Guard civilian technicians are civilian employees of the

federal government, but are employed and administered by the

Adjutant General of the particular State Guard for whom they work.

They must at all times maintain military oe of appropriate

rank in their respective State Guards.

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On May 8, 1997, plaintiff filed such a petition,

requesting that the existing bargaining units of National

Guard civilian technicians in 42 individual states and

territories for which Plaintiff had been certified as the

exclusive representative be consolidated into a single

unit. A hearing was held at various times in October

1997 and October 1998, and the RD ultimately ruled that

Plaintiff's petition should be dismissed. See Def.’s Mot.

to Dismiss, Ex. 2. Plaintiff appealed, and on July 31,

1999, the Authority affirmed the RD's dismissal of

Plaintiff's petition, finding that Plaintiff's proposed

consolidated unit would not satisfy § 7112 of the Statute.

See Def.’s Mot. to Dismiss, Ex. 1 U.S. Dep't of

Defense, Nat'l Guard Bureau and Ass’n of Civilian

Technicians, 55 FLRA 657 (July 31, 1999) (“FLRA

Decision”).

On September 27, 1999, plaintiff brought the present

action, requesting that this Court review the Authority's

July 31, 1999 decision (“final order” or “final decision”)

which denied Plaintiff’s petition to consolidate bargaining

units.

II. STANDARD OF REVIEW?

A “complaint should not be dismissed for failure to

state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Conley v. Gibson,

3 Defendant styles its motion as a Motion to Dismiss, or, in the

Alternative, for Summary Judgment. Because the Court is presently

consideritng only Defendant’s jurisdictional argument and is not

relying on any matters outside the pleadings, the correct legal

standard is one for a motion to dismiss.

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355 U.S. 41, 45-46 (1957). The factual allegations of

the complaint must be presumed true and liberally

construed in favor of the plaintiff. Shear v. National

Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C. Cir.

1979).

III. ANALYSIS

The section of the Statute which provides for judicial

review of Authority decisions is § 7123. That section

provides in pertinent part:

(a) Any person aggrieved by any final order of the

Authority other than an order under--

(2) section 7112 of this [Statute] (involving an

appropriate unit determination),

may . . . institute an action for judicial review of the

Authority’s order in the United States court of appeals

[in the appropriate circuit] .. .

5 U.S.C. § 7123 (emphasis added).

Defendant contends that based on the plain language

of § 7123 and the case law interpreting it, judicial review

of the Authority’s decision in this case is barred.

Plaintiff makes three arguments as to why § 7123 does

not preclude judicial review in this case.

A. Judicial Review Under the Administrative

Procedure Act

First, Plaintiff argues that this Court has jurisdiction to

consider its claim under the Administrative Procedure

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Act, 5 U.S.C. §§ 701-704 (“APA”), which applies

“except to the extent that—(1) statutes preclude judicial

review; or (2) agency action is committed to agency

discretion by law.” 5 U. S. C § 701 (a). Plaintiff

acknowledges that the plain language of § 7123 bars

review of appropriate unit decisions by a court of appeals,

but contends that the section does not say anything about

review by a district court, and therefore it does not qualify

as a_ Statute that "“preclude[s] judicial :review.”

Accordingly, Plaintiff maintains that the APA should

apply, and that this Court has jurisdiction to consider its

claim.

On its face, § 7123 appears to “preclude judicial

review” (under 5 U.S.C. § 701(a)) of appropriate unit

decisions, whether by a district court or a court of

appeals; the statute establishes a specific procedure for

review, and expressly exempts two categories of decisions

from that procedure, one of which involves appropriate

unit determinations.

Further, to the extent that there is any ambiguity

whether § 7123 completely forecloses all forms of judicial

that ambiguity is resolved by recourse to the legislative

accompanying the section. The House-Senate Conference

Committee Report discussing the final version of §

7123(a) states: “As in the private sector, there will be no

judicial review of the Authority’s determination of the

appropriateness of bargaining units” under § 7123(a).‘

4 The Authority’s role in administering the Statute is analogous to the

National Labor Relations Board’s (“NLRB”) role in administering the

National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151-188,

which governs labor relations in the private sector. Bureau of

Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 93 (1983);

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H.R. Rep. No. 1717, 95th Cong., 2d Sess. 153 (1978),

reprinted in 1978 U.S. Code Cong. & Ad. News 2860,

2887 (emphasis added) (quoted in United States Marshals

Serv. v. FLRA, 778 F.2d 1432, 1436 (D.C. Cir. 1985)).

As it is difficult to imagine a more emphatic statement by

Congress on the issue, this piece of legislative history

makes the requisite “clear and convincing showing that

Congress intended to prohibit” judicial review of

appropriate unit decisions. Council of Prisons Local v.

Brewer, 735 F.2d 1497, 1499 (D.C. Cir. 1984) (internal

citations omitted).

Accordingly, because § 7123 is the “exclusive

statutory scheme” for judicial review of Authority

decisions, and because the section precludes judicial

review of appropriate unit decisions, Plaintiff may not

obtain review of the final decision pursuant to any statute,

including the judicial review provisions of the APA.°

Accordingly, the Court must reject Plaintiff's first

argument.®

American Fed’n of Gov’t Employees, Local 3748 v. FLRA, 797 F.2d

612, 613 (8th Cir. 1986).

5 Of course, as both parties acknowledge, Plaintiff may obtain

(indirect) judicial review if it engages in conduct which would trigger

an unfair labor practice charge, such as refusing to bargain with the

United states Department of Defense. The appeal from the

Authority’s final decision on that matter, under 5 U.S.C. § 7118, will

then resolve the appropriate unit issue.

6 Despite Plaitiff’s argument to the contrary, Darby v. Cisneros, 509

U.S. 137 (1993), is inapposite. That caes dealt with an issue

unrelated to the present case, namely, at what point a plaintiff will be

considered to have exhausted his administrative remedies pursuant to

§ 10 of the APA. In the present case, the issue is not whether

Plaintiff has “exhausted” its remedies, butr whether it may receive

any direct judicial rview of its claim (i.e., its petition to consolidate).

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B. Judicial Review Under Leedom v. Kyne

Second, Plaintiff argues that, even if the Authority's

decision would otherwise be non-reviewable, the Court

has jurisdiction under the narrow exception to the non-

reviewability doctrine established in Leedom v. Kyne, 358

U.S. 184 (1958).

Leedom authorizes judicial review, by a district court,

of an agency decision--even when the decision was made

under a statute that precludes judicial review, such as 5

U.S.C. § 7123. Our Court of Appeals has interpreted

Leedom as standing for the proposition that only “if an

agency openly violates a clear mandate of a statute,” will

judicial review be permitted. United States Dep't of

Treasury, United States Customs Serv. v. FLRA, 43 F.3d

682, 688 (D.C. Cir. 1994) (“Customs Service”) (emphasis

added) (citing Leedom, 358 U.S. at 188-91). “It is not

the unavailability of a remedy which triggers the

[Leedom] exception, but the violation of a clear statutory

demand.” Physicians Nat'l House Staff Ass'n v. Fanning,

642 F.2d 492, 499 (D.C. Cir. 1980) (internal citations

and quotations omitted). Furthermore, the Court of

Appeals has emphasized that the Leedom exception is

“intended to be of extremely limited scope,” Griffith v.

FLRA, 842 F.2d 487, 493 (D.C. Cir. 1988),7 and this

Court is unaware of any decision in which a court has

The mere fact that as a practical mater Plaintiff still has recourse ot

the courts, see supra note 5, does not give rise to an exhaustion issue.

7 “For [Leedom] jurisdiction to exist, the [NLRB] must have stepped

so plainly beyond the bounds of the [NLRA], or acted so clearly in

defiance of it, as to warrant the immediate intervention of an equity

court...” Local 130, IUERMW v. McCulloch, 345 F.2d 90, 95

(D.C. Cir. 1965).

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applied the Leedom exception to permit judicial review of

an otherwise unreviewable Authority decision. See

Council of Prison Locals v. Howlett, 562 F. Supp. 849,

852 n. 7 (D.D.C. 1983), aff'd sub nom Council of Prison

Locals v. Brewer, 735 F.2d 1497 (D.C. Cir. 1984).

Plaintiff contends that the Leedom exception applies in

this case because the Authority openly violated the “clear

mandate” of 5 U.S.C. § 7112(a), namely, “to ensure

employees fullest freedom in exercising their rights”

under the Statute. Pl.'s Opp'n at 11.

Upon carefully reviewing the Authority's final

decision, the Court concludes that it did not “openly

violate” the “clear mandate” of § 7112, so as to subject

its decision to the Leedom exception.* See Customs

Service, 43 F.3d at 688. In its final decision, the

Authority explained why, in rejecting Plaintiff's petition,

it did not give any weight to the expanded bargaining

rights that would result from Plaintiff's proposed

consolidated unit: the Authority concluded that the

“bargaining rights” discussed in the Statute come into

play only after a unit has been determined to be

“appropriate” under § 7112(d). In other words, §

7112(a)'s “mandate” would not triggered with respect to a

proposed consolidated unit until such a unit came into

existence. While the Authority's interpretation of 7112(a)

in this case is not necessarily the best or most obvious

8 In Leedom, the NLRB engaged in an “attempted exercise of power

that had been specifically withheld,” namely, including both

professional and non-professional employees in the sane bargaining

unitk even though the statute expressly prohibited such commingling.

Leedom, 358 U.S. at 188-89. In the present case, there is no

allegation that the Authority acted so egregiously in contravention of

the statute it is charged to administer.

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one--indeed, it may not even be upheld if it were

subjected to appellate scrutiny on the merits--that does not

mean that the Court can say that the Authority openly

violated the statute's clear mandate.? Accordingly, the

Court must reject Plaintiff's second argument for judicial

review. !°

C. Judicial Review of “Legal Interpretations” in Non-

Reviewable Decisions

Finally, Plaintiff argues that, even if the Authority's

appropriate unit decisions are not reviewable, the Court

has jurisdiction to review certain “legal interpretations”

included within the final agency decision in this case.

In support of this argument, Plaintiff relies on two

cases, International Union, United Auto., Aerospace and

Agric. Implement Workers of Am v. Brock, 783 F.2d 237

(D.C. Cir. 1986) (“Brock”) and Crowley Caribbean

Transport, Inc. v. Pena, 37 F.3d 671 (D.C. 1994)

(“Crowley”). However, because of the Supreme Court's

decision in ICC v. Brotherhood of Locomotive Engineers,

482 U.S. 270 (1987), Brock no longer appears to be good

law, at least with respect to the precise point at issue here.

9 For the same reason, Heckler v. Chaney, 470 U.S. 821 (1985) does

not apply. The Authority has not refused to enforce § 7112, so as to

potentially trigger Heckler, rather, as the Court has already found, the

Authority simply construed that statute in a manner with which

Plaintiff disagrees.

10 Plaintiff also argues that Leedom applies because in its final

decision the Authority “held that its jurisdiciton to determine the

appropriateness of a nationwide consolidated bargaining unit . . . does

not extend to the National Guard...” PI.'s Opp'n at 10. This

argument is rejected for the same reasons stated infra at pages 11 to

13.

20a

See Crowley, 37 F.3d at 676. Accordingly the Court will

restrict its attention to Crowley.

In Crowley Caribbean Transport, Inc. v. Pena, 37

F.3d 671 (D.C. 1994), our Court of Appeals dealt with

this precise issue, namely, whether “reviewable legal

ruling” can be “carv[ed] . . . out from the middle of non-

reviewable actions.” Crowley, 37 F.3d at 676. The

Crowley Court differentiated between agency decisions

that “lay out a general policy” and which “purport to

speak to a broad class of parties,” and those that merely

adjudicate a particular set of facts. Jd. at 677. The

former (or, rather, the legal rulings within those

decisions) are reviewable; the latter are not.

Plaintiff also seeks support for its position from

McNary v. Haitian Refugee Ctr., 498 U.S. 479 (1991), in

which the Supreme Court was faced with a statute that, on

its face, seemed to preclude all forms of judicial review of

a certain category of Immigration and Naturalization

Service (“INS”) final decisions. Plaintiffs brought a class

action alleging due process violations by INS in carrying

out its review procedures. The Court ruled that judicial

review was not precluded, because plaintiffs’ “action [did]

not seek review on the merits of a denial of a particular

application” but rather sought to challenge the INS's

general policy and procedures. Id. at 494-95.

Plaintiff contends that the final decision “held . . . that

the authority of state adjutants general ‘to employ and

administer . . . technicians,’ . . . prohibits the FLRA

from allowing a consolidated, nationwide technician

bargaining unit under 5 U.S.C. § 7112 . . .” Mem in

Supp. of Pl.'s Opp'n to Def.'s Mot. to Dismiss (“Pl.'s

Opp'n”) at 9 (emphasis added) (quoting 32 U.S.C. §

2la

709). Plaintiff characterizes this aspect of the decision as

the type of legal interpretation which may be separately

reviewed even though it is contained in a non-reviewable

decision, under Crowley and McNary.

The final decision evaluated a specific set of facts (the

current makeup of the National Guard, the day-to-day

control the state adjutants general exercise over the

civilian technicians employed in their respective states,

etc.); nowhere in the decision is there a conclusion by the

Authority that the Technician Act, 32 U.S.C. § 709,

“prohibits” the existence of a consolidated technician

bargaining unit as a matter of law under all circumstances,

as Plaintiff claims. Rather, the Authority thoroughly

reviewed the decision of the RD, and applied the relevant

Authority precedent in concluding that Plaintiff's

proposed consolidated unit would not satisfy 5 U.S.C. §

7112(a).

Section 7112 provides that:

Two or more units which are in an agency and for

which a labor organization is the exclusive

representative, may, upon petition by the agency

or labor organization, be consolidated with or

without an election into a single larger unit if the

Authority considers the larger unit to be

appropriate. The Authority shall certify the labor

organization as the exclusive representative of the

new larger unit.

5 U.S.C. § 7112(d) (emphasis added). In determining

whether a “larger unit [is] appropriate,” the Authority

referred to § 7112(a) of the Statute, which requires that all

unit determinations made by the Authority “ensure a clear

22a

and identifiable community of interest among the

employees in the unit” and “promote effective dealings

with, and efficiency of the operations of the agency

involved.” 5 U.S.C. § 7112(a). The Authority then

applied criteria which it had established through Authority

precedent (i.e., case law), to flesh out the meaning of the

§ 7112(a)'s term “clear and identifiable community of

interest.” See, e.g., FLRA Decision at 658 (citing U.S.

Dept' of Justice and American Fed'n of Gov't Employees,

AFL-CIO, 17 FLRA 58 (1985)). Of particular

significance, the Authority noted that it applies these

criteria on a “case-by-case basis,” as it adjudicates

particular petitions. Jd. at 660.

After applying and evaluating the relevant criteria, the

Authority concluded that those factors disfavored

Plaintiff's proposed consolidated unit. As a result, the

Authority affirmed the RD's decision and denied

Plaintiff's petition to consolidate.

Based on a careful reading of the final decision, the

Court concludes that, in this case, the purported “legal

interpretation" within the Authority's appropriate unit

final decision was simply the kind of analysis and

explanation used in the ordinary course of adjudicating a

particular case, not the kind of “general policy"

pronouncement that would subject the decision (or any

portion thereof) to judicial review under the narrow

exceptions established in Crowley and McNary. See

Crowley, 37 F.3d 677. Accordingly, Plaintiff's third and

final argument must fail.!!

11 According to Plaintiff, the Authority made a second “legal

interpretation" subject to judicial review when, to use Plaintiff's words,

it "announced that an increase in employees’ legal bargaining rights . .

23a

IV. CONCLUSION

For the reasons stated, the Court concludes it lacks

jurisdiction to hear Plaintiff's complaint. Accordingly,

Defendant's Motion to Dismiss [#5] is granted, and this

Case is dismissed.

An appropriate Order will accompany this Opinion.

March 31, 2001 /s/

Gladys Kessler

U.S. District Judge

Copies to:

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Avenue, NW

Suite 225

Washington, DC 20009

William E. Persina :

Federal Labor Relations Authority

. is not a relevant factor in determining a unit's appropriateness." PI.'s

Opp'n at 9. Even if this characterization is accurate, see pages 8-8,

this statement does not rise to the level of a "general policy"

declaration subject to review under Crowley or McNary. Rather, the

Authority was engaging in the kind of individualized "garden variety"

decision-making that it is required to do under the Statute. See

Griffith, 842 F.2d at 493 (holding that "[g]arden-variety errors of law

of fact" do not subject an Authority decision to judicial review under

Leedom). Further, it is important to remember that Plaintiff is not

foreclosed from obtaining judicial review of the Authority's statement.

See supra note 5.

24a

607 14th Street, NW

Suite 330

Washington, DC 20424-0001

25a

APPENDIX C

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

ASSOCIATION OF CIVILIAN

TECHNICIANS, INC.,

Plaintiff,

Vv. Civil Action No.

99-2562 (GK)

FEDERAL LABOR

RELATIONS AUTHORITY, Filed

Mar 31, 2001

Defendant.

ORDER

This matter is before the Court on Defendant's Motion

to Dismiss, or, in the Alternative, for Summary Judgment

[#5]. Upon consideration of the motion, the Opposition,

the Reply, and the entire record herein, for the reasons

Stated in the accompanying Memorandum Opinion, it is

this 31st day of March 2001,

ORDERED, that defendant's Motion to Dismiss [#5]

is granted; it is further

ORDERED, that Plaintiff's Motion for an Order

Requiring Defendant to File a Certified Copy of the

Administrative Record [#13] is denied as moot; it is

further

ORDERED, that Plaintiff's Motion for Summary

Judgment [#12], [#5-2], is denied as moot; and it is

rther

ORDERED, that the case is dismissed.

26a

This is a final appealable Order. See Fed. R. App. P.

4(a).

Ls/__

Copies to;

Daniel M. Schember

Gaffney & Schember, P.C.

1666 Connecticut Avenue, NW

Suite 225

Washington, DC 20009

William E. Persina

Federal Labor Relations Authority

607 14th Street, NW

Suite 330

Washington, DC 20424-0001

Gladys Kessler

U.S. District Judge

APPENDIX D

55 FLRA No. 115

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

(Activity)

and

ASSOCIATION OF CIVILIAN TECHNICIANS

(Labor Organization/Petitioner)

and

WASHINGTON NATIONAL GUARD, et. al.

(Intervenors)!?

WA-RP-70070

DECISION AND ORDER ON REVIEW

July 30, 1999

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

!2 The state National Guard intervenors are listed in Appendix A of

this decision.

28a

I. Statement of the Case

This case is before the Authority on Petitioner's

application for review of the Regional Director's (RD's)

decision dismissing its petition to consolidate separate

bargaining units. 5 C.F.R. § 2422.31. The RD concluded

that the proposed unit was not appropriate, as defined in

section 7112(a) of the Federal Service Labor-Management

Relations Statute (the Statute). The National Guard Bureau

(NGB) and 20 state National Guard intervenors filed

oppositions to the application.?

For the following reasons, we deny the application for

review of the RD's decision to dismiss the petition.

II. Background and the RD's Decision

The petition seeks to consolidate existing bargaining

units in 39 states, the District of Columbia, Puerto Rico and

the Virgin Islands, representing approximately 53 percent of

eligible National Guard technicians nationwide. |

National Guard technicians are a "hybrid class" of

employee--federal civilians who work in a_ military

environment and under the immediate control of state

officers. State of Nebraska, Military Department, Office of

the Adjutant General v. FLRA, 705 F.2d 945, 946 (8th Cir.

13 The Authority has determined, pursuant to 5 C.F.R. § 2429.27(d)

and 5 C.F.R. § 2429.22, that the opposition filed by the Maryland

State National Guard is untimely. In addition, the Authority has

determined, pursuant to 5 C.F.R. § 2429.27, that the oppositions filed

by the Illinois National Guard, the Kansas National Guard and the

North Dakota National Guard are deficient for failure to provide a

statement of service. Accordingly, these submissions have not been

considered.

29a

1983); see New Jersey Air National Guard v. FLRA, 677

F.2d 276, 279-80 (3d Cir. 1982) (NJ National Guard). As a

condition of their civilian employment, technicians must

become and remain members of the National Guard,

maintaining the particular military grade specified for their

civilian positions. 32 U.S.C. § 709(b),(d),(e) (the Technician

Act).!4

14 The Technicians Act, 32 U.S.C. § 709 states in relevant part:

(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

(b) A technician employed under subsection (a) shall, while so

employed--

(1) be a member of the National Guard;

(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... .

(e) Notwithstanding any other provision of law and under

regulations prescribed by the Secretary 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{.]

The hybrid nature of technician service reflects, in part,

the unique federal-state character of the National Guard.

See generally, Perpich v. Department of Defense, 496 U.S.

334, 340-51 (1990) (describing the history of the National

Guard and the competing themes of federal and state

control over guard units). Each state National Guard

activity is headed by an Adjutant General, who is usually

appointed by the governor. Department of Defense,

National Guard Bureau and National Federation of

Federal Employees, Independent and Department of

Defense, National Guard Bureau and National Association

of Government Employees, 13 FLRA 232, 234 (1983)

(National Guard). The federal NGB is "a joint Bureau" of

the Department of the Army (Army) and the Department of

the Air Force (Air Force), and a liaison in coordinating the

activities of the state officers, the Army, and the Air Force.

Id. The NGB is headed by a chief who reports on National

Guard matters to the Chiefs of Staff of the Army and Air

Force. RD's Decision at 7.

The Technician Act provides that technicians are

considered "employees" of either the Army or the Air Force.

32 U.S.C. § 709(d). The Secretary of either Department is

required, however, to "designate" the Adjutants General of

the states to “employ and administer" the technicians. 32

U.S.C. § 709(c). In National Guard, the Authority

described the joint federal-state management of technicians,

stating that the NGB does not employ technicians or

"exercise command over any state activity[,]" but it issues

regulations pertaining to technicians’ conditions of

employment and work life. National Guard, 13 FLRA at

234. These regulations are administered by a personnel

officer in each state who reports directly to the Adjutant

General. Labor and personnel policies are administered by

each state's Adjutant General.

3la

The Authority dismissed two petitions seeking

consolidation in National Guard, reasoning that each state's

technicians are independently supervised and are subject to

independent state control over personnel, labor relations,

and working conditions. The Authority also found that

technicians are subject to unique state missions. Thus, the

Authority concluded that the units lacked a community of

interest. See id. at 237. The Authority also determined that

consolidation would not promote effective dealings between

the parties, or the efficient operation of the National Guard,

because of the small number of employees involved, and

because national bargaining units would not adequately

reflect state control. Jd. at 237-38.

The RD described the issue here as "whether there have

been meaningful changes" since National Guard that might

lead to a conclusion that a consolidated unit would now be

appropriate under the criteria set out in section 7112(a).

RD's Decision at 6. The RD stated that the "basic

Organization, structure and mission of the NGB and its

relationship to State Activities and the employees in units

proposed to be consolidated have not changed," but that

some changes in National Guard operations and labor

relations dealings had occurred since National Guard,

including: NGB review of collective bargaining agreements;

the establishment of a procedure for states to submit

bargaining agreements for advice as to negotiability matters;

the establishment of a nationwide job bulletin board; an

increase in the interchange of employees of the states in

connection with a test program; and evidence that more

consistent contract terms have been negotiated with states.

The RD also acknowledged that, if the petition were

granted, the proposed consolidated unit would result in the

Petitioner representing a larger number of bargaining unit

32a

employees than did the petitioners in National Guard. See

RD's Decision at 8-10 (summarizing changes).

The RD determined that the proposed consolidated unit

was not appropriate under section 7112(a).

First, the RD stated that section 7112(a) requires that

the proposed consolidated unit ensure a clear and

identifiable community of interest. The RD applied the four-

criteria test established in U.S. Department of Justice and

American Federation of Government Employees, AFL-CIO,

17 FLRA 58 (1985) (Department of Justice) to determine if

a community of interest had been established. The RD

acknowledged that the second and third Department of

Justice criteria--the organizational and geographic

distribution of the employees and the degree of similarity in

the occupational undertakings of the employees--favored

consolidation because the Petitioner represents more

technicians units in more states than the petitioners in

National Guard and "these units are more evenly

distributed" throughout the organization than in National

Guard. RD's Decision at 9.

According to the RD, however, the first and fourth

Department of Justice criteria--degree of commonality and

integration of the mission and function of the components

involved, and locus and scope of personnel and labor

relations authority and functions--had not been met.

Examining the first criteria, the RD stated that each state

activity has a unique mission “and each performs slightly

different functions based on that mission." Jd. at 14. As to

whether technicians’ civilian and military duties are

severable--and thus, the difference in state missions

irrelevant--the RD concluded that “during their federal duty

time [technicians] are preparing and training not only for

33a

mobilization of federal armed forces but to perform the state

military mission when called upon to do so." /d. at 13. The

RD concluded, therefore, that the basis for the Authority's

conclusion in National Guard as to this criteria had not

changed. The RD also determined that the fourth criteria

had not been satisfied. Although the RD acknowledged that

changes affecting labor and employment relations have

occurred since National Guard, the RD determined that the

NGB has no authority to "represent the State Activities in

[collective bargaining], nor does the NGB set labor relations

policy for the State Activities." Jd. According to the RD, the

states through their adjutants general “retain authority over

personnel and labor relations matters," indicating a lack of

community of interest among state employees. Jd. at 14.

Thus, he concluded that the employees did not share a

community of interest.

Second, the RD determined that consolidation would

not promote effective dealings or efficient agency

Operations, as required under section 7112(a). The RD

found that "the proposed consolidated unit would place the

NGB in a position of negotiating for the State Activities

without authority to do so." Jd The "increase in the

numbers of employees represented and their distribution in

the National Guard is not sufficient to overcome the effect

of the retention of personnel and labor relations authority at

the state level," the RD concluded. /d. (citing United States

Department of the Navy, Fleet and Industrial Supply

Center, Norfolk, Virginia, 52 FLRA 950, 959 (1997)

(FISC)). Also, the RD determined that consolidation would

not promote efficient agency operations "given the authority

retained" by states "to separately employ technicians and to

administer the technicians program{.]" /d.

34a

The RD also addressed the Petitioner's argument that

the Authority should consider the extent that "the unit

would ensure the employees the fullest freedom in

exercising their rights under the Statute." Jd. at 15. The RD

stated that, even if an "expansion of bargaining rights could

result from the proposed unit[,] this does not establish that

the unit meets the [section 7112(a)] criteria without which

the Authority cannot find a unit to be appropriate... ." Jd.

The RD, relying on an Authority Order issued on

August 31, 1998, stated that he need not address

Constitutional issues raised by the parties because "the

proposed consolidated unit is not appropriate for exclusive

recognition under the Statute[.]" Jd. at 12.

Ill. Positions of the Parties

A. Petitioner

The Petitioner asserts that the RD erred by determining

that section 709 of the Technicians Act requires that labor

relations authority be delegated to the states and the

Adjutants General.'* The Petitioner argues that, under the

statutory scheme, no such authority is delegated. Instead,

according to the Petitioner, labor relations authority lies

with the federal government--the Departments of the Army

and Air Force--and nothing in the Act prohibits authority

from being allocated "in any way the Departments desire."

'S In addition to legal error, the Petitioner asserts that the RD

"[clommitted a clear and prejudicial error concerning . . . substantial

factual matter{s]." Application at 1-2 (citing S CFR.

2422.31(cX3 iii)). The Petitioner's ground for review, however,

relates to the legal relevance of facts, and no specific factual errors are

argued. Therefore, we do not construe the application as challenging

the specific factual findings of the RD.

35a

Application at 6. The Petitioner contends that technicians

are federal, not state, employees. In this regard, the

Petitioner argues that "principles of statutory construction

preclude reading the authority to control labor relations into

the [state's] authority under section 709(c) of the Act"

because it conflicts with the Statute. /d. at 8.

The Petitioner also asserts that the RD failed to apply

established law in determining that the proposed

consolidated unit is not appropriate. The Petitioner argues

that employees in the proposed unit share a clear and

identifiable community of interest, asserting that employees

in the proposed unit share missions and functions that are

common and prescribed by section 709(a) of the Act. In that

regard, according to the Petitioner, any difference in state

military missions is not relevant to determining whether this

criteria has been satisfied because "technicians do not

perform state missions while in technicians status." /d. at 16

n.14. According to the Petitioner, "current bargaining units

already span the greatest degree of diversity and separation

in missions and functions that exists within the National

Guard"--those separating Army and Air Force components.

Id. at 15. Further, the Petitioner argues the fact that NGB

regulations address "numerous conditions of technician

employment" and "apply uniformly, nationwide" to all

technicians also establishes the existence of a community of

interest. Jd. at 15-16. The Petitioner also asserts that the

locus and scope of personnel and labor relations supports

consolidation of the proposed unit as prescribed by section

7112(a). The Petitioner contends that, although the

Authority in National Guard concluded that labor relations

was within state authority, it did so without analysis or

citation to legal precedent.

36a

Further, the Petitioner asserts that the RD should have

considered in connection with the community of interest

analysis that expanded bargaining rights would accrue to the

proposed consolidated unit under section 7117(a)(3) of the

Statute. According to the Petitioner, section 7117(a)(3)

gives an exclusive representative the right to bargain over

matters that otherwise would be subject to an agency's

claims of compelling need, and that this is relevant to

determining whether a community of interest has been

established.

The Petitioner asserts that consolidation "would end

unnecessary, costly, and time-consuming duplication of

effort" and, thus, would promote effective dealings and the

efficiency of agency operations. Jd. at 23-24 (citing U.S.

Department of the Air Force, Air Force Materiel

Command, Wright-Patterson Air Force Base, Ohio and

American Federation of Government Employees, AFL-CIO,

55 FLRA 359, 361, 364 (1999) (AFMC).

Finally, the Petitioner asserts that the RD should have

addressed the Constitutional arguments posed by the

parties.

B. National Guard Bureau

The NGB argues that the RD correctly determined that

the proposed consolidated unit is not appropriate under

section 7112(a) of the Statute.

Addressing the Petitioner's argument that authority for

labor relations under the Act does not lie with the adjutants

general, the NGB states that the plain language of the

Statute refutes that claim. According to the NGB, under the

37a

Act, "the Secretary . . . cannot revoke those authorities, nor

can the Secretary delegate [it] to any other person." Jd. at 3.

Addressing the Petitioner's section 7117(a)(3)

argument, the NGB states that the Petitioner's argument

"ignores the plain language of 7117(a)(3), which applies

only to units already deemed appropriate. Jd.

C. Intervenors

All of the positions taken by the intervenors whose

oppositions we have accepted, see n.2, are summarized

here. A table identifying the particular argument raised by

each intervenor is attached as Appendix B.

In general, the intervenors argue that the Petitioner has

failed to satisfy the established criteria for granting review

of an RD's decision under section 2422.31 of the Authority's

Regulations. The intervenors also assert that the proposed

consolidation would be inconsistent with the Technicians

Act. Further, the intervenors contend that the RD properly

determined that the proposed consolidated unit is not

appropriate.

In addition, the Montana National Guard addresses the

Petitioner's argument that section 709(c) of the Technicians

Act conflicts with the Statute. According to the Montana

National Guard, the Petitioner seeks repeal by implication of

portions of the Technicians Act, but this is neither favored

by the courts nor necessary in this instance where two

statutes can be reconciled (citing Morton v. Mancari, 417

U.S. 535, 551 (1974) (Mancari)). The Rhode Island

National Guard argues that the proposed consolidated unit

is unconstitutional under Article 1, Section 8 of the US.

Constitution.

38a

IV. Analysis and Conclusions

Under section 7112(d) of the Statute, two or more

bargaining units represented by the same union may be

consolidated "if the Authority considers the larger unit to be

appropriate." See AFMC, 55 FLRA at 361. The reference in

section 7112(d) to the consolidation of "appropriate" units

incorporates the appropriate unit criteria established in

section 7112(a). Those criteria provide that a unit may be

determined to be appropriate if it will: (1) ensure a clear and

identifiable community of interest among the employees in

the unit; (2) promote effective dealings with the agency

involved; and (3) promote efficiency of the operations of the

agency involved. 5 U.S.C. § 7112(a); AFMC, 55 FLRA at

361-62. The Authority has identified a number of factors

that indicate whether these statutory criteria are met, see

generally, FISC, 52 FLRA at 960-61, and has consistently

applied these factors on a _ case-by-case basis. See

Department of Justice, 17 FLRA at 62; Army and Air Force

Exchange Service, Dallas, Texas and American Federation

of Government Employees, AFL-CIO, 5 FLRA 657, 660-61

(1981) (AAFES).

The Petitioner asserts that the RD's decision misapplied

the statutory criteria and erred particularly in holding that,

under the Technicians Act, the states have a role in labor

and employment relations. For the reasons explained below,

we conclude that the RD properly construed the provisions

of the Technicians Act and properly applied the appropriate

unit test.

A. The state adjutants general have a role in labor relations.

The Petitioner's view is that, under the Statute and the

Technician Act, labor relations is solely a federal function,

39a

with the states having no statutory role. According to the

Petitioner, "technicians are federal employees," (Application

at 6), the Statute "expressly grants the federal departments

full control over labor relations with technicians," (id. at 7),

and "[s]tate authority to control labor relations cannot be

read into the Technician Act." Jd at 8 (capitalization

removed).

The Petitioner's view ignores both the hybrid nature of

technician employment and the significance of the command

in section 709(c) of the Act, that the "Secretary concerned

shall designate the adjutant general . . . to employ and

administer the technicians . . . ." The Senate report on the

legislation that became the Technician Act explains that a

"principal feature" of the Act is the "[rJequirement for

adjutants general to be the sole agent for employment and

administration of [the] technician program under regulations

prescribed by the Secretary concerned." S.R. Rep. No. 1446

at 2, 90th Cong. 2nd Sess. (1968) (emphasis added); see

also H.R. Rep. No. 1823, at 3321 90th Cong. 2nd Sess.

1968) (same).'¢ Specifically, the Senate Report explains that

the designation of the adjutants general of the states "to

employ and administer the technicians" was "intended to

achieve two purposes: (a) recognize the State character of

the Guard and (b) meet the requirement of giving the

adjutants general (who are State officers) the statutory

function of employing Federal employees." S.R. Rep. No.

1446, at 15 (1968). As the U.S. Court of Appeals for the

D.C. Circuit summarized, "the scheme of the [Technicians

16 The legislative history of the 1968 Act explains Congress’ intent in

enacting section 709(c). Although there have been several

amendments to the Technician Act since 1968, these amendments did

not alter, or relate to, section 709(c).

40a

Act] is to create the technicians as nominal federal

employees. . . and to recognize the military authority of the

states through their Governors and Adjutants General to

employ, command and discharge them." American

Federation of Government Employees, AFL-CIO, Local

2953 v. FLRA, 730 F.2d 1534, 1537-38 (D.C. 1984); see

also, Johnson v. Orr, 780 F.2d 386, 392 (3rd Cir. 1986).

In addition to the general requirement that the states

employ and administer the technicians, the Technician Act

identifies a number of specific employment actions as within

the authority of state officials. These include the separation

of employees, reductions in force, suspensions, furloughs

without pay, and reductions in rank. 32 U.S.C. § 709(e).

This authority is exercised "under regulations prescribed by

the Secretary concerned." /d.

There is no specific reference in the Technician Act to

the allocation of labor relations authority. Further, there is

no reference to technicians in the Statute, and there is no

indication that issues relating to technician bargaining were

separately considered by Congress when it enacted the

Statute.!7 There is, in short, no specific indication as to how

Congress intended to integrate the authority set out in the

Technician Act with the labor relations responsibilities set

out in the Statute. Under basic rules of statutory

construction, we must attempt to interpret both the

Technician Act and the labor relations Statute so that they

do not conflict. Mancari, 417 U.S. at 550. See also NJ

17 Technicians are included in the general definition of "employee"

found at 5 U.S.C. § 2105 and are, therefore, subject to the provisions

of TitleS relating to employees unless specifically excluded. See 5

U.S.C. § 2105(a)(1)(F).

(EEE

4la

National Guard, 677 F.2d at 282-84 (rejecting the assertion

that the Technicians Act and the Statute conflicted, or that

the Statute should be interpreted as overriding a provision

"of the Technicians Act).

The Petitioner argues that the key element in construing

the Statute in this context is that the Statute defines the

term "agency" as an "executive agency," which only

includes federal officials. Application at 7 (citing 5 U.S.C.

7103(a)(3)). According to the Petitioner, any labor relations

authority exercised by the states is subject to the "unfettered

discretion" of federal officials, who may appoint state

officials as their "representatives." Jd.

The Petitioner's position requires that authority over

labor relations be separated from authority to control

employees’ conditions of employment. Under the Technician

Act, general authority over employment is vested in state

Officials--at least to some degree--as is unreviewable

authority over discipline, separations, and reductions in

force. The Statute requires that employees be permitted to

bargain over conditions of employment, including these

specific matters. See 5 U.S.C. § 7114, § 7106(b)(2), (3).

This statutory scheme is not workable if employees do not

have a right to negotiate with the same officials who

exercise authority over these conditions of employment.

Although federal officials promulgate regulations

governing technician working conditions, this authority is

not "unfettered." They retain no authority over the day-to-

day employment of the technicians. That authority is

designated by statute to the states. Although states’

authority under section 709(e) is exercised "under

regulations prescribed by the Secretary," this caveat does

not empower federal officials to direct or supervise

42a

authority given to the states. As the Third Circuit Court of

Appeals concluded in NJ National Guard, reconciling

provisions of the Statute and the Technicians Act, "it

appears quite clear from the importance Congress attached

to the preservation of state control that . . . it intended to

bring Guard technicians within the coverage of schemes

such as the Labor-Management Act only with the provision

that the state controls set out in section 709(e) would

remain." NJ National Guard, 677 F.2d at 284. The court

concluded that it could "find no evidence whatsoever that

Congress in 1978 had within its contemplation the

employment status of National Guard technicians." Jd. at

285. Consistent with the foregoing, there is no basis to

conclude that Congress intended that state control over

technicians would be affected by the passage of the Statute,

or that the Statute would have the effect of making labor

relations an exclusively federal function.

The RD addressed the Petitioner's argument that the

states have no necessary role in labor relations, stating that:

[s]o long as the authority to 'employ and administer’ the

technicians remains with the State Activities, through

their Adjutants General, the locus and scope of labor

relations and personnel functions will remain with the

State Activities, regardless of whether that authority

exists by virtue of the Act or by some other means.

RD's Decision at 14. The RD's decision is consistent with

the hybrid nature of the National Guard, the Technician Act

and the Statute. Accordingly, we conclude that the RD did

not err in construing the role of the states in labor relations

under the Act.

43a

B. The RD properly applied established law in determining

that the proposed consolidated unit is not appropriate.

1. The RD properly evaluated the community of

interest criteria.

The Petitioner asserts that, contrary to the RD's

decision, the proposed consolidated unit has a clear and

identifiable community of interest under section 7112(a).

The RD relied on the factors set out in Department of

Justice for determining whether employees share a

community of interest, which are:

the degree of commonality and integration of the

mission and function of the components involved; the

distribution of the employees involved throughout the

Organizational and geographical components of the

agency; the degree of similarity in the occupational

undertakings of the employees in the proposed unit; and

the locus and scope of personnel and labor relations

authority and functions.

Department of Justice, 17 FLRA at 62; see also Naval

Submarine Base, New London Naval Submarine School,

Naval Submarine Support Facility New London, Personnel

Support Activity New London and Naval Hospital Groton

and National Association of Government Employees, Local

R1-100, SEIU, AFL-CIO, 46 FLRA 1354, 1360-61 (1993).

These factors are applied on a case-by-case basis, and the

Authority has not specified the number of factors needed to

find a clear and identifiable community of interest. See

FISC, 52 FLRA at 960.

As stated above, the RD acknowledged that two of the

Department of Justice criteria had been met. He based his

44a

finding that the proposed consolidated unit lacks a

community of interest on the two remaining factors.

a. Similarity and integration of National Guard mission

and function

With respect to the degree of commonality and

integration of the mission and function of the components

involved, the Authority has held that the separate missions

of each component need only "bear a relationship" to one

another, and the functions need only be "similar or

supportive" to one another, to satisfy this appropriate unit

criteria. See AFMC (citing Department of the Navy, U.S.

Marine Corps and American Federation of Government

Employees, AFL-CIO, 8 FLRA 15, 22 (1982)). See also

AAFES, 5 FLRA at 661. Examining this factor in National

Guard, the Authority stated that, "[w]Jhile the technicians

are all working for the common mission of maintaining

National Guard materiel, training its personnel, and

administering its program, the employees are also subject to

the unique missions established at the state level." National

Guard, 13 FLRA at 237.

Here, the RD found that no meaningful changes had

occurred to alter the conclusions reached in National

Guard, stating that the "missions of the State Activities is

significant in determining whether an appropriate unit may

be established that crosses state lines" because of "the

uniqueness of the [states] separate missions .. . ." RD's

Decision at 13.

The Petitioner asserts that there is a "commonality of

mission" within the proposed unit that would be no different

than the commonality found in existing units. According to

the Petitioner, "current bargaining units already span the

45a

greatest degree of diversity and separation in missions and

functions that exists within the National Guard"--those

separating Army and Air Force components. Application at

15. However, the Petitioner's assertion is misdirected. The

RD's decision, and the Authority's decision in National

Guard, is based on a lack of commonality between the

different missions of the state components, not the Army

and Air Force components. Any similarity between the

Army and Air Force components does not bridge the wholly

different issue of diversity between states in terms of their

varied missions.

The Petitioner does not dispute the RD's conclusion that

state units have separate military missions. The Petitioner

argues, instead, that these missions are irrelevant to our

determination, because these missions are performed in

military, rather than civilian status. The Petitioner does not,

however, offer any reason or evidence to contradict the

RD's finding that technicians prepare for state military

missions while in federal civilian status.

Under our case law, the mission and function of various

agency components sought to be placed in a consolidated

unit is evaluated not only to determine whether these

features are "similar," but also whether the mission and

function are "integrated." Department of Justice, 17 FLRA

at 62. The separate authority exercised by the states over

their respective military missions indicates a lack of

integration of mission and function across state lines that

outweighs any similarity in the actual duties that the

technicians perform while preparing for and performing

these responsibilities. We thus find that the Petitioner has

not demonstrated that the RD misapplied this aspect of the

community of interest test.

46a

b. Labor Relations and Personnel Authority

In determining whether a community of interest has

been established, the Authority evaluates the “locus and

scope of personnel and labor relations authority and

functions." Department of Justice, 17 FLRA at 62; AAFES,

5 FLRA at 661. Under this factor, the Authority "looks to

whether policy-making authority over personnel and labor

relations policy is consistent with the proposed

consolidation[.]" AFMC, 55 FLRA at 363.

Consistent with National Guard, 13 FLRA at 235, the

RD found that the states set labor relations and personnel

policies through their respective adjutants general. The

Petitioner disagrees, asserting that the Technician Act

grants "plenary authority to regulate the employment of

technicians" in the Secretaries of the Army and Air Force

and limits the Adjutants General to the role of "designate[d]

. employ[ers}] and administ[rators]." Application at 20

(brackets in original) (quoting 5 U.S.C. § 709(c)). The

Petitioner's argument is based on its claim, addressed above,

that the RD erred in his analysis of how labor relations and

personnel authority is mandated under the Technician Act.

For the reasons explained in § IV.A. of this decision, we

have concluded that the RD did not err in this regard.

The Petitioner has not established any basis to reject the

Authority's holding in National Guard. As we explained, the

Petitioner's assertion that state authority is subordinate to

federal authority in this respect ignores the hybrid authority

set out in the Technician Act. A consolidation that ignored

this hybrid authority would establish lines of authority for

labor relations at odds with the lines of authority governing

the employment of technicians in their work.

47a

The authority of federal officials to issue regulations

governing technician employment is necessarily

accompanied by policy-making authority. However, the

specific and irrevocable designations of authority to state

officials contained in the Technician Act necessarily confers

policy-making authority as well. The authority of state

officials is greater than mere delegated, operational

authority over day-to-day decision-making. Cf, AFMC, 54

FLRA at 363 (finding that the delegation of day-to-day

operation of personnel and labor relations functions does

not preclude consolidation). Rather, they exercise specific

authority granted by the Technicians Act. Thus, the RD's

conclusion is consistent with Authority precedent.

c. The Impact of Expanded Bargaining Rights.

The Petitioner asserts that RD should have considered

the impact of expanded bargaining rights under section

7117(a) of the Statute in determining whether a community

of interest had been established. The RD rejected this

argument, stating that such a consideration is not a factor in

determining a unit's appropriateness under section 71 12(a).

As a matter of statutory construction, the RD's

conclusion is sound. The bargaining rights discussed in

Section 7117(a)(3), according to the provision's plain

wording, apply only to "an exclusive representative [that]

represents an appropriate unit." Thus, section 7117(a)(3)

rights extended to a petitioning party only if separate bases

have been satisfied and a unit determined to be appropriate.

Limitations on consolidation necessitated by the

Technicians Act may have the effect of limiting the

bargaining rights of these employees. However, nothing in

the Statute guarantees that every group of employees will

48a

be able to avail themselves of all aspects of the Statute. A

separate statutory scheme that applies to one group of

employees may place limitations on their collective

bargaining rights. See Phoenix Area Indian Health Service,

Sacaton Service Unit, Hu Hu Kam Memorial Hospital,

Sacaton, Arizona and Southwest Native American Health

Care Employees, Local 1386, LIUNA, AFL-CIO, 53 FLRA

1200, 1219 (1998) (noting that technicians serve under a

statutory scheme that places many working conditions that

are ordinarily negotiated outside the scope of bargaining).

In sum, the RD did not err in determining that the

proposed consolidated unit did not share a community of

interest.

2. The RD properly applied established law in

determining that consolidation would not promote

effective dealings or the efficiency of the agency

operations.

In determining whether consolidation would promote

effective dealings and efficient agency operations, the

Authority examines a number of factors, including: whether

personnel and labor relations authority is centralized and

broad operating polices exist at the national level; whether

consolidation will reduce bargaining unit fragmentation,

thereby, “promoting a more effective, comprehensive

bargaining unit structure to effectuate the purposes of the

Statute" (AAFES, 5 FLRA at 661-62); and whether the unit

would adequately reflect the agency's organizational

structure or would require creating a new agency structure.

National Guard, 13 FLRA at 237. As a general matter, the

Authority also considers the past collective bargaining

experience of the parties in making “effective dealings"

SIT

49a

determinations. FJSC, 52 FLRA at 961; AFMC, 55: FLRA

at 364.

The Petitioner argues that consolidation would end the

duplicative acts of negotiating separate contracts at the local

level. The RD's conclusion that this criteria was not met is

based, however, on his determination that the NGB is

without authority to engage in collective bargaining on

behalf of the states and on his determination that effective

bargaining relationships currently exist. Although

acknowledging that the proposed consolidated unit

"represents more employees in units better distributed

geographically and organizationally than the unions involved

in National Guard," the RD relied on the retention of labor

relations authority at the state level as indicating that

consolidation would not be effective and would not

promote efficient operations because the proposed

consolidated unit would extend across state lines. RD's

Decision at 14.

Essentially, the RD determined that the proposed

consolidated unit would require a structuring of the

National Guard inconsistent with the dictates of the

Technicians Act. This determination, along with the RD's

consideration that effective bargaining relationships already

exist at the state level, is consistent with Authority

precedent, see AFMC, 55 FLRA at 364, FISC, 52 FLRA at

961, and is also consistent with the Authority's holding in

National Guard.

Based on the foregoing, the Authority finds that there is

no basis for granting review of the RD's determination that

the proposed consolidated unit would not promote effective

dealings and the efficiency of agency operations.

50a

3. The RD properly concluded that consolidation of the

bargaining units was not appropriate.

In sum, the Petitioner has not established grounds

warranting review of the RD's determination that a

community of interest among employees was not established

and that the proposed consolidated unit would not promote

effective dealings and the efficiency of the National Guard's

operations.!® Since all three section 7112(a) criteria must be

met for a unit to be found appropriate, see U.S. Department

of Housing and Urban Development and National

Federation of Federal Employees, Independent, 15 FLRA

497, 500 n.6 (1984), the proposed unit is not appropriate

under section 7112(a) of the Statute, and the RD properly

dismissed the petition.

V. Order

The Application for Review of the RD's Decision and

Order is denied.

APPENDIX A

Alabama National Guard

Arkansas National Guard

Florida National Guard

Illinois National Guard

Indiana National Guard

Iowa National Guard

Kansas National Guard

Kentucky National Guard

Maryland National Guard

18 Because we conclude that the RD did not err, and consistent with

the Authority's August 31, 1998, Order, we do not address the

Constitutional arguments posed by the parties.

a nT ag eet ee ee

Sla

Michigan National Guard

Minnesota National Guard

Montana National Guard

North Dakota National Guard

Pennsylvania National Guard

Rhode Island National Guard

Tennessee National Guard

Virginia National Guard

Vermont National Guard

Washington National Guard

Wisconsin National Guard

APPENDIX B

State SUSC. Title Art.1 §7112 Other

2422.31 32 Sec. 8

Alabama x x

Arkansas Xx x x

Florida x x

Indiana x x

Iowa x x

Kentucky x

Michigan x x

Minnesota x x

Montana x x Conflict

of law

Pennsylvania x x

Rhode Island x x x

Tennessee x x x

Vermont x x x

Virginia x x x

Washington x

Wisconsin x x x

52a

APPENDIX E

UNITED STATES OF AMERICA

BEFORE THE FEDERAL LABOR RELATIONS

AUTHORITY

SAN FRANCISCO REGION

DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU,

et al.!9

-Activity

-and- CASE NO.

WA-RP-70070

ASSOCIATION OF CIVILIAN

TECHNICIANS

-Labor Organization/Petitioner

DECISION AND ORDER DISMISSING PETITION TO

CONSOLIDATE UNITS

A petition was filed with the Federal Labor Relations

Authority (Authority) under section 7111(b) of the Federal

Service Labor-Management Relations Statute (Statute).

Section 7105(e)(1) of the Statute provides that the

Authority may delegate to any Regional Director certain

authorities and, in section 2422.30(c) of the Regulations,

the Authority delegated to Regional Directors the authority

to conduct hearings and issue Decisions and Orders. A

hearing was held before a Hearing Officer of the Authority

on October 28 through 30, 1997, October 19 through 23,

1998 and October 26 through 30, 1998. After completion of

the hearing, the case was transferred from the Washington,

19 The National Guard Activities of the several states and U.S.

Territories that were granted intervenor status in this case are

identified in Appendix A to the decision.

53a

D.C. Region of the Authority to the San Francisco Region

of the Authority by order dated November 30, 1998. I have

reviewed the Hearing Officer's rulings made at the hearing

and find that they are free from prejudicial error.

Accordingly, as discussed more fully below, those rulings

are affirmed. Upon careful consideration of the entire record

of this case, including the briefs submitted by the parties,

pursuant to section 2422.30 of the Authority's Rules and

Regulations, I make the following findings:

I. Statement of the Case

The petition in Case No. WA-RP-70070 was filed by the

Association of Civilian Technicians (ACT) seeking

consolidation under section 7112(d) of all bargaining units

within the Department of Defense (DOD) for which ACT is

the exclusive representative. ACT, or one of its constituent

chapters, holds exclusive recognition for the units of Army

and Air National Guard employees in 42 individual U.S.

Territories and States (State Activities). ACT proposes to

establish a consolidated unit of National Guard Bureau

(NGB) employees within DOD. The NGB and all of the

State Activities oppose the petition on the basis that the

proposed consolidated unit is not appropriate for exclusive

recognition.?°

20 Each of the 42 State Activities that has a collective bargaining

relationship with ACT requested and was granted intervenor status in

this case. As well as opposing the petition on the basis that the

proposed consolidated unit is not appropriate for exclusive recognition,

some of the State Activities asserted that the proposed unit was

prohibited by law or otherwise unjustified. For example, some of the

State Activities asserted that establishing a nationwide, consolidated

unit of NGB employees within DOD would conflict with certain

provisions of the U.S. Constitution and/or with the National Guard

Technician Act of 1968. As noted above, Appendix A to this decision

identifies the State Activities that were granted intervenor status; this

54a

IL. Procedural History of the Case

The petition in this case was filed on May 8, 1997 with the

Washington, D.C. Region of the Authority. A Notice of

Representation Hearing issued in the case on June 24, 1997.

The hearing was scheduled to begin on July 23, 1997. On

July 6, 1997, NGB filed a Motion for Summary Dismissal of

the petition. In addition, certain of the State Activities

requested to intervene in the case. The scheduled hearing

was postponed. Thereafter, by order dated September 22,

1997, the pending requests to intervene were granted,

NGB's motion for dismissal was referred to the Hearing

Officer, and the hearing was rescheduled to begin on

October 27, 1997.

On October 6, 1997, NGB submitted a motion to rescind

the notice of hearing and renewed its earlier motion for

summary dismissal. By order dated October 7, 1997,

additional State Activities were granted intervenor status in

this matter. Thereafter, certain of the intervening State

Activities requested to postpone the hearing, arguing that

State Activities had not been given sufficient time to

adequately prepare for the hearing and that funding for

State Activities’ participation was uncertain because the

1998 Defense Appropriations Act had not yet been signed.

By order dated October 15, 1997, the Washington Regional

Director denied the requested postponement. In the same

order, the Regional Director granted another state's request

to intervene and denied NGB's motion to rescind the notice

of hearing and to dismiss the petition. The Regional

Director again referred NGB's motion to dismiss to the

Hearing Officer to obtain record evidence at hearing. On

Appendix also summarizes the basis for each State Activity's

opposition to the proposed consolidated unit.

5Sa

October 22, 1997, additional State Activities were granted

intervenor status in this case.

The hearing began on October 27, 1997 and was adjourned

on October 30, 1997, after several days of testimony. At the

hearing, several of the State Activities questioned whether

ACT had properly served the petition in this matter. In this

regard, State Activities claimed that ACT should have

served all 42 of the State Activities, regardless of whether

their employees were represented by ACT. In addition,

some of the State Activities questioned whether NGB had

authority to represent DOD, Army or Air Force in this case

and asserted that ACT should have served the petition on

those entities. As a result of these disputes, the hearing was

adjourned and ACT was directed to serve the petition on

the Adjutants General of all State Activities, on DOD and

on the Secretaries of the Army and Air Force. ACT served

the petition on these additional organizations on November

4, 1997 and provided evidence of service to the Washington

Regional Director. Thereafter, by order dated November

20, 1997, the hearing in this matter was rescheduled for

January 26, 1998.

In the interim, on January 12, 1998, one of the intervening

State Activities, Rhode Island National Guard (RING) filed

a motion for a stay of the proceedings, a motion to dismiss

the petition, and a request for an advisory opinion from the

Authority. By order dated January 15, 1998 the

Washington Regional Director denied the motion for a stay

and request to refer the case to the Authority for an

advisory opinion. In his order, the Regional Director

referred RING's motion to dismiss to the Hearing Officer to

obtain record evidence at hearing. On January 13 and 16,

1998, two of the State Activities, the Florida National

Guard and the Minnesota National Guard, also filed motions

56a

to dismiss the petition. By order dated January 21, 1998, the

Washington Regional Director referred these to the Hearing

Officer to obtain evidence at hearing. On January 21, 1998,

the Regional Director also issued a Decision and Order

denying requests for intervention filed by states and

territories whose employees were not affected by the issues

raised in the petition because they were not members of

bargaining units represented by ACT. In addition, on

January 21, 1998, one of the State Activities, the Texas

National Guard, filed a motion to recuse the Hearing

Officer. This motion was denied by order dated January 23,

1998.

On January 23, 1998, the United States District Court for

the District of Rhode Island issued a Temporary Restraining

Order enjoining the Federal Labor Relations Authority from

reconvening the hearing in this case until further order of

the Court. On March 27, 1998, the Court vacated the

Temporary Restraining Order. Thereafter, by order dated

April 3, 1998, the Washington Regional Director granted

requests for intervention submitted by two additional State

Activities. In the same order, the Regional Director set

certain procedures for conducting the reconvened hearing in

this case. Subsequently, the parties submitted objections to

these hearing procedures and numerous motions to rescind,

reconsider or modify the Regional Director's order. By

order dated June 30, 1998, the Regional Director denied

these motions and requests and rescheduled the hearing on

October 19, 1998. In this order, the Regional Director set

further procedures for conducting the reconvened hearing.

Thereafter, RING filed with the Authority a request to

recuse the Regional Director and Hearing Officer in this

case. By order dated August 31, 1998, the Authority denied

this request. Also, before the hearing was reconvened, on

57a

August 18, 1998, the Regional Director issued a Decision

and Order denying the request for intervention of another

State Activity, because its employees are not included in

existing units represented by ACT. On September 4,,1998,

the Regional Director issued an order designating lead

counsel for the State Activities and NGB, who had not

complied with his earlier order that these parties designate

two individuals to serve as their lead representatives. In a

subsequent Final Notice of Hearing and Pre-Hearing

Conference, dated October 9, 1998, the Regional Director

rescinded this designation of lead counsel and modified the

previously issued procedural orders concerning the hearing.

The hearing was reconvened, as scheduled, on October 19,

1998 and continued through October 30, 1998.

By order dated June 24, 1997, the petition in Case No. SF-

RP-70060 was transferred from the San Francisco Region

to the Washington, D.C. Region of the Authority.

Thereafter, by order dated September 22, 1997, Case No.

SF-RP-70060 was consolidated with this case. Following

the hiatus in the processing of the consolidated case, the

petition in Case No. BN-RP- 70024 was transferred from

the Boston Region to the Washington, D.C. Region of the

Authority. By order dated June 30, 1998, Case No. BN-RP-

70024 was consolidated with Case Nos. WA-RP-70070 and

SF-RP-70060 for hearing. As noted above, after the hearing

in this matter closed, the consolidated case was transferred

from the Washington, D.C. to the San Francisco Region of

the Authority. By order dated March 31,1998, Case No.

WA-RP-70070 was severed from the consolidated case, for

separate issuance of this Decision and Order.

58a

ITI. Pr ral I

An intervening State Activity, the Nebraska National Guard,

filed a request to submit a brief out of time in this matter.

The Activity requested to file a brief outside the time limit

because its sole representative was not available to work

Owing to a family emergency. The request was !lot opposed

and it appears that good cause has been shown to support

the request. Therefore, the request of the Nebraska National

Guard to file a brief out of time is granted; the brief

submitted was considered in issuing this decision. Also, as

discussed earlier, NGB and various State Activities

submitted motions to dismiss the petition. All of these

motions were referred to the Hearing Officer to obtain

record evidence. Therefore, these motions are still pending

and will be addressed in this decision.

During the hearing in this case, NGB and six of the State

Activities offered as evidence the affidavits of individuals

who were not present to testify at the hearing. Over the

objections of the offering parties, these exhibits were

rejected by the Hearing Officer. On brief, the parties have

renewed their objections to the Hearing Officer's refusal to

enter these exhibits into the hearing record. I have reviewed

the Hearing Officer's rulings in this regard and find ‘that they

are free of prejudicial error. While a Hearing Officer has

discretion to allow the admission of affidavits in lieu of

testimony, this is normally done only with the consent of all

parties who would otherwise be denied an opportunity to

cross-examine the witnesses. In this case, where there was

no mutual agreement to allow affidavits instead of

testimony, the Hearing Officer's decision to reject the

exhibits was fully justified. Further, there is nothing to

suggest that any party was prejudiced by the Hearing

Officer's refusal to receive the affidavits in the record.. The

59a

parties were free to bring forward their witnesses to testify

in person at some point during the two weeks of the

hearing. In addition, to the extent that some of the parties

attempted to enter additional affidavits with their post-

hearing briefs, no cause has been shown to justify entering

such. evidence on the record following the close of the

hearing and none is apparent. Therefore, I will not order

that any such affidavits be received on the record, whether

already rejected by the Hearing Officer or newly submitted

with briefs. See U.S. Small Business Administration.

District Office. Casper. Wyoming, 49 FLRA 1051 (1994)

(Authority refused to consider documents not submitted to

the Regional Director).

The parties who had submitted motions prior to the hearing

objected to the failure of the Hearing Officer to

automatically include these motions on the record, as part of

the formal hearing papers. Although the motions were not

included in the formal hearing papers, all of the Regional

Director's orders ruling on the motions were part of the

formal hearing papers. The Hearing Officer overruled

objections to the failure to include the motions as part of the

formal papers and advised the parties that they were free to

submit copies of the motions as exhibits in evidence. As the

hearing progressed, the motions were received on the

record as exhibits of the parties. While inclusion of these

motions in the formal papers might have been a more

efficient way to ensure a complete record, I find that the

parties were not prejudiced by the Hearing Officer's failure

to include them. In particular, as the record is complete

because the motions were received in evidence, I find that

the question of whether they should have been automatically

included rather than entered by individual parties, is moot.

60a

Finally, to the extent that the parties objected to the

procedures used by the Hearing Officer to conduct the

hearing and to his rulings on such procedural matters during

the hearing, I find that the procedures used and the rulings

made were free from prejudicial error. In this regard, many

of the objections to procedural matters were based on the

parties’ inability to mutually agree on the procedures for

conducting the hearing, even as to such mundane matters as

the order in which the State Activities would present

witnesses. In view of the parties’ failure to agree on such

matters prior to the hearing, the Regional Director issued

orders, well in advance of the hearing, setting many of the

hearing procedures. The Regional Director also modified his

procedural orders based on the parties' objections to them.

It is the Hearing Officer's responsibility under section

2422.21(b) of the Authority's Regulations to "take any

action necessary to schedule, conduct, continue, control and

regulate the hearing..." When the parties failed to agree on

procedural matters by the time the hearing commenced, the

Hearing Officer was required to and justified in establishing

reasonable procedures for conducting the hearing, so that

the parties could present evidence and examine and cross

examine witnesses. I find that the parties were not

prejudiced by the Hearing Officer's rulings in this regard.

The rulings are affirmed.

IV. Issue of the Case

In Department of Defense. National Guard Bureau, 13

FLRA 232 (1983) [National Guard], the Authority

dismissed petitions to establish consolidated units of

National Guard employees. The Authority found in that case

that the proposed consolidated units were not appropriate

for exclusive recognition. The Authority specifically found

that the technician employees in the existing units of various

6la

State Activities did not share a community of interest at the

national level and that the proposed units would not

promote effective dealings with or efficiency of operations

of the NGB. In this regard, the Authority found that the

units met none of the three appropriate unit criteria in

section 7112 of the Statute because the units would be

limited to a small proportion of National Guard employees

who were not distributed throughout all organizational and

geographic components of the NGB and because the states

exercised a high degree of control over the technicians’

working conditions:

...While technicians are all subject to uniform

regulations promulgated by the NGB, they are not

subject to common overall supervision inasmuch as

the NGB has no line responsibility for the employees

in each state. While the technicians are all working

for the common mission of maintaining National

Guard materiel, training its personnel, and

administering its program, the employees are also

subject to the unique missions established at the

state level. Further, there appears to be a near total

lack of job mobility between units of the National

Guard. State control over personnel, labor relations,

and working conditions is statutory and not a matter

of delegated authority from the NGB which the

latter could rescind in the face of consolidated units.

Given these. facts, the Authority finds that the

petitioned for consolidated units would not ensure a

clear and identifiable community of interest. among

the employees involved in either proposed unit.

The Authority further finds that. . .[s]uch units

would not be adequately reflective of the National

Guard's organizational structure. Moreover, as

noted above, daily supervision, personnel authority

and control of labor relations lies with the respective

state adjutants general. This has resulted in effective

bargaining relationships established at the state level

or below, not only with the petitioners, but with

three other labor organizations as well. Given these

circumstances, with three labor organizations each

representing 20-22% of the National Guard's

technicians, a fourth. . representing 8%, and with

another 25% of the technicians being unrepresented,

the Authority concludes that effective dealings with

the National Guard, and the efficiency of its

operations, would not be promoted by the proposed

consolidated units.

Given the Authority's previous findings with regard to

appropriateness of unit, this petition raises the issue of

whether there have been meaningful changes following the

Authority's National Guard decision that altered the

operation, functions or staffing of the National Guard or the

State Activities or the relationship between the NGB and

the State Activities sufficient to overcome the Authority's

findings concerning community of interest, effective

dealings and efficiency of operations.

IV. Facts

The record in this case reflects that the basic organization,

structure and mission of the NGB and its relationship to

both the State Activities and the employees in the units

proposed to be consolidated have not changed since the

Authority's decision in National Guard. The record also

shows that, following the National Guard decision, there

have been certain changes in National Guard operations and

in labor relations dealings. These facts, based in part, on the

parties’ factual stipulations are summarized below:

63a

The National Guard is established in the District of

Columbia, Guam,?! Puerto Rico, the Virgin Islands and each

of the 50 States. For decades, the Adjutant General of each

State Activity has been authorized by federal law to use

federal funds to employ personnel who train and administer

the National Guard and maintain its equipment. The

Adjutant General in each of the State Activities is the

highest ranking military officer of that State. The Adjutant

General of a state generally is appointed by the State

Governor, but in some states the position is an elective

office. The President of the United States. appoints the

Adjutant General for the District of Columbia, Guam,

Puerto Rico and the Virgin Islands.

In 1968, pursuant to the National Guard Technicians Act,

32 US.C. 709 (the Act), the employees of the State

Activities became excepted service employees of the federal

government, with the title of National Guard technician. In

order to maintain federal civilian employment, the

technicians must be members of the state National Guard

and must maintain an appropriate military grade within a

state National Guard unit. The technicians are covered by

the federal retirement and benefits systems. However, the

technicians are not authorized overtime, they are not

entitled to veterans preference, and they have no appellate

rights to the Merit Systems Protection Board. A small

proportion of the technician work force is assigned to

positions which are not subject to mobilization. These

employees, who perform clerical and administrative

functions, are federal civil service (Title 5) employees.

The NGB is a joint organization of the Departments of the

Army and Air Force. The Chief of the NGB is directly

21 There are no National Guard technicians employed in Guam.

64a

responsible for National Guard matters to the Chiefs of

Staff of the Army and the Air Force. The basic mission of

the NGB is to manage all of the federal funds, material and

manpower allocated to the National Guard and to

implement federal military policy within the National Guard.

The NGB allocates to each state the funds appropriated for

the National Guard by Congress and the NGB establishes

manpower ceilings for each State Activity. However, the

Adjutants General have the authority to reallocate funds

they receive so as to best meet their particular needs.

The NGB does not employ any National Guard technicians

and does not exercise military command Of control over any

State Activity. Instead, the NGB is a joint staff organization

of the Departments of the Army and the Air Force,

responsible for liaison and coordination between the

National Guard units in each state and Army and Air Force

components. In addition, the Act governs the operation of

the entire National Guard technician program nationwide.

Pursuant to the Act, the NGB issues uniform regulations

covering the conditions of employment for the technicians.

These extensive regulations affect all aspects of the

technicians’ work life. The regulations are uniformly applied

to all technicians in both the Army and Air National Guard.

In addition to promulgating these uniform regulations, the

NGB develops uniform position descriptions for all

technician employees.

The NGB does not administer the personnel and labor

relations programs for technician employees. Rather, this is

the responsibility of the individual State Activities. The

Adjutants General have overall authority over all personnel

and labor relations matters arising in their respective State

Activities. In most State Activities, these programs are

administered on a day- to-day basis by 4 State Personnel

65a

Management Officer (SPUME), who reports directly to the

Adjutant General. All personnel programs, including

employment, recruiting, training, records retention, career

development, and merit promotion systems, are

administered by the State Activities.

Further, each State Activity has its own operating

procedures and military regulations. Each State Activity

also has a military mission unique to its individual state or

territory, in addition to supporting the overall national

defense mission of the Departments of the Army and Air

Force. For the most part, differences in mission relate to the

type of military unit and hardware assigned to that State

Activity, e.g. some State Activities maintain bomb ranges,

while others it do not; some State Activities maintain TOW

missiles and others do not. Each State Activity also has

varying mission requirements based on terrain and

geography within the state or territory. For example, the

Washington National Guard is responsible for forest fire

control in mountainous areas and flood control in coastal

areas, as well as assisting in earthquake emergencies and

civil defense activities.

The State Activities, through the Adjutants General, retain

authority covering hiring, firing, promotion, awards and

discipline of technicians. There is no appeal beyond the

Adjutant General level regarding disciplinary or adverse

actions or reductions in force. The State Activities, through

the Adjutants General,. also retain full authority for all labor

relations matters including negotiations with the exclusive

representative. The NGB reviews contracts for conformance

with law and regulation under section 7114(c) of the Statute

and recently has implemented a procedure for State

Activities to submit negotiated contracts to the NGB prior

to execution for advice as to negotiability matters. The

a

66a

NGB also offers State Activities advice and assistance for

collective bargaining and may assist State Activity

representatives in third party proceedings. The NGB does

not participate in collective bargaining and the authority to

negotiate a collective bargaining agreement for any

particular state lies with that State Activity, through the

Adjutant General.

The competitive areas for purposes of merit promotions and

reductions in force are established by each State Activity

and apply only to the technician employees within that state.

As a practical matter, it can be difficult for a technician to

move from a position in one state to another or from a

position in an Air National Guard unit to one in an Army

National Guard unit, as there must be both a civilian

position and an equivalent military position available for the

employee. In particular, to move between State Activities,

the employee must not only be discharged from the military

service of one state's National Guard and enlist in the

National Guard in another state, but must also be selected

for a civilian position under the gaining State Activity's

individual merit selection procedures. Each State Activity

also has its own military hiring and discharge procedures.

However, in order to reduce the effects of downsizing by

encouraging technicians to apply for positions with other

states, the NGB recently established a national Job Bulletin

Board to advertise technician vacancies nationwide.

The technician workforce nationwide is equally divided

between Wage Grade (WG) employees who primarily

perform equipment maintenance, avionics and electronics

work, and General Schedule (GS) employees whose work

primarily involves support activities, e.g. base supply,

personnel, training and fiscal management. Roughly half the

nationwide workforce is Army National Guard technicians

and half is Air National Guard technicians. For the most

part, the State Activities maintain this same balance both

between WG and GS employees and between Army and Air

National Guard employees.

All provisions of the Act remain in effect, unaltered since

the Authority's National Guard decision. In 1996, the

Congress established a "charter" for the NGB, codified in

10 U.S.C. 10503, however, the role of the NGB under that

section was limited to establishing programs and policies for

National Guard technicians' employment under the Act.

Thus, it appears that the newer legislation did not materially

affect the employment situation or conditions of

employment of the technicians. Specifically, the Act

provides, in section 709(c) that the Secretaries of the Army

and Air Force

. . Shall designate the adjutants general referred to in

section 314 of this title to employ and administer the

technicians authorized by this section.

As was the case in National Guard, the vast majority of

National Guard employees are technicians who must be

members of the National Guard in their state and must

maintain rank in their military guard unit, as a condition of

their federal technician employment. In addition, most of the

other matters discussed above, remain unchanged since

1983. However, the petition in this matter was filed by

ACT, a different labor organization than those involved in

National Guard. ACT represents more units of technician

employees of more State Activities than the units that were

proposed to be consolidated in National Guard In addition,

these units are more evenly distributed throughout the

National Guard than those involved in the earlier case.

68a

ACT represents 63 bargaining units in 39 of the 50 states,

the District of Columbia, Puerto Rico and the Virgin

Islands. During the 18 months that this matter was pending

hearing, the number of employees in the ACT units

fluctuated, however, it appears that ACT presently holds

exclusive recognition for about 53% of the approximately

38,000 unit eligible National Guard technicians nationwide.

ACT represents approximately 9300 technicians in separate

units of Air National Guard employees, approximately

10,500 technicians in separate units of Army National

Guard employees and approximately 1800 technicians in

combined units of Army and Air National Guard employees.

It is undisputed that the number of employees represented

by ACT is less than 50% of the entire personnel

complement of the National Guard. Among unit eligible

employees, however, approximately 91% of all National

Guard technicians are represented by labor organizations.

Labor organizations other than ACT also represent units of

National Guard employees. The National Association of

Government Employees, AFI-CIO represents about 5% of

the unit eligible technicians; the American Federation of

Government Employees, AFL-CIO represents about 17% of

the unit eligible technicians; the National Federation of

Federal Employees, Independent represents about 16% of

the unit eligible technicians; and the remaining 9% of those

eligible for exclusive recognition are unrepresented.

!

Since the Authority's decision in National Guard, there has

been some increase in the degree of interchange between

employees of the State Activities in connection with a test

program affecting 12 Army Aviation Support Facilities

(AASF 2000). In this test program, implemented in June

1997, the 12 facilities all use the same logistics program,

including a model organization structure, in order to

ee

69a

determine the effectiveness of such a program within the

technician program. In another change implemented since

the issuance of the National Guard decision, in February

1997, employees of the New Jersey National Guard were

transferred to the New York National Guard in a

reorganization of the Army National Guard Maintenance

Complex at Fort Drum, New York. Prior to the

reorganization, both the New Jersey and New York

National Guards maintained units at the Fort Drum

complex. The reorganization, which required the

concurrence of the Adjutants General of New York and

New Jersey, consolidated all of these Operations under the

New York National Guard.

An ACT representative testified without contradiction that

he was personally involved in the negotiation of a collective

bargaining agreement with the Montana National Guard

prior to his retirement from the technician workforce and

that he continued to use that contract as a guide in assisting

other ACT Chapters by serving as a contract negotiator or

to draft bargaining proposals and to take positions in

collective bargaining with various State Activities. While he

conceded that the contracts for the State Activities continue

to reflect the local collective bargaining relationship and the

differing concerns of the _ individual units, the

representative's testimony established that ACT made a

concerted effort to establish more consistent contract terms

on a nationwide basis in collective bargaining with various

State Activities on 18 different contracts. since 1986.

V. Positions of the Parties

As noted above, the positions of the individual State

Activities are summarized in Appendix A to this decision. In

general, however, the State Activities oppose the proposed

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consolidation on the basis that a consolidated unit at the

NGB level is prohibited by the Act. Certain of the State

Activities also argue that the proposed consolidated unit

conflicts with Article 1, Section 8 of the U.S. Constitution.

In addition, one of the State Activities asserts that the

proposed consolidation conflicts with the Second

Amendment to the U.S. Constitution.

NGB asserts that the proposed unit would not be an

appropriate unit. NGB argues that establishing a

consolidated unit at the NGB level would violate the Act.

NGB also claims that the Act takes precedence over the

Statute. In particular, where general terms of the more

recently enacted Statute conflict with the specific provisions

of the Act, NGB contends that the provisions of the Act

should prevail. The NGB argues that the legislative history

supports a finding that the Act requires the Secretaries of

the Army and Air Force to designate the Adjutants General

to "employ and administer" the technicians. In addition,

citing New Jersey National Guard, 177th Fighter

Interceptor Group and Department of Defense v. Federal

Labor Relations Authority, 677 F.2d 276 (1982) and

California National Guard v. Federal Labor Relations

Authority, 697 F.2d 874 ( 1983), the NGB contends that the

Act has been held to vest in the several states the authority

to administer the technician workforce.

_NGB also takes the position that the proposed unit is not

appropriate for the reasons stated in the Authority's decision

in National Guard. NGB asserts that the National Guard

decision is dispositive of the issue of unit appropriateness in

this case. In this regard, NGB contends that the only

substantive factual difference between this case and the

National Guard case is the increased number of units and

employees represented by ACT. NGB argues that these

Tla

facts do not support a conclusion, contrary to National

Guard, that the employees in the proposed consolidated unit

share a community of interest.

In particular, the NGB challenges ACT's stated position that

the employees share a community of interest in a unit

structure that would permit negotiations pursuant to section

7117(a)(3), over proposals that would conflict with NGB

regulations or for which a compelling need might otherwise

be asserted. In this connection, NGB argues that the

bargaining rights Sought by ACT are determined by the

existence of an appropriate unit and cannot be used to

establish a community of interest among employees.

Further, NGB asserts that if a unit is found appropriate

solely on the basis of 50% representation of those eligible,

then loss of majority status through reduction in force or

reorganization would automatically render a unit

inappropriate. The NGB Suggests that this is not an

appropriate factor to consider in determining whether the

employees share a community of interest. NGB also argues

that the statutory requirement for majority status under

section 7117(a)(3) should be interpreted to mandate

representation of 50% of the entire personnel complement,

rather than 50% of the unit eligible employees.

ACT takes the position that given the statutory preference

for consolidation, when appropriate, the proposed unit

should be found to meet the goal of ensuring “employees

the fullest freedom in exercising the rights guaranteed"

under the Statute. ACT argues that the most significant of

the. rights guaranteed by the Statute is the right to engage in

collective bargaining. Where, as here, a proposed unit

would greatly expand the scope of bargaining for affected

employees, ACT asserts that the goal of fostering the

‘exercise of Statutory rights to the fullest extent possible

72a

should be given great weight in assessing whether the

employees share a community of interest. ACT also asserts

that the employees share a community of interest because

they have a common interest in NGB regulations and in the

common mission and functions of the National Guard

nationwide. According to ACT, the establishment of the

consolidated unit would not decrease the degree of

commonality and integration of the mission and function of

components. in that the unit would combine both Army and

Air National Guard technicians.

ACT also contends that the State Activities do not exert

control over personnel and labor relations issues. ACT

argues that the Authority was mistaken in its National

Guard finding that the State Activities exercise such

control. According to ACT, the State Activities’ authority in

such matters is confined under the Act to administrative

decision making, while the Act delegates to the NGB

responsibility for issuing the regulations that govern the

entire technician program. ACT also denies that the Act

establishes state control over labor relations activities,

technician personnel or conditions of employment, arguing

that the Act actually grants the Secretaries of the Army and

the Air Force the authority to regulate the employment of

technicians. Based on these factors, and noting the

distribution of those represented by ACT throughout the

National Guard, ACT contends that the employees in the

proposed consolidated unit share a community of interest.

As to the remaining appropriate unit criteria, ACT takes the

position that the negotiation of a single, nationwide

collective bargaining agreement would result in less

duplication of effort and fewer costs for the negotiation

process. ACT also asserts that bargaining on the national

level would eliminate the need for many current negotiations

over the impact or implementation of changes in conditions

of employment that take place at the local level.

73a

In addition, ACT contends that the NGB and the State

Activities have erred in their interpretation of the Act as it

regards the consolidated unit. ACT argues that the Act and

the Statute do not conflict and that the Act does not

prohibit the establishment of a consolidated unit. Rather,

according to ACT, the Act mandates that the State

Activities maintain absolute authority to establish the

conditions of military service of the technicians, while the

NGB controls their civilian technician working conditions.

VI. Analysis and Conclusion

In analyzing this case, I first will apply the Authority's

existing standard for determining whether the proposed

consolidated unit is appropriate for exclusive recognition. In

this regard, the Federal Labor Relations Authority is an

administrative agency charged with enforcing the provisions

of the Statute. In this case, the NGB and State Activities

ask that the Authority make a determination that unit

consolidation across state lines is impermissible under the

~ Act and certain provisions of the US. Constitution. To

make such determinations, it is necessary to assess how the

Act and the Constitutional provisions should appropriately

be interpreted and applied. As noted by the Authority in its

August 31, 1998 Order in this matter:

. . .the courts have indicated that the Authority

should follow the judicial practice of avoiding

constitutional questions if at all possible. See

National Treasury Employees Union v. FLM. 986

Fold 537, 540 (D.C. Cir. 1993), citing Meredith

Corporation v. F.C.C., 809 F.2d 863, 872 (D.C.

Cir. 1987). In a situation such as that presented

here, it is appropriate to address the other,

nonconstitutional issues raised by the parties prior to

addressing the constitution issues raised. . .

—

74a

In accordance with this guidance from the Authority, I will

address the issue of unit appropriateness under section

7112(a) of the Statute. In view of my determination that the

proposed consolidated unit is not appropriate for exclusive

recognition under the Statute, it is not appropriate or

necessary to reach other issues raised by the parties in this

matter.

In Department of Transportation, Washington, D.C., 5

FLRA 646 (1981), the Authority held that "with respect to

section 7112(d), the Statute contains a provision intended to ©

facilitate’ consolidation of existing small units into more

comprehensive ones, provided that the proposed

consolidated unit is appropriate under the criteria of section

7112(a)(1)." Section 7112(d) provides:

Two or more units which are in an agency and for

which a labor organization is the exclusive

representative may, upon petition by the agency or

labor organization, be consolidated with or without

an election into a single larger unit if the Authority

considers the larger unit to be appropriate. The

Authority shall certify the labor organization as the

exclusive representative of the new larger unit.

Section 7112(a) provides, in pertinent part:

The Authority. . . shall determine any unit to be an

appropriate unit only if the determination will ensure

a clear and identifiable community of interest among

the employees in the unit and will promote effective

dealings with, and efficiency of the operations of, the

agency involved.

75a

In addition, in U.S. Department of Justice, 17 FLRA 58, 62

(1985), the Authority identified the following factors to be

examined in connection with determining whether a

Proposed consolidated unit will ensure a Clear and

identifiable community of interest: the degree of

commonality and integration of the mission and function of

the components involved: the distribution of employees

throughout the Organizational and geographic components

of the agency; the degree of similarity of occupational

undertakings of the employees in the proposed unit; and the

locus and scope of personnel and labor relations authority

and functions.

In applying these factors, I note that the technicians in the

Proposed unit are distributed geographically throughout the

National Guard and throughout both the Army and Air

National Guard organizational components of the National

Guard. Further, the proposed unit would involve technicians

from all job classifications within the National Guard,

including all of the common occupations in both the Army

National Guard and Air Force National Guard. In addition,

ACT represents more than 50% of the technicians in the

National Guard, nationwide. Thus, the distribution of

employees throughout the Organizational and geographic

components of the agency and the degree of similarity. of

occupational undertakings of the employees support the

appropriateness of the Proposed unit. Also, there is

evidence of some increase in interchange between the State

Activities given the implementation of the AASF 2000 test

program and the agreement of the New York and New

Jersey National Guards to establish a facility comprised of

employees from both State Activities. These findings differ

from the situation present in National Guard, in which there

were fewer employees in the Proposed units and in which

the geographic and organizational distribution of

76a

represented employees within the National Guard was more

Despite this evidence, I find that the employees do not share

a community of interest on a national level. In this regard,

contrary to ACT, I find that the Authority was correct in its

determination in National Guard that the technicians do not

share a national community of interest based on the locus

and scope of personnel and labor relations authority and

functions. First, I note that it remains difficult for employees

to transfer between State Activities, given the need to

secure release from military obligations in one state and then

obtain both a vacant civilian technician position and a

military billet at appropriate rank with the gaining State

Activity. In addition, although there is a commonality and

integration of the mission and function of all components of

the National Guard, as there is throughout the Army, Air

Force and DOD, each of the State Activities has an

individual mission unique to its state or territory and each

performs slightly different functions based on that mission.

I also find that the issue of individual missions of the State

Activities is significant in determining whether an

appropriate unit may be established that crosses state lines.

While the uniqueness of the State Activities’ separate

mission requirements is largely limited to their state military

responsibilities, I do not agree that such military missions

should be ignored in determining whether the employees

share a community of interest. Thus, while ACT argues that

the military mission of the states has no bearing on the

technicians’ federal employment, I find that these employees

at all times work in support of military missions and that

their mission support is not limited to separable state and

federal military missions based on whether or not the guard

activity has been mobilized. In this regard, during their

77a

federal duty time they are preparing and training not only

for mobilization of federal armed forces but to perform the

state military mission when called upon to do so.

As to the issue that I find dispositive here, it is undisputed

that NGB establishes terms and conditions of employment

for all National Guard technicians by issuing the regulations

that govern operation of the technician program nationally.

NGB also gives labor relations advice and guidance to the

State Activities. However, the NGB does not represent the

State Activities in negotiations, nor does the NGB set labor

relations policy for the State Activities. The State Activities,

through the Adjutants General, retain full authority to hire,

fire, reward, promote and discipline technicians. The

Adjutants General retain authority over personnel and labor

relations matters, including employment, recruitment,

training, records retention, career development and merit

promotion systems. The Adjutants General also retain

authority to conduct reductions in force. This authority is

retained not merely by the delegation of the Secretaries of

the Army and Air Force, but by the requirement of the Act

that this authority be so delegated to the Adjutants General.

I agree with ACT's argument that the State Activities

exercise administrative authority over the personnel and

labor relations programs in their individual states and

territories. However, I find that by exercising this

administrative authority, the State Activities retain within

their individual states or territories, jurisdiction over labor

and personnel matters. Thus, I find that the locus and scope

of labor relations and personnel functions and authority lies

at the State Activity level. The crux of the matter is that the

State Activities employ the technicians, not the NGB. Thus,

while the NGB determines many of the terms and conditions

of employment for National Guard technicians, the

78a

employment relationship is with the State Activities, not the

NGB. So long as the authority to "employ and administer"

the technicians remains with the State Activities, through

their Adjutants General, the locus and scope of labor

relations and personnel functions will remain with the State

Activities, regardless of whether that authority exists by

virtue of the Act or by some other means. So long as the

locus and scope of labor relations and personnel functions

remains with the State Activities, it cannot be demonstrated

that a unit that crosses state lines will ensure a community

of interest among the affected employees. Given all of these

circumstances, I specifically find that the community of

interest for National Guard employees lies at the State

Activity level and, thus, that the employees do not share a

community of interest at the NGB level.

Further, the evidence demonstrates that the proposed unit

would not promote effective dealings with or the efficient

operations of the NGB. Instead, the proposed consolidated

unit would place the NGB in a position of negotiating for

the State Activities without authority to do so. In addition, ~

the present unit structure existing at the State Activity level

has resuited in effective bargaining relationships established

at the state level or below, not only with ACT, but with

other labor organizations as well. While ACT represents

more employees in units better distributed geographically

and organizationally than the unions involved in National —

Guard, the factors on which the Authority based its decision

in that case remain present here. Essentially, an increase in

the numbers of employees represented and their distribution

in the National Guard is not sufficient to overcome the

effect of the retention of personnel and labor relations

authority at the state level. Thus, the proposed unit would

not promote effective dealings, as required under section

7112(a) of the Statute. See U.S. Department of the Navy,

79a

Fleet and Industrial Supply Center, Norfolk, Virginia, 52

FLRA 950, 959 ( 1997) (FISC). In addition, given the

authority retained by the several States and territories to

separately employ technicians and to administer the

technicians program on_ the State Activity level, a

consolidated unit that cross State Activity lines does not

bear a rationale relationship to the Operational and

organizational structure of the agency. Therefore, the

Proposed consolidated unit would not promote the

efficiency of operations of the agency, as required by

section 7112(a). See, Defense Logstics Agency, Defense

Supply Center, Columbus, Ohio, 53 FLRA 1114, 1131

(1998); U.S. Department of the Interior, National Park

Service, Washington, D.C., 55 FLRA No. 47 (March 12,

1999).

Based on the foregoing, I cannot find that the Proposed unit

is appropriate for exclusive recognition. Compare, Naval

Submarine Base, New London, Naval Submarine School,

Naval Submarine Support Facility, New London, Personnel

Support Activity, New London and Naval Hospital, Groton,

46 FLRA 1354 (1993).

In reaching this conclusion, I have considered ACT's

argument that, in determining whether a Proposed unit is

appropriate for exclusive recognition, the Authority should

consider not only the three criteria in section 7112(a), but

also the extent to which the unit would ensure the

employees the fullest freedom in exercising their rights

under the Statute. The latter goal, also stated in section

7112(a), describes the Authority's responsibility to

determine whether a unit may be established on an agency,

plant, installation, functional or other basis. It is arguable in

this case that establishing the proposed consolidated unit

would expand ACT's bargaining rights to include the

80a

substance of many NGB regulations. However, section

7112(a) requires that any unit claimed to be appropriate

must meet the three criteria of community of interest,

effective dealings and efficiency of operations. Thus, while

the expansion of bargaining rights could result from the

proposed unit, this does not establish that the unit meets the

three criteria without which the Authority cannot find a unit

to be appropriate for exclusive recognition. Therefore, I find

that consideration of this factor is not dispositive of the

appropriateness of the proposed unit.

In view of my findings and determination that the proposed

unit is not appropriate for exclusive recognition under the

Statute, it is not necessary to reach the arguments advanced

by the NGB and the State Activities that the Authority

should construe the Act and certain Constitutional

provisions to prohibit the establishment of the proposed

unit. In view of these findings and determination, I also find

that it is unnecessary to rule on the various motions to

dismiss the petition which are still pending in this matter, as

the motions are now moot.

Based on the foregoing, the petition in this matter is

dismissed.

Pursuant to section 2422.31 of the Authority's Rules and

Regulations, a party may file an application for review of

this Decision and Order within sixty (60) days of the date of

this Decision and Order. This sixty (60) day time limit may

not be extended or waived. Copies of the application for

review must be served on the undersigned and on all other

parties. A statement of such service must be filed with the

application for review.

The application for review must be a self-contained

document enabling the Authority to rule on the basis of its

contents without the necessity of recourse to the record.

The Authority will grant review only upon one or more of

the grounds set forth in section 2422.31 (c) of the Rules and

Regulations. Any application filed must contain a summary

of all evidence or tulings relating to the issues raised

together with page citations from the transcript, if

applicable, and supporting arguments. An application may

not raise any issue or allege any facts not timely presented

to the Regional Director. The application for review must

be filed with the Federal Labor Relations Authority, 607

14th Street, NW, Docket Room, Suite 415, Washington,

DC. 20424-0001, by close of business, June 1, 1999.

Pursuant to section 2422.31(3)(f) of the Regulations,

neither filing nor granting an application for review shall

Stay any action ordered by the Regional Director unless

specifically ordered by the Authority.

Pursuant to section 2429.21(b) of the Rules and

Regulations, the date of filing shall be deemed by the date of

mailing indicated by the postmark date. If no postmark date

is evident on the mailing, it shall be presumed to have been

made five days prior to receipt. If the filing of the

application for review is by personal or commercial delivery,

it shall be considered filed on the date it is received by the

Federal Labor Relations Authority.

Dated: March 31, 1999

fs/__

Gerald M. Cole, Regional Director

San Francisco Region

Attachment:

INTERVENTION OF STATE ACTIVITIES AND

SUMMARY OF OPPOSITION TO PROPOSED

Appendix A

82a

APPENDIX A

CONSOLIDATED UNIT

State Inter- Air Army = Air/

SARZISSR BR B

vention

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Army

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Title Arti- Other Statute Other

32

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Consti-

Article

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84a

APPENDIX F

United States Court of Appeals for the District of

Columbia Circuit

No. 01-5170 September Term, 2001

99cv02562

Filed On:

May 22, 2002

Association of Civilian Technicians, Inc.

Appellant ~

v.

Federal Labor Relations Authority,

Appellee

BEFORE: Tatel and Garland, Circuit Judges;

and Williams, Senior Circuit Judge

ORDER

Upon consideration of appellant’s petition for

rehearing filed May 3, 2002, it is

ORDERED that the petition is denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Linda Jones

Deputy Clerk

85a

APPENDIX G

STATUTES AND REGULATION

5 U.S.C. § 701 (Excerpt)

(a) This chapter applies . . . except to the extent that--

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by

law.

(b) For the purpose of this chapter--

(1) "agency" means each authority of the Government

of the United States, whether or not it is within or subject

to review by another agency.

5 U.S.C. § 702 (Excerpt)

A person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within

the meaning of a relevant Statute, is entitled to judicial

review thereof.

5 U.S.C. § 703 (Excerpt)

The form of proceeding for judicial review is the special

Statutory review proceeding relevant to the subject matter

in a court specified by statute or, in the absence Or

inadequacy thereof, any applicable form of legal action,

including actions for declaratory judgment or .

mandatory injunction . . . in a court of competent

jurisdiction. If no Special statutory review proceeding is

applicable, the action for judicial review may be brought

against . . . the agency by its official title... . Except to

the extent that prior, adequate, and exclusive Opportunity

86a

for judicial review is provided by law, agency action is

subject to judicial review in civil or criminal proceedings

for judicial enforcement.

5 U.S.C. § 704

Agency action made reviewable by statute and final

agency action for which there is no other adequate remedy

in a court are subject to judicial review. A preliminary,

procedural, or intermediate agency action or ruling not

directly reviewable is subject to review on the review of

the final agency action. Except as otherwise expressly

required by statute, agency action otherwise final is final

for the purposes of this section whether or not there has

been presented or determined an application for a

declaratory order, for any form of reconsideration, or,

unless the agency otherwise requires by rule and provides

that the action meanwhile is inoperative, for an appeal to

superior agency authority.

5 U.S.C. § 706 (Excerpt)

The reviewing court shall--

xk &

(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.

5 U.S.C. § 7103 (Excerpt)

(a) For the purpose of this chapter

“ek &

(3) “agency” means an Executive agency.

xk &

>

87a

(12) “collective bargaining" means the performance of

the mutual obligation of the representative of an agency

and the exclusive representative of employees in an

appropriate unit in the agency to meet at reasonable times

and to consult and bargain in a good-faith effort to reach

agreement with respect to the conditions of employment

affecting such employees and to execute, if requested by

either party, a written document incorporating any

collective bargaining agreement reached.

5 U.S.C. § 7112 (Excerpt)

(a) The Authority shall determine the appropriateness of

any unit. The Authority shall determine in each case

whether, in order to ensure employees the fullest freedom

in exercising the rights guaranteed under this chapter, the

appropriate unit should be established on an agency,

plant, installation, functional, or other basis and shall

determine any unit to be an appropriate unit only if the

determination will ensure a clear and _ identifiable

community of interest among the employees in the unit

and will promote effective dealings with, and efficiency

of, the operations of the agency involved.

* a

(d) Two or more units which are in an agency and for

which a labor organization is the exclusive representative

may, upon petition by the agency or labor organization,

be consolidated with or without an election into a single

larger unit if the Authority considers the larger unit to be

appropriate. The Authority shall certify the labor

organization as the exclusive representative of the new

larger unit.

5 U.S.C. § 7114(0)(1)

An agreement between any agency and an exclusive

representative shall be subject to approval by the head of

the agency.

5 U.S.C. § 7117(a) (Excerpt)

(2) The duty to bargain in good faith shall . . . extend

to matters which are the subject of any agency rule or

regulation referred to in paragraph (3) of this subsection

only if the Authority has determined . . . that no

compelling need . . . exists for the rule or regulation.

(3) Paragraph (2) of the subsection applies to any rule

or regulation issued by any agency or issued by any

primary national subdivision of such agency, unless an

exclusive representative represents an appropriate unit

including not less than a majority of the employees in the

issuing agency or primary national subdivision, as the

case may be, to whom the rule or regulation is applicable.

5 U.S.C. § 7123(a)

(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

89a

United States Court of Appeals for the District of

Columbia.

10 U.S.C. § 10503 (Excerpt)

The Secretary of the Army and the Secretary of the Air

Force shall jointly develop and prescribe a charter for the

National Guard Bureau. The charter shall cover the

following matters:

* * x

(8) Establishing policies and programs for the

employment and use of National Guard technicians under

section 709 of title 32.

* * x

(10) Issuing directives, regulations, and publications

consistent with approved policies of the Army and Air

Force, as appropriate.

32 U.S.C. § 709

(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 subsections (b) and (c), 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) Except as authorized in subsection (c), a person

employed under subsection (a) must meet each of the

following requirements:

(1) Be a military technician (dual status) as defined in

section 10216(a) of title 10.

(2) Be a member of the National Guard.

(3) Hold the military grade specified by the Secretary

concerned for that position.

(4) While performing duties as a military technician

(dual status), wear the uniform appropriate for the

member's grade and component of the armed forces.

(c)(1) A person may be employed under subsection (a) as

a non-dual status technician (as defined by section 10217

of title 10) if the technician position occupied by the

person has been designated by the Secretary concerned to

be filled only by a non-dual status technician.

(2) The total number of non-dual status technicians in

the National Guard is specified in section 10217(c)(2) of

title 10.

(d) 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.

(e) 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 in that position is

required under subsection (b) to be a member of the

National Guard.

(f) Notwithstanding any other provision of law and under

regulations prescribed by the Secretary concerned--

(1) a person employed under subsection (a) who is a

military technician (dual status) and otherwise subject to

the requirements of subsection (b) who--

(A) is separated from the National Guard or ceases

to hold the military grade specified by the Secretary

9la

concerned for that position shall be promptly separated

from military technician (dual status) employment by the

adjutant general of the jurisdiction concerned; and

(B) fails to meet the military security standards

established by the Secretary concerned for a member of a

reserve component under his jurisdiction may be separated

from employment as a military technician (dual Status)

and concurrently discharged from the National Guard by

the adjutant general of the jurisdiction concerned;

(2) a technician may, at any time, be separated from

his technician employment for cause by the adjutant

general of the jurisdiction concerned;

(3) 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;

(4) a right of appeal which may exist with respect to

paragraph (1), (2), or (3) shall not extend beyond the

adjutant general of the jurisdiction concerned; and

(5) 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 mem ip is a condition of employment,

such notification shall be given at least 30 days before the

termination date of such employment.

(g) Sections 2108, 3502, 7511, and 7512 of title 5 do not

apply to a person employed under this section.

(h) Notwithstanding sections 5544(a) and 6101(a) of title

5 or any other provision of law, the Secretary concerned

may prescribe the hours of duty for technicians.

92a

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.

(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.

Technician Program Regulation 250.1 { 1-4e (Excerpt)

The National Guard Bureau is headed by a Chief who is .

. YFesponsible for exercising the authority that is

delegated by the Secretaries concerned. This authority

includes acting for the Secretary concerned with respect to

administration of the technician program. . . . This

authority includes directing corrective action on any

matter not found to be in accordance with applicable laws,

rules, regulations, or NGB policy.