Association of Civilian Technicians, Schenectady Chapter v. FLRA, 230 F.3d 377 (D.C. Cir. 2000)


ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-1476

_______________________________

ASSOCIATION OF CIVILIAN TECHNICIANS,
SCHENECTADY CHAPTER,
              Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
              Respondent
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY


              DAVID M. SMITH
                Solicitor

              WILLIAM R. TOBEY
                Deputy Solicitor

              JUDITH A. HAGLEY
                Attorney

              Federal Labor Relations Authority
              607 14th Street, N.W.
              Washington, D.C.  20424
              (202) 482-6620



ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

A.  Parties and Amici
    Appearing below in the administrative proceeding before the Federal
    Labor Relations Authority (Authority) were the Association of Civilian
    Technicians, Schenectady Chapter (union) and the U.S. Department of
    Defense, National Guard Bureau, New York Air National Guard, Latham, New
    York (agency).  The union is the petitioner in this court proceeding;
    the Authority is the respondent.

B.  Ruling Under Review
    The ruling under review in this case is the Authority's Decision and
    Order on Negotiability Issues in the Association of Civilian
    Technicians, Schenectady Chapter  and U.S. Department of Defense,
    National Guard Bureau, New York Air National Guard, Latham, New York,
    Case No. 0-NG-2375, issued on September 30, 1999.  The Authority's
    decision is reported at 55 FLRA (No. 153) 925.

C.  Related Cases
    This case has not previously been before this Court or any other court.
    Counsel for the Authority is unaware of any cases pending before this
    Court which are related to this case within the meaning of Local Rule
    28(a)(1)(C).




TABLE OF CONTENTS

STATEMENT OF JURISDICTION   1

STATEMENT OF THE ISSUE   2

STATEMENT OF THE CASE   2

STATEMENT OF THE FACTS   2

A.  The National Guard and Dual-Status Technicians   2

B.  Background   3

C.  The Authority's Decision   5

STANDARD OF REVIEW   6

SUMMARY OF ARGUMENT   7

ARGUMENT   8

THE AUTHORITY PROPERLY DETERMINED THAT THE
PROPOSAL IS OUTSIDE THE GUARD'S DUTY TO BARGAIN
BECAUSE IT RESTRICTS THE GUARD'S STAFFING
OF A MILITARY MISSION AND THEREFORE CONCERNS
THE MILITARY ASPECTS OF TECHNICIAN EMPLOYMENT   8

CONCLUSION   11



ADDENDUM


Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)  A-1

5 U.S.C. § 706(2)(A)   A-5
5 U.S.C. § 6323(d)   A-6
10 U.S.C. § 976   A-7
10 U.S.C. § 12315   A-10
32 U.S.C. § 709   A-11



TABLE OF AUTHORITIES

AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998)    6

American Fed'n of Gov't Employees, Local 2953 v. FLRA, 730 F.2d 1534
    (D.C. Cir. 1984)    3

Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981)  7

Department of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988)   7

Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983)   7

*  National Fed'n of Fed. Employees, Local 1623 v. FLRA,
852 F.2d 1349 (D.C. Cir. 1988)  8

National Treasury Employees Union v. FLRA, 30 F.3d 1510 (D.C. Cir. 1994)  7

Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988)  7

Overseas Educ. Ass'n v. FLRA, 827 F.2d 814 (D.C. Cir. 1987)  7



DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY

Association of Civ. Techs., Mont. Air Chap. and Dep't of the Air
    Force, Mont. Air Nat'l Guard, 20 FLRA 717 (1985)   9

*Authorities upon which we chiefly rely are marked by asterisks.

Association of Civilian Techs., Tex. Lone Star Chapter 100 &
    U.S. Dep't of Defense, Nat'l Guard Bureau, State of Tex.,
    Adjutant General's Dep't  and Ass'n of Civilian Tech., ATC,
    Wisc. 26 and U.S. Dep't of Defense, Nat'l Guard Bureau,
    Dep't of Mil. Affairs, State of Wisc., 55 FLRA 1226 (2000),
    petition for  reconsideration denied, 56 FLRA  No. 63
    (June 7, 2000) and petition for review filed, No. 00-1085
    (D.C. Cir. Mar. 13, 2000)   5, 6

*  Delaware Chapter, Ass'n of Civilian Techs. and
    Delaware Nat'l Guard, 28 FLRA 1030 (1987)   3, 10

National Fed'n of Fed. Employees, Local 1669 and U.S. Dep't of Defense,
    Arkansas Air Nat'l Guard, 188th Fighter Wing, Fort Smith, Ark.,
    55 FLRA 63 (1999), enf'd sub nom. FLRA v. Arkansas Nat'l Guard,
    No. 99-1974 (8th Cir. Oct. 14, 1999)   8, 9



STATUTES

Federal Labor-Management Relations Statute,
  5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)   1
  5 U.S.C. § 7105(a)(2)(E)   1, 2
  5 U.S.C. § 7117(c)   2
  5 U.S.C. § 7123(a)   1, 2
  5 U.S.C. § 7123(c)   7
  5 U.S.C. § 706(2)(A)   7
  5 U.S.C. § 6323(d)   passim
* 10 U.S.C. § 976   passim
  10 U.S.C. § 12315   3
  32 U.S.C. § 709   3



GLOSSARY

The 109th      109th Tactical Airlift Wing

AFGE v. FLRA    American Fed'n of Gov't Employees, Local 2953 v. FLRA,
730 F.2d 1534 (D.C. Cir. 1984)

App.        Appendix

Authority      Federal Labor Relations Authority

Br.        Brief for the Petitioner

Delaware National   Delaware Chapter, Association of Civilian
Guard Technicians and Delaware National Guard, 28 FLRA 1030 (1987)

The Guard      New York Air National Guard

Statute      Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp. III 1997)

Union      Association of Civilian Technicians, Schenectady Chapter





ORAL ARGUMENT SCHEDULED FOR SEPTEMBER 12, 2000

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-1476

_______________________________

ASSOCIATION OF CIVILIAN TECHNICIANS,
SCHENECTADY CHAPTER,
      Petitioner

v.

FEDERAL LABOR RELATIONS AUTHORITY,
                  Respondent
_______________________________



ON PETITION FOR REVIEW OF A DECISION AND ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY



BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY



STATEMENT OF JURISDICTION

The final decision and order under review in this case was issued
by the Federal Labor Relations Authority (Authority) in 55 FLRA 925
(1999), a copy of which is at Appendix (App.) 4-30.  The Authority
exercised jurisdiction over the case pursuant to section 7105(a)(2)
(E) of the Federal Service Labor-Management Relations Statute, 5
U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) (Statute).[1]  This
Court has jurisdiction to review the Authority's final decisions
and orders pursuant to section 7123(a) of the Statute.

STATEMENT OF THE ISSUE

Whether a proposal, which would restrict the Guard's
staffing of a military mission by prohibiting the Guard
from communicating with dual-status technicians about
serving voluntarily on a military mission, concerns the
military aspects of  technician employment and is,
therefore, outside the Guard's duty to bargain.

STATEMENT OF THE CASE

This case arose as a negotiability proceeding under section 7117(c)
of the Statute.  The Association of Civilian Technicians,
Schenectady Chapter (union), which represents technicians employed
by the New York Air National Guard (the Guard), submitted a
bargaining proposal bearing on the staffing of certain active duty
military assignments.  The union's proposal prohibits the Guard from
asking technicians, individually, to serve voluntarily on the
mission without military compensation.  The Guard declared the
proposal nonnegotiable on the grounds that it was inconsistent with
10 U.S.C. § 976, which prohibits collective bargaining concerning
the conditions of military service.  The union appealed to the
Authority for a determination regarding the negotiability of the
proposal.  5 U.S.C. § 7105(a)(2)(E).  The Authority determined that
the proposal is nonnegotiable because it relates to the military
aspects of technician employment.   Accordingly, the Authority
dismissed the union's negotiability appeal.  Pursuant to section
7123(a) of the Statute, the union seeks review of the Authority's
decision.

STATEMENT OF THE FACTS

  A.  The National Guard and Dual-Status Technicians
  The union is the exclusive representative of certain National Guard
  dual-status technicians employed by the New York Air National Guard.
  Guard technicians are referred to as "dual status" because they are
  civilian employees who must -  as a condition of their employment -
  become and remain military members of the National Guard unit in
  which they are employed and must maintain the military rank
  specified for their technician positions.  See National Guard
  Technicians Act, 32 U.S.C. § 709;  American Fed'n of Gov't
  Employees, Local 2953 v. FLRA, 730 F.2d 1534, 1537 (D.C. Cir. 1984)
  (AFGE v. FLRA).  Thus, National Guard technicians are unique federal
  employees, due to the Guard's military mission and the technicians'
  dual status.  AFGE v. FLRA, 730 F.2d at 1545.
  Although the Guard's dual-status technicians are entitled to
  engage in collective bargaining regarding certain subjects, they
  are not permitted to negotiate over the military aspects of their
  employment.   See 10 U.S.C. § 976 (prohibiting labor organizations
  from bargaining over the terms and conditions of military
  service).   Therefore, proposals related to such aspects are
  outside the Guard's duty to bargain.  See, e.g., Delaware Chapter,
  Ass'n of Civilian Techs. and Delaware Nat'l Guard, 28 FLRA 1030,
  1034-35 (1987) (Delaware National Guard).
  B.      Background
  The bargaining proposal at issue in this case was advanced on behalf of
  dual-status technicians in response to the expanded military mission of the
  109th Tactical Airlift Wing (the 109th).  App. 13.  In the mid-1990s, the
  109th was assigned the mission of supporting United States government
  activities in Antarctica.  As a result of this new assignment, the 109th
  increased the number of personnel deployed to that region.   Such missions
  outside the United States are not performed by technicians in their civilian
  employment capacity, but rather in active military duty status.   App. 6.
  These military missions may be performed by Guard members either
  with military pay or, with the member's consent, without military
  pay as a volunteer.  10 U.S.C. § 12315.  In this regard, dual-status
  technicians who opt to volunteer for active duty without military
  pay may elect to utilize 5 U.S.C. § 6323(d) leave from their
  civilian employment.  Under this special pay-status, technicians
  receive their civilian pay, but do not receive full military pay.
  App. 21.  In contrast, technicians who serve on military missions
  but do not volunteer for the section 6323(d) pay status receive full
  military pay, in addition to their civilian pay.  When in this
  latter leave status, the technician will generally receive more pay
  than when opting for the section 6323(d) status - full military pay
  in addition to any available civilian pay.  App. 21.
  During negotiations for a supplemental agreement, the union
  submitted a proposal relating to the military pay status of
  technicians who perform certain active duty military assignments.
  The proposal prohibits the Guard from communicating directly with
  individual technicians concerning their willingness to serve on a
  military mission in section 6323(d) pay status.  Specifically, the
  proposal provides:
If the [A]gency decides to afford bargaining unit technicians an opportunity to
request leave under 5 U.S.C. § 6323(d), the [A]gency shall inform them of that
opportunity solely by written general announcement, such as a bulletin board
posting.  The announcement shall not identify by name, position, or any other
individual identifier, any technician eligible for the opportunity.  The general
announcement may state the number of technicians to whom the opportunity applies
and the knowledge, skills, and abilities technicians must have to be eligible
for the opportunity.  The announcement shall state that the opportunity is
voluntary.  The [A]gency shall not - and the announcement shall state that the
[A]gency will not - coerce, pressure, or personally ask any technician to
volunteer, and will not impose any adverse consequence, of any kind, on any
technician, for choosing not to volunteer.  If a technician in response to the
general announcement expresses to the [A]gency interest in considering the
opportunity afforded, the [A]gency thereafter may communicate directly with that
technician concerning that opportunity.
  App. 18-19.
      The Guard declared this proposal nonnegotiable, asserting that it
      was prohibited by 10 U.S.C. § 976, which makes it unlawful for a
      union to bargain over the terms and conditions of military service.
      App. 19.  The union filed a negotiability appeal with the Authority.
  C.    The Authority's Decision
      The Authority held the proposal nonnegotiable because it concerned
      the military aspects of technician employment.[2]   Construing the
      proposal, the Authority found that it would affect the Guard's
      staffing of a military mission in two respects.  First, the proposal
      would prohibit the Guard, after it determined to attempt staffing a
      military mission with technicians in section 6323(d) status, from
      seeking individual volunteers to serve on the mission in that
      status.   Second, if the Guard assigned a particular technician to
      serve on a military mission, the Authority interpreted the proposal
      as foreclosing the Guard from asking that technician whether he or
      she was willing to do so in section 6323(d) status.  App. 21.
      The Authority relied on well-established judicial and Authority
      precedent to resolve the case.  Under this precedent, Guard
      technicians may not bargain concerning the military aspects of
      technician employment.  App. 21-22.  In support of this principle,
      the Authority cited two rationales - (1) 10 U.S.C. § 976, which
      prohibits bargaining with, or on behalf of, members of the military
      regarding the conditions of their service, and (2) the conclusion
      that military matters do not concern "conditions of employment"
      within the meaning of the Statute.[3]   App. 22.
      The Authority noted that although this principle can be clearly
      stated, its application to particular proposals is not always
      straightforward.  App. 22.  Reviewing its precedent distinguishing
      civilian from military aspects of technician employment, the
      Authority concluded that the "key elements in determining whether a
      particular proposal involves a military aspect of technician
      employment are whether the proposal relates to a military
      assignment, or attempts to influence a military decision."  App. 24
      (citations omitted).
      Applying this framework to the proposal as the Authority interpreted
      it, the Authority determined that the proposal is outside the duty
      to bargain because it both relates to a military assignment and
      attempts to influence a military decision.  App. 25.   Specifically,
      the Authority found that the proposal attempts to influence the
      ability of military commanders to solicit, individually, section
      6323(d) status volunteers for a military mission.   App. 24-25.
      Because the proposal relates to the military aspects of technician
      employment, the Authority therefore held that it was outside the
      Guard's duty to bargain and dismissed the union's negotiability
      appeal.  App. 25.

STANDARD OF REVIEW

  The standard of review of Authority decisions is "narrow." AFGE,
  Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998).  Authority
  action shall be set aside only if it is "arbitrary, capricious,
  or an abuse of discretion and . . . otherwise not in accordance
  with law."  See 5 U.S.C. § 7123(c), incorporating 5 U.S.C. §
  706(2)(A); Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769,
  771-72 (D.C. Cir. 1988).
  "Congress has specifically entrusted the Authority with the responsibility
  to define the proper subjects for collective bargaining, drawing upon its
  expertise and understanding of the special needs of public sector labor
  relations."  Library of Congress v. FLRA, 699 F.2d 1280, 1289 (D.C. Cir.
  1983).  With regard to a negotiability decision, like the one under review
  in this case, such a "decision will be upheld if the FLRA's construction of
  the [Statute] is 'reasonably defensible.'" Overseas Educ. Ass'n v. FLRA, 827
  F.2d 814, 816 (D.C. Cir. 1987) (quoting Department of Defense v. FLRA, 659
  F.2d 1140, 1162 n.121 (D.C. Cir. 1981)).  Courts "also owe deference to the
  FLRA's interpretation of [a] union's proposal."  National Treasury Employees
  Union v. FLRA, 30 F.3d 1510, 1514 (D.C. Cir. 1994).
  The instant case involves the Authority's interpretation of its own
  organic statute as it relates to another federal law that prohibits
  collective bargaining over the terms and conditions of military
  service.  When the Authority interprets other statutes, although it
  is not entitled to deference, the Authority's interpretation should
  be followed to the extent the reasoning is "sound."  Department of
  the Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988).

  SUMMARY OF ARGUMENT

  The Authority properly determined that a proposal, which would
  prohibit the Guard from asking technicians whether they would serve
  voluntarily on a military mission without military pay, concerns the
  military aspects of a technician's employment and is, therefore,
  outside the Guard's duty to bargain.
  Section 10 U.S.C. § 976 prohibits unions from bargaining over the
  terms and conditions of military service.  Dual status technicians -
  who perform both military  service and civilian employment - cannot
  bargain over the conditions of their military service, but only over
  conditions of their civilian employment.  Heeding the prohibition of
  10 U.S.C. § 976, the Authority has held that proposals relating to
  the military aspects of technician employment are outside the
  Guard's duty to bargain.
  In this case, the Authority found that the proposal concerns the
  technicians' military service, not their civilian employment.  The
  proposal (1) relates to a military assignment and (2) restricts
  military staffing decisions.  For these two reasons, the proposal
  concerns conditions of military service and not  - as the union
  contends - conditions of civilian employment.  As such, the proposal
  is outside the Guard's duty to bargain, and the union's petition for
  review should be dismissed.

ARGUMENT

THE AUTHORITY PROPERLY DETERMINED THAT THE
  PROPOSAL IS OUTSIDE THE GUARD'S DUTY TO BARGAIN
  BECAUSE IT RESTRICTS THE GUARD'S STAFFING OF A
  MILITARY MISSION AND THEREFORE CONCERNS THE
  MILITARY ASPECTS OF TECHNICIAN EMPLOYMENT

  The union's proposal in this case would restrict how the National Guard
  staffs military missions with dual-status technicians.  These technicians
  are unique federal employees because, although they are subject to military
  authority, they also have certain bargaining rights under the Statute.   See
  National Fed'n of Fed. Employees, Local 1623 v. FLRA, 852 F.2d 1349, 1350-51
  (D.C. Cir. 1988).  As this Court has explained, however, "the military side
  of technicians' employment takes precedence."  Id. at 1351.  Thus, this
  Court has held, "the military side of the National Guard lies wholly outside
  of the collective bargaining realm."  Id. at 1353.
  Consistent with this Court's holdings, it is well established in the
  Authority's case law that, "although technicians may negotiate
  concerning their 'employment in a civilian capacity,' Congress did
  not intend that they be permitted to negotiate over 'the military
  aspects of civilian technician employment.'" National Fed'n of Fed.
  Employees, Local 1669 and U.S. Dep't of Defense, Ark. Air Nat'l
  Guard, 188th Fighter Wing, Fort Smith, Ark., 55 FLRA 63, 65 (1999)
  (internal citation omitted), enf'd sub nom. FLRA v. Arkansas Nat'l
  Guard, No. 99-1974 (8th Cir. Oct. 14, 1999); see also Association of
  Civ. Techs., Mont. Air Chap. & Dep't of the Air Force, Mont. Air
  Nat'l Guard, 20 FLRA 717, 739 (1985) (Congress intended 10 U.S.C. §
  976 to prohibit collective bargaining over military aspects of
  technician employment while preserving the right of dual-status
  technicians to negotiate conditions of their employment in their
  civilian capacity).
  The union challenges neither the principle that it may not bargain
  over the military aspects of technician employment nor the
  Authority's analytical framework for determining whether a
  particular proposal improperly infringes on military matters, i.e.,
  "whether the proposal relates to a military assignment, or attempts
  to influence a military decision."  App. 24 (citations omitted).
  Instead, the union challenges the application of this framework to
  the proposal at issue.
  Contrary to the union's suggestion (Br. at 8, see also Br. at 6),
  the proposal in this case does not merely "concern[] communication
  with technicians about whether they want to request leave from their
  civilian employment."  Rather, under the Authority's framework, the
  proposal involves the military aspects of technician employment for
  several reasons.   As the Authority explained, the proposal relates
  to the military mission.  App. 25.   In this regard, the union does
  not dispute that the assignment about which the proposal would
  prohibit individual communications between the Guard and technicians
  is a military assignment.
  In addition, the proposal attempts to influence a military decision.
  The proposal removes the ability of military commanders to
  individually solicit volunteers for the military mission in a
  particular (i.e., section 6323(d)) pay status.  App. 25.   The
  proposal thus restricts the staffing of a military mission in two
  ways.  One, if the Guard determines to staff the military mission
  with section 6323(d) volunteers, the proposal limits the Guard's
  ability to influence particular individuals to volunteer.  Two, if
  the Guard decides that it wants a particular technician to perform a
  military mission, the proposal nullifies the Guard's ability to
  communicate directly with that individual to solicit voluntary
  section 6323(d) status.  App. 24-25.
  Against the backdrop of these realities, the union's description of
  the proposal  (Br. at 8) - as merely "concern[ing] communication
  with technicians about whether they want to request leave from their
  civilian employment" - is a simplism.  This incomplete portrayal
  ignores the fact that the "leave" at issue is leave to serve on a
  military mission - and to do so in a particular pay status.
  Finally, recognizing that the proposal might operate while the
  technicians are in a civilian status, the Authority concluded
  that this and similar proposals could nevertheless implicate
  military aspects of technician service (App. 24 n.10).   To
  illustrate this point, the Authority cited Delaware National
  Guard, where the proposals concerned technician participation
  in the Guard's Military Education Program, including a
  proposal for technician counseling regarding training options.
  See Delaware National Guard, 28 FLRA at 1032.  The Authority
  held in that case that all the proposals were outside the duty
  to bargain because the technicians attended this training in
  military status.  Id. at 1034-35.  Here, similarly, although
  the disputed communications undertaken by the Guard to staff a
  military mission might occur while the technicians are serving
  in their civilian capacities, the communications are
  integrally related to a military assignment and to the
  military decisions made to staff that military mission.
  Therefore, as the Authority noted (App. 24 & n.10), the period
  during which a proposal operates is not conclusive.
  In sum, because the proposal relates to the Guard's military mission
  and hampers military commanders' abilities to staff those missions,
  the proposal concerns the military aspects of technician employment
  and is, therefore, outside the Guard's duty to bargain.
  Accordingly, this Court should deny the union's petition for
  review.

CONCLUSION

  The union's petition for review should be denied.

          Respectfully submitted,


          DAVID M. SMITH
            Solicitor


          WILLIAM R. TOBEY
            Deputy Solicitor


          JUDITH A. HAGLEY
            Attorney


          Federal Labor Relations Authority
          607 14th Street, N.W.
          Washington, D.C. 20424
          (202) 482-6620

June 13, 2000




CERTIFICATION PURSUANT TO FRAP RULE 32
AND CIRCUIT RULE 28


  Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule 28, I
  certify that the attached brief is proportionately spaced, utilizes 14-point
  serif type, and contains 2,969 words.

  June 13, 2000




SERVICE LIST

  I certify that copies of the Brief For The Federal Labor Relations
  Authority have been served this day, by mail, upon the following:


  Daniel M. Schember
  Gaffney & Schember, P.C.
  1666 Connecticut Avenue, NW
  Suite 225
  Washington, DC 20009

                                    Jennifer A. Baker
                                   Paralegal Specialist

  June 13, 1999




STATUTORY ADDENDUM


TABLE OF CONTENTS

1.  5 U.S.C. § 7105(a)(2)(E)   A-1
2.  5 U.S.C. § 7117(c)   A-2
3.  5 U.S.C. § 7123(a), (c)  A-3
4.  5 U.S.C. § 706(2)(A)  A-5
5.  5 U.S.C. § 6323(d)   A-6
6.  10 U.S.C. § 976   A-7
7.  10 U.S.C. § 12315   A-10
8.  32 U.S.C. § 709   A-11

§ 7105. Powers and duties of the Authority

  (a)  (2) The Authority shall, to the extent provided in this chapter and in
  accordance with regulations prescribed by the Authority-

* * * * * * * * * * * * *

  (E) resolve issues relating to the duty to bargain in good faith under
  section 7117(c) of this title;

* * * * * * * * * * * * *

  § 7117. Duty to bargain in good faith; compelling need;
  duty to consult

* * * * * * * * * * * * *

  (c)(1) Except in any case to which subsection (b) of this section applies,
  if an agency involved in collective bargaining with an exclusive
  representative alleges that the duty to bargain in good faith does not
  extend to any matter, the exclusive representative may appeal the allegation
  to the Authority in accordance with the provisions of this subsection.
    (2) The exclusive representative may, on or before the 15th day after
    the date on which the agency first makes the allegation referred to in
    paragraph (1) of this subsection, institute an appeal under this
    subsection by-
    (A) filing a petition with the Authority; and
    (B) furnishing a copy of the petition to the head of the agency.
    (3) On or before the 30th day after the date of the receipt by the head
    of the agency of the copy of the petition under paragraph (2)(B) of this
    subsection, the agency shall-
    (A) file with the Authority a statement-
    (i) withdrawing the allegation; or
    (ii) setting forth in full its reasons supporting the allegation; and
    (B) furnish a copy of such statement to the exclusive representative.
    (4) On or before the 15th day after the date of the receipt by the
    exclusive representative of a copy of a statement under paragraph (3)(B)
    of this subsection, the exclusive representative shall file with the
    Authority its response to the statement.
    (5) A hearing may be held, in the discretion of the Authority, before a
    determination is made under this subsection. If a hearing is held, it
    shall not include the General Counsel as a party.
    (6) The Authority shall expedite proceedings under this subsection to
    the extent practicable and shall issue to the exclusive representative
    and to the agency a written decision on the allegation and specific
    reasons therefor at the earliest practicable date.

* * * * * * * * * * * * *

  § 7123. Judicial review; enforcement
  (a) Any person aggrieved by any final order of the Authority other than an
  order under-
  (1) section 7122 of this title (involving an award by an arbitrator), unless
  the order involves an unfair labor practice under section 7118 of this
  title, or
  (2) section 7112 of this title (involving an appropriate unit
  determination),
  may, during the 60-day period beginning on the date on which the order was
  issued, institute an action for judicial review of the Authority's order in
  the United States court of appeals in the circuit in which the person
  resides or transacts business or in the United States Court of Appeals for
  the District of Columbia.

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  (c) Upon the filing of a petition under subsection (a) of this section for
  judicial review or under subsection (b) of this section for enforcement, the
  Authority shall file in the court the record in the proceedings, as provided
  in section 2112 of title 28. Upon the filing of the petition, the court
  shall cause notice thereof to be served to the parties involved, and
  thereupon shall have jurisdiction of the proceeding and of the question
  determined therein and may grant any temporary relief (including a temporary
  restraining order) it considers just and proper, and may make and enter a
  decree affirming and enforcing, modifying and enforcing as so modified, or
  setting aside in whole or in part the order of the Authority. The filing of
  a petition under subsection (a) or (b) of this section shall not operate as
  a stay of the Authority's order unless the court specifically orders the
  stay. Review of the Authority's order shall be on the record in accordance
  with section 706 of this title. No objection that has not been urged before
  the Authority, or its designee, shall be considered by the court, unless the
  failure or neglect to urge the objection is excused because of extraordinary
  circumstances. The findings of the Authority with respect to questions of
  fact, if supported by substantial evidence on the record considered as a
  whole, shall be conclusive. If any person applies to the court for leave to
  adduce additional evidence and shows to the satisfaction of the court that
  the additional evidence is material and that there were reasonable grounds
  for the failure to adduce the evidence in the hearing before the Authority,
  or its designee, the court may order the additional evidence to be taken
  before the Authority, or its designee, and to be made a part of the record.
  The Authority may modify its findings as to the facts, or make new findings
  by reason of additional evidence so taken and filed. The Authority shall
  file its modified or new findings, which, with respect to questions of fact,
  if supported by substantial evidence on the record considered as a whole,
  shall be conclusive. The Authority shall file its recommendations, if any,
  for the modification or setting aside of its original order. Upon the filing
  of the record with the court, the jurisdiction of the court shall be
  exclusive and its judgment and decree shall be final, except that the
  judgment and decree shall be subject to review by the Supreme Court of the
  United States upon writ of certiorari or certification as provided in
  section 1254 of title 28.

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Sec. 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms of
an agency action. The reviewing court shall -

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(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;

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§ 6323. Military leave;
Reserves and National Guardsmen

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(d) (1) A military reserve technician described in section 8401(30) is entitled
at such person's request to leave without loss of, or reduction in, pay, leave
to which such person is otherwise entitled, credit for time or service, or
performance or efficiency rating for each day, not to exceed 44 workdays in a
calendar year, in which such person is on active duty without pay, as authorized
pursuant to section 12315 of title 10, under section 12301(b) or 12301(d) of
title 10 (other than active duty during a war or national emergency declared by
the President or Congress) for participation in noncombat operations outside the
United States, its territories and possessions.
  (2) An employee who requests annual leave or compensatory time to which the
  employee is otherwise entitled, for a period during which the employee would
  have been entitled upon request to leave under this subsection, may be
  granted such annual leave or compensatory time without regard to this
  section or section 5519.
§ 976.  Membership in military unions, organizing of military unions, and
recognition of military unions prohibited
  (a) In this section:
  (1) The term ''member of the armed forces'' means (A) a member of the armed
  forces who is serving on active duty, (B) a member of the National Guard who
  is serving on full-time National Guard duty, or (C) a member of a Reserve
  component while performing inactive-duty training.
  (2) The term ''military labor organization'' means any organization that
  engages in or attempts to engage in -
  (A) negotiating or bargaining with any civilian officer or employee, or with
  any member of the armed forces, on behalf of members of the armed forces,
  concerning the terms or conditions of military service of such members in
  the armed forces;
  (B) representing individual members of the armed forces before any civilian
  officer or employee, or any member of the armed forces, in connection with
  any grievance or complaint of any such member arising out of the terms or
  conditions of military service of such member in the armed forces; or
  (C) striking, picketing, marching, demonstrating, or any other similar form
  of concerted action which is directed against the Government of the United
  States and which is intended to induce any civilian officer or employee, or
  any member of the armed forces, to -
    (i) negotiate or bargain with any person concerning the terms or
    conditions of military service of any member of the armed forces,
    (ii) recognize any organization as a representative of individual
    members of the armed forces in connection with complaints and grievances
    of such members arising out of the terms or conditions of military
    service of such members in the armed forces, or
    (iii) make any change with respect to the terms or conditions of
    military service of individual members of the armed forces.
  (3) The term ''civilian officer or employee'' means an employee, as such term
  is defined in section 2105 of title 5.
(b) It shall be unlawful for a member of the armed forces, knowing of the
activities or objectives of a particular military labor organization -
  (1) to join or maintain membership in such organization; or
  (2) to attempt to enroll any other member of the armed forces as a member of
  such organization.
(c) It shall be unlawful for any person -
  (1) to enroll in a military labor organization any member of the armed forces
  or to solicit or accept dues or fees for such an organization from any member
  of the armed forces; or
  (2) to negotiate or bargain, or attempt through any coercive act to negotiate
  or bargain, with any civilian officer or employee, or any member of the armed
  forces, on behalf of members of the armed forces, concerning the terms or
  conditions of service of such members;
  (3) to organize or attempt to organize, or participate in, any strike,
  picketing, march, demonstration, or other similar form of concerted action
  involving members of the armed forces that is directed against the Government
  of the United States and that is intended to induce any civilian officer or
  employee, or any member of the armed forces, to -
  (A) negotiate or bargain with any person concerning the terms or conditions
  of service of any member of the armed forces,
  (B) recognize any military labor organization as a representative of
  individual members of the armed forces in connection with any complaint or
  grievance of any such member arising out of the terms or conditions of
  service of such member in the armed forces, or
  (C) make any change with respect to the terms or conditions of service in
  the armed forces of individual members of the armed forces; or
  (4) to use any military installation, facility, reservation, vessel, or other
  property of the United States for any meeting, march, picketing,
  demonstration, or other similar activity for the purpose of engaging in any
  activity prohibited by this subsection or by subsection (b) or (d).
(d) It shall be unlawful for any military labor organization to represent, or
attempt to represent, any member of the armed forces before any civilian officer
or employee, or any member of the armed forces, in connection with any grievance
or complaint of any such member arising out of the terms or conditions of
service of such member in the armed forces.
(e) No member of the armed forces, and no civilian officer or employee, may -
  (1) negotiate or bargain on behalf of the United States concerning the terms
  or conditions of military service of members of the armed forces with any
  person who represents or purports to represent members of the armed forces, or
  (2) permit or authorize the use of any military installation, facility,
  reservation, vessel, or other property of the United States for any meeting,
  march, picketing, demonstration, or other similar activity which is for the
  purpose of engaging in any activity prohibited by subsection (b), (c), or (d).
Nothing in this subsection shall prevent commanders or supervisors from giving
consideration to the views of any member of the armed forces presented
individually or as a result of participation on command-sponsored or authorized
advisory councils, committees, or organizations.
 (f) Whoever violates subsection (b), (c), or (d) shall be fined under title 18
 or imprisoned not more than 5 years, or both, except that, in the case of an
 organization (as defined in section 18 of such title), the fine shall not be
 less than $25,000.
 (g) Nothing in this section shall limit the right of any member of the armed
 forces -
 (1) to join or maintain membership in any organization or association not
 constituting a ''military labor organization'' as defined in subsection (a)(2)
 of this section;
  (2) to present complaints or grievances concerning the terms or conditions of
  the service of such member in the armed forces in accordance with established
  military procedures;
  (3) to seek or receive information or counseling from any source;
 (4) to be represented by counsel in any legal or quasi-legal proceeding, in
 accordance with applicable laws and regulations;
  (5) to petition the Congress for redress of grievances; or
  (6) to take such other administrative action to seek such administrative or
  judicial relief, as is authorized by applicable laws and regulations.
§ 12315. Reserves: duty with or without pay
(a) Subject to other provisions of this title, any Reserve may be ordered to
active duty or other duty -
  (1) with the pay and allowances provided by law; or
  (2) with his consent, without pay. Duty without pay shall be considered for
  all purposes as if it were duty with pay.
(b) A Reserve who is kept on active duty after his term of service expires is
entitled to pay and allowances while on that duty, except as they may be
forfeited under the approved sentence of a court-martial or by non-judicial
punishment by a commanding officer or when he is otherwise in a non-pay status.
§ 709. Technicians: employment, use, status
  (a) Under regulations prescribed by the Secretary of the Army or the
  Secretary of the Air Force, as the case may be, and subject to subsection
  (b) of this section persons may be employed as technicians in -
    (1) the administration and training of the National Guard; and    (2)
    the maintenance and repair of supplies issued to the National Guard or
    the armed forces.
(b) A technician employed under subsection (a) shall, while so employed -
  (1) be a member of the National Guard;
  (2) hold the military grade specified by the Secretary concerned for that
  position; and
   (3) wear the uniform appropriate for the member's grade and component of the
   armed forces while performing duties as a technician.
(c) The Secretary concerned shall designate the adjutants general referred to in
secti