Association of Civilian Technicians, Schenectady Chapter, Petitioner v. Federal Labor Relations Authority, Respondent

                  United States Court of Appeals


       Argued September 12, 2000  Decided November 7, 2000 

                           No. 99-1476

              Association of Civilian Technicians, 
                      Schenectady Chapter, 


               Federal Labor Relations Authority, 

      On Petition for Review of a Decision and Order of the 
                Federal Labor Relations Authority

     Daniel M. Schember argued the cause and filed the briefs 
for petitioner.

     Judith A. Hagley, Attorney, Federal Labor Relations Au-
thority, argued the cause for respondent.  With her on the 
brief were David M. Smith, Solicitor, and William R. Tobey, 
Deputy Solicitor.

     Before:  Henderson, Randolph, and Garland, Circuit 

     Opinion for the Court filed by Circuit Judge Randolph.

     Randolph, Circuit Judge:  "The National Guard has the 
dual mission of serving both the state in which the Guard unit 
is located and the federal government.  The Guard stands 
ready to preserve peace and order at the command of state 
authorities;  and to provide combat-ready units and to control 
domestic violence at the President's discretion.  See Perpich 
v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 
L. Ed. 2d 312 (1990).  Because the National Guard is not a 
full-time active force, it employs civilian 'technicians' to per-
form administrative, clerical, and technical tasks.  These indi-
viduals are generally required to be members of the National 
Guard unit in which they are employed (32 U.S.C. s 709(b)), 
and must wear their military uniforms while they are work-
ing.  See National Guard Bureau Technician Personnel Reg. 
No. 300, p 7-6 (1987);  New York Council, Ass'n of Civilian 
Technicians v. FLRA, 757 F.2d 502, 505-06 (2d. Cir. 1985).  
As federal 'employees' (5 U.S.C. s 2105(a);  32 U.S.C. 
s 709(d)), the Guard's civilian technicians are entitled to 
engage in collective bargaining regarding certain subjects.  5 
U.S.C. ss 7102, 7103(a)(2) & (a)(3);  American Fed'n of Gov't 
Employees, Local 2953 v. FLRA, 730 F.2d 1534 (D.C. Cir. 
1984)."  United States Dep't of Defense v. FLRA, 982 F.2d 
577, 578 (D.C. Cir. 1993).

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