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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2004 Decided March 12, 2004

No. 03-1141

ASSOCIATION OF CIVILIAN TECHNICIANS,

WICHITA AIR CAPITOL CHAPTER,

PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,

RESPONDENT

On Petition for Review of an Order of the

Federal Labor Relations Authority

Daniel M. Schember argued the cause and filed the briefs

for petitioner.

James F. Blandford, Attorney, Federal Labor Relations

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

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

Deputy Solicitor.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: SENTELLE, TATEL, and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Federal law makes it a crime to

engage in collective bargaining over the terms or conditions

of military service on behalf of members of the National

Guard who are serving on full-time National Guard duty.

Relying on that law, 10 U.S.C. § 976 (2000), the Federal

Labor Relations Authority declined to order the Guard to

bargain over a union proposal concerning military training

duties assigned to National Guard technicians who serve as

both civilian employees and military members of the Guard.

Because the union’s proposal concerns duties assigned to

technicians while serving in civilian status, not while serving

on full-time National Guard duty, we hold that the statute

does not prohibit bargaining over the proposal and thus grant

the union’s petition for review.

I.

In addition to active-duty military personnel, the National

Guard employs civilian technicians to meet its day-to-day

administrative, clerical, and technical needs. Ass’n of Civilian Techs., Schenectady Chapter v. FLRA, 230 F.3d 377, 378

(D.C. Cir. 2000). Technicians occupy a dual-employment

status: in addition to serving as federal civilian employees,

see 5 U.S.C. § 2105(a)(1)(F) (2000), they must be military

members of the National Guard under the National Guard

Technicians Act, see 32 U.S.C. § 709(b)(2) (2000) (Technicians

Act). Military members of the National Guard must ‘‘assemble for drill and instruction TTT at least 48 times each year’’

and ‘‘participate in training at encampments TTT at least 15

days each year.’’ Id. § 502(a) (2000). The National Guard

may recall members to active duty at any time. See 10

U.S.C. § 12,301 (2000). During periods of full-time National

Guard duty, civilian technicians receive military pay and

benefits.

Technicians may engage in collective bargaining, see 5

U.S.C. § 7102 (2000), but 10 U.S.C. § 976—the statute at

issue in this case—makes it a crime to bargain on behalf of
3

members of the armed forces over the terms or conditions of

their military service. Id. § 976(c)(2). Violations of section

976 are punishable by fines, imprisonment, or both. Id.

§ 976(f).

Petitioner, the Association of Civilian Technicians, Wichita

Air Capitol Chapter, is the exclusive representative of dualstatus National Guard technicians employed by the Kansas

National Guard. During collective bargaining, the union

submitted a proposal concerning the assignment of military

training duties to technicians. Although all members of the

National Guard must undergo such training, the proposal

involves training assigned to technicians while serving in their

civilian capacity. The union’s proposal defines ‘‘military

training duty’’ as:

duty that is (1) required by a written policy or

regulation that is applicable to members of the

National Guard irrespective of whether they are

employees, (2) designed to impart or to measure

proficiency in a military skill, and (3) required by

written policy or regulation to be performed for a

specified period of time, or with a specified frequency, or until a specified level of proficiency is

achieved.

The proposal gives two examples of military training duty:

‘‘rifle qualification’’ and ‘‘training in the wear of garments

designed to afford protection from chemical weapons (Chem

Gear).’’ It would require the Guard to include in technician

position descriptions any military training duty assigned as

work, to give both technicians and the union notice and an

opportunity to discuss any changes to the listed information,

and, upon union request, to ‘‘negotiate the impact and implementation of military training duty assigned to any employee

as work.’’ Paragraph five of the proposal would require the

Guard to assign military training duty by written order that

describes, among other things:

the type, severity, and relative frequency of occurrence of any injury or illness that is known to have

resulted from past performance of the duty or that
4

is foreseeable; TTT precautionary measures that the

[Guard] will take and that the employee may take to

reduce the risk of injury; TTT [and] measures that

the [Guard] will take to provide prompt, effective

treatment in the event injury does occur.

Paragraph five would also require the Guard to make representatives available to technicians ‘‘to discuss [the assigned

military training duty], to answer questions, and to listen to

any concerns.’’ Finally, paragraph six would prohibit the

Guard from requiring technicians to wear chemical gear ‘‘as a

method and means of performing work.’’

Declaring the proposal outside its obligation to bargain, the

Kansas National Guard refused to negotiate, and the union

appealed to the Federal Labor Relations Authority. See 5

U.S.C. § 7117(c) (2000). According to the union, its proposal

did not run afoul of section 976(c) because the proposal

pertained only to military training duties performed on civilian time. The Authority disagreed, holding that the critical

distinction under section 976(c) is not ‘‘[a] technician’s status

at the time a proposal would operate,’’ but rather ‘‘whether

the proposal relates to military service or civilian employment.’’ Ass’n of Civilian Techs., Wichita Air Capitol Chapter, 58 F.L.R.A. 28, 30 (2002). Applying that test, the Authority explained: ‘‘[i]t is clear that the military training

duties that are the subject of the proposal are military skills

required because an individual is a member of the National

Guard—not skills based in the individual’s civilian status.’’

Id. at 31. ‘‘Because paragraph 5 of the proposal is inconsistent with § 976(c),’’ the Authority concluded, ‘‘it is outside the

[Guard’s] duty to bargain under [5 U.S.C. §] 7117.’’ Id.

FLRA Chairman Cabaniss concurred on the grounds that the

proposal was ‘‘outside the duty to bargain’’ because it was

‘‘contrary to the Technicians Act’’ and concerned ‘‘a military

aspect of technician employment.’’ Id. at 32.

The union now petitions for review. See 5 U.S.C.

§ 7123(a).
5

II.

Section 976(c)(2) provides: ‘‘It shall be unlawful for any

person TTT to negotiate or bargain TTT on behalf of members

of the armed forces, concerning the terms or conditions of

service of such members.’’ 10 U.S.C. § 976(c)(2). Section

976(a)(1) defines ‘‘member of the armed forces’’ as ‘‘(A) a

member of the armed forces who is serving on active duty,

(B) a member of the National Guard who is serving on fulltime National Guard duty, or (C) a member of a Reserve

component while performing inactive-duty training.’’ Id.

§ 976(a)(1). Because Congress has not delegated any responsibility to the Authority for administering section 976, we owe

the agency’s interpretation of the statute no deference. See

Ill. Nat’l Guard v. FLRA, 854 F.2d 1396, 1400 (D.C. Cir.

1988). Although ‘‘we follow the FLRA’s reasoning to the

extent that we deem [it] sound, we review the FLRA’s

decision TTT de novo.’’ Id. (citation and internal quotation

marks omitted).

The union argues, as it did before the Authority, that

section 976(a)(1)’s definition of ‘‘member of the armed forces’’

places a temporal limit on section 976(c)’s prohibition on

bargaining over terms or conditions of military service. As

the union sees it, ‘‘[p]rocedures used to assign technicians

work to be done during hours of civilian employment, for

civilian pay, are not terms [or] conditions of military service,

regardless of the nature of the work assigned.’’ Pet’r’s Br. at

3. According to the union, therefore, because its proposal

concerns duties that, though military in nature, are performed by technicians in their civilian capacity, the statute is

inapplicable. Neither the Authority’s decision nor its brief in

this court responds to the union’s argument. Instead, the

Authority argues that purely military aspects of technicians’

employment—like the military training duties at issue—constitute terms or conditions of military service regardless of

when the training takes place. Based on the statute’s text,

its legislative history, and established canons of statutory

construction, we think the union’s interpretation of section

976 is correct.
6

We begin with the language of the statute. Section

976(a)(1) defines ‘‘member of the armed forces’’ as ‘‘a member

of the National Guard who is serving on full-time National

Guard duty.’’ 10 U.S.C. § 976(a)(1) (emphasis added). If we

import this definition into section 976(c)(2), the provision

reads as follows: ‘‘it shall be unlawful for any person TTT to

negotiate or bargain TTT on behalf of [members of the National Guard who are serving on full-time National Guard duty],

concerning the terms or conditions of service of such [members who are serving on full-time National Guard duty].’’

The union is thus quite right: section 976(c)(2) prohibits

bargaining not on behalf of members of the National Guard,

but rather on behalf of members of the National Guard ‘‘who

[are] serving on full-time National Guard duty.’’ Because the

union’s proposal applies exclusively to those military training

duties that the Guard assigns to technicians during hours of

civilian work and for civilian pay, it falls outside the terms of

section 976(c)(2).

To be sure, military training duty regardless of when

performed could be viewed as a term or condition of National

Guard service, for technicians, who are required to be military members of the Guard, must undergo such training in

order to serve on active military duty. The statute, however,

does not prohibit bargaining over terms or conditions of

National Guard service in all circumstances. It prohibits only

bargaining concerning terms or conditions of full-time National Guard duty on behalf of members who are serving on fulltime National Guard duty. When the Guard chooses to

assign military training duties to technicians in their civilian

capacity, those duties also become terms or conditions of

civilian employment. Because the technicians perform those

duties while serving in their civilian capacity, they are not, at

that time, ‘‘serving on full-time National Guard duty.’’ The

union thus seeks to bargain not ‘‘on behalf of members of the

armed forces, concerning the terms or conditions of service of

such members,’’ but rather on behalf of civilian technicians

concerning the terms or conditions of their civilian employment.
7

The Authority points out that the statute’s purpose is ‘‘to

promote the readiness of the armed forces to defend the

United States,’’ Pub. L. No. 95–610, § 1(b), 92 Stat. 3085

(1978), and argues that the ‘‘military training at issue here,

regardless of when it takes place, is intended to maintain

skills and expertise required of an active duty member of the

military,’’ Resp’t’s Br. at 11. This is certainly true, but

section 976 makes clear that it applies only when members

are serving on full-time National Guard duty. The legislative

history, moreover, reveals that Congress was well aware of

the need to ensure the Guard’s military readiness yet drafted

the statute narrowly. The House Committee on Post Office

and Civil Service rejected Senate provisions that would have

fully included civilian technicians as members of the armed

forces, explaining that it ‘‘was not persuaded by the arguments TTT that collective-bargaining activities by employee

representatives detracted from the preparedness of the National Guard.’’ H.R. Rep. No. 95–894(II), at 6 (1978), reprinted in 1978 U.S.C.C.A.N. 7586, 7590. Striking those more

inclusive Senate provisions, the committee rejected ‘‘the

premise TTT that civilian technicians, while serving in their

civilian capacity, are members of the military.’’ Id. at 7. The

House Armed Services Committee, which also had jurisdiction over the bill, shared this view. Although recognizing

that ‘‘the prohibition on military labor union membership

must extend to the personnel of Reserve and National Guard

components, since they are subject to mobilization in the

event of a war or national emergency and would be serving

side by side with active forces personnel,’’ the committee

emphasized section 976’s narrow scope:

[S]ince the restriction on their union membership

affects First Amendment rights, the committee believes that the restriction should be drawn as narrowly as possible. To accomplish this, the bill provides that Reserve and National Guard personnel

shall be considered as members of the armed forces

only ‘while performing inactive duty training,’ i.e.

those periods when they are actually in uniform and

engaged in military training or instruction. It is the
8

committee’s belief that this limitation will be sufficient to govern the conduct of reservists while they

are actually engaged in military dutiesTTTT

H.R. Rep. No. 95–894(I), at 8–9 (1978), reprinted in 1978

U.S.C.C.A.N. 7575, 7580–81.

The union’s temporal reading of section 976 also finds

support in the well-established principle that ‘‘penal statutes

are to be construed strictly.’’ United States v. CamposSerrano, 404 U.S. 293, 297 (1971). ‘‘When choice has to be

made between two readings of what conduct Congress has

made a crime, it is appropriate, before we choose the harsher

alternative, to require that Congress should have spoken in

language that is clear and definite.’’ Id. Although this is not

a criminal case, the Supreme Court has made clear that

‘‘[t]here cannot be one construction for the [regulatory agency] and another for the Department of Justice. If we should

give [the statute] the broad construction urged by the [agency], the same construction would likewise apply in criminal

cases.’’ FCC v. Am. Broad. Co., 347 U.S. 284, 296 (1954). So

too here. Absent ‘‘clear and definite’’ guidance from Congress, we will not choose the Authority’s ‘‘harsher alternative,’’ which would criminalize negotiations on behalf of technicians concerning work assigned to them in their civilian

capacity.

Contrary to the Authority’s view, nothing in Ass’n of

Civilian Technicians, Schenectady Chapter v. FLRA, 230

F.3d 377 (D.C. Cir. 2000), our only previous decision addressing section 976(c), requires a different result. In that case,

we considered whether the statute prohibited negotiations

over a union proposal that would have restricted the Guard’s

ability to communicate with technicians about their eligibility

to volunteer for active duty by taking leave from their civilian

posts while still receiving civilian pay. Interpreting section

976(c), we explained that what ‘‘matter[s] is the substance of

the proposal to be negotiated,’’ not ‘‘the status of the technicians at the time of the negotiation.’’ Id. at 379. Because the

proposal ‘‘deal[t] with how the technicians [would] be paid

while on active duty,’’ we held that section 976(c) barred
9

negotiations. Id. at 380 (emphasis added). By contrast, the

issue in this case is not the technicians’ status at the ‘‘time of

the negotiation,’’ but rather their status at the time the duties

are performed. Unlike the proposal in ACT, Schenectady,

which dealt with the terms of technicians’ pay while on active

duty, i.e., ‘‘during full-time National Guard duty,’’ the substance of the proposal here concerns the performance of

duties, albeit of a military nature, assigned during hours of

civilian employment.

The Authority also relies on two other decisions, National

Federation of Federal Employees, Local 1623 v. FLRA, 852

F.2d 1349 (D.C. Cir. 1988) and Ass’n of Civilian Technicians,

Texas Lone Star Chapter 100 v. FLRA, 250 F.3d 778 (D.C.

Cir. 2001), to support its interpretation of section 976. Those

cases, however, dealt with technicians’ collective bargaining

rights under the Technicians Act, 32 U.S.C. § 709, not the

criminal statute at issue here.

We share the Authority’s concern that aspects of the

union’s proposal could permit bargaining over purely military

matters—such as rifle qualification or wearing chemical warfare gear—‘‘designed to impart or to measure proficiency in a

military skill’’ and mandated for all members of the Guard,

whether or not employed as civilian technicians. But we may

neither ignore section 976’s temporal limit nor distort the

statute to accommodate such concerns. Our job is to enforce

the statute as enacted by Congress. If the Guard wishes to

insulate all military training duties from collective bargaining,

it should either ask Congress to amend section 976, or, more

simply, assign military training duties to technicians while

they are serving on full-time National Guard duty—the time

when all other Guard members perform such training.

The union’s petition for review is granted, the Authority’s

decision is vacated, and this matter is remanded for proceedings consistent with this opinion.

So ordered.