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10/23/86 Illinois Air Chapter 34, v. Federal Labor

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


October 23, 1986

TECHNICIANS, INC., PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT ILLINOIS NATIONAL GUARD, ET AL., INTERVENORS 1986.CDC.360

Before: WALD, Chief Judge, GINSBURG and BORK, Circuit Judges

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Illinois Air Chapter 34, Association of Civilian

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY

JUDGMENT

Thus case was heard on the record from the Federal Labor Relations Authority and was briefed and argued by counsel. The court has considered the issues raised by the petition for review and finds they occasion no need for a published opinion. See D.C. Cir. R. 13(c). For the reasons stated in the accompanying memorandum, it is

ORDERED and ADJUDGED, by the Court, that the petition for review be denied. It is

FURTHER ORDERED, by the Court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See Local Rule 14, as amended on November 30, 1981 and June 15, 1982. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

MEMORANDUM

The National Guard Technicians Act of 1968 provides that appeal rights concerning a technician's National Guard membership "shall not extend beyond the adjutant general of the jurisdiction concerned." See 32 U.S.C. § 709 (e)(1), (2), (5) (1982). At the same time, the Civil Service Reform Act protects the rights of employees covered by the Act to engage in concerted activity without fear of penalty or reprisal. See 5 U.S.C. §§ 7101, 7102, 7116(a) (1982). These two statutory regimes clash where, as here, a technician's Guard membership has been terminated allegedly in retaliation for his participation in union organizing activity. Petitioner urges that we reconcile the conflicting provisions by holding that an unfair labor practice proceeding before the Federal Labor Relations Authority is not an "appeal" within the meaning of the Technician's Act. Were we to rule as petitioner requests, we would effectively countermand Congress' clearly expressed command bestowing final and unreviewable authority over adverse personnel actions against Guard technicians on the state adjutants general. See California National Guard v. FLRA, 697 F.2d 874 (9th Cir. 1983); New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3d Cir.), cert. denied, 459 U.S. 988 (1982); see also American Federation of Government Employees, Local 2953 v. FLRA, 730 F.2d 1534, 1544-45 (D.C. Cir. 1984) (state control over personnel decisions was quid pro quo for states' acquiescence in limited "federalization" of technicians' status, e.g. extending to technicians federal retirement and fringe benefit programs). The final, unreviewable adjutant general authority over adverse personnel actions was granted "[n]otwithstanding any other provision of law," 32 U.S.C. § 709(e), the Civil Service Reform Act evidences no legislative intent to override the clear preemptive language of the Technicians Act. Accordingly, the FLRA correctly ruled that it lacks adjudicatory authority in this case.

19861023

© 2002 VersusLaw Inc.



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