250 F.3d 778 (D.C. Cir. 2001)
Association of Civilian Technicians, Texas Lone Star  Chapter 100 and Association of Civilian Technicians,  Wisconsin Chapter 26 (Army), Petitionersv.Federal Labor Relations Authority, Respondent
No. 00-1245
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2001Decided June 1, 2001

[Copyrighted Material Omitted]
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.
Judith A. Hagley, Attorney, Federal Labor Relations Authority, argued the cause for respondent.  With her on the  brief were David M. Smith, Solicitor, and William R. Tobey,  Deputy Solicitor.
Before:  Edwards, Chief Judge, Williams and Henderson,  Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge:


1
The National Guard Technician Act  of 1968, 32 U.S.C. 709(b), provides that, as a condition of  civilian employment, technicians must, inter alia, be members  of the National Guard and hold the military grade specified  by the Secretary concerned.  And 709(a) of the Technician  Act, 32 U.S.C. 709(a), specifies that persons are employed  as technicians "[u]nder regulations prescribed by the Secretary of the Army or the Secretary of the Air Force."  Pursuant to this statutory authority, the Departments of the Army  and the Air Force have promulgated regulations prohibiting  military "grade inversion" in the National Guard.  Under this  policy, the military grade of a full-time supervisor must equal  or exceed the military grade of personnel supervised.  The  grade inversion policy has been clarified to apply to persons  assigned to Wage Leader positions in the National Guard.


2
In this case, the Association of Civilian Technicians, Texas  Lone Star Chapter 100 ("Texas-ACT"), and the Association  of Civilian Technicians, Wisconsin Chapter 26 (Army) ("Wisconsin-ACT") (together, the "Unions"), the recognized collective bargaining agents for technicians employed by the Texas  National Guard and the Wisconsin National Guard, submitted  bargaining proposals that would have allowed for the assignment of technicians to Wage Leader positions without restriction based on the technicians' military grade.  When the  proposals were found to be nonnegotiable by the Offices of  the Adjutant General, the Unions filed negotiability appeals  with the Federal Labor Relations Authority ("FLRA" or  "Authority").


3
The Authority found that the duty to bargain in good faith  did not extend to the Unions' proposals because National  Guard technicians may not negotiate over military aspects of  civilian technician employment.  See Ass'n of Civilian Technicians, Texas Lone Star Chapter 100, 55 F.L.R.A. (No. 196)  1226 (2000), reprinted in Joint Appendix ("J.A.") 10;  Ass'n of Civilian Technicians, Texas Lone Star Chapter 100, 56  F.L.R.A. (No. 63) 432 (2000) (order denying motion for reconsideration), reprinted in J.A. 15.  This conclusion was based  on the Authority's consideration of three statutory provisions: 10 U.S.C. 976(c)(2), which prohibits bargaining with, or on  behalf of, members of the armed forces, concerning the terms  or conditions of their service;  7117(a)(1) of the Federal  Service Labor-Management Relations Statute, 5 U.S.C.  7117(a)(1), which prohibits bargaining over matters inconsistent with any federal law;  and the aforecited 709 of the  Technician Act.  See Ass'n of Civilian Technicians, Texas  Lone Star Chapter 100, 55 F.L.R.A. at 1229.


4
We deny the petition for review.  The Unions' proposals  are outside of the duty to bargain under 5 U.S.C.  7117(a)(1), because they are inconsistent with 709(b). See Ass'n of Civilian Technicians,  Texas Lone Star Chapter  100, 55 F.L.R.A. at 1229.  The legislative history of 709(b)  clearly supports the Authority's conclusion that, in requiring  civilian technicians to "[h]old the military grade specified by  the Secretary," 709(b) directs a civilian technician to occupy  a military grade equal to or exceeding that of subordinate  personnel.  See, e.g., Ass'n of Civilian Technicians, Mont.  Air Chapter, 20 F.L.R.A. (No. 85) 717 (1985), petition for  review denied, 809 F.3d 930 (D.C. Cir. 1987) (Table).  Because our decision rests principally on 709, we need not  reach the Unions' claim that the disputed proposals are  negotiable subjects because they do not invite bargaining  over a term or condition of military service in violation of 10  U.S.C. 976(c)(2).

I. Background

5
The Texas and Wisconsin chapters of the Association of  Civilian Technicians represent technicians employed by the  Texas National Guard and the Wisconsin National Guard (the  "Guards").  National Guard technicians are federal civilian  employees, but they "perform even their civilian tasks 'in a  distinctly military context, implicating significant military  concerns.' "  Illinois Nat'l Guard v. FLRA, 854 F.2d 1396,  1398 (D.C. Cir. 1988) (quoting New Jersey Air Nat'l Guard v.FLRA, 677 F.2d 276, 279 (3d Cir. 1982)).  National Guard  technicians are, thus, considered to be "dual status" employees.  See 10 U.S.C. 10216;  32 U.S.C. 709(b).  As a  prerequisite for their employment, technicians must be members of the National Guard unit in which they are employed,  maintain the military grade specified for their positions, and  wear their military uniforms while working.  See 32 U.S.C.  709(b);  see also Ass'n of Civilian Technicians, Schenectady  Chapter v. FLRA, 230 F.3d 377, 378 (D.C. Cir. 2000).


6
On March 31, 1995, the Departments of the Army and the  Air Force promulgated National Guard Regulation 600-25  and Air National Guard Instruction 36-102, prescribing the  Guards' military inversion policy, as follows:


7
Military grade inversion within the full-time work force is not permitted.  The grade inversion concept is inconsistent with the nature of the National Guard.  The military grade of the full-time supervisor must equal or exceed the military grade of personnel supervised.  Unit of assignment or service component of the individual does not change this policy.


8
Personnel General:  Military Technician Compatibility, NGR  600-25/ANGI 36-102 at 2-1.a. (Mar. 31, 1995), reprinted in  J.A. 29, 46.


9
Nearly three years later, the Chief of the National Guard  Bureau for the Departments of the Army and the Air Force  issued a policy guidance, clarifying that the military grade  inversion policy applied to Wage Leaders.  See Memorandum  from Steve Nelson, Director for Human Resources, National  Guard Bureau, NGB-HRC 690-500 (Jan. 7, 1998), reprinted  in J.A. 27.  Subsequently, in February 1999, the WisconsinACT submitted the following bargaining proposal to the  Wisconsin National Guard:


10
A Wage Leader employee shall not, as a condition of employment, be required to hold a military rank which is equal to or exceeds the military ranks of the employees with whom the Wage Leader works.


11
Memorandum from Leslie J. Hackett, President, Wis. Ass'n  of Civilian Technicians Chapter 26 Army, to Col. James  Krueck, Wis. Nat'l Guard-Human Resources (Feb. 2, 1999),  reprinted in J.A. 21.  One month later, the Texas-ACT  submitted a similar proposal:


12
An employee shall be eligible to apply for, to be selected for, and to be appointed to, a Wage Leader position, or a position that requires work with a Wage Leader, without restriction based on whether the employee's appointment would result in the Wage Leader having a military rank below that of any employee with whom the Wage Leader works.


13
Letter from Ronald Webb, President, Ass'n of Civilian Technicians, Texas Lone Star Chapter 100, to Gloria Sassman,  Labor Relations Specialist, Texas Adjutant General's Dep't  (Mar. 26, 1999), reprinted in J.A. 51-52.


14
The Offices of the Adjutant General found both proposals  to be nonnegotiable.  See Memorandum from Col. James A.  Krueck, Director, Wis. Nat'l Guard-Human Resources (Feb.  17, 1999), reprinted in J.A. 20;  Letter from James D. Bishop,  Labor Relations Specialist, Texas Adjutant General's Dep't,  to Ronald Webb, President, Ass'n of Civilian Technicians,  Texas Lone Star Chapter 100 (Apr. 27, 1999), reprinted in  J.A. 53.  The Unions then filed negotiability appeals with the  Authority.


15
On January 14, 2000, the Authority issued a Decision and  Order dismissing the appeals.  The Unions moved for reconsideration, and on June 7, 2000, the Authority denied the  motion for reconsideration.  The Unions then filed this petition for review.

II. Analysis
A. Standard of review

16
Our review of an Authority negotiability determination is  generally narrow.  Am. Fed'n of Gov't Employees v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998);  Overseas Educ. Ass'n, Inc.  v. FLRA, 858 F.2d 769, 771 (D.C. Cir. 1988).  The Federal  Service Labor-Management Relations Statute entrusts the  Authority with "resolv[ing] issues relating to the duty to  bargain in good faith."  5 U.S.C. 7105(a)(2)(E).  Review of  a final order of the Authority incorporates 706 of the  Administrative Procedure Act.  See 5 U.S.C. 7123(c). Thus, when acting "within its authority" and "consistent with  the congressional mandate," the Authority's decision may  only be set aside if it is found to be "arbitrary, capricious, an  abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A);  Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 & n.7, 98 n.8 (1983).


17
When the Authority's decision does not " 'derive[ ] primarily' from its interpretation of part of its enabling statute,"  however, and when it construes statutes that it does not  administer, "its interpretation is not entitled to deference." Dep't of Treasury v. FLRA, 837 F.2d 1163, 1167 & n.5 (D.C.  Cir. 1988);  see also Illinois Nat'l Guard, 854 F.3d at 1400. In the instant case, the Authority's decision rests, in part, on  its interpretation of 10 U.S.C. 976 and 32 U.S.C. 709,  legislative enactments that are not part of its enabling statute.  "We therefore accord the FLRA's construction of these  statutory provisions no deference, although we shall, of  course, follow its reasoning to the extent that we deem it  sound."  Dep't of Treasury, 837 F.2d at 1167.


18
B. The proposals at issue are outside of the duty to bargain


19
Section 7117(a)(1) of Title 5 specifies that the duty to  bargain in good faith extends to matters "not inconsistent  with any Federal law."  5 U.S.C. 7117(a)(1).  The FLRA  found that the Unions' proposals are inconsistent with  709(b) of the Technician Act, 32 U.S.C. 709(b).  We  agree.


20
Subsections 709(b)(2) and (3) of the Technician Act state  that National Guard technicians must be members of the  National Guard and hold the military grade specified by the  Secretary concerned for that position, that is, the military  grade specified by the Secretary of the Army or the Secretary of the Air Force.  These two subsections were contained  in 202 of H.R. 2, a bill proposed "to strengthen the Reserve  components of the Armed Forces, and clarify the status of  National Guard technicians," as originally introduced.  H.R.  Rep. No. 90-13, at 1, 101-02 (1967).  In Title II, which  addressed the status of National Guard technicians, the bill as  reported amended clause (b) of 709 as follows:


21
Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall, while so employed, be a member of the National Guard and hold the military grade specified by the Secretary concerned for that position.


22
Id. at 101-02.  In the Report accompanying the original bill,  the Committee on Armed Services observed that "[c]lause (b)  convert[ed] to a statutory requirement" that which had long  been the practice of the Secretary concerned, namely "to  designate certain positions as 'officer positions,' others as  'enlisted positions,' which [could] be filled only by individuals  who hold the appropriate grade in the National Guard."  Id.  at 58.  The Committee recognized the "high correlation between the duties of the technician in his military and civilian  capacities," and concluded that,


23
[i]n the interest of efficiency and discipline, a military commander should not be a civilian subordinate of a member of his unit.  Such inversions may be prevented by authorizing the Secretary concerned to establish the military grade required for employment in a particular technician position.  Proposed 32 U.S.C. 709(b) of the bill would so provide.


24
Id. at 58-59 (emphasis added).


25
In the Fall of 1967, the Committee on Armed Services,  considering H.R. 2, agreed to defer action on the section  addressing the status of National Guard technicians until the  second session of the 90th Congress.  Senate Comm. on  Armed Services, 90th Cong. 1967-68 Legislative Calendar, at  25 (July 22, 1968).  During the second session, the Committee  reported S. 3865, the National Guard Technician Act of 1968.S. Rep. No. 90-1446 (1968).  As with Title II of H.R. 2, a  purpose of the bill was to clarify the technicians' legal status. Id. at 1.  Important for present purposes, 709 clause (b) of  S. 3865 was identical to that contained in H.R. 2.  Id. at 4041.  The Report accompanying S. 3865 expressed the firm  view that "technicians who are required to be military members of the National Guard should occupy a military position  which is compatible with their civilian technician position." Id. at 20.


26
The legislative history underlying 709(b) underscores  three points.  First, Congress found compatibility requirements to be essential to military "efficiency and discipline." Second, Congress intended to maintain the long-time practice  of the Secretary "to designate certain positions" to "be filled  only by individuals who hold the appropriate grade in the  National Guard."  Third, in requiring National Guard technicians to "[h]old the military grade specified by the Secretary  concerned," 709(b) aims, inter alia, to preserve the "high  correlation between the duties of the technician in his military  and civilian capacities."  Because the Unions' proposals are at  odds with these purposes, they are "inconsistent with [a]  Federal law" and, consequently, outside the duty to bargain  under 7117(a)(1).  See, e.g., Ass'n of Civilian Technicians,  Mont. Air Chapter, 20 F.L.R.A. at 723-27 (examining legislative history of 709 and reaching same result).


27
In short, under the Technician Act, it is clear that a  National Guard technician "must" "hold the military grade  specified by the Secretary concerned for that position," and  that this requirement includes holding a grade that is consistent with the military grade inversion policy.  It also appears  undisputed that the Departments of the Army and the Air  Force, implementing the decision of the Secretaries, specified  that there could be no grade inversion in technician Wage  Leader positions.  The Authority was therefore fully warranted in finding that the Unions' proposals were nonnegotiable  under 7117(a)(1).


28
The Unions point out that the Authority did not find that  709(b) grants the agency unfettered discretion to determine military grades.  See Ass'n of Civilian Technicians, Texas  Lone Star Chapter 100, 56 F.L.R.A. at 434 n.4.  They assert,  additionally, that because statutes granting agencies discretion, but not unfettered discretion, are not bars to negotiation,  see, e.g., Dep't of Veterans Affairs, Veterans Admin. Med.  Ctr., Veterans Canteen Serv., 44 F.L.R.A. (No. 16) 162, 16365 (1992), their proposals are not prohibited by 709.  This  argument misses the point.


29
Bargaining over the military grade inversion policy is inconsistent with a federal law. That, by itself, makes the  proposals nonnegotiable.  The Authority made this absolutely  clear when it held that, with regard to a matter that might  otherwise be negotiable as a "condition of employment,"  "bargaining will nevertheless be foreclosed if a proposal is  inconsistent with law."  Ass'n of Civilian Technicians, Texas  Lone Star Chapter 100, 55 F.L.R.A. at 1229, reprinted in J.A.  13.  Further, in its order denying the motion for reconsideration, the Authority emphasized that the Unions' proposals are  "outside the duty to bargain without regard to whether they  are ... within the sole discretion of an agency."  Ass'n of  Civilian Technicians, Texas Lone Star Chapter 100, 56  F.L.R.A. at 434, reprinted in J.A. 17 (emphasis and ellipsis in  original).  We can find no fault with these holdings.


30
The Unions contend that the Authority's decision goes too  far in suggesting that any proposal affecting the "military  aspects of technician employment" is outside of the duty to  bargain.  There is merit in this contention, but we need not  address the issue.  The Authority is correct that the disputed  Union proposals are "inconsistent with law" and, therefore,  beyond the bounds of permissible bargaining.  We deny the  petition for review on this ground alone.

III. Conclusion

31
The petition for review is hereby denied.


32
So ordered.

