[ v15 p288 ]
15:0288(65)CA
The decision of the Authority follows:
15 FLRA No. 65
DIVISION OF MILITARY AND NAVAL
AFFAIRS, STATE OF NEW YORK,
ALBANY, NEW YORK
Respondent
and
NEW YORK COUNCIL, ASSOCIATION
OF CIVILIAN TECHNICIANS
Charging Party
Case No. 1-CA-19
8 FLRA 158
DECISION AND ORDER UPON REMAND
This case is back before the Authority as a result of a remand by the
U.S. Court of Appeals for the Second Circuit. See State of New York,
Division of Military and Naval Affairs v. FLRA, 696 F.2d 202 (2nd Cir.
1982). In the Authority's original Decision, /1/ the Respondent was
found to have violated section 7116(a)(1) and (6) of the Federal Service
Labor-Management Relations Statute (the Statute) by its refusal to
cooperate in a final decision and order of the Federal Service Impasses
Panel (the Panel) /2/ which required the parties to adopt language in
their collective bargaining agreement permitting National Guard
technicians the option of wearing either a military uniform or
agreed-upon civilian attire when performing civilian technician duties,
with agreed-upon exceptions to cover circumstances for which the wearing
of the uniform may be required. In finding a violation, the Authority
relied upon State of Nevada National Guard, 7 FLRA 245 (1981), another
unfair labor practice decision in which it rejected contentions that
negotiations over technician attire in these circumstances were
inconsistent with applicable law including the U.S. Constitution and the
National Guard Technicians Act of 1968 (32 U.S.C. 709, also referred to
as the Technicians Act) or that negotiations were barred by an agency
regulation for which a compelling need existed. In that case, no
specific argument was raised based on the management rights provisions
of Executive Order 11491, as amended, or of the Statute. The court, in
reviewing the Authority's decision in Division of Military and Naval
Affairs, State of New York, noted that the Authority's decision in State
of Nevada National Guard did not deal with the question of whether the
requirement that technicians wear military uniforms while performing
technician duties constituted a methods and means of performing work
within the meaning of section 7106(b)(1) of the Statute. /3/ However,
the court found that such question had properly been raised, but not
addressed in the administrative proceedings before the Authority in
Division of Military and Naval Affairs, State of New York. The court
stated that the lack of a determination on that question was significant
in view of the Authority's decision in National Treasury Employees Union
and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA
255 (1979) wherein the Authority held, inter alia, that a requirement
that uniformed Customs Officers wear nameplates constituted a means of
performing work. Thus, the court remanded the instant case to the
Authority "to develop a full record appropriate for judicial review as
to whether the attire the technicians should wear while engaged in their
daily duties as civilians is a non-negotiable matter under Section
7106(b)."
The Authority then issued a "Notice of Reopened Proceedings and
Request for Statements of Position" in which it referred to the court's
remand and direction that it "consider whether the attire which National
Guard technicians wear while engaged in their daily duties as civilian
technicians is a matter which is negotiable only at the election of the
agency pursuant to section 7106(b)(1) of (the Statute)." The Authority
requested "each of the parties to submit a statement of position with
respect to this issue only, including any and all arguments in support
thereof." In this regard, the National Guard Bureau, on behalf of the
Respondent, filed a consolidated response which included affidavits from
the Adjutants General of several states and the Charging Party filed its
statement of position. The General Counsel of the Authority also filed
a consolidated statement of position in this case. Upon careful
consideration of the entire record on this issue, the Authority makes
the following determinations. /4/
At the outset, the Authority must consider the General Counsel's
motion to strike affidavits from the Adjutants General of several states
which, as indicated above, were submitted by the National Guard Bureau
in behalf of the Respondent, as well as all references thereto and
arguments which address matters other than the relationship between
technician attire and section 7106(b)(1) of the Statute contained in the
National Guard Bureau's statement of positions. In view of the limited
scope of the court's remand, as reflected in the Authority's ensuing
request for statements of position, only those statements, arguments and
reasons which relate to section 7106(b)(1) of the Statute have been
considered herein, including those set forth in the affidavits
submitted. Accordingly, the motion is granted to that extent.
The National Guard Bureau contends in essence that because the
requirement to wear the military uniform is directly and integrally
related to the ability of the technician workforce to carry out its role
or functions and duties in pursuit of the overall military mission of
the National Guard, it constitutes a "methods, and means of performing
work." The General Counsel and the Charging Party, on the other hand,
contend principally that wearing the military uniform has no direct and
integral relationship to accomplishment of the technicians' duties while
such employees are in their civilian status. They assert that in the
absence of such a relationship, the military uniform does not constitute
a method or means of performing work within the meaning of section
7106(b)(1) of the Statute.
For the reasons which follow, the Authority concludes, in agreement
with the National Guard Bureau, that the requirement for civilian
technicians to wear the military uniform at all times does constitute a
"methods, and means of performing work" within the meaning of section
7106(b)(1) of the Statute.
In U.S. Customs Service, Region VIII, 2 FLRA 255 (1979), the
Authority, as previously noted, determined that the requirement for
uniformed Customs Officers to wear nameplates as part of their uniform
for purposes of identification constituted a means of performing work
within the meaning of section 7106(b)(1) of the Statute. In reaching
this decision the Authority, applying general rules of statutory
construction, determined that a "means" is in essence anything used to
attain or make more likely the attainment of a desired end, and in the
context of section 7106(b)(1), refers to "any instrumentality, including
an agent, tool, device, measure, plan, or policy used by the agency for
the accomplishing or furthering of the performance of its work."
Turning to the instant case, it is uncontroverted in the record that
the National Guard is a military organization with dual state and
Federal military missions. Specifically, upon state mobilization it
provides the State Governments with military units organized, equipped
and trained to function in the protection of life and property, and the
preservation of peace, order and public safety under the command of
state authorities. /5/ In this role it has been defined as "the modern
militia reserved to the States by Art. I, Section 8, Cl. 15, 16 of the
Constitution," Maryland v. United States, 381 U.S. 41, 46 (1965).
Furthermore, as an integral part of the national defense when Federally
mobilized, it provides the Federal Government with combat units, combat
support units and qualified personnel for active military duty, to
support augmentation requirements, to fulfill war and contingency
commitments, and to perform such peacetime military missions as are
compatible with training requirements and maintenance of mobilization
readiness. /6/ In addition, National Guard units must always be ready
for Federal mobilization to assist in controlling domestic civil
disorders. 10 u.s.c. 331 et seq.
Within this military organization National Guard technicians function
in three capacities in their respective units: They perform full-time
civilian work; they perform military training and duty; and they are
continuously available to enter active state or Federal military duty
whenever mobilized. See H. Rep. No. 1823, 90th Cong., 2d Sess. 2,
reprinted in 1968 U.S. CODE & AD. NEWS 3318, 3319.
However, while these technicians were granted status as Federal
civilian employees by the Technicians Act, it is clear that Congress
intended to organize and administer the technician program within the
military framework of the National Guard. This intent is reflected in,
for example, specific provisions in the Technicians Act which condition
the technicians' civilian employment status on maintenance of military
membership in the National Guard. 32 U.S.C. 709(b). As a consequence,
technicians are automatically separated from their civilian technician
employment if they cease to hold the military grade specified for their
technician position or if they are separated from the National Guard for
any reason. 32 U.S.C. 709(e)(1); State of Tennessee v. Dunlap, 426
U.S. 312 (1976).
Moreover, in this respect, the U.S. Court of Appeals for the D.C.
Circuit recently had occasion to examine the legislative history of the
National Guard Technicians Act of 1968 in American Federation of
Government Employees, AFL-CIO, Local 2953 v. Federal Labor Relations
Authority, 730 F.2d 1534 (1984), aff'g American Federation of Government
Employees, AFL-CIO, Local 2953 and National Guard Bureau, Office of the
Adjutant General, Nebraska, 7 FLRA 87 (1981). In that case, the court
upheld the Authority's decision that a proposal to preclude the use of
military appraisals when establishing reduction in force retention
registers for technicians was outside the duty to bargain. The court
relied heavily on its conclusion that the technician workforce was
established primarily to enable the National Guard to carry out its
military mission and that technicians were granted Federal civilian
employment status in order to make them eligible for Federal retirement
and fringe benefits and coverage under the Federal Tort Claims Act.
Specifically, the court found that "the primary mandate of the
(Technicians) Act is to insure that the military capability of the guard
is effective and efficient" and further that there is "no obligation to
trade on the essential mission of the National Guard at the bargaining
table." 730 F.2d at 1546.
Other courts similarly have relied upon this interrelationship
between the duties performed by technicians and the ability of the
National Guard to maintain its combat readiness. In Bruton v. Schnipke,
404 F.Supp. 1032 (E.D. Mich. 1975) for example, the court concluded that
the requirement that civilian technicians wear military uniforms was
rationally related to the National Guard's purpose, based on its view
that technician employment is essentially military in nature. In this
regard, in the court's opinion denying an earlier motion for a
preliminary injunction, (Bruton v. Schnipke, 370 F.Supp. 1157, 1163
(E.C. Mich. 1974)), the court stated:
The National Guard is a military organization. Its functions
are primarily military. The reason for its existence is primarily
military. All of the testimony supports the conclusion that
technicians function in a more military fashion if they wear the
military uniform. Indeed, it is because wearing the uniform
requires (technicians) to perform their work in a military way
that they object. It does not seem unreasonable to have military
work performed in a military manner. Given the National Guard's
purpose and function the Court cannot say that the regulation is
not reasonably related to the National Guard's purpose.
Likewise, in Syrek v. Pennsylvania Air National Guard, 437 F.Supp.
236 (W.D. Pa. 1977) the court determined that application of military
grooming standards to civilian technicians was reasonably related to the
National Guard's interest in assuring its combat readiness. The court
found that Congress, by its decision to organize and administer the
technician program within the military framework of the National Guard,
as well as to create an extremely close connection between the
technicians' civilian and military status, had placed great emphasis on
uniformity, discipline and esprit de corps in the technician program.
In reaching its conclusion the court stated: /7/
(T)echnicians perform their duties on military equipment using
military procedure in a military environment. The requirement
that civilian technicians, as a part of the overall disciplinary
requirements of their jobs, comply with Air Force hair standards
is reasonably related to assuring the combat readiness of the
Guard, which is the technicians; primary purpose.
Moreover, the court in Klotzbach v. Callaway, 473 F.Supp. 1337 (W.D.
N.Y. 1979), finding Bruton and Syrek to be controlling, also determined
that because of the clear interrelationship between technicians' duties
and the effective function of the Guard it was rational for the Guard to
establish standards of appearance, including dress requirements, for
technicians. In so concluding the court stated: /8/
Congress has chosen to administer the technician program within
the military framework of the Guard and to give technicians dual
status as civilians and military personnel. The legislative
history of the Act indicates that Congress contemplated a single
technician position, which "would entail a composite of
inseparable, simultaneous military and civilian duties."
(Citations omitted.) This intent is reflected in the statutory
requirement of enrollment in the Guard as a condition of
employment as a technician. Although the plaintiff would like a
clear division between civilian duties and military duties, this
simply is not possible because of the dual qualification aspect of
the position.
In the instant case, the record shows that the National Guard Bureau
uses the requirement for civilian technicians to wear military uniforms
to foster military discipline, promote uniformity, encourage esprit de
corps, increase the readiness of the military forces for early
deployment and enhance identification of the National Guard as a
military organization. In this regard for example, it is undisputed in
the record that the ability of the part-time Guard to mobilize into an
effective full-time military force is directly dependent upon the
full-time technician workforce. Moreover, the record before the
Authority indicates that because technicians are already in uniform,
National Guard unit commanders have the technician workforce itself
available for instant deployment in response to any disaster or civil
assistant request while mobilization of the part-time Guardspersons is
in process. /9/
However, due to the unique status of technicians as compared to other
Federal employees, and as a result of the essential role they play in
achieving rapid mobilization of the part-time Guard into a military
force, technicians must possess a highly developed sense of esprit de
corps and military discipline which enables them to be instantaneously
convertible to active military status. But, because the traditional
means of instilling esprit de corps and military discipline, such as
drill, military courtesy and protocol, are not available for use with
personnel who are employed technically in a civilian status, the wearing
of the military uniform becomes indispensable as a constant reminder to
technicians that they are members of an organization which is
essentially military and subject to mobilization at a moment's notice.
In addition to the vital role technicians play in effectuating rapid
mobilization and deployment of the Guard, they are also statutorily
responsible for training the part-time National Guard. 32 U.S.C.
709(a)(1). Specifically, the record indicates that the purpose of this
training is to enable the National Guard to achieve a high degree of
military readiness and that such training frequently occurs during the
technician's workweek. /10/ As a consequence, the uniform wearing
requirement is utilized by the National Guard to create the most
realistic military environment possible in order for such military
training to be successful.
Therefore, based on the foregoing, and consistent with the judicial
determinations supporting the conclusion that there is a direct and
integral relationship between the uniform wearing requirement and the
duties technicians perform in furtherance of the overall military
mission of the National Guard, discussed above, we find the
determination by the National Guard Bureau that technicians must wear
the military uniform while performing technician duties constitutes
management's choice of a "methods, and means of performing work" within
the meaning of section 7106(b)(1) of the Statute. Thus, while this
requirement may be bargained at the election of the agency, it is not
within the duty to bargain.
Consequently, in the circumstances of this case, the failure of the
Respondent to cooperate in the final decision and order of the Federal
Service Impasses Panel did not constitute a violation of section
7116(a)(1) and (6) of the Statute.
ORDER /11/
IT IS ORDERED that the complaint in Case No. 1-CA-19 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., July 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Division of Military and Naval Affairs, State of New York,
Albany, New York, 8 FLRA 158 (1982).
/2/ State of New York, Division of Military and Naval Affairs,
Albany, New York and New York Council, Association of Civilian
Technicians, Inc., 78 FSIP 32 (1979).
/3/ Section 7106(b)(1) provides, in pertinent part, as follows:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency . . . on the . . . methods,
and means of performing work(.)
/4/ The National Guard Bureau's motion that a hearing before an
Administrative Law Judge be conducted is denied since the additional
submissions of the parties have established a full record upon which the
Authority can decide the issue framed by the court.
/5/ National Guard Brief at 5.
/6/ Id. at 6.
/7/ Syrek v. Pennsylvania Air National Guard, supra, at 240.
/8/ Klotzbach v. Callaway, supra, at 1343.
/9/ National Guard Brief, Exhibit B at 7.
/10/ National Guard Brief, Exhibit A at 7-8.
/11/ This Order shall supersede our earlier Order in this matter.