15:0288(65)CA - Division of Military and Naval Affairs, State of New York, Albany, NY and New York Council, ACT -- 1984 FLRAdec CA
[ v15 p288 ]
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.