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
 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
    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 resp