Montana Chapter of Ass'n of Civilian Technicians, Inc. v. Young, 73-2798
| Decision Date | 23 April 1975 |
| Docket Number | No. 73-2798,73-2798 |
| Citation | 514 F.2d 1165 |
| Parties | 89 L.R.R.M. (BNA) 2212 MONTANA CHAPTER OF ASSOCIATION OF CIVILIAN TECHNICIANS, INC., Appellants v. Brigadier General Rodger D. YOUNG, Chief of Staff of Air and Base Detachment Commander, et al., Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before VAN OOSTERHOUT, * WALLACE and SNEED, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
This action was instituted by the plaintiff Union, the exclusive representative of the Montana Air National Guard technicians, challenging the alleged determination of non-negotiability with respect to requirements which are imposed upon the Air National Guard technicians while performing their technician duties. Plaintiff was granted exclusive recognition pursuant to Executive Order 10988 was superseded by Executive Order (E.0.) 11491, 3 C.F.R. 254 (1974). Labor-management relations in the federal service are currently governed by E.O. 11491.
Employment of civilian technicians in the National Guard was authorized by the National Guard Technicians Act of 1968, 32 U.S.C.A. Sec. 709. As a condition of their employment such technicians are required to be members of the National Guard. 32 U.S.C.A. Sec. 709(b), (d). A technician is deemed to be a federal employee and the Adjutant General of the state is charged with employing and administering the technicians authorized by the Act. As members of the Air National Guard the civil technicians are subject to the requirements of the Air Force Manual and the Air National Guard Regulations. Section 40-01 of the Air National Guard Regulations requires the air technicians to wear the Air Force uniform while performing technician duties, except when the state Adjutant General authorizes other appropriate attire. Section 35-10 of the Air Force Manual requires the uniformed technicians to conform with established military customs and courtesies.
Section 11 of E.O. 11491, 3 C.F.R. at 260, imposes a duty upon federal agencies and labor organizations to:
"meet at reasonable times and confer in good faith with respect to personal policies and practices and matters affecting working conditions, so far as may be appropriate under applicable laws and regulations, including policies set forth in the Federal Personnel Manual, published agency policies and regulations ... and this Order."
Pursuant to Sec. 11 representatives of plaintiff and the Adjutant General of Montana began negotiations on March 10, 1969. During negotiations plaintiff proposed making the wearing of the military uniform by National Guard technicians optional. Plaintiff was advised that the issue was not negotiable and no agreement was reached in that respect. The non-negotiability position taken by the defendants was based on Air National Guard Regulation 40-01 which required the wearing of the uniform while technicians were on duty. However, defendants did agree to negotiate the matter of exempting specific functions or positions from the requirement.
On November 5, 1971, plaintiff submitted a request to the Federal Service Impasses Panel, a body established by E.O. 11491 to handle negotiation impasses, requesting the Panel to consider the impasse which the parties had reached on the wearing of uniform issue. The Panel found that the parties had not exhausted all efforts to negotiate an agreement and suggested resumption of negotiations. Subsequent attempts by plaintiff to negotiate the issue were unsuccessful. No further administrative action was pursued by plaintiff.
On December 12, 1971, plaintiff filed the instant complaint. In its complaint plaintiff seeks a declaratory judgment concerning the rights and obligations of the Montana Air National Guard technicians under the National Guard Regulation 40-01 which requires Guard technicians to wear military uniform while performing civilian technician tasks. Although not clearly stated in the complaint, plaintiff apparently sought revocation of the regulation in question and a declaration that the objected to requirements are proper subject for negotiation under E.O. 11491. The district court dismissed plaintiff's cause of action for lack of jurisdiction by reason of plaintiff's failure to exhaust available administrative remedies. The decision of the district court is reported in Montana Chapter of Ass'n of Civ.Tech., Inc. v. Young, 361 F.Supp. 442 (D.Mont.1973). WE affirm Judge Murray's order of dismissal.
Executive Order 11491 establishes a comprehensive program governing labor-management relations in the federal service. Section 4 of E.O. 11491 provides for the establishment of the Federal Labor Relations Council which, among other duties, may entertain "appeals on negotiability issues as provided in Sec. 11(c) of this Order." E.O. 11491 Sec. 4(c)(2). With respect to negotiation of agreements, Sec. 11(c)(4)(ii) provides:
The Adjutant General of Montana, who is charged with administering the National Guard Technicians Act of 1968, has determined that Air National Guard Regulation 40-01 is not negotiable with labor organizations. An issue has developed as to whether the plaintiff's proposal to negotiate is contrary to the regulations and Sec. 11(c) is thus applicable. Plaintiff's remedy is an appeal to the Federal Labor Regulations Council pursuant to Secs. 4(c)(2) and 11(c)(4) of E.O. 11491. See Hills v. Eisenhart, 256 F.2d 609 (9th Cir.1958).
Plaintiff contends that an appeal to the Federal Labor Relations Council would be futile because a challenge to a service regulation similar to the one here in question was rejected by the Council in the matter of NFFE Local 1636 and New Mexico National Guard, F.L.R.C. No. 73A-13 (Sept. 17, 1973). In an appeal taken pursuant to E.O. 11491, Sec. 11(c)(4)(ii), the union there alleged that the regulation involved was violative of certain statutory provisions of the United States Code. If Correct on this contention, the subject matter of the void regulation would then be a proper topic for negotiation. The Council found that the regulation did not conflict with applicable statutes and that the subject matter of the...
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