New York Council, Ass'n of Civilian Technicians v. Federal Labor Relations Authority, 555

• Decision Date: 14 March 1985
• Docket Number: D,No. 555,555
• Citation: 757 F.2d 502
• Parties: 118 L.R.R.M. (BNA) 3112 NEW YORK COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. State of New York, Division of Military and Naval Affairs, and United States Department of Defense, Intervenors. ocket 84-4128.
• Court: U.S. Court of Appeals — Second Circuit

Page 502

757 F.2d 502

118 L.R.R.M. (BNA) 3112

NEW YORK COUNCIL, ASSOCIATION OF CIVILIAN TECHNICIANS, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent State of New York, Division of Military and Naval Affairs and United States Department of Defense, Intervenors.

No. 555, Docket 84-4128.

United States Court of Appeals Second Circuit.

Argued Jan. 18, 1985.

Decided March 14, 1985.

Bruce E. Endy, Philadelphia, Pa. (Bernard N. Katz, Spear, Wilderman, Sigmond, Borish, Endy & Silverstein, Philadelphia, Pa., of counsel), for petitioner.

William R. Tobey, Washington, D.C. (Ruth E. Peters, Steven H. Svartz, William E. Persina, Washington, D.C., of counsel), for respondent.

Marc Richman, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., William Kanter, James C. Hise, Joseph R. Reyna, Washington, D.C., of counsel), for intervenors.

H. Stephan Gordon, Washington, D.C. (Clinton D. Wolcott, Washington, D.C., of counsel), for National Federation of Federal Employees, as amicus curiae.

William J. Stone, Washington, D.C. (Charles A. Hobbie, Mark D. Roth, Washington, D.C., of counsel), for American Federation of Government Employees, AFL-CIO, as amicus curiae.

Before OAKES, CARDAMONE and PIERCE, Circuit Judges.

CARDAMONE, Circuit Judge:

Apparently giving the maxim "apparel oft proclaims the man" ¹ the force of law, the Federal Labor Relations Authority has found that the New York National Guard may require its civilian technicians to be clothed in military dress. Resolution of the issue hinges on whether the technicians' attire is subject to mandatory bargaining or whether the wearing of uniforms is a "means" by which the Guard performs its mission and therefore is nonnegotiable. A previous decision of the Federal Labor Relations Authority was remanded because it had failed to address the "means" objection to negotiability. State of New York, Division of Military and Naval Affairs v. FLRA, 696 F.2d 202, 205 (2d Cir.1982). In its decision and order on remand, now before us on this appeal, the Authority disregarded the rule established by its predecessor that civilian attire is nonnegotiable only when it is shown that a functional relationship exists between the wearing of a uniform and the performance of the technician's duties. The Authority also disregarded the factual findings of the Federal Service Impasses Panel that the Guard had not demonstrated such a link between the "means" and the accomplishment of the Guard's mission. Nevertheless, we believe the Authority has given a reasoned explanation for its decision that does not contravene Congressional purpose. In this regard, it must be emphasized that the Authority was intended to take an independent approach to federal labor relations and was not to be bound--or even necessarily influenced--by its predecessor, the Federal Labor Relations Council. Hence, we deny the petition for review.

I FACTUAL BACKGROUND

The New York Council, Association of Civilian Technicians ("Union") petitions to set aside an order of the Federal Labor Relations Authority ("FLRA" or "Authority") reported as Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA No. 65 (1984). The order and opinion dismissed a complaint brought against the Division of Military and Naval Affairs, State of New York ("New York National Guard" or "Guard") for its refusal to comply with an order of the Federal Service Impasses Panel ("FSIP" or "Panel") that required the Guard to include a collective bargaining provision permitting its civilian technicians to wear civilian attire. The Authority found the issue to be beyond the scope of required bargaining. The New York National Guard and the Department of Defense have intervened and the American Federation of Government Employees, AFL-CIO, and the National Federation of Federal Employees have filed amicus curiae briefs. We have jurisdiction pursuant to Section 701(a) of the Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7123(a) (1982). Title VII of the Civil Service Reform Act of 1978 is codified as the Federal Service Labor-Management Relations Act (Labor Management Act), 5 U.S.C. Secs. 7101 et seq.

The Guard's mission is to provide trained personnel for mobilization in time of war, national emergency or civil disruption. The Adjutant General in each state--in New York the Chief of Staff to the Governor holds the position, but not the title--administers the hiring of civilian technicians, who are employed as aircraft mechanics, sheet metal mechanics, auto mechanics, electronic mechanics, machinists and supply technicians. They have been said to constitute the "backbone" of the Guard and are the only personnel on duty for much of the year. Maryland v. United States, 381 U.S. 41, 49, 85 S.Ct. 1293, 1298, 14 L.Ed.2d 205, vacated on other grounds, 382 U.S. 159, 86 S.Ct. 305, 15 L.Ed.2d 227 (1965). The technicians have federal civilian employee status under the National Guard Technicians Act of 1968, 32 U.S.C. Sec. 709 (1982), and as such are assigned wage grades, receive fringe benefits, negotiate labor agreements, and may only be discharged for "cause." See generally AFGE Local 2953 v. FLRA, 730 F.2d 1534 (D.C.Cir.1984) (discussing status of technicians under Technicians Act). As a condition of employment, these employees must be members in the Guard and attend four training assemblies each month and a two-week encampment each year. Air National Guard technicians in New York have always worn uniforms, but prior to 1972 Army Guard technicians did not.

The Union became the certified collective bargaining representative of all Army and Air National Guard technicians employed by the New York National Guard in 1970. In 1978, the Union filed a request with the FSIP asking it to resolve a dispute between it and the Adjutant General that related in part to the question of whether civilian technicians may wear civilian clothing when performing their civilian technician duties. The reason for the request was that National Guard Bureau regulations and the New York Adjutant General's directives required the technicians to wear uniforms even while performing civilian duties. The NGB regulation at issue reads:

Technicians in the excepted service will wear the military uniform appropriate to their service and federally recognized grade when performing technician duties and will comply with standards of the appropriate service pertaining to grooming and wearing of the military uniform.

After a hearing, the Panel recommended that the Union and the Adjutant General adopt language in their collective bargaining agreement that would provide civilian technicians "the option of wearing either the military uniform[ ] or an agreed-upon standard civilian attire without displaying military rank." The provision was subject to agreed-upon exceptions specifying circumstances under which uniforms could be required.

When the Guard rejected the recommendation, the Panel ordered the Adjutant General to implement it. No. 78 FSIP 32. The FLRA denied the Adjutant General's petition for reconsideration of the Panel's decision. The Adjutant General nonetheless continued its refusal to comply with the Panel's order. The Union therefore filed unfair labor practice charges, alleging a violation of Sec. 7116(a)(1) and (6) of the Labor Management Act. When the Authority's General Counsel issued a complaint, the Guard claimed that it was not obligated to bargain over the uniform issue because it was a management right under Sec. 12(b)(5) ² of Executive Order No. 11491, which at the time governed the labor relations of federal employees. The Authority agreed with the Administrative Law Judge and found that the Adjutant General had committed an unfair labor practice by refusing to comply with the Panel's order. It relied on its earlier decision in State of Nevada National Guard, 7 FLRA No. 37 (1981), in which it had held that the FSIP order concerning the uniform issue was not contrary to the United States Constitution or the Technicians Act, and that the Guard had demonstrated no "compelling need" for requiring uniforms.

The Guard appealed and we remanded the matter 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)" of the Labor Management Act. ³ State of New York v. FLRA, 696 F.2d at 205. We noted that State of Nevada National Guard had not addressed the issue, and that it had been properly raised in the instant proceeding. Id. In March 1983, the Authority issued a notice of reopened proceedings and requested the parties to submit statements on whether the uniform issue was nonnegotiable under Sec. 7106(b)(1). The Authority's General Counsel, the Union, and the Guard each submitted statements. The Guard attached affidavits of various State Adjutant Generals and requested an evidentiary hearing. The Authority denied that request. By the time the Authority requested these position statements, 60 Army and Air National Guard units had collectively bargained for the right to wear civilian attire. In its decision after remand, the Authority held that the uniform requirement was negotiable only at the election of the Guard as a "methods, and means of performing work" under Sec. 7106(b)(1) because permitting civilian attire would directly interfere with the performance of the technicians' duties in furtherance of the Guard's mission. By so holding, the Authority changed the interpretation of the "methods and means" language in Sec. 7106(b)(1) as it applies to the uniform question. The Authority's predecessor, the Federal Labor Relations Council ("FLRC" or "Council"), had required a "functional relationship" between the wearing of a uniform and accomplishment of the Guard's mission.

The Unions and amici now petition to have that the Authority's decision set aside on...