I




    Major General Ross Ayers
    AGC, Texas ARNG
    The Adjutant General

                                                       General
                                     of Texas Comply with Fed.
                                     Ex. Order No. 11491 and
                                     DOD No. 1426.1, although
                                     to do so apparently would
                                     conflict with Art. 5154c,
    Dear General Ayers:              V.C.S.
              You have requested a legal opinion of this office
    with reference to the following questions:
                  "Question No. 1. Is the Adjutant
             General of Texas required to complv with
             Federal Executive Order No. 11491 and
             Department of Defense Directive No. 1426.1
             which substantially require that the
             policies contained therein shall govern
             officers and agencies of the Executive
             Branch of Govesnment in all dealings
             with employee organizations representing
             such employees?
                  "Question No. 2. May the Adjutant
             General of Texas, or anyone actinq for
             him, recognize a labor organization of
             Federal employees who are National
             Guard technicians?
                  "Question No. 3. Is the Adjutant
             General of Texas, or anyone acting for
             him, required to enter into a coliec-
             tive bargaining contract with a labor
             organization of Federal employees who
             are National Guard technicians respect-
             ing their wages, hours or conditions
             of employment?

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Major   General Ross Ayers, page 2   (M-719)


          Federal Executive Order No. 11491 in Section I(a)
reads as follows:
                 "Section 1. Policy. (a) Each employ-
            ee of the executive branch of the Federal
            Government has the right, freely and with-
            out fear of penalty or reprisal, to form,
            join, assist a labor organization or to
            refrain from any such activity, and each
            employee shall be protected in the exer-
            cise of this right. Except as otherwise
            expressly provided in this Order, the
            right to assist a labor organization ex-
            tends to participation in the management
            of the organization and acting for the
            organization in the capacity of an organ-
            ization representative, including presen-
            tation of its views to officials of the
            executive branch, the Congress, or other
            appropriate authority. The head of each
            agency shall take the action required to
            assure that employees in the agency are
            apprised of their rights under this sec-
            tion, and that no interference, restraint,
            coercion, or discrimination is practiced
            within his agency to encourage or discour-
            age membership in a labor organization."
          Department of Defense Directive No. 1426.1 in
Sections I and III A issued March 26, 1970, reads as follows:
                 "I. Furpose. This Directive estab-
            lished policies and procedures applicable
            to labor-management relations within the
            Department of Defense in order to promote
            effective, equitable, and uniform imple-
            mentation within the Department of the
            policies, rights, and responsibilities
            prescribed in Executive Order 11491
            (Enclosure 1).




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        Major General Ross Ayers, page 3   (M-71.9)



                       III. Applicability. A. Except as
                 provided in subsection B of this section
                 'theprovisions of this Directive and Exe-
                 cutive Order 11491 are applicable to all
                 components of the Department of Defense
                  (Military  Departments, Defense Agencies
                 and the office of the Secretary of De-
                 fense) , hereinafter referred to as "DOD
                 components," including nonappropriated
                 fund activities under their cognizance.
                 With respect to matters covered by this
                 Directive only, the Chief of the Nation-
                 al Guard Bureau and the Chiefs of the
                 Army and Air Force Exchange Service and
                 the Army and Air Force Motion Picture
                 Service may make those decisions and
                 take those actions which are the respon-
                 sibility of the head of a DOD component,
                 providing such authority is expressly
                 delegated by both the Secretary of the
                 Army and Secretary of the Air Force on
                 or after the date of issuance of this
                 Directive. When such authority has
                 been delegated, this phrase "DOD compo-
                 nent" appearing in this Directive shall
                 be understood as applying to the National
                 Guard Bureau, the Army and Air Force Mo-
                 tion Picture Service as well as to the
                 Military Departments, the Defense Agen-
                 cies, and OSD."
                  Pertinent also is Title 32, USCA 709, and National
        Guard Regulation No. 51 and Air National Guard Regulation
        No. 40-01 adopted pursuant thereto, the Foreword of which
        provides:
                       "This is the regulation prescribed
                  under Act of 13 August 1968 (82 Stat.
                  755; 32 USC 709) by the Secretary of
                  the Army and the Secretary of the Air
                  Force and approved by the Secretary of
                  Defense for the administration of Na-
                  tional Guard technicians. As required,
                  it modified and supplements the Civil
                  Service laws, and Civil Service Commis-
                  sion and Department of Defense civilian

                                  :3479.
.




    Major   General   Ross   Ayers, page 4     (M-71 9),



               personnel regulations and rules. This
               regulation will be used in lieu of%y
               and Air Force civilian personnel regula-
               tions which are not applicable to the
               administration of National Guard tech-
               niclans. It will be used by the State
               Adjutant General, together with the
               Civil Service Commission's Federal Per-
               sonnel Manual System and applicable
               issuances of other Federal agencies as
               specified herein, in administering
               technicians as Federal civilian employ-
               ees . This regulation is also used by
               Grating   officials below the State
               level in carrying out their responsi-
               bilities for the technician program
               and in keeping technicians informed.
               It is equally-applicable to both.Army
               and Air National Guard technicians
               and must be uniformly applied. These
               technicians are by law Federal employ-
               ees of the Army or the Air Force, as
               mermined   by their service assignment.
               As Federal employees, technicians are
               subject to all Civil Service laws and
               Civil Service Commission and Depart-
               ment of Defense civilian personnel
               rules and regulations, except as modi-
               fied by this regulation. Changes to
               this regulation may be issued as re-
               quired &    after prior approval by
               the Secretaries of the Army, Air Force
               and Defense. This requirement applies
               to all substantive policy and proce-
               dural changes, as well as proposals
               for changes in current authorities
               for the technician program." (Emphasis
               added.)
              Title 32, USCA~700 and its implementing National Guard
    Regulation No. 51, para. 2-4, vests authority for the adminis-
    tration of National Guard technicians in the Chief, National
    Guard Bureau, and delegates to the Adjutant General of each
    State the responsibility for "implementation and administration
    of the technician program," including "compliance with Statutes
    and regulations concerning management and administration of the


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.   .




        Major General Ross Ayers, page 6    (M-719)


        above cited. Furthermore, it is our opinion that the Adjutant
        General of Texas, a State of Texas Official, who is appointed
        by the Governor of Texas, is not prohibited by Article 5154~
        from complying with the provisions of Federal Executive Order
        No. 11491, DOD Directive No. 1421.1 and NGR Sl/ANGR 40-01.
                  While it might initially appear that Article 5154~
        and Executive Order No. 11491, DOD Directive No. 1421.1 and
        NGR 51/ANGR 40-01 are in direct conflict, the Federal provi-
        sions apparently granting to federal employees all the rights
        and privileges denied employees of the State of Texas, it is
        not necessary to find a conflict whenwe consider that the
        definition of public employees covered by Article 5154~ is
        limited to employees of the State of Texas or one of its sub-
        divisions.
                   We do not believe the Legislature intended that the
        public employees covered by Article 5154~ should include
        employees of the federal government. In any event, it is well
        settled that when federal law and state law conflict in the same
        areas  of jurisdiction and subject matter, the state law~must
        yield to and is preempted by valid federal law. Ma o v. U.S.,
        63 S. Ct. 1137, 319 U.S. 441: U.S. v. Georgia Public  Service
        comm.,  83 S. Ct. 397, 371 U.S. 285; U.S. v. Allegheny County Pa.,
        b4     Ct. 908, 322 U.S. 174; Maryland v. Wirts, 88 S. Ct. 2017,
        392 U.S. 183. We must presume under the well settled canons
        of statutory construction that the Legislature did not intend
        to enact invalid legislation and did not intend that Article
        5154~ should cover federal employees.
                  We pass now to consideration of whether the Adjutant
        General, as an officer of the State of Texas but in command
        and supervision of these federal employees and as a federal
        agent must comply with the Executive Order and Defense Direc-
        tive in question. Our opinion is that he must. Article 5781,
        Vernon's Civil Statutes, with reference to his powers and
        duties, in its relevant portions, provides, as follows:
                  "Section 4....He...shall perform as near as
                  practicable, such duties as pertain to the
                  Chiefs of Staff of the Army and Air Force
                  and the Secretaries of the military services,
                  under the regulations and customs of the
                  United States Armed Forces....



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        Major   General Ross Ayers, page 5   (M-719)


        technician,programs." The Adjutant General is further expressly
        charged, among other things, with employment, assignment, pro-
        motion, reassignment, suspension, discipline and separation of
        technicians, determination of their technical qualifications
        and ability to perform their duties, maintaining control of
        expenditure of man months and funds, authorizing administrative
        absences, establishing the hours of duty and the work week, and
        providing information to technicians on their responsibilities
        and obligations as federal employees and concerning their
        privileges and rights, including the right of appeal and the
        procedures for requesting review of grievances and complaints.
        Paragraph 2-4b (20) further provides that the Adjutant Generals
        of each state shall exercise such other authority as may be
        delegated to them by the Chief, National Guard Bureau. As a
        General Officer of the National Guard he is subject to desiqna-
        tion by the federal government to act as its agent when so
        authorized and as permitted by Article XVI, Sections 33 and 40,
        Constitution of Texas.
                  You are concerned whether Article 5154c, Vernon's
        Civil Statutes, Sections 1 and 2, are applicable to National
        Guard technicians and their relationship to the Adjutant
        General. The Sections read, in part:
                   "Section 1. It is declared to be against
                   the public policy of the State of Texas for
                   any official or group of officials of the
                   State, or of a County, City or Municipality
                   or other political subdivision of the State,
                   to enter into a collective bargaining contract
                   with a labor organization respecting the wages,
                   hours, or conditions of employment of public
                   employees, and any such contracts entered into
                   after the effective date of this Act shall be
                   null and void.
                   "Section 2. It is declared to be against the
                   public policy of the State of Texas for any
                   such official or group of officials to recog-
                   nize a labor organization as the bargaining
                   agent for any group of public employees."
                  In answer to your first question, we have concluded
        that we must give an affirmative answer. The technicians of
        the Texas National Guard and the Texas Air National Guard are
        federal employees, who must be governed by the federal laws


                                    -3481-
.   ,
          .   .   .




        Major General Ross Ayers, page 7            (M-719)


                      "Section 8. The Adjutant General shall pre-
                      scribe regulations'not inconsistent with
                      the law for the government of his depart-
                      ment...”

                    In answer to your second and third questions you are
        advised that in the opinion of this office both of these ques-
        tions may be answered in the affirmative, provided, however,
        that the Chief, National Guard Bureau, has delegated the respon-
        sibility to the Adjutant General to recognize a labor orqaniza-
        tion of federal employee National Guard technicians and enter
        into a collective bargaining contract with such employees
        pursuant to the federal laws heretofore cited. The National
        Guard Regulation No. 51 does not expressly cover recognition
        of labor unions and collective bargaining and consequently
        there remains   the question of interpretation as to whether
        such matters are impliedly delegated to an Adjutant General.
        It has been a policy of this office not to interpret federal
        laws and regulations nor to advise with reference to the
        duties of federal agencies. Attorney General Opinion No.
        C-90 (1963). Consequently, 'we must defer this matter to the
        Chief, National Guard Bureau, who is authorized by that requ-
        lation to delegate such authority to the Adjutant General.
        You are, therefore, advised to contact that office for its
        interpretation of authority or delegation thereof, to collec-
        tively bargain and recognize such a labor organization. Me
        find no state law impediments to the exercise of such authority,
        provided it is properly delegated to the Adjutant General by the
        National Guard Bureau.
                  This opinion does not apply to those National Guard
        technicians who are employed as state employees and receive
        pay from state appropriations. The Adjutant General may not
        recognize a labor union representing such employees or nego-
        tiate a collective bargaining contract with them. Article
        5154c.
                                 SUMMARY
                           Federal Executive Order No. 11491, DOD
                      Directive No. 1421.1 and NGR 51/ANGR 40-01
                      grant to federal employees who are employed
                      by the Texas National Guard and the Texas Air
                      National Guard as technicians the right to be-
                      long to a labor organization that represents


                                           -3483-
.   ,




        Major General Ross Ayers, page 8       (M-71 9)



                 them in all matters pertaining to their em-
                 ployment. State employee National Guard tech-
                 nicians paid by the State have no such right,
                 however.
                       The Adjutant General may recognize a
                  labor organization of such federal employee
                  National Guard technicians and enter into
                  a collective bargaining contract with them,
                  provided the Chief, National Guard Bureau,
                  properly delegates such responsibility to him.
                  The Attorney General of Texas will defer
                  construction of federal laws and regulations
                  to the appropriate fed   1 authorities.
                                       /7+



                                                 C. MARTIN
                                               y General of Texas

        Prepared by Ronald E. Luna
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        W. E. Allen, Co-Chairman
        Wayne R. Rodgers
        Houghton Brownlee
        Harold Kennedy
        Roger Tyler
        MEADE F. GRIFFIN
        Staff Legal Assistant
        ALFRED WALKER
        Executive Assistant
        NOLA WHITE
        First Assistant




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