                                                         September 21, 1979



79-69     MEMORANDUM OPINION FOR THE
          GENERAL COUNSEL, DEPARTMENT OF
          DEFENSE


          National Guard—Technician Dress and Grooming
          Regulations—Executive Order No. 11491—Review
          o f Decisions of Federal Labor Regulations
          Authority


   This responds to your request for the opinion o f the Department of
 Justice concerning Federal Labor Relations Council (Council) decisions
on the negotiability o f National G uard technician dress-and-grooming
 regulations. The question arose in administrative proceedings instituted by
labor organizations on behalf o f the technicians. Accompanying the re­
quest was a petition to the A ttorney General from the A djutants General
o f the 50 States, the Virgin Islands, Puerto Rico, and the District o f Col­
umbia, and a m em orandum in support o f their position that the Council’s
decisions are without legal support. As framed in that m em orandum, the
questions on which our opinion is requested are whether the Council has
jurisdiction to direct negotiations concerning a military regulation ap­
plicable only to National Guard technicians and promulgated pursuant to
statute by the Departm ent o f Defense, and, if so, whether the Council ap­
plied an invalid standard o f review and thus erroneously determined that
the regulation is negotiable.
   In o ur view; the Council did have jurisdiction to determine the
negotiability o f the regulation in question. Although the m ethod for ap­
pealing its decisions is disputed, it does appear that administrative and
judicial remedies are available to the dissatisfied party. It would be inap­
propriate under these circumstances for us to comment on the second
question.


                                    368
                                    The Background

   Executive Order No. 11491 was issued in 1969 to govern labor-manage-
ment relations in the executive branch o f the Federal G overnm ent.' It
established the Federal Labor Relations Council to administer and inter­
pret the order2 and the Federal Service Impasses Panel (Panel) to settle
negotiation impasses.3 It also set forth guidelines for negotiation o f collec­
tive bargaining agreem ents.4 Section 11(a), as amended prior to 1979, pro­
vided:
           (a)      An agency and a labor organization that has been ac­
        corded exclusive recognition, through appropriate represent­
        atives, shall meet at reasonable times and confer in good faith
        with respect to personnel policies and practices and matters af­
        fecting 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 for which a compelling need exists
        under criteria established by the Federal Labor Relations
        Council and which are issued at the agency headquarters level
        or at the level of a primary national subdivision; a national or
        other controlling agreement at a higher level in the agency; and
        this o rd er.5
Generally, the procedures for settling disputes as to negotiability were as
follows: if an issue developed whether a proposal was negotiable, either
party could seek a determ ination from the head o f the agency concerned.6
If the agency head determined an issue was not negotiable, a labor
organization could appeal this determ ination to the Council. If, after a
Council decision, the parties were unable to settle their differences, either
party could request the Federal Service Impasses Panel to consider the
m atter.8 Failure to obey a Panel order directing settlement was an unfair
labor practice9 and a complaint could be filed with the Assistant Secretary
o f Labor for Labor-M anagement R elations.10 The Assistant Secretary’s



   'This order was am ended by Executive Orders Nos. 11616, 11636, 11838, 11901, 12073,
12107, and 12126. Executive O rders Nos. 12107 and 12126 conform ed the order to the pro­
cedures established by the Civil Service Reform Act o f 1978, 5 U .S.C . §§ 7101-7135. Unless
otherwise specified, all citations to Executive O rder No. 11491 refer to the order as am ended
prior to Executive O rder No. 12107.
  ’Exec. Order No. 11491, § 4.
   ’Exec. O rder No. 11491, § 5.
  *Exec. O rder No. 11491, § 11.
  ’This version o f § 11(a) appears in Executive O rder No. 11838 (Feb. 6, 1975).
  ‘Exec. O rder No. 11491, § 11(c)(2).
  ’Exec. Order No. 11491, § 11(c)(4).
  'Exec. O rder No. 11491, § 17.
  ’Exec. Order No. 11491, § 19(a)(6).
   '“Exec. Order No. 11491, § 6(a)(4).

                                             369
 decision could be appealed to the C ouncil." A party dissatisfied with the
 Council’s decision on the unfair labor practice could seek relief in a
 Federal district c o u rt.12
    Title VII o f the Civil Service Reform Act, 5 U.S.C. §§ 7101-7135, re­
 vised these procedures, but did not affect matters pending as o f January
 11, 1979, the effective date o f the A c t:13
       No provision o f this Act shall affect any administrative pro­
       ceedings pending at the time such provision takes effect. Orders
       shall be issued in such proceedings and appeals shall be taken
       therefrom as if this Act had not been enacted.14
    The Council and the Panel have considered num erous cases on the nego­
 tiability o f the National G uard technician dress and grooming regulations.
 National G uard technicians are civilians employed full-time for the ad­
 ministration and training o f the National G uard and the maintenance and
 repair o f supplies issued to the National G uard or the Armed Forces.15
Technicians must be members o f the National G u ard .16 They are
employees o f the Departm ent o f the Army or the Department o f the Air
F orce,17 but technician employment and administration are delegated by
the Secretaries o f these departm ents to the A djutants General o f the States
and territories.1*
    Pursuant to regulatory authority,19 the Secretaries o f the Army and the
Air Force have required National G uard technicians to wear military
uniforms when performing technician duties, and to comply with groom ­
ing standards o f the appropriate service.20 Controversy arose when
bargaining units o f the National G uard technicians proposed amendments
to modify the requirement that uniform s be worn. When National Guard
officials refused to negotiate the m atter, the unions, following the pro­
cedures o f Executive O rder 11491, requested a determ ination from the
head o f the National Guard Bureau. In each case, he determined that
negotiation was barred by Bureau regulations. Thereafter, the unions peti­
tioned the Council for review. They argued that negotiation is not barred


   "E xec. O rder N o. 11491, § 4(c)(1).
   11See, e.g., Montana Chapter o f Assoc, o f Civ. Tech., Inc. v. Young, 514 F.(2d) 1165,
1168 (9th Cir. 1975); National Treasury Employees Union v. Fasser, 428 F. Supp. 295, 297
(D .D .C . 1976).
   'T h e section specifying the effective date is Civil Service Reform Act o f 1978, Pub. L. No.
95-454, § 907.92 Stat. 1227.
   “ Civil Service Reform Act o f 1978, P ub. L. N o. 95-454, § 902(b), 92 Stat. 1224, 5 U .S.C .
§ 1101 note.
   "32 U .S.C . § 709(a).
   “ 32 U .S.C . § 709(b).
   '’32 U .S.C . § 709(d).
   "32 U .S.C . § 709(c).
   ' ’32 U .S.C . § 709(a), relating to the employm ent o f National G uard technicians.
   ’“Technician Personnel M anual 200 (213.2), Subchapter 2-4, provides in part: “ Techni­
cians in the excepted service will wear the military uniform appropriate to their service and
federally recognized grade when perform ing technician duties and will comply with uniform
standards o f the services.”

                                              370
because, one, the regulation was not issued at or above the level o f a
primary national subdivision o f the agency, and two, no compelling need
for the regulation exists. The Council found that the National G uard
Bureau is a primary national subdivision o f the Departm ent o f Defense
within the meaning o f section 11(a) o f the order, but that no compelling
need existed for the regulations in question.21 It decided, therefore, that
the proposals o f the union were subject to negotiation.
   In most o f these cases, the parties still could not reach an agreement.
The unions requested the Federal Service Impasses Panel to consider the
negotiation impasses. The Panel issued recommendations that the parties
adopt language in their agreements that the employees should have the op­
tion o f wearing either a uniform or an agreed-upon standard civilian at­
tire, and that the parties should agree upon exceptions to cover occasions
on which the wearing o f the military uniform may be required.22 W hen
these suggestions were rejected, the Panel issued orders directing the par­
ties to adopt the Panel’s recommended language in their agreements.23
Some o f these cases are still pending before the Panel.

                                        Discussion

   It is our opinion that the Council had the authority under Executive
Order No. 11491 to determine the negotiability o f the dress-and-grooming
regulations. That order explicitly gave the Council authority to resolve
negotiability disputes.24 It applied, with certain exceptions, to all
employees and agencies o f the executive branch.25 It does not appear to us
that any o f the exceptions are relevant here. The A djutants General con­
tend that the exception provided in §. 3(b)(3) o f the order removes them
from its application. This section provides:
        (b) This Order * * * does not apply to —
           (3) any other agency, or office, bureau, or entity within an
        agency, which has as a primary function intelligence, investi­
        gative, or security work, when the head o f the agency deter­
        mines, in his sole judgm ent, that the Order cannot be applied
        in a manner consistent with national security requirements and
        considerations * * * .

  ’'See Council Consolidated Decision on Negotiability Issues, Nos. 76A-16, 76A-17,
76A-40, 76A-43, 76A-54 (Jan. 19, 1977); Consolidated Decision on Negotiability Issues,
Nos. 76A-75, 76A-76, 76A-84 (Jan. 19, 1977).
  11See, e.g.. Panel Reports and Recom m endations for Settlement, In the Matter o f State o f
New York and New York Council Assoc, o f Civilian Tech. Inc., 78 FSIP 32 (Sept. 28, 1978);
In the Matter o f Penn. National Guard and Penn. State Council Assoc, o f Civilian Techni­
cians, Inc., 77 FSIP 29 (Jan. 20, 1978); In the Matter o f Kansas A rm y Nat ’I Guard and Local
RI4-S7, N a t’l Assoc, o f G ov't Employees, 77 FSIP 30 (Nov. 2, 1977); In the Matter o f Mass.
Air National Guard and Local 3004, AFL-CIO, 77 FSIP 18 (Aug. 26, 1977).
   ’’See, e.g., Decisions and Orders, In the Matter o f Mass. Arm y N a t’l Guard and Local
1629, N a t’l Federation o f Federal Employees, 77 FSIP 31 (Aug. 22, 1978); In the Matter o f
Oregon A rm y/A ir N at’l Guard and Local 2986, AFL-CIO, 77 FSIP 53 (Aug. 22, 1978); In
the Matter o f California N at’l Guard and Local RI2-I05, N a t’l Assoc, o f G ov’t Employees,
77 FSIP 70 (April 13, 1977).
  “ Exec. Order No. 11491, §§ 4(c)(2), 11(c)(4).
  ’’Exec. Order No. 11491, §§ 2(a), 3(a).

                                             371
The A djutants General reason that they, as heads o f their agencies, have
determined that the wearing o f the uniform by the technicians is required
as a m atter o f security and that this determ ination cannot be reviewed by
the Council because it is left to the “ sole judgm ent” o f the agency head.
We disagree because the National G uard does not have as its primary
function “ intelligence, investigative or security w ork.” The primary func­
tion o f the National G uard is to m aintain and assure the strength and
organization o f reserve com ponents o f the Armed Forces.26 This is not the
type o f security work excepted from the order. The maxim noscitur a
sociis (a word is known by the com pany it keeps) applies here to limit the
term “ security work” to the type o f work associated with intelligence and
investigative w ork.27
    W hether the Council applied an invalid standard o f review is not a m at­
ter for the Departm ent o f Justice to determine. Under the order, the
Council is the final administrative authority.28 There is no right to appeal
to the Attorney General, and it would be inappropriate for the D epart­
ment o f Justice to comment on the decision.29 The right o f appeal lies else­
where. Issues arising out o f the controversy now are pending before the
Federal Labor Relations A uthority30 and at least one Federal co u rt.31
There is a long line o f opinions o f the Attorneys General to the effect that
it is not proper to express an opinion upon a judicial question that is pend­
ing in, or must ultimately be decided by, the courts.32 Accordingly, we
decline to comment on the Council’s decisions in these cases.

                                                  Leon U     lm an

                                   D eputy Assistant A ttorney General
                                                         Office o f Legal Counsel




   “ 32 U .S.C . § 102. Section 709(e)(2) deals with the military security standards applicable to
individual members o f a reserve com ponent. It does not define the primary function o f the
National G uard.
     Cf., Third N a t’l Bank v. Impac. Limited, Inc. 432 U .S. 312 (1977), Jarecki v. G.D.
Searte & Co.. 367 U .S. 303, 307 (1961).
   “ Exec. O rder No. 11491, § 11(c)(4).
   "See 11 O p. A tt’y Gen. 407, 408 (1865); 10 O p. A tt’y Gen. 347, 349 (1862); 6 O p. A tt’y
Gen. 289 (1854).
   “ The Federal L abor Relations A uthority was created by the Civil Service Reform Act o f
1978, 5 U.S.C. § 7105. It is the “ successor” to the Council. Section 7123 o f the Act provides
for judicial review o f final orders o f the A uthority.
   "See, Nevada N a t’l Guard v. United States, No. 79-7235 (9th C ir., filed May 31, 1979).
   "See, e.g., 41 O p. A tt’y Gen. 266, 272 (1956); 37 O p. A tt’y Gen. 34, 42 (1932); 33 Op.
A tt’y Gen. 86, 87 (1922).

                                              372
