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).
-3478-
. .
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....
-3482-
. .
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
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. ,
. . .
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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