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14-IB06 11/03/14 Attorney General Opinion re: the Delaware National Guard’s Fire Fighters

Written on: November 3rd, 2014 in State Employees

OFFICE FOR THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 14-IB06

November 3, 2014

VIA EMAIL AND REGULAR MAIL

Aaron M. Shapiro, Esquire
Labor and Employment Practices Administrator
State of Delaware Office of Management and Budget
Carvel State Office Building, 10th Floor
820 N. French Street
Wilmington, DE 19801

Re: Request for Attorney General’s Opinion Regarding the Delaware National Guard’s Fire Fighters        

Dear Mr. Shapiro:

In your capacity as the Labor Relations and Employment Practices Administrator of the State of Delaware Office of Management and Budget’s Human Resource Management Division (hereafter the “Administrator”), you have requested this Office to issue an opinion addressing the following questions:

(1)  Whether 20 Del. C. § 185 directs that Delaware National Guard (hereafter “DNG”) state employees, in particular its Fire Fighters (hereafter “FFs”), may only look to federal collective bargaining law for the purpose of determining their collective bargaining rights, rather than Delaware collective bargaining law (19 Del. C. Chapter 16)?

(2) If the DNG FFs are covered by Delaware collective bargaining law, is the scope of bargaining superseded or controlled by 20 Del. C. § 185 directing that DNG’s state employees shall be governed in accordance with the rules and regulations that pertain to the federal military technician program, which establishes qualifications, standards of service and terms of employment based on federal rules and National Guard Bureau / Air National Guard standards?

II. Brief Answers.

As to (1): No.  For the reasons set forth below, we conclude that DNG FFs who have been certified as a collective bargaining unit by the State of Delaware Public Employment Relations Board may legitimately avail themselves of the State of Delaware’s collective bargaining laws to determine their collective bargaining rights.

As to (2): Yes.  DNG FFs’ scope of bargaining is controlled and limited by 20 Del. C. § 185.

III.  Factual Background.

The Administrator has submitted requests for legal advice (hereafter the “Request”) regarding matters that have not been the subject of any State of Delaware judicial determination or decision.  Accordingly, this opinion is entirely predictive in nature.  Further, we have conducted no independent investigation of the facts provided by the Administrator.  To the extent different facts arise, such facts may alter, modify or even undermine the conclusions and predictions set forth herein.

For the purposes of this opinion, we have adopted the facts as set forth in the Administrator’s Request.  Therein, the following relevant facts and circumstances were provided to us:

The DNG employs approximately 30 FFs (additional positions are authorized), whose positions are funded through a formal agreement with the National Guard Bureau (NGB). This agreement is referred to as the Master Cooperative Agreement (MCA). The MCA establishes the number of authorized positions, and the maximum reimbursable annual wage/salary rates for the FF positions including pay grade progression. Additionally, the MCA establishes operational, training and fitness standards that are necessary to fulfill the Air National Guard Fire Protection Activities (ANGFPA) requirements in Delaware.

The FF positions are classified by DNG as “Dual Status.” The FFs are employed as “civilian technicians” but are also required to be active members in good standing of the National Guard. They hold military rank with some opportunity for promotion. In November 2012, the International Association of Firefighters, Local 4471 (IAFF) filed a petition with the Delaware Public Employment Relations Board (PERB) to form a new bargaining unit for the FFs under authority of the Police Officers’ and Firefighters’ Employment Relations Act (POFERA; 19 Del. C. Chapter 16). While the State objected to the inclusion of supervisory positions in the proposed bargaining unit—which was denied by the PERB in the absence of any statutory prohibition against their inclusion—the State did not then raise the fundamental jurisdictional question of whether the FFs are in fact state employees for the purpose of collective bargaining and coverage by POFERA. The PERB certified the petition, an election was held, and the FFs voted to form a bargaining unit with the IAFF as their designated representative.

DNG classifies its FFs as state-employee civilian technicians, as opposed to federal-employee civilian technicians. However, based on 20 Del. C. § 185, their standards of pay and the source of their compensation, benefits, and service/duty requirements have all been established and remain controlled by NGB or other federal rules, regulations and standards. The only currently identified differences are that the FFs (as well as other DNG state employees) are eligible for a State of Delaware service pension and health care coverage, and are covered under the State of Delaware Office of Workers’ Compensation.

Federal civilian technicians employed by DNG are not eligible to engage in collective bargaining under Delaware law. However, they are covered by federal collective bargaining law (5 U.S.C. § 7101 et. seq.; Federal Labor Relations Authority) and have exercised rights thereunder to form a federal civilian technician bargaining unit and secure a collective bargaining agreement with the DNG (“Agreement Between The Adjutant General, State of Delaware and The Association of Civilian Technicians, Delaware Chapter”).

DNG has historically applied 20 Del. C. § 185 (Military and Civil Defense, National Guard Exemption from state merit system) to govern the employment of its FFs “in a like manner” to federal military technicians:

Personnel employed by the State to support the operations and maintenance of the National Guard shall be exempt from the state merit system and shall be paid in accordance with like positions of the military technician programs of the Department of Defense. Such employees shall be governed in a like manner in accordance with the rules and regulations which pertain to the federal military technician program.

 In addition to the facts provided in the Administrator’s Request, we were also presented with several pieces of correspondence between the State of Delaware’s Department of Military Affairs and the State of Delaware’s Office of Budget Director (a predecessor agency to the State of Delaware Office of Management and Budget.  These items of correspondence repeatedly characterize DNG FFs as “federally-funded State Employees” requiring “State Clearinghouse” approval and treat these positions as if they are state employees in all respects other than funding source.

IV.  The Law and Application to the Facts.

A)  DNG FFs may avail themselves of PERB’s jurisdiction.

It is the policy of the State of Delaware to permit publically-employed firefighters the right to collectively organize and bargain and to vest the State of Delaware Public Employment Relations Board with the authority to resolve disputes between firefighters and their public employers.  19 Del. C. § 1601.  See also Del. Op. Atty. Gen. 95-IB31 (Oct. 4, 1995)(interpreting the word “employee” in the POFERA to include only police officers and firefighters employed full-time by public bodies).  DNG is a State of Delaware public body in all respects.2

POFERA grants broad authority to PERB to determine whether a group of firefighters may avail themselves of its jurisdiction. POFERA defines “appropriate bargaining unit” and “bargaining unit” as “a group of  . . . firefighters designated by the Public Employment Relations Board as appropriate for representation by an employee organization for purposes of collective bargaining.” 19 Del. C. § 1602 (a).   Similarly, the statute defers to PERB when defining the term “public employee” as follows:

any . . . firefighter employed by a public employer except those determined by the Board to be inappropriate for inclusion in the bargaining unit; provided, however, that for the purposes of this chapter, this term shall not include any state employee covered under the State Merit System.

19 Del. C. § 1602 (k).

Finally, PERB is specifically empowered to administer POFERA.  19 Del. C. § 1606.  As set forth in the facts provided to us, DNG FFs are not State of Delaware merit employees and PERB has officially certified them as a collective bargaining organization.3  For these reasons, the DNG FFs may access PERB to resolve disputes arising out of their formation, the scope of bargaining, and the application of any eventual collective bargaining agreement as more fully set forth in the POFERA.  Accordingly, we answer the Administrator’s first question in the negative.

 B) 20 Del. C. § 185 likely limits the DNG FFs’ scope of bargaining.

Any disputes about the appropriate scope of bargaining between the DNG FF’s and DNG must be presented to PERB as required by the POFERA (see 19 Del. C. §§ 1602 (e),(n), 1605, 1607(a)(5), (b)(2), and 1608).  We predict that PERB would determine that the POFERA’s general grant of authority to negotiate the terms and conditions of DNG FFs’ employment must, generalia specialibus non derogant, yield to the more specific limitations on DNG set forth at 20 Del. C. §§ 103 and 185.    We also predict that PERB would limit the scope of “terms and conditions of employment” for which the DNG FFs may negotiate to only those items outside the federal statutes, rules, and regulations relating to federal military technicians.

Title 20, Chapter 1 of the Delaware Code specifically addresses the administration of the Delaware National Guard and its employees.

The National Guard of this State shall conform to federal statutes and regulations relating to and governing the armed forces of the United States, insofar as they are applicable and not inconsistent with the Constitution of Delaware or this title.

20 Del. C. § 103.

Personnel employed by the State to support the operations and maintenance of the National Guard shall be exempt from the state merit system and shall be paid in accordance with like positions of the military technician programs of the Department of Defense. Such employees shall be governed in a like manner in accordance with the rules and regulations which pertain to the federal military technician program.

20 Del. C. § 185.

As set forth in the facts provided to us, DNG FFs are treated as exempt state employees and have been so classified by the State of Delaware since 1989. This treatment is consistent with the requirements of 20 Del. C. § 185.  That section of the Delaware Code requires that DNG FFs be paid “in accordance with like positions in the military technician programs of the [United States] Department of Defense.” Id. That section also requires DNG to govern the FFs in “a like manner in accordance with the rules and regulations which pertain to the federal military technician program.”  Id.  20 Del. C. § 185 addresses pay and other “terms and conditions” as distinct but similarly treated items.  Both must conform to the manner in which federal military technicians are administered and employed.

We do not read 20 Del. C. § 185 to be ambiguous or in conflict with POFERA’s general grant of authority to negotiate the terms and conditions of the FFs employment.4  20 Del. C. § 185’s requirements only apply to a defined subset of publically-employed firefighters.  Further, POFERA’s definition of “terms and conditions of employment” specifically exclude those “matters determined by. . . any other law of the State to be within the exclusive prerogative of the public employer.”  19 Del. C. § 1602 (n).  With respect to the FFs, 20 Del. C. § 185 directs DNG to only apply terms and conditions of employment that are consistent with the rules or regulations pertaining to the “federal military technician” program.  Accordingly, DNG FFs’ POFERA-defined terms and conditions of employment are specifically constrained by, and must yield to, 20 Del. C. § 185’s express directives.  Accordingly, we answer the Administrator’s second question in the affirmative.

V. Conclusion

For all the foregoing reasons, DNG FFs may avail themselves of the State of Delaware’s collective bargaining laws as set forth in the POFERA however, the scope of their bargaining is controlled and limited by 20 Del. C. § 185’s directive that DNG may only pay and govern its FFs consistent with the laws, rules, regulations, and pay scale pertaining to the federal military technician program.

Very truly yours,

/s/ Aaron R. Goldstein

Aaron R. Goldstein
Deputy Attorney General
Approved:

/s/ Allison E. Reardon

Allison E. Reardon
State Solicitor

FOOTNOTES

1 It appears that the State Clearinghouse specifically approved the hiring of DNG’s firefighter compliment at its November 29, 1989 meeting.

2 “The Delaware National Guard . . . when not in the service of the United States, shall be governed and their affairs administered pursuant to the laws of this State, and the laws of the United States, . . . the Department of Military Affairs, which is hereby established and which shall consist of the Adjutant General as its chief executive and such other officers, warrant officers and enlisted personnel and civilian employees as the laws of the State or the laws of the United States may direct or permit. The Department of Military Affairs shall be a department of the executive branch of government in a like manner as all other such departments.”  20 Del. C. § 121.

3 The Department of Justice does not have the authority to independently set aside the decisions of the PERB.  To the extent that there is disagreement with the PERB’s determination, it is suggested that the Administrator seek any available remedy to advocate on this topic before the PERB.

4 Unambiguous statutes are given their plain meaning.  Sussex County Dep’t of Elections v. Sussex County Republican Committee, 58 A.3d 418, 422 (Del. 2013).





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