Do National Guard firefighters who are classified as state employees have the right to collectively bargain under Delaware law, or only federal law?

Official title

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

Plain-English summary

The State of Delaware's labor relations administrator asked the AG to resolve a jurisdictional dispute involving about 30 firefighters employed by the Delaware National Guard (DNG). These firefighters hold a hybrid "dual status," working as civilian technicians while also serving as active National Guard members, and their pay, benefits, and duty standards are set through a federal agreement called the Master Cooperative Agreement. In 2012, their union petitioned Delaware's Public Employment Relations Board (PERB) to form a bargaining unit under the state's firefighter collective-bargaining law, and PERB certified the unit. The state later asked the AG to weigh in on two questions: whether these firefighters could use Delaware's collective-bargaining law at all, given that a separate statute ties their employment terms to federal military technician rules, and if so, how much of their employment those state bargaining rights actually reached.

Because no Delaware court had ruled on the issue, the opinion is explicitly predictive, based on the facts the administrator provided. The AG concluded these firefighters could indeed access Delaware's state collective-bargaining law, since they are not covered by the state merit system and PERB had already certified their bargaining unit. But the AG also concluded that the more specific statute governing National Guard employees, 20 Del. C. § 185, limits what they can actually bargain over: because that statute ties their pay and other terms of employment to the federal military technician program, the AG predicted PERB would treat that specific rule as controlling over the general bargaining authority in Delaware's firefighter law, leaving negotiable only those terms and conditions not already dictated by federal rules.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can National Guard civilian employees join a union and bargain collectively under state law?

According to this opinion, dual-status National Guard firefighters classified as state employees (not federal employees) and not covered by the state merit system could access Delaware's Police Officers' and Firefighters' Employment Relations Act to form a bargaining unit and negotiate, once PERB certified that unit.

If they can bargain, what can they actually negotiate over?

The opinion predicted their bargaining rights would be limited to whatever is not already controlled by federal military technician rules. Because a separate Delaware statute ties their pay and other terms of employment to the federal Department of Defense's military technician program, those specific, federally-set terms would not be open to state-level negotiation.

Why does it matter whether these firefighters are "state employees" versus "federal employees"?

The opinion notes that federal civilian technicians employed by DNG cannot bargain under Delaware law at all; they are limited to federal collective bargaining law and the Federal Labor Relations Authority. The distinction determined which entire legal framework, state or federal, applied to these firefighters in the first place.

Is this kind of opinion binding on the Public Employment Relations Board?

No. The opinion states plainly that the Department of Justice cannot set aside PERB's decisions, and that this opinion is a prediction about how PERB would likely rule on the scope-of-bargaining question, not a final resolution of it. Anyone disagreeing with PERB's eventual determination would need to pursue an available remedy directly before PERB.

Background and statutory framework

Delaware's Police Officers' and Firefighters' Employment Relations Act (POFERA), 19 Del. C. Chapter 16, lets publicly-employed firefighters organize and bargain, with PERB empowered to resolve disputes between firefighters and their public employers, 19 Del. C. § 1601, and to administer the Act generally, 19 Del. C. § 1606. POFERA defines a "bargaining unit" as a group PERB designates as appropriate for representation, 19 Del. C. § 1602(a), and defines "public employee" to include firefighters employed by a public employer except those covered by the state merit system, 19 Del. C. § 1602(k). The opinion applies its own 1995 precedent, Del. Op. Atty. Gen. 95-IB31, interpreting POFERA's "employee" definition to reach only full-time police officers and firefighters employed by public bodies, and treats the Delaware National Guard as a public body in all respects under 20 Del. C. § 121.

Separately, Title 20 of the Delaware Code governs the National Guard specifically. 20 Del. C. § 103 requires the Guard to conform to federal statutes and regulations governing the armed forces where not inconsistent with Delaware law, and 20 Del. C. § 185 exempts Guard support personnel from the state merit system while requiring that they be paid, and otherwise governed, "in a like manner in accordance with the rules and regulations which pertain to the federal military technician program." The opinion reasons that under the interpretive principle generalia specialibus non derogant (the specific governs over the general), § 185's specific directive would control over POFERA's general grant of bargaining authority, consistent with POFERA's own exclusion of "matters determined by any other law of the State to be within the exclusive prerogative of the public employer," 19 Del. C. § 1602(n). The opinion also notes that federal civilian technicians employed by DNG, a distinct category from these state-employee firefighters, are instead covered by federal collective bargaining law, 5 U.S.C. § 7101 et seq., through the Federal Labor Relations Authority. Any scope-of-bargaining disputes between the firefighters and DNG must go through PERB under several POFERA provisions, 19 Del. C. §§ 1602(e), (n), 1605, 1607(a)(5), (b)(2), and 1608. Finally, the opinion cites Sussex County Dep't of Elections v. Sussex County Republican Committee for the basic interpretive rule that unambiguous statutes are given their plain meaning.

Citations and references

Statutes:

• 20 Del. C. § 185 (National Guard support personnel exempt from state merit system; pay and terms of employment governed like the federal military technician program)
• 20 Del. C. § 103 (National Guard must conform to federal statutes and regulations governing the armed forces)
• 20 Del. C. § 121 (establishes the Department of Military Affairs and the National Guard's governance structure)
• 19 Del. C. Chapter 16 (Police Officers' and Firefighters' Employment Relations Act, POFERA)
• 19 Del. C. § 1601 (state policy permitting firefighter collective organizing and bargaining)
• 19 Del. C. § 1602(a) (defines "bargaining unit")
• 19 Del. C. § 1602(k) (defines "public employee" for POFERA purposes)
• 19 Del. C. § 1602(n) (excludes matters within the public employer's exclusive statutory prerogative from "terms and conditions of employment")
• 19 Del. C. § 1606 (PERB's authority to administer POFERA)
• 19 Del. C. §§ 1602(e), (n), 1605, 1607(a)(5), (b)(2), and 1608 (PERB's role in resolving scope-of-bargaining disputes)
• 5 U.S.C. § 7101 et seq. (federal collective bargaining law covering federal civilian technicians)

Cases:

• Sussex County Dep't of Elections v. Sussex County Republican Committee, 58 A.3d 418 (Del. 2013) (unambiguous statutes are given their plain meaning)

Source

• Landing page: https://attorneygeneral.delaware.gov/2014/11/03/14-ib06-110314-attorney-general-opinion-re-the-delaware-national-guards-fire-fighters/
• Original PDF: not linked from landing page

Original opinion text

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.1

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).