Legal and Practical Considerations

• Author: Captain William S. Ostan
• Pages: 03

I. INTRODUCTION

Recently, there has been much controiewy and public debate mer the issue of unionizing the military forces of the United States Government. This discussion can no longer be disregarded OF die-missed as a mere fantasy. The American Fedemsmn of Government Employees (AFGE).an affiliate of the AFL-CIO, has proposed a sophisticated program for organizing the militar? . In September 1976. the AFGE conrention appro\ed an amendment to its constitution which expanded ita jurisdiction to include members of the aimed forcer and employees of pertors.'

Although the delegates expanded the 4FGE's jurisdiction. they did not at the same time authorize or fund a major organizing program to help swep these n e ~ potential inembera into the AFGE fold On March i, 1977, the American Federation of Government Employees' rational Excutire Council, the union's governing bod) between biennial conventions, approved and sent to the membership for its approval or rejection in a referendum. a plan to admit per-~oiiiiel of the armed forces to union membership and to provide them a a h vaious types of representation services

The referendum proposal caili for the membership to be proiirietl

1% ith an outline of the military representation ~ssue aummanzing the

riens of the proponents and opponent> of uniomzation. The iote iiill be conducteil xithin the l o d ~ ' bargaining units and the results tranammed to APGE headquarteis The final vote of the member-ahiu is to be aiinouncerl uubliclv no later than October 1. 1 9 X 3

I1 HISTORIC.IL B.1CKGROUSD

Swden, Norway, Denmark, Belgium, West Germany, and the Setherlands all hare some form of a military

The demands of the European unions hare focused almost eiclusively 011 economic anti professional Higher compensation is the most important "bread ancl butter" isaue for all these unions.i and the issues of regulated work time and compensation for orel-time hare also been topics of union CO~CBI'II In addition the unions have raised demands about service conditions and professional standards.s Some unions, mostly in Saeden and Denmark, are alao seekinp occupational health and safety rmdelines lo In ad-

iiitioii, the military organization; hare sought improved dining and

2. FEDERAL r.YIOSSmol- unionism hac groan ~n a ~n particular. the major g r o ~ th

   1960. li The major reaion for ng of the federal bureaucrat)

   playees of rheii right tu form. join antl assist a union. antl grants the union rhe right to bargair colieetnel> and secure ietireea of pier-

   ancei on behalf of the employees it represents in rhe bargaining unit

   The most recent surrey conducted by the Civil Service Commin$ion in Norembe, 1Yi6 showed that AFGE increased its representation to 673,410 empI~?ees.~'

   IT should be noted that all of these employees repreFented by the BFGE are not AFGE members. Today the total AFGE membership has been estimated at approumately 265,000 members.18 Department of Defense employees comprise about 376.000 of the more than 678,110 federal employees which AFGE represents, and the union represents more Defense Department employees than ail other unions

   The Kennedy Order opened the door for federal UII~IIS. and the AFGE. in particular, has been attempting continuously to increase Itr' membership rolls e ~ e r since that time. In 1974, at the behest of itlent of the AFGE, Cijile Webber. the union urged rriee people to support its wage demanrls. Hundreds of thousands of leaflets awe distributed at military bases reminding servicemembers that AFGE'r efforts on behalf of federal workers also r a i d milltar? salaries Pn Vieaing the 1974 initiative as suc~ eeseful, the AFGE leadership began to consider the prospect of 5 0 1 ~

   iciting actixe dut) militar) personnel to become union members.2'

   $5 the erosion of servicemembers' pa) continued, the al1m.e of mili-tar] organizing increased The AFGE's present plan to orpanize the militaq calls upon present members to admit mllitary personnel either to ekisting locals or to separate military locals. depending upon local choice.z' In addition, the AFGE has publicly diiii~~ncetl that militai.) members waulil pay the same per capita dues, currentl) S3 20 per month. that civilian members The mare to permit military membership thus represents an attempt by rhe.4FGE to reach for greater economic paaer anti to bolster its union strength and tieasur) b) admitting the tiio million uniformed personnel ab union members.

   Same of the major difficulties confronting servicemembers today

   MILITARY LAIY REVIEW [VOL. ii

3. DEPART.IfEST OF DEFESSE POLICYOS C.TIOYIZATIO.Y OF THE MILITARYOn March 18, 19ii. Defense Secretary Harold Brann reiterated Department of Defense policy when he told Congress that military umons could play ha\oe nith the command s)stem.26 In testifying before the Senate Armed Seiricea Committee he saiil, "The functional role of our armed forces demands abrolute certainty of Immediate and total responsiveness to lamarked that collective hargaining in thincompatible" with the need for "an ucontrol system" z8 and referred to current bargaining betveen the United Stdtes and any organization or person representing servicemembers ty

   Howeier, Seeretar? Broan c-aunonetl that 110 regulation prei

   servicemembers from joining unions.ao He suggested rhar pro -ing members of the armed forces from joining a unioii might be unconstitutional and violate the fixst amendment right of free associa-

   t i ~ n . ~ ~

   Consequently, Broa.n reporteilli would not endorse either of the two bills pending before the Senate Armed Services Commmttee

   :ufficient to prevent unionization 34 Although no uniforin regulanon

   prevents unions from soliciting for members an an Installation, Brown indicated that commanders can stop organizational activities on their iiietallatione if the activities undercut di~eipline.~~

   Clearly, the Defense Department has adopted an approach tonard legislatirely forbidding unionization ahich ma) accurate13 be described as a "uait and see" attitude. Broan reportedly told Con-gress that he hat1 ordered his staff to draw up a directive to "re-sitrid s# military union recruiting on post. The directive rill be placed into effect, he said. "if events require it ' ' 3 7 IVhether

   unionization of the militari inll come to fruition or merely remain a poasibility, the constitutional and legal MU~L surrounding these is-sues should be addressed Commanders and their legal advisors must be prepared to deal with these issues should the need arise.

   111. COKSTITUTIONAL AND LEGAL ISSUES

   A FIRST A.MEA'D.ZIEST RIGHT-FREED03 OF ASS0CIATIO.L

   The AFGE claims it possesses a constitutional right to unionize the military. In the summer of 1976, a stud) prepared for the AFGE leadership by the union's general counsel, L.X Pellerzi, concluded that a flat ban an military union membership would be unconsritut i ~ n a l . ~ ~

   His findings primarily relied on the canatitutional right of freedom of association guaranteed by the first amendment. In his opinion, "a comprehensive ban on union membership per se ii be-yond the constitutional pale" 38 because it would constitute an over-

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