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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



Opinion No. 6550

November 22, 1988


Collective bargaining agreement restricting entry of public employees into National Guard


Restriction of collective bargaining agreement on enlistment of city employees in National Guard

A provision of a collective bargaining agreement between a city and the union representing its fire department employees which purports to prohibit fire department employees from joining the National Guard without the express consent of the city violates 38 USC 2024 and is void.

Honorable Mitch Irwin

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the validity of a provision contained in a collective bargaining agreement entered into between a city and its fire department employees' union which provides that no employee of that department may join the National Guard requiring annual leave without express authorization of the city.

Your inquiry requests my opinion as to whether such a contractual provision restricting the right of employees to join and participate in the National Guard violates the public policy of the State of Michigan as expressed in two specific acts, 1955 PA 133, MCL 32.271 et seq; MSA 4.1487(1) et seq, and 1951 PA 263, MCL 35.351 et seq; MSA 4.1486(1) et seq.

Act 133 provides, in pertinent part:

"Sec. 1. No person shall discriminate against any officer or enlisted man of the military or naval forces of the state or of the United States because of his membership therein. [MCL 32.271; MSA 4.1487(1).]

"Sec. 2. No employer or officer or agent of any corporation, company, or firm, or other person shall ... dissuade any person from enlistment or accepting a commission in the national guard or naval militia by threat of injury to him in respect to his employment, trade, or business in case of his enlistment or acceptance of a commission. [MCL 32.272; MSA 4.1487(2).]

"Sec. 3. No employee who requests a leave from his employment shall be denied a leave of absence by his employer for the purpose of being inducted into, entering, determining his physical fitness to enter, or performing training duty as an officer or enlisted man of the military or naval forces of the state or of the United States. ... [MCL 32.273; MSA 4.1487(3).]

"Sec. 4. Any person violating any of the provisions of this section shall be guilty of a misdemeanor." MCL 32.274; MSA 4.1487(4).

Act 263 expressly applies to public employers and employees, and specifically includes municipalities. MCL 35.351(b); MSA 4.1486(1)(b). In MCL 35.354; MSA 4.4186(4), the Legislature has provided in pertinent part:

"Any public employee who holds a position in public employment shall be granted a leave of absence for the purpose of being inducted or otherwise entering military duty."

It is indisputable that a collective bargaining contract clause restricting the right of firefighters to join the National Guard conflicts with the express provisions of these two acts. It does not necessarily follow, however, that this clause of the contract is rendered invalid as a result of that conflict. The union contract in question here was negotiated under the provisions of the public employment relations act (PERA), MCL 423.201 et seq; MSA 17.455(1) et seq. In Detroit Bd of Education v. Parks, 417 Mich 268, 280; 335 NW2d 641 (1983) the Michigan Supreme Court stated:

" 'This Court has consistently construed the PERA as the dominant law regulating public employee labor relations.' Rockwell v. Crestwood School Dist, supra, [393 Mich] p 629. See also, Local 1383, International Ass'n of Firefighters, AFL-CIO v. City of Warren, 411 Mich 642; 311 NW2d 702 (1981); Central Michigan University Faculty Ass'n v. Central Michigan University, 404 Mich 268; 273 NW2d 21 (1978). When there is a conflict between PERA and another statute, PERA prevails, diminishing the conflicting statute pro tanto. Local 1383, International Ass'n of Fire Fighters, AFL-CIO v City of Warren, supra."

As was observed in OAG, 1983-1984, No 6244, p 363, 369 (August 24, 1984), "the foregoing conclusions accord to public employers and their affected employees the right to, in effect, negotiate a statute out of existence as to the contracting parties through collective bargaining."

A review of the reported cases construing PERA indicates that in each instance where a statute was found to be inapplicable by virtue of a collective bargaining agreement entered into under PERA, the statute in question was one which could fairly be characterized as having as its principal purpose the regulation of the employment relationship. By way of contrast, the statutes here in question appear to be principally concerned with maintaining the military preparedness and security of the nation and of the state by removing impediments that might otherwise prevent persons from joining and participating in the armed forces. These particular statutes, of necessity, affect the employment relationship by prohibiting employers from taking adverse action against employees who enlist or participate in the National Guard. However, this effect is secondary to the principal purpose of national security. While PERA, as the Michigan Supreme Court has repeatedly asserted, is unquestionably "the dominant law regulating public employee labor relations," Rockwell v Crestwood School Dist, 393 Mich 619, 629; 227 NW2d 736 (1975), there is no indication that the Legislature intended PERA to be the dominant law of the state for all purposes. It is, in any event, unnecessary to resolve this question here.

While your inquiry was directed solely to the apparent conflict between the provisions of such a union contract and the state statutes described above, research discloses that essentially identical rights are guaranteed under federal law to employees who seek to join and participate in the National Guard. The Veterans' Re-employment Rights Act, 38 USC 2024, provides, in pertinent part:

"(c) Any member of a Reserve component of the Armed Forces of the United States who is ordered to an initial period of active duty for training of not less than twelve consecutive weeks shall, upon application for reemployment within thirty-one days after (1) such member's release from such active duty for training after satisfactory service, or (2) such member's discharge from hospitalization incident to such active duty for training, or one year after such member's scheduled release from such training, whichever is earlier, be entitled to all reemployment rights and benefits provided by this chapter for persons inducted under the provisions of the Military Selective Service Act ....

"(d) Any employee not covered by subsection (c) of this section [including an employee of a State, or a political subdivision thereof] shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States. ...

"(f) For the purposes of subsections (c) and (d) of this section, full-time training or other full-time duty performed by a member of the National Guard under section 316, 502, 503, 504, or 505 of title 32 is considered active duty for training. For the purposes of subsection (d) of this section, inactive duty training performed by that member under section 502 of title 32 or section 206, 301, 309, 402, or 1002 of title 37 is considered inactive duty training."

It is noted that while the National Guard in Michigan is the organized militia of the state, MCL 32.509; MSA 4.678(109), and is under the direction of the Governor as Commander-in-Chief, Const 1963, art 5, Sec. 12; MCL 32.551; MSA 4.678(151), it is also subject to federal control in many respects. Pursuant to 32 USC 501(a), "[t]he discipline, including training, of the Army National Guard shall conform to that of the Army." 32 USC 502(a) requires that each company, battery, squadron, and detachment of the National Guard must:

"(1) assemble for drill and instruction, including indoor target practice, at least 48 times each year; and

"(2) participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year."

Other similar requirements are imposed by 32 USC 503-505. Pursuant to 32 USC 108, if the state fails to enforce or comply with any such requirements, it's National Guard units may be barred from receiving financial or other assistance from the federal government. The provisions of 38 USC 2024(c) and (d) requiring employers, including local units of government, to grant leaves of absence for military training and service, are expressly made applicable to service in the National Guard of a state.

Congress has on several occasions spelled out the policy considerations behind the provisions of the Veteran's Re-employment Rights Act. Most recently, in PL 99-290, Sec. 1, 28 USC 2021, Congress reiterated those concerns as follows:

"(a) Findings. The Congress reaffirms its findings ... that--

"(1) the National Guard and Reserve forces of the United States are an integral part of the total force policy of the United States for national defense and need to be ready to respond, on short notice, to augment the active military forces in time of national emergency;

"(2) attracting and retaining sufficient numbers of qualified persons to serve in the Guard and Reserve is a difficult challenge during a period in which there is a decreasing number of young people from which to recruit; and

"(3) the support of employers and supervisors in granting employees a leave of absence from their jobs to participate in military training without detriment to earned vacation time, promotions, and job benefits is essential to the maintenance of a strong Guard and Reserve force.


"(c) Employer support for Guard and Reserve. The Congress reaffirms its statements ... that it--

"(1) recognizes and requests all citizens to recognize, the vital need for a trained, ready National Guard and Reserve in the national defense posture of the United States; and

"(2) urges and requests employers and supervisors of employees who are members of the National Guard or Reserve to abide by the provisions of chapter 43 of title 38, United States Code [38 USC 2021 et seq], by--

(A) granting a leave of absence for military training, exclusive of earned vacation, to employees who are members of the Guard and Reserve; and

(B) providing such employees equal consideration for job benefits and promotions as all other employees."

The federal courts have consistently held that an individual's statutory rights under the Veterans' Re-employment Rights Act may not be defeated by a collective bargaining agreement between a union and the veteran's or serviceman's employer. See, e.g., Bunnell v. New England Teamsters & Trucking Industry Pension Fund, 486 F Supp 714, 718-719 (D Mass, 1980), aff'd, 655 F2d 451, 453 (CA 1, 1981), cert den 455 US 908; 102 S Ct 1253; 71 L Ed 2d 446 (1982); Carney v. Cummins Engine Co, Inc, 602 F2d 763, 766-767 (CA 7, 1979), cert den 444 US 1073; 100 S Ct 1018; 62 L Ed 2d 754 (1980). In Fishgold v. Sullivan Drydock & Repair Corp, 328 US 275, 285; 66 S Ct 1105; 90 L Ed 1230 (1946), the Supreme Court addressed the provisions of the predecessor act, concluding that:

"This legislation is to be liberally construed for the benefit of those who left private life to serve their country .... [N]o practice of employers or agreements between employers and unions can cut down the ... benefits which Congress has secured the veteran under the Act."

Accardi v. Pennsylvania R Co, 383 US 225, 229; 86 S Ct 768; 15 L Ed 2d 717 (1966).

It is my opinion, therefore, that the provision of a collective bargaining agreement entered into between a city and its fire department employees' union, which purports to prohibit fire department employees from joining the National Guard without the express consent of the city, violates the Veterans' Re-employment Rights Act, 38 USC 2024, and is void.

Frank J. Kelley

Attorney General

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