Militarv Law Review

DEPARTMENT OF THE ARMY PAMPHLET 27-100-46 Militarv Law J Review Vol. 46 Articles Grievance arbitration within Department of the Army under Executive Order 10988 The Position of The United States and The Soviet Union on Treaty Law and Treaty Negotiations Some comparisons between Courts-Martial and Civilian Practice Federal Tort claims liability-Who are United States Employees 1969 ANNUAL INDEX ~ HEADQUARTERS, DEPARTMENT OF THE ARMY OCTOBER 1969 PREFACE The Military Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value '3 as reference material for the military lawyer. The Military Law Review does not purport to promulgate De- I partment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes should be submitted in duplicate, triple spaced, to the Editor, Military Law Review, The Judge Ad- vocate General's School, U.S. Army, Charlottesville, Virginia 22901. Footnotes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvurd Blue Book. This Review may be cited as 46 MIL. L. REV. (number of page) (1969) (DA Pam 27-100-46, 1 October 1969). For sale by the Superintmdent of Documents, United States Government Printing Office, Washington, D.C. 20402, Price: $.75 single copy). Subscription price: $2.50 a year; $75 additional for foreign mailing. i Pam 27-100-46 PAMPHLET HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-46 WASHINGTON, D.C., 1 October 1969 MILITARY LAW REVIEW-VOL. 46 Articles : Grievance Arbitration Within Department of the Amy Under Executive Order 10988 Major David C. Davies ________________________ 1 The Position of the United States and the Soviet Union On Treaty Law and Treaty Negotiations Albert J. Esgain ______________________________ 31 Some Comparisons Between Courts-Martial and Civilian Practice Judge Robert E. Quinn ________________________ 77 Federal Tort Claims Liability-Who Are United States Employees ? Major James L. Livingston __-_________________ 99 1969 Annual hdex: Table of Leading Articles and Comments-Authors ____ 127 Table of Leading Articles and Comments-Titles ______ 128 . Subject Word Index _________________________________ 128 iii GRIEVANCEq GRIEVANCE ARBITRATION WITHIN DEPARTMENT OF THE ARMY UNDER EXECUTIVE ORDER 10988* By Major David C. Davies** This article analyzes grievance arbitrations within the Army. The author traces the history of such grievances since Executive Order 10988 was promulgated in 1962, briefly compares Army experience with that of the other services, and suggests techniques for counsel in such arbitrations. The conclusion indicates that the arbitration system has successfuly alleviated pressures that might have impaired employee morale. I. INTRODUCTION On 17 January 1962, President Kennedy signed Executive Order 10988 and thereby formally established government-wide policy favoring employee-management cooperation in the federal service.l By November of 1968, over 1.4 million persons, or fifty- two per cent of all federal civilian employees, were represented by labor organizations with exclusive bargaining rights.2 That figure has continued to increase sharplye3 Magnitude of coverage alone makes it abundantly clear that to- day public employee labor organizations are forces to be reckoned with in the federal service. The draft report of a task force estab- *This article was adapted from a thesis presented to The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, while the author was a member of the Seventeenth Advanced Course. The opinions and conclusions presented herein are those of the author and do not necessarily represent the views of The Judge Advocate General’s School or any other governmental agency. **JAGC, U.S. Army; Instructor, Military Affairs Division, The Judge Ad- vocate General’s School; A.B., 1956, Stanford University; LL.B., 1959, Har- vard Law School. Member of the Bars of the State of Oregon and the U.S. Court of Military Appeals. 1 Exec. Order No. 10988, Entplogee-Management Cooperation in the Federal Service, 3 C.F.R. 521 (1959-63 Comp.), 5 U.S.C. $ 631, at 366 (1964) [hereafter cited as E. 0. 109881. U.S. CIVIL SERVICE COMMISSION, OFFICE OF LABOR-MANAGEMENT RELA- TIONS, UNION RECOGNITION IN THE FEDERAL GOVERNMENT, STATISTICAL RE- PORT 2 (NOV. 1967). 3 As of 7 April 1969, Department of the Army personnel covered by exclusive agreements totaled 154,736 persons, an increase of 31,190 persons over November 1967. Interview with W. J. Schrader, Chief, Labor Relations Divi- sion, Office of Civilian Personnel, Deputy Chief of Staff for Personnel, U.S. Army, 7 Apr. 1969. 1 46 MILITARY LAW REVIEW lished in late 1967 to recommend to the President changes in Ex- ecutive Order 10988 has recently been s~bmitted.~While the strikes and picketing by public employees which have become increasingly widespread in the state and local sector so far have left the federal sector virtually untouched, the possibility of even this type of activity cannot be ignored. Section 8 (b) of Executive Order 10988 authorizes the inclusion of grievance arbitration clauses in collective bargaining agreements. This article will examine those grievance arbitrations held to date within Department of the Army, briefly contrasting De- partment of the Navy and Department of the Air Force experience, with the objective of determining the present and potential significance of such arbitrations within the total Army labor relations framework, In addition, it will discuss arbitration mechan- ics, techniques, and preparation sources about which counsel at arbitration hearings should be aware. A basic assumption underlying the following pages is that labor relations already have achieved and increasingly will achieve substantial importance, both to the Army as a whole and to the individual commander having civilian employees within his com- mand. There are many aspects of labor relations within Depart- ment of the Army well worth exploring in depth. Several, including the resolution of negotiation impasses and the determi- nation of appropriate bargaining units and majority status, either currently or potentially involve the use of arbitration. The scope of this article, however, is confined to that arbitration authorized by section 8(b) of Executive Order 10988 as the final step in ne- gotiated grievance procedures. 11. HISTORICAL BACKGROUND A. THE FEDERAL EMPLOYEE PRIOR TO EXECUTIVE ORDER 10988 Until the promulgation of Executive Order 10988, no government-wide policy on labor relations within the federal sector existed, although collective bargaining had been encouraged and regulated by the federal government within the private sector since the passage of the Norris-LaGuardia Act in 1932.j The Na- tional Labor Relations Act (Wagner Act) and the Labor-Man- agement Relations Act (Taft-Hartley Act) expressly excluded 4 The report was made public on 16 Jan. 1969. BNA 280 GOV’TE MPL. REL REP. A-1 (20 Jan. 1969) [hereafter cited as GERR]. 5 29 U.S.C. $9 101-16 (1964). 6 29 U.S.C. $5 161-68 (1964). 7 29 U.S.C. $5 141-87 (1964). 2 GRIEVANCES government employees from coverage, while reaffirming the com- mon law rule that such employees have no right to strike. The only legislation specifically recognizing the right of federal employees to affiliate with labor organizations was the Lloyd- LaFollette Act in 1912.8 Limited to postal employees and carefully forbidding strikes, it revoked Executive Orders of 1902, 1906, and 1908 which had prohibited such affiliation and had denied the right of individual petition to Congress. Department of Defense experience with collective bargaining began as far back as the early 1800's at such industrial-type in- stallations as shipyards and arsenals. In the year 1836, strikes OC- curred at both the Washington Navy Yard and the Philadelphia Navy Yard over the issue of hours of work.9 In 1893, the Army encountered a similar experience at Watervliet Arsenal over the issues of hours of work and rates of pay.1° In 1899, machinists at Rock Island Arsenal struck over the issues of discipline, discrimi- nation against union members, and failure to consult and to hear grievances. This last incident resulted in a War Department order for arsenal commanders to deal with grievance committees and to refer unresolved matters to the Departrnent.ll In the early 19OO's, trade unionism increased rapidly, as Fred- erick Taylor's principles of scientific management were introduced into some Army industrial settings. Interestingly, while most employees appeared to oppose these principles,12 some favored them.13 In any event, employee activities resulted in various con- gessional resolutions and riders prohibiting the use of funds for such things as time studies and the payment of b0nu~es.l~ World War I and the resultant need for a stable military- industrial environment brought about some specific recognition of union activity. In 1916, the Department of the Navy urged employees to organize in order to facilitate coordination with management,15 while within Department of the Army a number of 8 5 U.S.C. 30 7101-102 (1964). 9D.Z ISKIND, ONE THOUSAND STRIKES OF GOVERNMENT EMPLOYEES 24-25 (1940). 10 Id. at 30. 11 S. SPERO,G OVERNMENT As EMPLOYER 94-95 (1948). 12 At Rock Island Arsenal and at Watertown Arsenal, in 1911, employees strongly objected to the introduction of scientific management principles. The ENCYCLOPEDIA OF MANAGEMENT 875-76 (Heyel ed. 1963).

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