USEFUL TO NOTE THAT ARTICLE 6, CLAUSE 2 OF THE CONSTITUTION OF THE UNITED STATE PROVIDES:
"THIS CONSTITUTION, AND THE LAWS OF THE UNITED STATES WHICH SHALL BE MADE IN PURSUANCE THEREOF; AND ALL TREATIES MADE, OR WHICH SHALL BE MADE, UNDER THE AUTHORITY OF THE UNITED STATES, SHALL BE THE SUPREME LAW OF THE LAND; AND THE JUDGES IN EVERY STATE SHALL BE BOUND THEREBY, ANY THING IN THE CONSTITUTION OR LAWS OF ANY STATE TO THE CONTRARY NOTWITHSTANDING."
THE SUPREME COURT HAS HELD THAT CONGRESS' POWER TO LEGISLATE IN THE AREA OF LABOR RELATIONS IS LONG ESTABLISHED. HOWEVER, THE COURT FOUND THAT CONGRESS HAS NEVER EXERCISED AUTHORITY OVER THE ENTIRE AREA OF LABOR LEGISLATION. WHETHER A CERTAIN STATE ACTION IS PREEMPTED IS A QUESTION OF CONGRESSIONAL INTENT. ALLIS-CHALMERS CORP. V. LUECK, 105 S.CT. 1904,471 U.S. 202, 85 L.ED.2D 206 (1985). A STATE IS PREEMPTED FROM REGULATING ONLY CONDUCT WHICH PLAINLY FALLS WITHIN THE SCOPE OF FEDERAL LABOR REGULATIONS. MAYON V. SOUTHERN PACIFIC TRANSPORTATION CO., 805 F.2D 1250 (5TH CIR. 1986).
A REVIEW OF TITLE 38 U.S.C.A. 4100 ET SEQ. DOES NOT INDICATE ANY CONGRESSIONAL INTENT TO PREEMPT THE OKLAHOMA PERSONNEL ACT. AS SUCH, BOTH SHOULD BE GIVEN EFFECT, IF POSSIBLE. 74 O.S. 840.11 (1991). THE FEDERAL ACT DOES, HOWEVER, SET SPECIFICATIONS AND LIMITATIONS AS TO PERSONS HIRED BY OKLAHOMA WITH FEDERAL FUNDS. SECTION 4103A OF THE FEDERAL ACT REQUIRES THAT ANY PERSON HIRED THEREUNDER MUST, AT A MINIMUM, BE A VETERAN. 38 U.S.C.A. 4104 REQUIRES A PREFERENCE BE MADE FOR VARIOUS VETERAN CLASSIFICATIONS; HOWEVER, WHERE NO VETERAN IS AVAILABLE, A QUALIFIED NON-VETERAN MAY BE APPOINTED.
SINCE IT DOES NOT APPEAR THAT THESE REQUIREMENTS PREEMPT OKLAHOMA LAW, IT IS NECESSARY TO LOOK AT THE OKLAHOMA PERSONNEL ACT FOR ADDITIONAL INSIGHT. IN THAT FUNDS FOR THESE APPOINTMENTS ARE CONDITIONED UPON COMPLIANCE WITH FEDERAL HIRING REQUIREMENTS, THE PROVISIONS OF SECTION 74 O.S. 840.11 OF TITLE 74 ALLOW THE OESC TO FIND THAT CONFLICTING PROVISIONS OF THE OKLAHOMA ACT BE RENDERED INOPERATIVE IN ORDER TO MAINTAIN OKLAHOMA'S ELIGIBILITY FOR FEDERAL FUNDS AND GRANTS. THIS WOULD ALLOW THE OESC TO PROHIBIT NON VETERANS FROM APPLYING FOR A POSITION WHERE FEDERAL SPECIFICATIONS CONDITION FUNDING ON THE HIRING OF A VETERAN ONLY. 38 U.S.C.A. 4103A. IT WOULD ALSO ALLOW THE OESC TO GIVE PREFERENCES TO VETERANS OUTSIDE OF THE AGENCY CONTRARY TO SECTION 74 O.S. 841.19(A) OF THE ACT IF THERE ARE NO QUALIFIED VETERANS WITHIN THE AGENCY. ONLY WHEN NO QUALIFIED VETERAN, WITHIN OR WITHOUT THE AGENCY, IS FOUND MAY THE OESC PROMOTE A NON-VETERAN FROM WITHIN THE AGENCY.38 U.S.C.A. 4104.
IN OTHER WORDS, OESC MUST COMPLY WITH BOTH STATE AND FEDERAL LAWS AS MUCH AS POSSIBLE. OESC MAY DEFER TO FEDERAL REQUIREMENTS AND DETERMINE PORTIONS OF OKLAHOMA LAW TO BE INOPERATIVE ONLY IN ORDER TO MAINTAIN FEDERAL FUNDING FOR THOSE POSITIONS. 74 O.S. 840.11.
THIS IS ALSO CONSISTENT WITH THE GOAL OF THE LEGISLATURE TO PROVIDE CERTAIN PREFERENCES FOR VETERANS IN HIRING PRACTICES IN THIS STATE. THE OKLAHOMA PERSONNEL ACT CONTAINS SEVERAL METHODS