[ v23 p536 ]
23:0536(73)NG
The decision of the Authority follows:
23 FLRA No. 73
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R3-84, SEIU,
AFL-CIO
Union
and
DISTRICT OF COLUMBIA
AIR NATIONAL GUARD
Agency
Case No. 0-NG-1237
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes before the Authority
because of a negotiability appeal filed under section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute).
It raises issues concerning the negotiability of a single Union
Proposal.
II. Union Proposal
ARTICLE V
UNION RIGHTS
Section 4. In order not to breach the statutory duty of Fair
representation to all bargaining unit employees without regard to
union membership the parties agree to the following:
A. Officers and Stewards will not be required to wear the
military uniform while:
1. Performing representational duties.
2. Representing the Union in a third party proceeding.
3. Serving as a member of the Union's negotiating team.
4. Appearing as a witness in any third party proceeding.
5. Representing the Union on a committee established by the
Employer.
6. Attending a labor/management training session.
B. Employees in the bargaining unit will not be required to
wear the military uniform while:
1. Processing a personnel grievance under the negotiated
grievance procedure.
2. Appearing as a grievant or witness before a third party
proceeding.
3. Appearing as an observer at contract negotiations.
4. Attending a labor/management session.
C. Reasonable time will be allowed officers, stewards and
employees to change in and out of the military uniform under the
circumstances stated in subsection (A-B) of this Article.
A. Positions of the Parties
The Agency argues that the proposal is outside the duty to bargain
because (1) the Union has waived its right to bargain on the proposal;
(2) the proposal is inconsistent with 32 U.S.C. Section 709; (3) the
proposal is inconsistent with the Agency's right to determine the
"methods and means" of performing its work under section 7106(b)(1) of
the Statute, as such right was explained in Division of Military and
Naval Affairs, State of New York, Albany, New York and New York Council,
Association of Civilian Technicians, 15 FLRA 288 (1984), aff'd New York
Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d
Cir. 1985), cert. denied 106 S.Ct. 137 (1985); and (4) the proposal is
not an "appropriate arrangement" under section 7106(b)(3) of the
Statute. The Union disputes the Agency's arguments and asserts that the
proposal is within the Agency's duty to bargain.
B. Analysis and Conclusions
1. Did the Union waive its right to bargain?
The Agency asserts that the Union waived its right to negotiate this
proposal when the Union agreed to allow the Agency to end a practice
established under an expired collective bargaining agreement. Under
that practice technicians were allowed to wear civilian attire when they
were performing their technician duties. The issue raised by the
Agency's contention is essentially one of contractual interpretation.
To the extent the parties are in dispute as to the intended application
of their agreement regarding the wearing of the military uniform, that
dispute should be resolved through other appropriate procedures. The
existence of that dispute does not preclude us from, nor require us to
delay, deciding whether the Union's proposal is nonnegotiable under the
Statute. See American Federation of Government Employees, AFL-CIO,
Local 2736 and Department of the Air Force, Headquarters 379th Combat
Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302
(1984).
2. Does the proposal conflict with the Agency's rights
under section 7106(b)(1)?
The Agency asserts that the proposal is inconsistent with its rights
under section 7106(b)(1) of the Statute as explained by the Authority in
Division of Military and Naval Affairs. We conclude that the proposal
does not conflict with the Agency's rights under section 7106(b)(1).
Our reasons, which are interrelated and discussed fully below, are
these: first, the labor-management activities covered by the proposal
do not concern the performance of the Agency's work within the meaning
of section 7106(b)(1) of the Statute; second, the Agency's purpose in
imposing the uniform requirement would not be furthered by applying the
requirement to technicians when they are involved in labor-management
activities.
In Division of Military and Naval Affairs, supra, 15 FLRA 288, the
Authority held that decisions on whether National Guard technicians must
wear military attire while performing technicians' duties were
negotiable only at the election of the Agency because these decisions
concerned the right to determine the "methods and means" of performing
work under section 7106(b)(1) of the Statute. The Authority reached
that conclusion, as explained in the decision, in view of the unique
status National Guard technicians have as compared to other Federal
civilian employees. As a result of their essential role in achieving
mobilization of the parttime Guard into a military force and their
functions in performing technician duties, they must possess a highly
developed sense of esprit de corps and military discipline which the
Authority found was furthered by the wearing of military attire. This
reasoning does not apply to the proposal here.
The proposal's exceptions to the Agency's uniform requirement concern
labor-management activities -- the joint efforts of employees, the
Union, and the Agency's management officials in setting and
administering technicians' conditions of employment. These activities
do not constitute employee performance of technician duties. They are
not the Agency's "work." National Federation of Federal Employees, Local
541 and Veterans Administration Hospital, Long Beach, California, 12
FLRA 270, 274 (1983); American Federation of Government Employees,
AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant
General Publication Center, St. Louis, Missouri, 14 FLRA 438, 440-41
(1984). When acting as union representatives employees are serving in a
different capacity than when they are performing the duties of their
positions. The Statute protects the rights of employees to serve as
union representatives in order to promote the public interest in
collective bargaining. To achieve that objective, the Statute frees
employees functioning as union representatives from many of the
constraints to which they would otherwise be subject as employees so as
to enable them to represent the interests of the bargaining unit. See,
for example, United States Air Force, Davis-Monthan Air Force Base,
Tucson, Arizona and American Federation of Government Employees, Local
2924, AFL-CIO, 20 FLRA No. 84 (1985).
Indeed, that difference is incorporated in the Agency's own
regulations. Technician Personnel Regulation, Section 302.7. That
section provides that it is "inappropriate" for a unit employee to wear
the military uniform when negotiating a collective bargaining agreement.
Like the negotiation of a collective bargaining agreement, the other
labor-management activities encompassed by the Union's proposal are
different from regular technician duties. Our rationale for finding
that the requirement that National Guard technicians wear the military
uniform while performing technician duties constituted a "method or
means" of performing work, as stated in Division of Military and Naval
Affairs, does not apply here. The Union's proposal, therefore, does not
conflict with the Agency's right to determine the methods and means of
performing its work under section 7106(b)(1) of the Statute. See also
162nd Tactical Fighter Group, Arizona Air National Guard, Tucson,
Arizona, 21 FLRA No. 90 (1986) (technicians participating in Authority
proceedings on official time as requested by the Authority's General
Counsel cannot be required to wear the military uniform in these
proceedings).
Subsection C complements subsections A and B by providing that
technicians will have time to change their attire when they shift
between technicians' duties and labor-management activity. This part of
the proposal is similar to those proposals which provide official time
for union representatives to prepare for labor-management relations
activities. See, for example, Association of Civilian Technicians,
Granite State Chapter and The Adjutant General, State of New Hampshire,
7 FLRA 241 (1981). For the reasons set forth in that decision, we find
that subsection C is negotiable.
3. Does the proposal conflict with 32 U.S.C. Section 709?
The Agency asserts that 32 U.S.C. Section 709 mandates that
technicians must maintain military status in the National Guard to
retain employment in technician positions. It argues that the proposal
treats technicians as civilian employees so as to contradict this
requirement.
As detailed in Part 2, the Union's proposal does not concern the
performance of technician duties and does not in any way affect unit
employees' military status. Accordingly, the Agency's argument
concerning this statutory provision is misplaced.
4. Is the proposal an "appropriate arrangement" under
section 7106(b)(3) of the Statute?
The Agency's arguments concerning whether the proposal amounts to an
appropriate arrangement under section 7106(b)(3) are premised on its
view that the proposal conflicts with its rights under section
7106(b)(1). See National Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). Since we
have decided that the proposal does not conflict with the Agency's
rights under section 7106(b)(1), we need not address whether the
proposal is negotiable as an appropriate arrangement under section
7106(b)(3) of the Statute.
III. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
IT IS ORDERED that the Agency shall upon request, or as otherwise agreed
to by the parties, bargain concerning the Union proposal. /*/
Issued, Washington, D.C., September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In finding the Union's proposal to be negotiable, the Authority
expresses no opinion on the merits of that proposal.