Utah Army National Guard (Agency) and National Federation of Federal Employees, Local No. 1724 (Union)



[ v07 p758 ]
07:0758(125)AR
The decision of the Authority follows:


 7 FLRA No. 125
 
 UTAH ARMY NATIONAL GUARD
 Agency
 
 and
 
 NATIONAL FEDERATION OF
 FEDERAL EMPLOYEES, LOCAL
 NO. 1724
 Union
 
                                            Case No. O-AR-85
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR RONALD L. WIGGINS FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /1/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR PART
 2425).  THE AGENCY FILED AN OPPOSITION.
 
    ACCORDING TO THE ARBITRATOR, THIS MATTER CONCERNED A POLICY
 PROHIBITING THE WEARING OF BEARDS BY ACTIVITY EMPLOYEES.  THE GRIEVANT,
 A NATIONAL GUARD TECHNICIAN, BEGAN TO GROW A BEARD FOR THE DEER HUNTING
 SEASON AND WAS ORDERED TO SHAVE, WHICH HE DID.  HE THEN FILED A
 GRIEVANCE WHICH WAS ULTIMATELY SUBMITTED TO ARBITRATION CLAIMING THAT
 THERE WAS A PRACTICE OF PERMITTING EMPLOYEES TO GROW BEARDS DURING DEER
 HUNTING SEASON.
 
    ON THE MERITS OF THE GRIEVANCE, THE ARBITRATOR CONCLUDED IN AGREEMENT
 WITH THE UNION THAT "A PRACTICE HAD DEVELOPED WHEREBY EMPLOYEES WERE
 PERMITTED TO GROW BEARDS . . . EACH FALL . . . FOR DEER HUNTING." THE
 ARBITRATOR ACKNOWLEDGED THAT "(I)N PRIVATE-SECTOR LABOR RELATIONS, THE
 CONSEQUENCE OF A FINDING THAT A PRACTICE EXISTED IS A REQUIREMENT THAT
 THE PARTIES OBSERVE THAT PRACTICE, IN THE SAME MANNER THEY ARE REQUIRED
 TO OBSERVE WRITTEN PROVISIONS OF THE AGREEMENT;  INDEED, THE PRACTICE
 HAS THE SAME FORCE AND EFFECT AS ANY WRITTEN PROVISION." HOWEVER, HE
 DETERMINED THAT IN THE FEDERAL SECTOR SUCH A RESULT DID NOT ALWAYS APPLY
 AND RULED IN PARTICULAR THAT SUCH A RESULT COULD NOT APPLY IN THIS CASE.
  THE ARBITRATOR EXPLAINED THAT THIS PRACTICE PERTAINED TO ACTIVITY
 EMPLOYEES WHO WERE NATIONAL GUARD TECHNICIANS AND WHO WERE REQUIRED AS
 A
 CONDITION OF THEIR CIVILIAN EMPLOYMENT TO BECOME AND REMAIN MEMBERS OF
 THE NATIONAL GUARD IN A MILITARY CAPACITY.  CONSEQUENTLY, HE CONCLUDED
 THAT "THEY WERE AND ARE SUBJECT TO GOVERNING MILITARY REQUIREMENTS."
 ACCORDINGLY, DESPITE THE ESTABLISHED PAST PRACTICE, THE ARBITRATOR HELD
 THAT BEARDS WERE PROSCRIBED FOR THESE EMPLOYEES BECAUSE OF THEIR
 "ENLISTMENT IN THE NATIONAL GUARD" WHICH "SUBJECT(ED) (THEM) TO GUARD
 REGULATIONS." IT WAS ON THIS BASIS THAT HE ESSENTIALLY DENIED THE
 GRIEVANCE BY REFUSING TO GRANT THE REMEDY REQUESTED BY THE UNION THAT
 THESE EMPLOYEES "BE PERMITTED TO GROW BEARDS WHILE IN CIVILIAN-ATTIRE
 WORK SITUATIONS AND NON-WORK SITUATIONS."
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S AWARD IS
 DEFICIENT BECAUSE IT IS CONTRARY TO PERTINENT CASE LAW ON THE ISSUE OF
 PAST PRACTICE.  IN ITS OPPOSITION THE AGENCY CONTENDS THAT THE AWARD IS
 NOT CONTRARY TO ANY LAW, RULE, OR REGULATION.
 
    IN AGREEMENT WITH THE UNION, THE AUTHORITY FINDS THAT THE AWARD IS
 DEFICIENT.  THE AUTHORITY HAS CONSISTENTLY HELD THAT IN THE FEDERAL
 SECTOR, AS IN THE PRIVATE SECTOR, "'THE PRACTICES OF THE INDUSTRY AND
 THE SHOPS-- (ARE) EQUALLY A PART OF THE COLLECTIVE BARGAINING AGREEMENT
 ALTHOUGH NOT EXPRESSED IN IT.'" LETTERKENNY ARMY DEPOT AND NATIONAL
 FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1429, 5 FLRA NO. 35(1981), CITING
 STEELWORKERS V. WARRIOR AND GULF NAVIGATION CO., 363 U.S. 574,
 582(1960);  ACCORD COUNCIL OF DISTRICT OFFICE LOCALS, AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, SAN FRANCISCO REGION, AFL-CIO AND
 OFFICE OF PROGRAM OPERATIONS, FIELD OPERATIONS, SOCIAL SECURITY
 ADMINISTRATION, SAN FRANCISCO REGION, 5 FLRA NO. 100(1981).  IN THIS
 CASE THE ARBITRATOR SPECIFICALLY FOUND THAT A PAST PRACTICE EXISTED
 "WHICH PERMITTED EMPLOYEES TO GROW BEARDS DURING DEER-HUNTING SEASON."
 HOWEVER, HE DECLINED TO GIVE EFFECT TO THAT PRACTICE IN "CIVILIAN-ATTIRE
 WORK SITUATIONS AND NON-WORK SITUATIONS" SOLELY BECAUSE THESE EMPLOYEES
 WERE SUBJECT TO MILITARY GROOMING REQUIREMENTS WHEN PERFORMING MILITARY
 DUTIES IN A MILITARY STATUS AND MAINTAINED MILITARY MEMBERSHIP IN THE
 NATIONAL GUARD AS A CONDITION OF THEIR CIVILIAN EMPLOYMENT.  IT IS CLEAR
 HOWEVER THAT WHEN SUCH EMPLOYE