17:0360(54)AR - The Adjutant General, State of Ohio and AFGE, Ohio Council of Air NG Locals No. 127, Local 3041 -- 1985 FLRAdec AR



[ v17 p360 ]
17:0360(54)AR
The decision of the Authority follows:


 17 FLRA No. 54
 
 THE ADJUTANT GENERAL,
 STATE OF OHIO
 Agency
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, OHIO COUNCIL OF AIR
 NATIONAL GUARD LOCALS NO. 127, LOCAL 3041
 Union
 
                                            Case No. O-AR-645
 
                                 DECISION
 
    This matter is before the Authority on an exception to the award of
 Arbitrator Alan M. Ruben filed by the Union pursuant to section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
 
    The dispute in this matter arose when the Agency informed the Union
 that after the expiration of the parties' collective bargaining
 agreement, all civilian technicians of the Ohio Air National Guard would
 have to wear the military uniform while on duty as required by National
 Guard regulations.  The parties' agreement provided that the technicians
 could annually elect to wear standardized civilian attire rather than
 the military uniform while on duty.  A grievance was filed by a
 technician who, prior to the expiration of the agreement, had elected to
 wear the civilian attire.
 
    The Arbitrator interpreted the pertinent provision in the parties'
 agreement as constituting a limitation on employees, finding that the
 provision was intended to prevent employees from frequently changing
 their minds and switching from one type of dress to another.  The
 Arbitrator therefore rejected the Union's argument that since the
 grievant had submitted his request prior to the expiration of the
 agreement, he had a right to wear civilian attire for the next year.
 The Arbitrator also found that the uniform-wearing requirement was a
 mandatory subject of bargaining, but concluded that since an impasse had
 developed in negotiations and the Union had failed to initiate impasse
 procedures, the Agency had a right to implement its uniform policy upon
 the expiration of the parties' agreement.  Accordingly, the Arbitrator
 denied the grievance.
 
    In its exception, the Union contends that the award is contrary to
 law.  More specifically, the Union essentially argues that having found
 that the uniform-wearing requirement was a mandatory subject of
 bargaining, the Arbitrator erred as a matter of law in concluding that
 in the circumstances involved the Agency could unilaterally implement
 the requirement upon expiration of the parties' agreement.
 
    The Authority concludes that the Union has failed to establish that
 the Arbitrator's award is deficient as alleged.  It is well-established
 that following the expiration of a collective bargaining agreement,
 either party to that agreement may elect not to be bound by a practice
 embodied in any contract provision which relates to a matter that is
 outside the required scope of bargaining under the Statute, i.e., a
 permissive subject of bargaining.  E.g., Headquarters, Fort Sam Houston,
 Department of the Army and Local 2154, American Federation of Government
 Employees, AFL-CIO, 15 FLRA No. 181 (1984).  In this regard, the
 Authority has held that the requirement that civilian technicians wear
 military uniforms is a permissive rather than a mandatory subject of
 bargaining.  Division of Military and Naval Affairs, State of New York,
 Albany, New York and New York Council, Association of Civilian
 Technicians, 15 FLRA No. 65 (1984), petition for review denied sub nom.,
 New York Council, Association of Civilian Technicians v. FLRA, No.
 84-4128 (2d Cir., March 14, 1985).  Thus, in terms of this case, while
 the Arbitrator erroneously found that the uniform-wearing requirement
 was a mandatory subject of bargaining, he correctly concluded that after
 the expiration of the parties' agreement the Agency was entitled to
 elect not to be bound by the related provision in the agreement and to
 implement the uniform requirement.  Therefore, contrary to the Union's
 assertion, the Arbitrator's award