17:0957(127)AR - The Adjutant General, State of Ohio and AFGE, Ohio Council of Air NG Locals No. 127, Local 3470 -- 1985 FLRAdec AR

[ v17 p957 ]
The decision of the Authority follows:

 17 FLRA No. 127
 LOCAL 3470 
                                            Case No. 0-AR-567
    This matter is before the Authority on an exception to the award of
 Arbitrator Rankin M. Gibson filed by the Union under 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 National Guard would
 have to wear the military uniform while on duty as required by National
 Guard regulations.  The parties' agreement provided that technicians
 could annually elect to wear standardized civilian attire rather than
 military attire while on duty by submitting a written declaration of
 their choice.  Prior to the expiration date of the agreement, a number
 of technicians submitted declarations exercising their option to wear
 civilian attire for the next year.  A number of other technicians filed
 declarations after the expiration date of the agreement.  Upon
 expiration of the agreement, the Agency refused to recognize any of the
 declarations and required all technicians to wear the military uniform
 while on duty.  A grievance was filed objecting both to the termination
 of the annual declaration policy and to the requirement that technicians
 wear the military uniform and requesting that during the pendency of the
 grievance the technicians' declarations be honored.  In resolving the
 grievance, the Arbitrator determined that technicians who submitted a
 uniform declaration prior to the expiration of the agreement had a right
 to have their selection remain in force for one year, but that
 technicians who did not submit a declaration until after expiration of
 the agreement did not have such a right.  Accordingly, the Arbitrator
 sustained the grievance in part and denied it in part.
    In its exception, the Union contends that the Arbitrator's denial of
 the grievance insofar as it concerned technicians who filed declarations
 after expiration of the agreement is contrary to law.  More
 specifically, the Union essentially argues that since the
 uniform-wearing requirement is a mandatory subject of bargaining, the
 applicable provision in the parties' agreement continued in effect after
 the agreement had expired, and therefore the Arbitrator erred as a
 matter of law in concluding that technicians who submitted declarations
 subsequent to the expiration of the agreement did not have a right to
 wear civilian attire.
    The Authority concludes that the Union has failed to establish 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
 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).  In the terms of this case, since the requirem