23:0262(33)AR - Wyoming Air NG (WANG) and NAGE,Local No. 14-76 -- 1986 FLRAdec AR



[ v23 p262 ]
23:0262(33)AR
The decision of the Authority follows:


 23 FLRA No. 33
 
 WYOMING AIR NATIONAL GUARD
 (WANG)
 Agency
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES (NAGE), LOCAL NO. 14-76
 Union
 
                                            Case No. 0-AR-1117
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on an exception to the award of
 Arbitrator James A. Evenson filed on behalf of the Agency by the
 Departments of the Army and the Air Force, National Guard Bureau under
 section 7122(a) of the Federal Service Labor-Management Relations
 Statute and part 2425 of the Authority's Rules and Regulations.  The
 Union filed an opposition.  /*/
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case arose when prior to the expiration of the
 parties' collective bargaining agreement the Agency notified the Union
 that on expiration of the agreement, it was electing no longer to be
 bound by the practice embodied in Article XXIX, Section 1 of the
 agreement relating to the wearing of the military uniform by civilian
 technicians.  The Agency also notified the Union that beginning on a
 specified date, which constituted the Agency's determination as to when
 the agreement expired, civilian technicians would be required in
 accordance with agency regulation to wear the military uniform while
 performing technician duties.  Article XXIX, Section 1 of the agreement
 provided that technicians had the option while performing their
 technician duties of wearing either the appropriate military uniform or
 "standard civilian attire . . . approved by the Adjutant General." A
 grievance was filed and submitted to arbitration essentially disputing
 that the agreement expired on the date specified by the Agency.
 
    In resolving the grievance the Arbitrator noted that consistent with
 the decisions of the Authority, the parties agreed that the requirement
 that civilian technicians wear the military uniform is a permissive
 subject of bargaining under section 7106(b)(1) of the Statute and that
 on expiration of the parties' collective bargaining agreement, the
 Agency at that time could require the wearing of the military Uniform.
 In agreement with the Union, however, he determined that the agreement
 had not expired on the date specified by the Agency and that the Agency
 had violated the agreement by requiring the wearing of the military
 uniform beginning on that date.  Accordingly, as his award, the
 Arbitrator sustained the grievance and ordered the Agency to comply with
 the terms of the collective bargaining agreement until the agreement
 expired.
 
                              III.  EXCEPTION
 
    The Agency contends that the award is contrary to section 7106(a)(1)
 of the Statute.  Specifically, the Agency argues that the wearing of the
 military uniform by civilian technicians while performing technician
 duties is necessary to carry out the mission of the Agency and for
 purposes of internal security.  Although the Agency concedes that the
 decisions of the Authority have only found the uniform-wearing
 requirement to be a permissive subject of bargaining, the Agency
 maintains that it has the right under section 7106(a)(1) to require the
 wearing of the military uniform as part of its internal security
 practices.  In support of this position, the Agency states that since
 airplanes of the Puerto Rico National Guard have been destroyed, the
 wearing of the military uniform by all civilian technicians is a
 reasonable security practice and precaution.  Accordingly, the Agency
 concludes that the award is deficient by enforcing the provision of the
 agreement which grants civilian technicians the option of wearing
 standard civilian attire.
 
                       IV.  ANALYSIS AND CONCLUSIONS
 
    As recognized by the parties and by the Arbitrator, all decisions of
 the Authority after its decision and order on remand in Division of
 Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA
 288 (1984), aff'd sub nom. New York Council, Association of Civilian
 Technicians v. FLRA, 757 F.2d 502 (2d Cir.), cert denied, 106 S. Ct. 137
 (1985), addressing the bargaining obligation with respect to the
 requirement of civilian technicians to wear the military uniform have
 decided that the requirement constitutes a method and means of
 performing work within the meaning of section 7106(b)(1) of the Statute
 and consequently is a permissive subject of bargaining.  Although the
 Authority has been presented with the issue of whether the
 uniform-wearing requirement constituted a matter of internal security,
 the Authority determined that it was not necessary to decide the issue.
 Adjutant General, State of Ohio, Ohio Air National Guard, Worthington,
 Ohio, 21 FLRA No. 124 (1986).
 
    In order to resolve the Agency's exception in this case, it is
 necessary to determine whether the Arbitrator's award interferes with
 management's right to determine its internal security practices.  We
 find solely in the circumstances of this case that the Agency fails to
 establish that the Arbitrator's award is contrary to section 7106(a)(1)
 of the Statute.  As noted, the Arbitrator's award merely permits, until
 the expiration of the agreement (which may already have occurred),
 civilian technicians of the Wyoming Air National Guard the option of
 wearing standard civilian attire that has been approved by the Adjutant
 General.  The Agency in its exception and supporting arguments fails to
 demonstrate in what manner this award prevents the Agency from
 protecting its property from loss, destruction, or disclosure.  See
 National Treasury Employees Union and Department of the Treasury, U.S.
 Customs Service, 9 FLRA 983, 985-87 (1982), remanded as to other matters
 sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No.
 82-2225 (D.C. Cir. Jan. 19, 1984).  Likewise, the Agency fails to
 demonstrate in what manner the award interferes with management's right
 to determine the mission of the Agency.  Thus, no basis is provided for
 finding the award deficient.
 
                               V.  DECISION
 
    Accordingly, the Agency's exception is denied.
 
    Issued, Washington, D.C., August 18, 1986.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In its opposition the Union contends that the National Guard
 Bureau lacks standing to file an exception to the award because