23:0536(73)NG - NAGE Local R3-84, SEIU and District of Columbia Air NG -- 1986 FLRAdec NG



[ 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