23:0536(73)NG - NAGE Local R3-84, SEIU and District of Columbia Air NG -- 1986 FLRAdec NG
[ v23 p536 ]
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.