32:1207(160)AR - ASSOCIATION OF CIVILIAN TECHNICIANS, MICHIGAN STATE COUNCIL and MICHIGAN AIR NATIONAL GUARD -- 1988 FLRAdec AR


[ v32 p1207 ]
32:1207(160)AR
The decision of the Authority follows:


  32 FLRA NO. 160

ASSOCIATION OF CIVILIAN
TECHNICIANS, MICHIGAN
STATE COUNCIL

                   Union

      and

MICHIGAN AIR NATIONAL GUARD

                   Agency

                                             Case No. 0-AR-1520

                                   DECISION

     I. Statement of the Case

     This case is before the Authority on exceptions to the award
of Arbitrator Sandra G. Silver. The Arbitrator determined that
the civilian technicians of the Michigan Air National Guard (the
Agency) may not be required to observe military customs and
courtesies when wearing the military uniform away from the Battle
Creek Base. The Arbitrator further determined that although the
civilian technicians may be required to observe military customs
and courtesies in going to and from their workplace on base, they
may not be required to do so during their lunch periods.

     The Agency filed exceptions under section 7122(a) of the
Federal Service Labor - Management Relations Statute (the
Statute) and part 2425 of the Authority's Rules and Regulations.
The Agency contends that the award (1) is contrary to section
7106(b)(1) of the Statute; (2) is contrary to regulations
pertaining to military customs and courtesies; and (3) does not
concern a "grievance" within the meaning of section 7103(a)(9) of
the Statute. The Union filed an opposition to the Agency's
exceptions.

     For the reasons discussed below, we conclude that although
the dispute concerns a "grievance" within the meaning of section
7103(a)(9) of the Statute, the award is contrary to the Agency's
right to determine the methods and means of performing work under
section 7106(b)(1).

     II. Background and Arbitrator's Award

     The Arbitrator stated the issue submitted by the parties to
be "whether the civilian technicians can be required to observe
all uniform regulations, customs and courtesies during their
off-duty hours." Arbitrator's Opinion and Award at 4-5. The
Arbitrator recognized that the requirement that civilian
technicians wear the military uniform is a method and means of
performing work within the meaning of section 7106(b)(1) of the
Statute. However, the Arbitrator determined that the Agency could
not control the conduct of civilian technicians during their
off-duty hours by requiring them to observe military customs and
courtesies whenever they were wearing the military uniform.

     The Arbitrator stated that she was unaware of any basis on
which the Agency could enforce military customs and courtesies
when civilian technicians were off the military base where they
were employed and were off duty. The Arbitrator also noted that
civilian technicians were not provided with lockers at the base
and, therefore, they were forced to leave the base in uniform
once they were off duty.

     The Arbitrator concluded that the Agency may reasonably
require civilian technicians to report to work wearing the
uniform and to observe all military customs and courtesies.
However, the Arbitrator ruled that "(t)here can be no requirement
beyond the workplace imposed by (the Agency) on civilian
personnel." Id. at 7.

     The Arbitrator also addressed whether the Agency could
require civilian technicians to "observe customs and courtesies
during their off-duty lunch hours." Id. The Arbitrator noted that
"during the actual lunch break itself, these persons are not
being paid and are off duty." Id. Therefore, she ruled that to
require civilian technicians to observe military customs and
courtesies "while they are on break from (their) employment is an
interference into private time that extends working conditions
beyond work." Id.

     For these reasons, the Arbitrator issued the following
award:

     The civilian technicians of the Michigan Air National Guard
     shall not be required to observe customs and courtesies when in
     uniform away from ] the Battle Creek Base. These civilian
     technicians shall be required to observe customs and courtesies
     in going to and from their workplace on base, but not during
     their lunchtime.

Id. at 8.

     III. Positions of the Parties

     A. The Agency

     The Agency contends that the award (1) is contrary to
section 7106(b)(1) of the Statute; (2) is contrary to regulations
pertaining to military customs and courtesies; and (3) does not
concern a "grievance" within the meaning of section 7103(a)(9) of
the Statute.

     The Agency argues that its right to require the wearing of
the military uniform by civilian technicians includes the right,
over which it has not elected to bargain, to require civilian
technicians to observe military customs and courtesies when
wearing the military uniform. The Agency states that civilian
technicians are not required to wear the military uniform when
commuting to and from their workplace. However, the Agency
maintains that civilian technicians were notified of the
requirement that whenever they wear the military uniform, they
must wear the uniform in accordance with military regulations.
The Agency has submitted National Guard and Air Force Regulations
and claims that the regulations require that military customs and
courtesies be observed whenever the military uniform is worn.

     The Agency contends that by negating the requirement that
civilian technicians observe military customs and courtesies
whenever they are wearing the military uniform, the award is
contrary to section 7106(b)(1). The Agency also contends that by
negating this requirement, the award is contrary to military
regulations pertaining to military customs and courtesies when
wearing the military uniform.

     The Agency further asserts that the wearing of the military
uniform and the observance of military customs and courtesies
concerns a military matter. Therefore, the Agency maintains that
the dispute does not constitute a grievance within the meaning of
section 7103(a)(9) of the Statute and was not within the
jurisdiction and authority of the Arbitrator.

     B. The Union

     Preliminarily, the Union objects to the Agency's enclosure
of Air Force Regulation (AFR) 30-1, pertaining to military
customs and courtesies when wearing the military uniform. The
Union argues that the regulation was not submitted to the
Arbitrator and, therefore, should not be considered by the
Authority. The Union claims that the regulation is similar to the
evidence that was not considered by the Authority in Veterans
Administration Regional Office and Service Employees
International Union, Local 556. AFL - CIO, 5 FLRA  463 (1981).

     The Union contends that the Agency's exceptions should be
denied because they constitute nothing more than an attempt to
relitigate the merits of the dispute before the Authority. The
Union also contends that the Arbitrator correctly decided that
there was no lawful authority which permits the Agency to impose
military customs and courtesies on civilian technicians when they
are wearing the military uniform either (1) off the military
base, or (2) during their lunch periods.

     IV. Analysis and Conclusions

     A. We Will Not Exclude AFR 30-1

     The issue submitted to and decided by the Arbitrator was
whether the Agency could require civilian technicians to observe
military customs and courtesies prescribed by military
regulations when wearing the military uniform. The Arbitrator
determined that the military regulations are not applicable or
enforceable during the off-duty time of civilian technicians. The
Agency contends that this determination is deficient. The Agency
argues that military regulations prescribing customs and
courtesies apply and are enforceable as a method and means of
performing work within the meaning of section 7106(b)(1).

     AFR 30-1 specifies the customs and courtesies that are
required to be observed when wearing the military uniform. The
Arbitrator recognized that the effect of the regulation was a
central issue in dispute. Therefore, we will allow its submission
in relation to our consideration of the Agency's exceptions. This
matter is distinguishable from the situation in Veterans
Administration Regional Office, 5 FLRA  463, cited by
the Union. In that case, the union claimed that the award was
deficient on the basis of "new pertinent and material evidence,"
id. at 470, which had not been presented to or considered by the
arbitrator in resolving the dispute. In contrast, in the instant
case, the effect of AFR 30-1 was recognized by the Arbitrator as
a central issue in the dispute.

     B. The Complaint Over The Agency's Requirement That Military
        Customs And Courtesies Be Observed Constitutes A Grievance

     The term "grievance" is defined in section 7103(a)(9)(A) of
the Statute to include any complaint "by any employee concerning
any matter relating to the employment of the employee." We find
that the complaint over the Agency's requirement that military
customs and courtesies be observed whenever the military uniform
is worn by civilian technicians constitutes a grievance within
the meaning of section 7103(a)(9). Because this requirement
applies to civilian technicians in their civilian status, we
reject the Agency's contention that the grievance concerns a
military matter and does not concern conditions of employment.
See Association of Civilian Technicians, Wisconsin Chapter and
Wisconsin Army National Guard, 26 FLRA  682, 685 (1987).

     C. The Award Is Deficient

     We conclude that the award is contrary to section 7106(b)(1)
of the Statute. We find that the requirement that civilian
technicians observe military customs and courtesies whenever they
are wearing the military uniform is so inextricably related to
the wearing of the military uniform that the observance of these
customs and courtesies must be considered as part of the
uniform-wearing requirement. Therefore, the requirement that
civilian technicians observe military customs and courtesies when
wearing the military uniform constitutes a method and means of
performing work.

     Methods and means of performing work are negotiable only at
the election of the Agency. In the instant case, the Agency has
not elected to bargain. By negating the Agency's requirement that
customs and courtesies be observed whenever civilian technicians
are wearing the military uniform, the award is deficient because
it conflicts with the Agency's right to determine the methods and
means of performing its work. The award cannot be modified to be
 fully consistent with management's right. Therefore, we
find the award deficient in its entirety and will set the award
aside.

     In National Association of Government Employees, SEIU. AFL -
CIO and National Guard Bureau, Adjutant General, 26 FLRA  515
(1987) (Proposal 10) (National Guard Bureau), the Union proposed
that civilian technicians not be required to observe the grooming
standards prescribed by military regulation for the military
uniform. The Union argued that the grooming standards interfered
with the off-the-job