34:0816(138)NG - - AFGE Local 3006 and The Adjutant General, State of Idaho, Boise, ID - - 1990 FLRAdec NG - - v34 p816
[ v34 p816 ]
The decision of the Authority follows:
34 FLRA No. 138
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
THE ADJUTANT GENERAL, STATE OF IDAHO
DECISION AND ORDER ON NEGOTIABILITY ISSUES
February 14, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority based upon a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of two proposals. The proposals, submitted by the American Federation of Government Employees, AFL-CIO, Local 3006 (the Union), require the Idaho Army and Air National Guard (the Agency) to use the terms "employee", "technician", and "Mr.", "Mrs.", or "Ms.", instead of "military technician" and military terms of rank, in communications with bargaining unit employees.
For the following reasons, we find that the proposals are nonnegotiable because they directly interfere with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.
This case involves the same parties and proposals substantively similar to those in American Federation of Government Employees, AFL-CIO, Local 3006 and Idaho Army and Air National Guard, 32 FLRA 785 (1988) (Idaho Army and Air National Guard). During the pendency of the appeal to the Authority in Idaho Army and Air National Guard, the Union submitted additional proposals to the Agency concerning the manner in which management officials and supervisors communicate with bargaining unit employees. Proposals 1 and 2 in this case are the subject of the Union's petition for review.(*)
III. Proposals 1 and 2
a. Employees of the bargaining unit who are civilian technicians are proud of their role in the defense of the state and their country, therefore the terms "employee" and "technician" are the proper titles which pertain to civil service employees (civilian technicians) of the agency within the bargaining unit. When addressing civilian employees on the job, normal courtesy will be observed by management in addressing employees; e.g., where titles are used in addressing employees, they will be addressed as "Mr.", "Mrs.", or "Ms.", as appropriate.
b. In addressing civilian technicians, management will use the proper terminology as outlined in paragraph (a), above, on all documents by management addressed to, or referring to, civilian technicians.
IV. Positions of the Parties
A. The Agency
The Agency contends that the proposals are nonnegotiable because they do not concern conditions of employment within the meaning of section 7103(a)(14) of the Statute. The Agency contends that, as in Idaho Army and Air National Guard, "the use of the alternative terms proposed by the [U]nion would not change or affect any aspect of the military technicians' job functions, job requirements, or any other incidents of employment of the members of the bargaining unit." Agency's Statement of Position at 5.
The Agency also argues that it has no obligation to bargain because the proposals concern the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute and, consequently, are negotiable only at the Agency's election. The Agency notes that 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, 474 U.S. 846 (1985), the Authority held that the military uniform constitutes a method and means of performing work.
According to the Agency, the Authority "has since consistently held that when military technicians are performing the duties of their positions, which uniform is to be worn, and the accoutrements to that uniform, are clearly within the ambit of [s]ection 7106(b)(1)." Agency's Statement of Position at 3. The Agency argues that just as "bargaining over the accoutrements to the appropriate military uniform excessively interferes with the determination of the methods and means by which the Agency conducts its operations[,] . . . [f]orbidding the use of the military grade prefix in the Agency's dealings with its personnel, as proposed in the instant petition, would have the identical effect." Id. at 4.
The Agency claims that the "proper wear of the military uniform includes the day to day functioning of the military technician in his or her military working environment." Id. at 3. The Agency argues that if military technicians may not be referred to by their military grade, the work environment of those technicians would no longer be one in which personnel have "'the wearing of the military uniform . . . as a constant reminder . . . that they are members of an organization which is essentially military and subject to mobilization at a moment's notice.'" Id. at 4, quoting Division of Military and Naval Affairs, State of New York, 15 FLRA at 294.
B. The Union
The Union states that the proposals in this case are "designed to achieve the same effect" as the earlier Idaho Army and Air National Guard proposal. Union's Petition for Review at 2. According to the Union, the intent of the proposals is to accord proper respect to bargaining unit employees and to prevent "rude confrontations" that arise when managers and supervisors refer to employees simply by last names or by their subordinate rank. Id. at 1-2. The Union argues that "the addressing of employees in personal contacts by supervisors in the regular course of business is a basic element of respect and, therefore, is a condition of employment." Union's Response to Agency's Statement of Position at 13 (emphasis deleted).
The Union also argues that the proposals do not interfere with the Agency's right to determine the methods and means of performing work. The Union asserts that the proposals do not interfere with the military nature of the Agency's mission and that the Agency has not shown how the use of civilian courtesy titles impedes the purpose of the military uniform or detracts from the uniform's role. The Union states that "an employee being called 'Mister' as opposed to 'Corporal' does nothing to denigrate the purpose of the uniform." Id. at 11.
A. Conditions of Employment
In deciding whether a proposal involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the proposal pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (Antilles). Because there is no dispute that the proposals in this case pertain to bargaining unit employees, we consider only the second factor of the Antilles test--whether there is a "direct connection" between the disputed proposals and "the work situation or employment relationship" of unit employees.
In American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761), the United States Court of Appeals for the District of Columbia Circuit reviewed the Authority's application of the second part of the Antilles test. The court noted that under Antilles, "the Authority inquires into the extent and nature of the effect of the practice on working conditions." AFGE, Local 2761, 866 F.2d at 1445. In determining whether the matter there in issue was a condition of employment, the court examined whether there was a "link" or "nexus" between that matter and the worker's employment. Id. at 1447, 1449. The court found that where a matter has "a direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449.
The proposals at issue in this case would require the Agency's managers and supervisors to use the terms "employee" or "technician" and "Mr.", "Mrs.", or "Ms." when communicating with or addressing unit employees in connection with their work. The intent of these proposals is to recognize the technicians' civilian status. See Union's Response at 14-15. In view of the court's application of the Antilles test in AFGE, Local 2761 and the record before us, we find that the on-the-job use of civilian terms of address, as distinguished from military terms of address, directly affects the employment relationship of National Guard civilian technicians.
National Guard technicians have a dual employment status because they perform both civilian and military roles: "[t]hey perform full-time civilian work; they perform military training and duty; and they are continuously available to enter active state or Federal military duty whenever mobilized." Division of Military and Naval Affairs, State of New York, 15 FLRA at 291. The technicians have rights in their civilian status which they do not possess in their military status. For example, matters related to the civilian aspect of civilian technicians' employment may be within the duty to bargain pursuant to the Statute. National Federation of Federal Employees, Local 687 and Department of the Air Force, Headquarters 63rd Air Base Group (MAC), Norton Air Force Base, California, 19 FLRA 617, 619 (1985). However, insofar as their status as members of the National Guard, as opposed to their status as civilian employees, is concerned, the technicians are not covered by the Statute. Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 31 FLRA 824, 828 (1988).
The technicians' dual employment status makes the use of civilian terms of address a matter which is inherently linked to their employment relationship. Proposals 1 and 2 would require management officials to recognize technicians' civilian employment status when they communicate with technicians concerning matters relating to their civilian employment. By requiring management officials to recognize one aspect of civilian technicians' dual employment status, these proposals are directly connected or linked to, and would have a direct effect on, the employment relationship of those technicians. Consequently, we find that Proposals 1 and 2 in this case concern matters relating to conditions of employment.
We note that in Idaho Army and Air National Guard the Authority found a substantively similar proposal to be outside the duty to bargain because it did not concern a matter affecting conditions of employment. In view of our finding in this case, we will no longer follow Idaho Army and Air National Guard to the extent that it held that the proposal did not concern a matter affecting conditions of employment of bargaining unit employees.
B. Methods and Means
The proposals require the Agency to use specific terms in addressing unit employees in oral and written communications. The Agency contends that the proposals interfere with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. For the following reasons, we conclude that the proposals directly interfere with management's rights under section 7106(b)(1) and, consequently, are negotiable only at the election of the Agency.
The requirement that National Guard technicians wear the appropriate military uniform is a method and means of performing work within the meaning of section 7106(b)(1) of the Statute. Division of Military and Naval Affairs, State of New York. In addition, "[t]he observance of military customs and courtesies is integrally related to the [a]gency's purposes in requiring the wearing of the military uniform: maintaining a highly developed sense of esprit de corps and military discipline among civilian technicians. Consequently, observance of military customs and courtesies when in uniform constitutes a method and means of performing work within the meaning of section 7106(b)(1) of the Statute." Association of Civilian Technicians, Michigan State Council and Michigan Air National Guard, 32 FLRA 1207, 1213 (1988) (Michigan Air National Guard), motion for reconsideration denied, 33 FLRA 530 (1988).
The proposals in dispute preclude the Agency from using military terms to address unit employees. The Agency's practice of using military terms to address employees is a military custom or courtesy. As in Michigan Air National Guard, the practice serves the same Agency interests as the uniform requirement: "maintaining a highly developed sense of esprit de corps and military discipline among civilian technicians." Id.
By precluding the Agency from referring to technicians by military terms in communications with them, the proposals contravene the Agency's requirement that military customs and courtesies be observed. These proposals, therefore, directly interfere with the Agency's right to determine the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. Matters pertaining to the exercise of management's right to determine the methods and means of performing its work under section 7106(b)(1) are negotiable only at the election of the Agency. Because the Agency has elected not to bargain on the methods and means of performing