53:1408(125)NG - - ACT, Mile High Chapter and CO Air National Guard, 140th Fighter Wing - - 1998 FLRAdec NG - - v53 p1408



[ v53 p1408 ]
53:1408(125)NG
The decision of the Authority follows:


53 FLRA No. 125

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

ASSOCIATION OF CIVILIAN TECHNICIANS

MILE HIGH CHAPTER

(Union)

and

U.S. DEPARTMENT OF DEFENSE

COLORADO AIR NATIONAL GUARD

140TH FIGHTER WING

(Agency)

0-NG-2321

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

February 26, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. The Agency filed a statement of position, to which the Union filed a response.

For the reasons that follow, we find that the proposal is outside the duty to bargain under section 7117 of the Statute. Accordingly, we dismiss the petition for review.

II. Background

The Union requested that the Agency bargain over a proposal that would permit technicians of the Colorado Air National Guard to wear civilian attire while on duty instead of military uniforms. The Union's proposal specifically provided:

1. Technicians may wear on technician duty either

a. the military uniform or

b. civilian attire of their choice, provided it does not impede their work performance or violate established safety standards, and provided they have the military uniform at their place of employment.

2. Technicians may exercise daily their option to wear either the military uniform or civilian attire.

3. The employer and the labor organization will not discriminate in any manner against technicians based on their exercise of the option to wear either the military uniform or civilian attire that does not impede their work performance or violate established safety standards.

Petition for Review at 1.

Thereafter, the Agency advised the Union that the proposal was outside the duty to bargain because it was inconsistent with the National Guard Technician Act of 1968, 32 U.S.C. § 709 et seq. (the Technician Act). More specifically, the Agency asserted that section 1038 of the Department of Defense Authorization Bill of 1996, Pub. L. No. 104-106, 110 Stat. 432 (1996), had amended section 709(b) of the Technician Act to add a third subsection. Section 709(b), including subsection (3), specifically provides:

(b) Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall:

(1) be a member of the National Guard;

(2) hold the military grade specified by the Secretary concerned for that position; and

(3) wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician.

32 U.S.C. § 709(b) (emphasis added).

According to the Agency, as this language mandates that technicians wear military uniforms while performing official duties, it was precluded from bargaining over the Union's proposal.

III. Positions of the Parties

A. Union

The Union challenges the Agency's assertion that section 709(b)(3) of the Technician Act renders its proposal outside the duty to bargain. The Union focuses on the phrase, "[e]xcept as prescribed by the Secretary concerned[,]" and argues that by this language, the Agency has been granted the discretion to permit technicians employed by the National Guard to wear civilian attire to perform their civilian duties.

According to the Union, "[i]t is well-established that a federal law does not render a matter nonnegotiable to the extent the law leaves the matter within the discretion of agencies." Petition for Review at 2-3 (citing National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923, 933 (1994) (VA Locals). The Union also asserts, based on Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994) (Montana Air Chapter, No. 29) that military uniforms are a methods or means of performing work under section 7106(b)(1) of the Statute and, therefore, are negotiable at the election of the Agency.

The Union contends that nothing in the language of section 709(b) of the Technician Act indicates that the wear of military uniforms is committed to the "unfettered discretion" of the Agency. Petition for Review at 3. Nevertheless, the Union asserts that even where an agency has been granted unfettered discretion, such discretion includes the authority to bargain over the particular subject if the agency so elects.

In this case, the Union submits that the Agency has elected to bargain over subjects encompassed by section 7106(b)(1) of the Statute, in accordance with Executive Order 12871. Therefore, as section 7106(b)(1) matters include the wear of military uniforms, the Union maintains that the Agency's allegation of nonnegotiability is incorrect.

B. Agency

The Agency acknowledges that the wear of military uniforms by National Guard technicians is a methods or means of performing work within the meaning of section 7106(b) of the Statute. The Agency submits, however, that its refusal to bargain over the Union's proposal does not pertain to this issue. Instead, the Agency maintains that it refused to bargain over the Union's proposal because implementation of 32 U.S.C. § 709(b)(3) placed the matter of technicians' attire beyond the lawful scope of bargaining.

In support of its position, the Agency contends that the phrase, "[e]xcept as provided by the Secretary concerned," upon which the Union relies, does not grant the Secretaries of the Army and the Air Force the authority to waive, through negotiation, the requirement set forth in section 709(b)(3)-- that while on duty National Guard technicians wear the uniform appropriate for their grade. The Agency asserts, in this regard, that it is well-established under section 709(b) that technicians must maintain military membership in the National Guard and hold the military grade specified for their positions as a condition of their civilian employment. According to the Agency, by placing the matter of technicians' attire within section 709(b), "Congress clearly linked" this subject with the subjects of military membership and military grade that are encompassed within the section. Statement of Position at 2.

The Agency further contends that the legislative history of section 709(b) shows that at the time that section 709(b) was enacted, it was the intent of Congress to limit the scope of the Secretaries' discretion to make exceptions to the requirements of military membership and military grade. The Agency explains that their discretion was confined to specific types of positions, the mobilization of which would serve no military purpose. The Agency argues that in amending the Technician Act by adding subsection (3) under section 709(b), it was the intent of Congress, as it was in enacting sections 709(b)(1) and (b)(2), to limit the discretion of the Secretaries to make exceptions to the requirement that technicians wear the uniform appropriate for their grade.

Finally, the Agency notes the language of the House Conference Report on Pub. L. No. 104-106 in which the Conference Committee states, "[t]he Senate amendment contained a provision (sec. 333) that would require military technicians to wear military uniforms in their jobs." H. Conf.Rep. No. 104-450, 104 Cong., 2nd Sess. 841, reprinted in (1996) U.S. Code Cong. & Ad. News 366. According to the Agency, as the House receded to the Senate version of this legislation, the "will of the Congress" is abundantly clear. Statement of Position at 3.

The Agency also argues that the Union's proposal is outside the duty to bargain because the attire of National Guard technicians is not a condition of employment under section 7103(a)(14) of the Statute and because the proposal is inconsistent with an Agency regulation for which there is a compelling need.

IV. Analysis and Conclusions

It is now well-settled that matters concerning conditions of employment are subject to collective bargaining when they are within the discretion of an agency and are not otherwise inconsistent with law or applicable rule or regulation. Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 648 (1997) (PTO); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6, 10-11 (1986), enforced, 836 F.2d 1381 (D.C. Cir. 1988). However, it is also well-settled that where a law or regulation indicates that an agency's discretion is intended to be exercised only by the agency -- referred to by the Authority as "sole and exclusive" discretion -- it would be contrary to law to require that discretion to be exercised through collective bargaining. PTO, 53 FLRA at 648. See also International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681-82 (1995) (BEP), aff'd mem. sub nom. Bureau of Engraving and Printing v. FLRA, No. 95-1499 (D.C. Cir. 1996); Police Association of the District of Columbia, National Park Service, U.S. Park Police, 18 FLRA 348, 352-56 (1985). In determining whether an agency's discretion is sole and exclusive, the Authority examines the plain wording and the legislative history of the statute being relied on. See, e.g., BEP, 50 FLRA at 691; VA Locals, 49 FLRA at 933.

Under the plain wording of section 709(b)(3), a technician employed by the National Guard is required to wear the uniform appropriate for his or her grade and component while performing duties as a technician "[e]xcept as provided by the Secretary concerned."

The legislative history of section 709(b) of the Technician Act has previously been addressed by the Authority. Thus, in Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters, 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717 (1985) (Montana ACT), the Authority analyzed the legislative history of section 709(b) and, based thereon, concluded that the scope of the Secretaries' discretion to make exceptions to the requirements of military membership, set forth in section 709(b)(1), and military grade, set forth in section 709(b)(2), is "extremely limited." Id. at 726.

In discussing the pertinent legislative history, the Authority observed that the Technician Act was originally introduced as Title II of H.R. 2 in the First Session of the 90th Congress in 1967. As concerns the provision that authorizes the Secretaries of the Army and the Air Force to make exceptions to the requirements of section 709(b), the Authority noted that the intent of Congress was set forth in the House Report accompanying Title II of H.R. 2, as follows:

Clause (b) converts to a statutory requirement what has long been practice and procedure -- that of requiring the civilian male caretakers and clerks, now termed "technicians," to be members of the National Guard and to hold the military grade specified by the Secretary concerned for the corresponding technician position. The requirement for military membership to assure the presence, during mobilization, of a hard core of highly qualified technicians was strongly endorsed by the House Armed Services Committee in its consideration of H.R. 8186, 86th Congress, 1st Session . . . .

It has also been the practice of the Secretary concerned to designate certain positions as "officer positions," others as "enlisted positions," which can be filled only by individuals who hold the appropriate grade in the National Guard. There is a high correlation between the duties of the technician in his military and civilian capacities. Thus, the division staff training assistant (civilian) is conventionally a lieutenant colonel, the division G-3, and the unit administrative supply technician (AST) is conventionally the unit first sergeant or supply sergeant. In the interest of efficiency and discipline, a military commander should not be a civilian subordinate of a member of his unit. Such inversions may be prevented by authorizing the Secretary concerned to establish the military grade required for employment in a particular technician position. Proposed 32 U.S.C. 709(b) of the bill would so provide. The right to make exception to the foregoing military requirement granted to the Secretary concerned in the said clause (b) of section 709 is primarily directed toward the female technician secretaries who would normally not be expected to fulfill military assignments in the National Guard.

Id. at 725 (emphasis added) (quoting H. Rep. No. 13, 90th Cong., 1st Sess. 58-59 (1967)).

When legislation that was to become the Technician Act was reintroduced in the Senate during the Second Session of the 90th Congress, the language of section 709(b) remained unchanged. In addition, both the House and the Senate Reports that accompanied the legislation indicated that, as in H.R. 2, it was the intent of Congress to circumscribe the authority of the Secretaries concerned to make exceptions to section 709(b). In this connection, the Senate Report specifically states:

Unless the Secretaries make an exception, the bill provides that the technicians as a condition of civilian employment will be required to be members of the National Guard and hold a military grade required for that position. In addition, such civil service positions would be noncompetitive.

About 95 percent of the technicians would hold noncompetitive positions and would be required to be members of the Guard as a part of their civilian employment. About 5 percent, or 2,000, would be in a competitive Federal status and would constitute principally female employees, clerk-typists, and security guards.

The noncompetitive status is necessary for the technicians in view of (a) [the] requirement for holding a concurrent military Guard status as a condition for employment and (b) the fact that civilian employment is terminated where the concurrent military status ceases to exist.

Id. at 725-26 (emphasis added) (quoting S. Rep. No. 1446, 90th Cong. 2nd Sess. 6 (1996).

Based on the foregoing, the Authority concluded that the scope of the Secretaries' discretion to make exceptions to the requirements of military membership and military grade is "confined to certain specific types of positions, the mobilization of which would serve no military purpose." Id. at 726. The Authority therefore found the Union's proposals -- which concerned the filling of civilian technician positions without regard to the military compatibility requirement set forth in section 709(b) -- inconsistent with law and, consequently, outside the duty to bargain.

The legislative history of section 709(b)(3) is spare. It shows that this provision was enacted into law in 1996 as a provision of the Department of Defense Authorization Bill. In addition, as the Agency correctly points out, the House Conference Report explains that section 333 of the Senate version of the bill "requir[ed] military technicians to wear military uniforms in their jobs." 1996 U.S. Code Cong. & Adm. News 366 (emphasis added). The Conference Report then states that the House bill contained no similar provision and that the House receded to the Senate.

It is a well-established rule of statutory construction that a statute should be read as a whole. See, e.g., Division of Military and Naval Affairs (New York National Guard), Latham, New York, 53 FLRA 111, 118 (1997); Sutherland, Stat. Const. § 46.05 (5th ed.