Association of Civilian Technicians, Roughrider Chapter (Union) and U.S. Department of Defense, North Dakota National Guard, Bismark, North Dakota (Agency)

[ v56 p256 ]

56 FLRA No. 33

ASSOCIATION OF CIVILIAN TECHNICIANS
ROUGHRIDER CHAPTER
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NORTH DAKOTA NATIONAL GUARD
BISMARK, NORTH DAKOTA
(Agency)

0-NG-2444

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

April 27, 2000

_____

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

I.     Statement of the Case

      This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).

      The Agency has filed exceptions to the attached recommended decision of an administrative law judge on the negotiability of three provisions of a collective bargaining agreement. The three provisions were disapproved by the Agency head under section 7114(c) of the Statute. Provision 1 permits a technician to wear civilian attire at third-party proceedings. Provision 2 prescribes the steps a selecting official must take to fill a position. Provision 3 permits a technician to grieve the content of a performance standard that does not correspond to that employee's position description or that does not accurately reflect the actual duties performed by that employee. [n1] 

      After the Agency head disapproved the three provisions, the Union filed a negotiability appeal under section 7105(a)(2)(E) of the Statute. Pursuant to section 7117(c)(5) of the Statute and section 2424.9 of the Authority's Regulations, the Authority transferred the case to the Chief Administrative Law Judge for assignment to an administrative law judge (Judge) for a hearing to determine, among other things, the meaning and context of the provisions. [n2] The Judge determined that a hearing was unnecessary in view of the parties' stipulation concerning the meaning and context of the provisions. Upon consideration of the stipulation and a further written submission by the Union, the Judge issued a decision, recommending that the Authority direct the Agency to withdraw its disapproval of the three provisions.

      The Agency filed exceptions to the Judge's recommendations only as to Provisions 1 and 3. The Union filed an opposition to the Agency's exceptions. The Agency did not file exceptions to the Judge's recommendation as to Provision 2. Accordingly, we adopt the Judge's recommendation regarding this provision and direct the Agency to rescind its disapproval of it. Consequently, we will not address Provision 2 further.

      For the reasons explained in this decision, we also adopt the Judge's recommendations as to Provisions 1 and 3 and direct the Agency to rescind its disapproval of these provisions.

II.     Analysis and Conclusions

      We agree with the Judge's conclusion that Provision 1, which permits a technician to wear civilian attire at third-party proceedings, is not inconsistent with the requirements in 32 U.S.C. § 709(b)(3) (section 709(b)(3)). [n3]  Section 709(b)(3) requires a technician to wear a military uniform "while performing duties as a technician." [n4] 

      The Agency has not established that the participation by a technician in the third-party proceedings described in Provision 1 is the performance by that employee of technician duties as a representative of a military organization. As the Judge found, the plain meaning of the phrase "while performing duties as a technician" in section 709(b)(3) would include technician work, and not third-party proceedings. See [ v56 p257 ] National Association of Government Employees, Local R3-84, SEIU, AFL-CIO and District of Columbia Air National Guard, 23 FLRA 536, 539 (l986) (NAGE, Local R3-84) (the Authority found that, for purpose of the technician uniform requirement, third-party proceedings "do not constitute employee performance of technician duties"). The phrase "while performing duties as a technician" in section 709(b)(3) is not defined in that statutory provision or relevant legislative history. Thus, it is appropriate to interpret it based on the plain and ordinary words used. See, e.g., National Treasury Employees Union v. FLRA, 691 F.2d 553, 561 n.80 (D.C. Cir. 1982).

      NAGE, Local R3-84, which was decided prior to the enactment of section 709(b)(3), demonstrates that, at that time, the Authority's description of "technician duties" did not include the actions covered by the provision. Our review of the legislative history of section 709(b)(3) reveals no evidence that Congress intended to attribute to the phrase "performance of technician duties" any meaning different from the plain meaning applied to the term by the Authority in NAGE, Local R3-84. Accordingly, we agree with the Judge's conclusion that Provision 1 is not inconsistent with the requirements in section 709(b)(3).

      We also agree with the Judge's conclusion that the two disputed portions of Provision 3 do not affect management's rights, under sections 7106(a)(2)(A) and (B), to direct employees and to assign work. The first disputed portion of Provision 3 permits an employee to grieve the content of a performance standard that does not correspond to that employee's position description. As the Judge found, consistent with our precedent, this portion of the provision does not affect management rights and, therefore, is not contrary to law. See, e.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 28-29 (1993), petition for review denied as to other matters sub nom. Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994).

      The remaining disputed portion of the provision permits an employee to grieve the content of a performance standard that does not accurately reflect the actual duties performed by that employee. As construed by the Judge, consistent with the parties' stipulation, this portion of Provision 3 simply requires adherence to applicable law. See United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1158 (1992). We reject the Agency's argument that this provision is similar to paragraphs 3, 4 and 5 of Provision 21 found nonnegotiable in National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 742-44 (1992). That argument is based on a different construction of the provision, which it has not established, and which we do not apply.

III.     Order

      The Agency shall rescind its disapproval of Provisions 1, 2, and 3.


File 1: Authority's Decision in 56 FLRA No. 33
File 2: ALJ's Decision


Footnote # 1 for 56 FLRA No. 33 - Authority's Decision

   The text of the provisions is set forth in the attached recommended decision of the Administrative Law Judge. See Administrative Law Judge's Decision at 2, 7 and 11.


Footnote # 2 for 56 FLRA No. 33 - Authority's Decision

   The Authority's regulations governing negotiability appeals were revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.


Footnote # 3 for 56 FLRA No. 33 - Authority's Decision

   We adopt the Judge's determination as to the meaning of the provisions. The meaning that we adopt for the provisions unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of the provision is at issue. See National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 55 F