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







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 d