File 2: ALJ's Decision

[ v56 p258 ]


Office of Administrative Law Judges

ASSOCIATION OF CIVILIAN TECHNICIANS
Union

and

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

Case No. O-NG-2444

Daniel M. Schember
     For the Union

Paula Shipe
Wilson Fisher
Andrea Krawcyk
     For the Agency

Before:     JESSE ETELSON
     Administrative Law Judge

RECOMMENDED DECISION AND ORDER
ON NEGOTIABILITY ISSUES

      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). It concerns the negotiability of three provisions disapproved by the Agency head under section 7114(c) of the Statute.

      By order dated May 27, 1999, the Authority transferred the case to the Chief Administrative Law Judge for assignment to an Administrative Law Judge, for the purpose of conducting a hearing and issuing a recommended decision. The Chief Administrative Law Judge assigned the appeal to me.

      The purposes of the hearing the Authority directed to be held was to develop a full and complete record concerning the meaning and context of each provision in dispute and to clarify any other matters regarding the parties' arguments as deemed necessary by the Judge. The Authority directed that such hearing be convened within 30 days of the date of the Authority's order unless the parties agree to the contrary.

      On June 8, 1999, the parties filed a stipulation agreeing that the hearing not be convened within 30 days of the Authority's order and agreeing further that the parties would seek to stipulate to the meaning and/or context of the matters deemed by the May 27, 1999 order to be unclear and/or disputed by the parties. The parties reached and submitted such a further stipulation.

      On July 28, 1999, I issued an order finding that the further stipulation adequately presented the meaning and context of each of the provisions in dispute and concluding that a hearing was unnecessary. However, consistent with the Authority's order, I gave the parties an opportunity to update their respective statements of position in light of their resolution of the meaning of the provisions. I therefore informed the parties that I would hold the record open until August 10, 1999 for receipt of a statement from either party that it wished to submit a further statement of position. I further informed the parties that if any such statement of intent were received by August 10 I would hold the record open until August 30, 1999 for receipt of such further statement.

      Both parties requested the opportunity to submit further statements of position. The Union submitted a timely further statement of position. The Agency submitted none. The following are my findings, conclusions, and recommendations concerning the provisions in dispute.

Provision 1

Article VI - Official Time for Exclusive Representation
     Section 6-1.     General
b.     Labor Organization representatives are not required to wear the military uniform while performing representational functions or other Labor Organization activity related functions. Bargaining unit members will not be required to wear the military uniform while appearing as a grievant or as a witness at a third party proceeding. [Only the language in italics is at issue.]

A.     Meaning and Context of Provision 1

      In its order transferring this appeal, the Authority noted that the parties disagreed as to the meaning of "third party proceeding" and as to whether the provision affords "official time" to bargaining unit employees appearing at such proceedings. The Authority also found it to be unclear whether the term "witness" in the provision refers to a witness on behalf of the Union, the Agency, or either party, a matter that neither party had addressed.

      The parties' stipulation resolves and clarifies these matters as follows:

The phrase "third party proceeding," as used in Provision 1, means an "administrative proceeding before the Authority, the Federal Service Impasses Panel, or an arbitrator." The provision affords bargaining [ v56 p259 ] unit employees appearing as grievants or as witnesses on behalf of any party the right to wear civilian attire while so appearing, whether or not the employees have been granted official time for their appearances.

      This stipulation resolves explicitly the Authority's questions about the terms, "third party proceeding," and "witness." By implication it answers in the negative the Authority's question of whether the provision affords official time.

B.     Positions of the Parties

1.     Agency's Position

      The Agency argues that the provision is in conflict with 32 U.S.C. § 709(b)(3), as amended, which provides, not subject to discretion by management, that "[a] technician employed under subsection (a) shall, while so employed -- wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician." [n1]  The Agency contends that the Authority has held that management discretion to permit employees to wear civilian attire while performing technical duties applies only to employees occupying certain competitive, non-military positions and does not apply to "military technicians."

      The Agency disputes the Union's assertion that bargaining unit employees will be granted official time whenever they appear as either a grievant or a witness at a third party hearing and the Union's presumed further assertion that technicians in an official time status are not performing technical duties and are therefore not subject to the law that requires the wearing of the military uniform. In disputing those assertions, the Agency contends that "the exact language of the law links the requirement to wear the military uniform to employment as a technician and to the time period the technician is serving as an employee or while they are in their jobs." The language, "while performing duties as a technician," is intended to mean "while employed as a technician and engaged in employment activities as a technician employed under 32 U.S.C. 709(b)[sic], in other words, while at their job."

      All technicians covered by the collective bargaining agreement are employed as technicians under 32 U.S.C. § 709(a). If not, they could not be technicians and could not be subject to the collective bargaining agreement. Further, the Agency contends, participating in administrative third-party forums is intrinsically linked to employment as described under 32 U.S.C. § 709(a), since such forums are administrative and are used to resolve employment issues between management and employees. A bargaining unit member appearing as a grievant or witness represents him or herself as a technician seeking redress of a grievance or as a technician testifying to events he or she has observed as a technician. In either case, the grievant or witness makes his or her appearance while "employed under subsection (a)" and while "in their jobs." Consequently, Provision 1 attempts to carve a nonexistent exception to law.

2.     Union's Position

      Each of the "third party proceeding[s]" referenced in Provision 1 is a proceeding in which employees may participate on official time, either by negotiated agreement or Authority order. Employees granted official time under section 7131 of the Statute are not acting in their official capacity, on the job, or in a duty status and are thus not "performing duties as a technician" within the meaning of 32 U.S.C. § 709(b)(3).

      Under the Agency's view, an employee appearing as a grievant or witness must be deemed to be on duty time. Since official time is non-duty time, the Agency's view would prohibit technicians from being granted official time for such appearances, thus creating a conflict between 32 U.S.C. § 709(b)(3) and section 7131 of the Statute. Such a construction of these statutes is disfavored. Rather, statutory provisions, whenever possible, should be construed so as to be consistent with each other. Section 709(b)(3) can be interpreted to be consistent with section 7131 if the phrase, "performing duties as a technician" is deemed not to include either "participating . . . in . . . any phase of proceedings before the Authority" or acting "in connection with any other matter covered by this chapter" (Sections 7131(c) and (d)(2) of the Statute).

      The intent of § 709(b)(3) was not to change prior law as to when a technician is required to be in duty status or the Authority's power to grant, or a labor organization's right to negotiate, non-duty official time under section 7131. It neither defines the "duties [of] a technician" or in any way was intended to address the topics covered by section 7131. The latter is more specific with regard to appearing at proceedings or acting in connection with matters covered by the Statute and therefore controls over the general language of § 709(b)(3). [ v56 p260 ]

C.     Analysis and Conclusion

      The Agency has an uphill struggle with the fact that 32 U.S.C. § 709(b)(3) requires a subsection (a) technician to wear a military uniform "while performing duties as a technician" and not otherwise. In Association of Civilian Technicians, Mile High Chapter and U.S. Department of Defense, Colorado Air National Guard, 140th Fighter Wing, 53 FLRA 1408 (1998)(ACT Mile High), a decision on which the Agency relies, the Authority read the phrase, "while performing duties as a technician," as making it impermissible for technicians "to wear civilian attire while performing technician duties." Id. at 1415.

      The Agency's argument that participating in third-party proceedings that are used to resolve employment issues between management and employees is "intrinsically linked to employment for the purposes described under 32 U.S.C. 709(a)" is undercut by the Authority's view, expressed in in ACT Mile High, that subsection (b)(3) is directed at the clothing technicians must wear "while performing technician duties." [n2]  It is thus insufficient that the employee's participation in a third-party proceeding relates to her status as an employee and that status happens to be that of a technician.

      The drafters of § 709(b)(3) were capable of indicating that the requirement to wear uniforms was to apply more broadly. For example, they might have stated that a technician must wear a uniform "while in a duty status." Cf. section 7131(c) of the Statute, which provides that the Authority shall determine whether any employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose "during the time the employee otherwise would be in a duty status."

      Thus familiar with the concept of "duty status," Congress did not choose to employ it here. In fact, it took another tack altogether. It enacted three subparts to 32 U.S.C. § 709(b). Each subpart applies to "[a] technician employed under subsection (a), while so employed[.]" Subparts (1) and (2) require a technician to maintain a certain status (be a member of the National Guard and hold the specified military grade) at all times "while so employed." Subpart (3) requires a technician to wear the appropriate uniform, but only at certain times within the period during which the technician is "so employed." In subpart (3), unlike subparts (1) and (2), the focus is on what the technician is doing at the time rather than on her status as an employee.

      Nor should it readily be presumed that Congress intended to dictate what technicians should wear when they appear at third-party proceedings. One would not expect Congress to undertake, without explanation, to preempt the authority usually vested in the administrative forum with regard to the sartorial standards to which participants must adhere. [n3]  I therefore recommend that the Authority find Provision 1 to be negotiable.                                   

Provision 2

Article VIII - Merit Placement

Section 8-17. Selection Procedures
The selecting official is entitled to select or not select any candidate referred to him/her. Upon receipt of the selection certificate, the selecting official will:
a.     After interviewing the first certificate candidates, make the selection or provide written justification to the HRO for the non-selection of each candidate on the selection certificate.
b.     A written justification for non-selection means a reason which will address and support the areas where improvement can be made to enhance an individual[`]s potential. [ v56 p261 ]
c.     Once justification has been accepted by the HRO, the remaining eligible candidates will be submitted to the selecting official.A.Meaning and Context of Provision 2

      It is undisputed that the initial area of consideration for selection would be bargaining unit employees. However, the Authority required clarification of whether the provision precludes management from deferring a selection decision on unit employees on the first certificate of candidates in order to compare them with candidates from other sources. The parties' stipulation explains that:

With respect to Provision 2, if the selecting official, on first consideration, chooses not to select any of the candidates on the first certi-ficate and prepares the required written statement as to each one, the selecting official then may consider candidates on subsequent certificates. This consideration may include comparing and contrasting the qualifications of candidates on the subsequent certificates with the qualifications of the candidates on the first certificate. If this comparing and contrasting causes the official to change her or his mind about a previous non-selection, and to determine that the best candidate after all is one of the first certificate candidates who initially was non-selected, nothing prohibits the selecting official from then selecting that candidate.

B.     Positions of the Parties

1.     Agency's Position

      The Agency contends that Provision 2 violates its right, under section 7106(a)(2)(C) of the Statute, "to make selections for appointments from -- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source[.]"

      According to the Agency, the right described in section 7106(a)(2)(C) prohibits any restriction on its ability to select from "any other appropriate source." Thus, the provision's requirement that the selecting official provide written justification and "address and support the areas where improvement can be made," before the remaining eligible candidates may be submitted to the selecting official interferes with the right to select from that appropriate source. The Agency submits that the Authority found "such provisions" to interfere with the right to select from any appropriate source, without restriction, in American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 616 (1997)(Fort Rucker).

      The Agency contends that Provision 2 restricts its right to select from other sources in two ways. First, it restricts this right with respect to the time of its exercise by making the selection decision about each candidate on the certificate of qualified candidates for promotion, and providing a written justification for non-selection, prerequisites to its exercise of that right. Second, Provision 2 prohibits selection from other sources unless and until the selecting official can find that all of the in-house candidates are in need of improved qualifications.

2.     Union's Position

      The party's stipulation adopts the Union's interpretation of Provision 2 in its entirety, rendering the provision substantively identical to the provision held negotiable in Association of Civilian Technicians, Volunteer Chapter 103 and U.S. Department of Defense, Tennessee National Guard, Nashville, Tennessee, 55 FLRA 562 (1999), (Chair Segal dissenting on other grounds)(Tennessee National Guard).

      The Union describes the steps prescribed by Provision 2 for selections as purely procedural and not restrictive of the Agency's right to select from outside sources after eligible employees are given first consideration. The procedures described in Provision 2, the Union asserts, fall within the category of "procedures which management officials of the agency will observe in exercising any authority under this section," as provided in section 7106(b)(2) of the Statute.

      The Union sees the procedures described in Provision 2 as similar to provisions found negotiable in National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279 (1992)(NRC) and in AFSCME, Local 2027 and ACTION 27 FLRA 191 (1987)(ACTION). In NRC the Authority held that a proposal that gives first consideration to agency employees but permits management to rate or rank outside candidates while internal candidates are being considered, so that if the selecting official does not wish to select an agency employee a hybrid list of internal and outside candidates can be forwarded for consideration, would not directly interfere with management's right to select. NRC, 43 FLRA at 1286-88. In ACTION the Authority found negotiable a proposal that provided certain employees first priority for "repromotion" to their former grades and required "written, persuasive reasons for non-selection" and an opportunity to rebut these reasons before the selecting official filled the [ v56 p262 ] vacancies for which the covered employees applied. ACTION, 27 FLRA at 194-97.  [n4] 

      The Union argues further that the requirement for a statement of "the areas where improvement can be made . . ." does not contemplate that the Agency's failure to prepare such a statement as to a particular candidate would require that such candidate be selected for the position in question. Nor does it authorize an arbitrator to assess whether the Agency's statement is "incorrect" according to the arbitrator's own assessment of a candidate's need, or lack thereof, to make improvement to enhance her potential. Nor would any such assessment by an arbitrator, even if made, warrant an arbitration award ordering the Agency to appoint any candidate to a position. Therefore, the Union concludes, this requirement, as well as the others described in Provision 2, is entirely procedural.

C.     Analysis and Conclusion

      Provision 2 does not unduly interfere with the Agency's right to select. As the Union contends, its requirements are purely procedural. A provision requiring an agency to provide a statement setting forth the reasons for the agency's actions is a negotiable procedure under section 7106(b)(2) of the Statute. NRC, 43 FLRA at 1293. Moreover, a procedure that delays management's action but does not prevent management from acting at all is negotiable under section 7106(b)(2). ACTION, 27 FLRA at 196-97.

      Quite recently, the Authority considered and found negotiable a provision that the majority interpreted as having essentially the same effect as Provision 2 in the instant case. Thus, in Tennessee National Guard, the Authority found that a provision requiring the selecting official, before considering other candidates, to decide not to select from among the candidates in the contractually-defined "well qualified group," and to provide such non-selected applicants with a written justification including "information as to an area or areas where the applicant needs to approve," did not directly interfere with management's right to select under section 7106(a)(2)(C). The Authority ordered the agency to rescind its disapproval of the provision. 55 FLRA at 565-66. I therefore recommend that the Authority find Provision 2 to be negotiable.

Provision 3

Article XIV - Performance Appraisal

Section 14-5. Appeals
The employee has the right to grieve at any time the content of a performance standard:
1.     Which fails to incorporate law, rule or regulation.
2.     Which does not correspond to position description.
3.     Which does not accurately reflect the actual duties performed.

A.     Meaning and Context of Provision 3

      The Authority, in its May 27, 1999 order transferring this case, noted an apparent discrepancy between the Union's claim that Provision 3 was a restatement of the requirements set forth in 5 U.S.C. § 4302(b)(1) and Provision 3's inclusion of the phrase, "the actual duties performed," which phrase is absent from the cited statutory provision.

      The parties stipulated the following as to the meaning and context of Provision 3:

Provision 3 does not grant employees the right to file grievances if performance standards "are in any detail" inconsistent with actual duties performed. Provision 3 grants employees the right to file grievances if performance standards do not accurately reflect actual duties performed. "Accurately" means "reasonably accurately." "Actual duties performed" means "actual duties assigned to be performed," and this phrase has the same meaning as "the job in question," the phrase used in 5 U.S.C. § 4302(b)(1). A performance standard is reasonably accurate if comparing the standard with the actual duties assigned reveals a reasonable certainty that a particular level of performance of assigned duties (satisfactory, excellent, outstand-ing, etc.) will yield an evaluation at that same level under the performance standard. If there is a substantial likelihood that a particular level of performance of the assigned duties will not yield an evaluation at the same level under the performance standard-- due to the standard contemplating duties significantly different from those actually assigned--then the performance standard is not reasonably accurate. [ v56 p263 ]

B.     Positions of the Parties

1.     Agency's Position

      The Agency asserts that Provision 3, by permitting an employee to "grieve at any time the content of a performance standard," violates management's rights under sections 7106(a)(2)(A) and (B) to direct employees and to assign work. The Agency contends that to subject the content of a performance standard to arbitral review directly interferes with those management rights and is therefore not within the duty to bargain. The Agency finds Provision 3 distinguishable from proposals or provisions, found negotiable by the Authority, that required consistency between performance standards and position descriptions but permitted the agency to comply by amending the position description. Under Provision 3, the Agency argues, an arbitrator could render the performance standard invalid, thus directly interfering with management's right to direct. Inasmuch as the language of Provision 3 concerns the contents of performance standards, it violates the management rights to direct employees and to assign work.

2.     Union's Position

      The Union responded to the Agency's statement of position with respect to the consistency of performance standards with position descriptions by reaffirming the Authority's findings that an agency can comply with such a requirement of consistency by changing the position description. The Union disputes the Agency's argument that, under Provision 3, an arbitrator could render the performance standard invalid, in violation of the Agency's statutory rights, rather than deciding that the position description needed to be amended. Were an arbitrator to render an award that is contrary to established law, the Union argues, the Agency could obtain relief by filing an exception with the Authority. The possibility of such an unlawful award does not render the contract provision invalid.

      With respect to the grievability of a performance standard that does not accurately reflect the actual duties performed, the Union insists that Provision 3 merely requires adherence to the statutory requirements set forth in 5 U.S.C. § 4302(b)(1), which provides that performance standards "will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question." In the alternative, the Union argues that this Provision 3 requirement is an "appropriate agreed-upon general, nonquantitative review criterion." In this connection, Provision 3 is similar in effect to a negotiable provision requiring that performance standards take into consideration whether a matter is beyond an employee's control.

C.     Analysis and Conclusions

1.     The grievability of a performance standard that does not correspond to the employee's position description does not interfere with management rights

      As the Agency acknowledges, the Authority holds that a provision requiring performance elements and standards to be consistent with the duties and responsibilities in the employee's position description does not limit the agency's choice of critical elements or performance standards and is negotiable. National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 741-42 (1992)(Provision 20)(Customs Service). The Agency argues that Provision 3 is distinguishable from the provision held negotiable in Customs Service because it permits employees to challenge the content of the performance standards and permits an arbitrator to render a performance standard invalid.

      There is no real distinction between Provision 3 and the "consistency" provision that the Authority found negotiable in Customs Service. By requiring consistency between performance standards and position descriptions, Customs Service-type contract provisions presumptively make such consistency grievable and arbitrable. See section 7121 of the Statute. As for the possibility that an arbitrator would purport to render a performance standard invalid, rather than require an amendment to the position description to conform with the performance standard, the Authority holds that where a provision is silent concerning what penalty or remedy will result from its violation, speculation that a remedy may result than infringes on management's right does not provide a basis for finding that the particular provision interferes with management's rights. National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705, 717 (1993). I therefore recommend that the Authority find this portion of Provision 3 to be negotiable. [ v56 p264 ]

2.     The grievability of a performance standard that does not reasonably accurately reflect the job in question does not interfere with management rights

      The Agency has made no specific argument about the criterion established in the portion of Provision 3 that, in its original form, subjects a performance standard to arbitral review on the ground that it "does not accurately reflect the actual duties performed." Instead, the Agency has argued that any provision subjecting the content of a performance standard to arbitral review directly interferes with management's rights to assign work and direct employees. This argument cannot prevail.

      A proposal requiring only that performance standards be established in accordance with applicable law, including 5 U.S.C. § 4302(b), is negotiable. American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1114, 1117 (1990)(Dep't of Education). When a grievance is filed under such a proposal, an arbitrator would not be required to determine the content of established standards or to establish new standards. Rather, the Authority holds, if the arbitrator were to find that the agency did not comply with applicable law and regulation, the appropriate remedy would be to direct the agency to establish standards that did comply with applicable law and regulation. See National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri, 47 FLRA 481, 486 (1993).

      The issue then, as might be inferred from the Authority's framing, in its order transferring this case, of the matters to be resolved with respect to the meaning and context of Provision 3, is whether that provision merely requires adherence to applicable law, including 5 U.S.C. § 4302(b)(1), or whether it prescribes "additional contractual criteria to govern the content of standards." See Dep't of Education, 34 FLRA at 1117.

      The parties' stipulation as to the meaning of Provision 3 satisfies the Authority's question of whether the criterion to which a performance is held conforms to the requirements set forth in 5 U.S.C. § 4302(b)(1). Thus, as clarified by the stipulation, Provision 3 makes grievable performance standards that do not reflect, "reasonably accurately," "the job in question." I find that the phrase, "reasonably accurately," as defined in the stipulation, provides a standard of review for an arbitrator that accords with the statutory term, "to the maximum extent feasible, permit the accurate evaluation of job performance," for the purpose of establishing the Agency's obligation to conform its performance standards to "the job in question."

      In these circumstances, and given the Union's statement of record that this criterion is a general restatement of the statutory standard, I see as negligible the possibility that Provision 3 would, in its application, "impose requirements on management in the performance standards area over and above those specified by law." See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635 (1987). Moreover, the Authority has consistently held that an agency's concern that an arbitrator's judgment may be substituted for its own is not a basis for finding a provision nonnegotiable. National Federation of Federal Employees, Local 1438 and U.S. Department of Commerce, Bureau of the Census, Jeffersonville, Indiana, 47 FLRA 812, 818 (1993). Accordingly, I recommend that the Authority find this portion of Provision 3 to be negotiable. [n5] 

RECOMMENDED ORDER

      The Agency shall rescind its disapproval of Provisions 1, 2, and 3. [n6] 

Issued, Washington, DC, September 9, 1999.

      ________________________
JESSE ETELSON
Administrative Law Judge


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


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

   Pursuant to § 709(b)(1) and (2), such technicians are members of the National Guard and hold the military grades specified for their positions.


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

   32 U.S.C. § 709(a) provides that:

      Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection (b) of this section persons may be employed as technicians in -

(1)     the administration and training of the