Association of Civilian Technicians (Union) and U.S. Department of Defense, National Guard Bureau, Alabama National Guard, Montgomery, Alabama (Agency)

[ v56 p581 ]

56 FLRA No. 89

ASSOCIATION OF CIVILIAN TECHNICIANS
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
ALABAMA NATIONAL GUARD
MONTGOMERY, ALABAMA
(Agency)

0-NG-2530

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

August 22, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

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 a provision disapproved by the Agency head under section 7114(c) of the Statute. The Agency filed a statement of position and the Union filed a response. The Agency did not file a reply to the Union's response.

      For the reasons that follow, we find that the provision is not contrary to law, and order the Agency to rescind its disapproval.

II.     The Provision  [n1] 

Article 9

Official Time

. . .

9-6 Appropriate Uses of Official Time

. . .

Official time provisions include, but shall not be limited to:

. . .

     f.     Reasonable time will be allowed union officials and employees to change clothes prior to and subsequent to the situations contained in section 9-9, Civilian Attire.
9-9 Civilian Attire:

. . .

     a.     A union officer or steward shall have the option of wearing civilian attire:
     (1)     When in an official time status performing representational duties.
     (2)     When representing the union or appearing as a witness in a third party proceeding.
     (3)     While representing the union on a Committee established by the Employer as authorized by this agreement.
     (4)     While serving as a member of the negotiating team.
     (5)     When attending a union-sponsored training session.
     b.     A bargaining unit employee shall have this option while processing a personal grievance under Step Two (2) or higher of the Negotiated Grievance Procedure, or appearing as a grievant or witness in a third party proceeding under the LMR statute and this agreement. [ v56 p582 ]

A.     Post-Petition Conference Summary

      The Union stated that language similar to that of the instant provision is involved in the following cases before the Authority: NG-2444, NG-2519, and NG-2510. [n2] The Agency agreed with the Union's characterization. The Union stated that all of these cases present the same basic legal issues, and the Agency agreed with the Union's characterization.

      The parties agreed that the Petition for Review accurately sets forth the language and meaning of the disputed provision and accurately describes the intended operation and impact of the disputed provision. In addition, the parties provided the following clarifications concerning the meaning of the provision: 9-6(f) would give Union officials and employees the right to receive official time when changing clothes in the situations specified in 9-9; 9-9(a)(2) permits a Union officer or steward to wear civilian attire when representing the Union or appearing as a witness, but not when representing an individual grievant; 9-9(a)(2) applies regardless of whether the employee is serving as a Union or Agency witness at the third party proceeding; and the phrase "while processing a personal grievance" in 9-9(b) means meeting with an Agency representative concerning the grievance, including travel to and from the meeting.

B.     Positions of the Parties

1.     Agency  [n3] 

      The Agency contends that the language of section 9-6(f) that allows technicians "time to change from the appropriate military uniform to civilian attire" is contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute because it "would abrogate management's right to assign the technician to any other duties during that time[.]" Statement of Position at 8. In support, the Agency cites Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (ACT). Similarly, the Agency argues that section 9-9(b) is contrary to section 7106(a)(2)(B) of the Statute because "the assignment of a technician" to participate in the activities described by section 9-9 is an assignment of work. Statement of Position at 15.

      The Agency contends that section 9-9 conflicts with 32 U.S.C. § 709(b)(3) (hereinafter "section 709"). [n4] In support, the Agency cites to the text of section 709 as it existed prior to its amendment on October 5, 1999. [n5]  According to the Agency, Section 9-9 describes circumstances where "technicians are performing "technician duties'" as defined by section 709. Statement of Position at 7. Specifically, the Agency argues that the language "'while performing duties as a technician'" under section 709(b)(3) "is intended to mean" "an event or situation arising from his/her employment as a technician, [ v56 p583 ] or as a technician testifying to events he/she has observed as a technician." Id. at 5, 7 (emphasis in original). The Agency argues that "[s]ection 709(b) supports this interpretation in that it states ' . . . a technician employed under subsection (a) shall, while so employed . . . wear the military uniform appropriate for the member's grade and component while performing duties as a technician.'" Id. at 5-6 (emphasis in original). [n6] The Agency concludes that section 709 requires technicians to wear a military uniform during the circumstances described by section 9-9, and therefore section 9-9 is inconsistent with law. In support, the Agency cites Association of Civilian Technicians, Mile High Chapter and U.S. Department of Defense, Colorado Air National Guard, 140th Fighter Wing, 53 FLRA 1408 (1998).

2.     Union

      The Union explains that the language of section 9-9(b), "[a]ppearing as a grievant or witness in any third-party proceeding[,]" (Union Response at 2) applies when bargaining unit employees appear at "an administrative proceeding before the Authority, the Federal Service Impasses Panel, or an arbitrator." Petition for Review at 4. The Union argues that the sections 9-6(f) and 9-9(b) of the provision do not interfere with management's right to assign work or conflict with section 709.

      Specifically, the Union contends that, under the circumstances described by the provision, technicians are "either (a) on official time or (b) performing a task for which official time lawfully could be either authorized by the FLRA under 5 U.S.C. § 7131(c) or negotiated by the [U]nion under 5 U.S.C. § 7131(d)." Response at 2. The Union cites Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 105 (1983) (BATF), for the proposition that official time is not duty time. In this connection, the Union contends that the provision does not interfere with management's right to assign work because employees "are entitled to official time during the times to which the provision applies." Response at 4. In the alternative, the Union argues that "[e]ven if 'work_ were being performed during the times to which the provision applies, [the provision] concerns [the] wear[ing] of clothing, which is a method and means of performing work negotiable under 5 U.S.C. § 7106(b)(1)." Id. In support for that argument, the Union cites Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984).

      In addition, the Union contends that the Agency's view of the provision is that technicians engaged in activities described therein are on duty time. Under that view, the Union argues that a technician would be prohibited from being granted official time, which would therefore "change the Authority's power to grant, or a labor organization's right to negotiate, non-duty official time under § 7131." Response at 3. Accordingly, the Union argues that the Agency's view creates a conflict between section 709 and section 7131 of the Statute. The Union concludes that the Authority should reject the Agency's position because: (1) statutory provisions, wherever possible, should be construed so as to be consistent with one another; and (2) 5 U.S.C. § 7131 should control over section 709 because 5 U.S.C. § 7131 is the more specific statutory provision. As authority, the Union cites Citizens to Save Spencer County et. al. v. EPA, 600 F.2d 844, 870 (D.C. Cir. 1979), and Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992), respectively.

C.     Meaning of the Provision

      The parties do not dispute the meaning of the provision. "Official time" means time described in 5 U.S.C. § 7131. Petition for Review at 4. The term "grievance" has the meaning stated in 5 U.S.C. § 7103(a)(9). Id. The phrase "third party proceeding" means an administrative proceeding before the Authority, the Federal Service Impasses Panel, or an arbitrator. Id. "LMR statute" means Chapter 71 of title 5, United States Code. Id. Petition for Review at 3. Further, although not specifically articulated by the parties, the phrase "this option" in section 9-9(b) is an obvious reference to the wearing of civilian attire. [ v56 p584 ]

III.     Analysis and Conclusions

      We find that the provision is not contrary to law. In this regard, the Authority has previously addressed similar provisions. See Puerto Rico National Guard, 56 FLRA No. 77 (Provision 1); North Dakota National Guard, 56 FLRA 256 (Provision 1).

      In particular, in North Dakota National Guard, the Authority held that a provision that would permit National Guard Technicians to wear civilian attire at third-party proceedings would not be inconsistent with the requirement in 32 U.S.C. § 709(b)(3) that a technician must wear a military uniform "while performing duties as a technician[.]" Id. at 256-57. We rejected the agency's argument that section 709 requires a technician to wear the military uniform when participating in a third-party proceeding because the technician would be performing technician duties as a representative of a military organization. Rather, we held that the meaning of the phrase "duties as a technician" in section 709 does not include participation by a technician in a third-party proceeding. Id. Here, section 9-9(b) similarly provides that employee technicians are not required to wear uniforms "while processing a grievance under Step Two (2) or higher of the Negotiated Grievance Procedure, or appearing as a grievant or witness in a third party proceeding under the [Statute] and this agreement." Contrary to the Agency's arguments, nothing in section 9-9(b) demonstrates that employees participating in the activities described therein are "performing duties as a technician" as defined by section 709. Accordingly, we find that section 9-9(b) is not inconsistent with section 709. See id.; see also National Association of Government Employees, Local R3-84, SEIU, AFL-CIO and District of Columbia Air National Guard, 23 FLRA 536, 539-40 (1986) (NAGE, Local R3-84) (proposal providing that employee technicians and union officials would not be required to wear uniforms while engaged in labor-management activities and third party proceedings and would be given time to change into and out of the military uniform was not concerned with the performance of technician duties as defined by 32 U.S.C. § 709). The same result applies with respect to section 9-6(f), which allows employees and Union officials time to change into and out of civilian attire. Such time does not involve the performance of technician duties under section 709. See NAGE, Local R3-84.

      Next, we find that, because sections 9-6(f) and 9-9(b) involve the use of official time under section 7131(d) of the Statute, the sections are not contrary to management's right to assign work under section 7106(a)(2)(B) of the Statute. In Puerto Rico National Guard, the Authority found not contrary to law a provision that provided employee technicians and union officials with a reasonable amount of official time to change clothes prior to and subsequent to participating in labor-management activities and third-party proceedings. In reaching that result, the Authority relied on NAGE, Local R3-84, 23 FLRA at 540 (proposal that provided a reasonable amount of official time for employee technicians and union officials to change from and into their uniforms before and after engaging in labor-management activities and third-party proceedings held negotiable), and National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 524 (1987) (Proposal 7), (proposal that provided a reasonable amount of official time for union officials to change from and into their uniforms before and after engaging in labor-management activities, which included third-party proceedings, did not violate the Agency's right to assign work under section 7106(a)(2)(B) of the Statute). The Authority also relied on precedent holding that it is necessary to carve out an exception to section 7106(a) to maintain the negotiability of matters involving official time under section 7131(d) of the Statute. Puerto Rico National Guard, 56 FLRA No. 77, slip op. at 9 n.6, citing U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 152 n.7 (1997). The Authority concluded that the right of management to exercise its rights under section 7106(a) of the Statute does not predominate over matters which are negotiated under section 7131(d) of the Statute. See id.

      We reach the same result here because section 9-6(f) provides employee technicians and union officials with a reasonable amount of official time to change clothes prior to and subsequent to performing the activities set forth in section 9-9. As 9-6(f) is concerned with official time rather than duty time, section 9-6(f) does not violate the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Additionally, in the absence of any claim by the Agency that employee technicians may not be granted official time for the period that they appear in third party proceedings as set forth in section 9-9(b), we reject the Agency's argument that section 9-9(b) is contrary to section 7106(a)(2)(B) of the Statute.

      The Agency's reliance on ACT, 26 FLRA 682, for the proposition that the provision is contrary to management's right to assign work, is misplaced. Although the Agency does not cite to a specific proposal addressed by ACT, we assume that the Agency relies on Proposal 10, which addressed the assignment of work. We find that [ v56 p585 ] proposal inapplicable here because it did not concern official time for employees appearing at third party proceedings or changing into and out of their uniforms. Rather, the proposal sought to prevent the agency from requiring technicians to salute or bear arms unless the technicians were in a military status.

      In sum, we find that the provision is not inconsistent with section 709 or management's right to assign work under the Statute. [n7] Accordingly, we order the Agency to rescind its disapproval of the provision.

IV.     Order

      The Agency shall rescind its disapproval of the provision.



Footnote # 1 for 56 FLRA No. 89

   The Union makes two requests for severance: first, that section 9-6(f) be severed from section 9-9(b); second, that the phrase "and employees" be severed from the rest of section 9-6(f), such that the negotiability of section 9-6(f) is determined with, and without, that phrase. See Petition for Review at 4. In this connection, the Union makes two points of clarification: first, that section 9-6(f) would have no meaning apart from section 9-9, but that if the Authority should find section 9-6(f) nonnegotiable, then the Authority should independently assess the negotiability of 9-9; second, "that it is not requesting severance and independent assessment of each situation enumerated in section 9-9(a) . . . or those listed in 9-9(b) . . . . " See Conference Summary at 2. The Agency does not oppose the Union's severance request.


Footnote # 2 for 56 FLRA No. 89

   The Authority's decisions in NG-2444 and NG-2519 issued on April 27, 2000, and July 21, 2000, respectively. Association of Civilian Technicians, Roughrider Chapter and U.S. Department of Defense, North Dakota National Guard, Bismark, North Dakota, 56 FLRA 256 (2000) (North Dakota National Guard), and Association of Civilian Technicians, Puerto Rico Army Chapter and U.S. Department of Defense, National Guard Bureau, Puerto Rico National Guard, San Juan, Puerto Rico, 56 FLRA No. 77 (2000) (Puerto Rico National Guard). Case number NG-2510 is pending with the Authority.


Footnote # 3 for 56 FLRA No. 89

   The Agency's position statement makes clear that the Agency "has not declared Article 9-9(a) to be nonnegotiable[.]" Statement of Position at 2. Consequently, the Authority's analysis will focus only on sections 9-6(f) and 9-9(b).


Footnote # 4 for 56 FLRA No. 89

   We note, as we did in Puerto Rico National Guard, 56 FLRA No. 77, that the version of section 709 on which the Agency relies was amended on October 5, 1999. See National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 524, 113 Stat. 512, 599 (1999). The amendment was designed, in part, to authorize the Secretaries of the Army and Air Force to employ non-dual status technicians in the National Guard. See H.R. Rep. No. 106-162, § 525, 1999 WL 331881. By its terms, the amendment was to take effect 180 days after receipt by Congress of a plan or report relating to the hiring of non-dual status technicians. The amendment added a new section 709(b)(4) which provides that dual status technicians "[w]hile performing duties as a military technician (dual status) wear the uniform appropriate for the member's grade and component of the armed forces." None of the parties apprised the Authority of this amendment or whether it is currently in effect. Under these circumstances, we continue to apply section 709(b)(3). However, even if the amendment were in effect, it would not alter the result we reach in this case in view of the substantial similarity in language between sections 709(b)(3) and 709(b)(4) and the absence of any legislative history warranting a different result.


Footnote # 5 for 56 FLRA No. 89

   As relevant here, 32 U.S.C. § 709 provides:

      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 National Guard; and
(2)     the maintenance and repair of supplies issued to the National Guard or the armed forces.
(b)     A technician employed under subsection (a) shall, while so employed--
(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.

See 32 U.S.C. § 709 (1994 & Supp. II 1996) (amended 1999).


Footnote # 6 for 56 FLRA No. 89

   The Agency also cites to section 709's legislative history, H.R. Conf. Rep. No. 104-450, at 1695 (1996):

Wearing of uniform by National Guard technicians (sec. 1038)