Association of Civilian Technicians, Mad City and Badger State Chapters (Union) and U.S. Department of Defense, National Guard Bureau, Wisconsin National Guard, Madison, Wisconsin (Agency)

[ v56 p863 ]

56 FLRA No. 144

ASSOCIATION OF CIVILIAN TECHNICIANS
MAD CITY AND BADGER STATE CHAPTERS
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
WISCONSIN NATIONAL GUARD
MADISON, WISCONSIN
(Agency)

0-NG-2543

_____

DECISION AND ORDER ON
A NEGOTIABILITY ISSUE

September 29, 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, to which the Union filed a 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.     Provision  [n1] 

ARTICLE 33 - EXCEPTIONS TO WEAR OF THE MILITARY UNIFORM
33.1. REQUIREMENTS. It is agreed that technicians in the excepted service are required to wear the appropriate military uniform and comply with grooming standards in accordance with AFI 32-2903, when performing technician duties.
33.2. EXCEPTIONS. In order not to breach the statutory duty of fair representation to all bargaining unit employees without regard to Union membership, the parties agree to the following:
     a.     Union officers and stewards will not be required to wear the military uniform while:
          (1)     Performing representation duties beyond the first step of the negotiated grievance procedure.
          (2)     Representing the Union in a third party proceeding.
          (3)     Serving as a member of the Union's negotiating team.
          (4)     Appearing as a witness in any third party proceeding.
          (5)     Attending a Labor/Management training session.
          (6)     When attending Union/Management consultation sessions with the Adjutant General, the HRO or their designated representatives.
     b.     Employees in the bargaining unit will not be required to wear the military uniform while:
          (1)     Processing a personal grievance beyond the first step of the negotiated grievance procedure.
          (2)     Appearing as a grievant, appellant, or witness before a third party proceeding.
          (3)     Appearing as an observer at contract negotiations in accordance with the parties current Memorandum of Understanding (MOU).
          (4)     Attending a Labor/Management session in connection with a grievance and/or any third party proceeding.
          (5)     When traveling by commercial or private transportation in technician status.
          (6)     Attending courses of instruction in a technician status at locations other than military installations where it is probable that the technician would be the only attendee in uniform; i.e., an OPM executive seminar course. [ v56 p864 ]
          (7)     While participating as data collectors in the Federal Wage Survey.
     c.     Reasonable time as determined by the supervisor will be allowed Union Officers, Stewards and employees to change into and out of the military uniform under the circumstances in subsection a and b of this article.

      (Only the underlined portions are at issue in this case.)

A.     Post-Petition Conference Summary

      The Union stated that the issues raised in this case are similar to those raised in 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 493 (2000) (Puerto Rico National Guard), as well as Case No. 0-NG-2510, which is pending with the Authority.

      In addition, the parties provided the following clarifications concerning the meaning of the provision:

-As to Article 33, Section 33.2.b(1), the parties agree that the meaning of the term "personal grievance" refers to a grievance in which an employee is the named grievant.
-As to Article 33, Section 33.2.b(2), the parties stipulated that the meaning of "third party proceeding" is as described in the petition for review, namely, an administrative proceeding before the Authority, the Federal Service Impasses Panel (FSIP), or an arbitrator. The Union explained that the word "witness" in Article 33, Section 33.2.b(2) refers to an employee who would be called to provide facts in third-party proceedings, whether or not under oath, such as unfair labor practice hearings and FSIP proceedings.
-As to Article 33, Section 33.2.b(3), the parties indicated that the referenced Memorandum of Understanding (MOU) does not contain specific provisions governing observers at contract negotiations. The Union explained that observers attend negotiating sessions but do not have a speaking role and are not designated as Union representatives. The Union further explained, and the Agency understood, that the reference to "current" MOU is to the MOU in effect at the time contract negotiations occur and an employee acts as an observer.
-As to Article 33, Section 33.2.b(4), the Union defined the term "Labor/Management session" as a bilateral meeting, not a third-party proceeding as set forth in subsection (2). As an example, the Union suggested a meeting in contemplation of a settlement of a third-party proceeding.
-As to Article 33, Section 33.2.c., the parties agreed that the word "employees" means bargaining unit employees. There was no common understanding as to whether the term "reasonable time" signified duty time or official time. The Agency interpreted it to mean duty time while the Union indicated it could be either.

B.     Positions of the Parties

1.     Agency

      The Agency contends that the provision is contrary to law on two grounds.

      First, the Agency contends that the provision is inconsistent with 32 U.S.C. § 709(b)(3) (section 709(b)(3)). [n2] In support, the Agency cites to the text of section 709 as it existed prior to its amendment on October 5, 1999. [n3]  The Agency argues 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." Statement of Position at 5. [ v56 p865 ]

      The Agency also argues 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." Id. The Agency asserts that the phrase, "while performing duties as a technician" in section 709(b)(3) 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), in other words, while at their job." Id. The Agency adds 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. (emphasis in original). [n4] 

      The Agency argues that participation by a technician in administrative third-party proceedings "is intrinsically linked" to employment as a technician since such proceedings are administrative and are used to resolve employment issues between management and employees. Id. at 6. The Agency asserts that a technician appears as either a grievant or witness in a third-party proceeding "while in their jobs." Id. at 7.

      The Agency further argues that, even in the event of a subpoena from an "administrative agency," a technician's participation in a third-party proceeding is at the "acquiescence" and "directive of the Agency." Id. The Agency concludes that section 709(b)(3) requires a technician to wear a military uniform during the circumstances described by Article 33, Section 33.2.b, and, therefore, Article 33, Section 33.2.b, is inconsistent with law.

      Second, the Agency contends that the provision is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. In this regard the Agency states that:

[T]he assignment of a technician to attend a meeting on a third party proceeding, or to observe negotiations, while in other than a leave status, is a technician work assignment within the meaning of [s]ection 7106(a)(2)(B) of the Statute, and is the assignment of "technician work" within the meaning of Section 709(b)(3) of Title 32.

Id. at 8. The Agency further states that any of the assignments described in the provision, including time to change from the uniform to civilian attire, "would abrograte management's right to assign the technician to any other duties during that time[.]" Id. In support, the Agency cites Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (ACT).

2.     Union

      The Union contends that, under the circumstances described by the provision, a technician is "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 union 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 [p]rovision applies, the [p]rovision 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 [ v56 p866 ] 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 a technician engaged in activities described therein is 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. U.S. Environmental Protection Agency, 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 term "grievance" in Article 33, Section 33.2.b(1) has the meaning stated in 5 U.S.C. § 7103(a)(9). Petition for Review at 3. The phrase "third party proceeding" in Article 33, Section 33.2.b(2) means an administrative proceeding before the Authority, FSIP, or an arbitrator. Id. The Union explains that the word "witness" in Article 33, Section 33.2.b(2) refers to an employee who would be called to provide facts in third party proceedings, whether or not under oath, such as unfair labor practice hearings and FSIP proceedings. Neither party addresses whether the word "witness" in Article 33, Section 33.2.b(2) applies to Agency-called witnesses. [n5] 

      At the Post-Petition Conference, the parties indicated that the "MOU" in Article 33, Section 33.2.b(3), does not contain specific provisions governing observers at contract negotiations. The Union explained that observers attend negotiating sessions but do not have a speaking role and are not designated as Union representatives. The Union further explained, and the Agency understood, that the reference to "current" MOU is to the MOU in effect at the time contract negotiations occur and an employee acts as an observer. Based on the Union's explanations, we find that Article 33, Section 33.2.b(3) applies to technicians who attend negotiation sessions as observers on behalf of the Union in accordance with an applicable agreement between the parties.

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 493 (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 section 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(b)(3) 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(b)(3) does not include participation by a technician in a third-party proceeding. Id. Here, Article 33, Section 33.2.b(1)-(4) similarly provides that employee technicians are not required to wear uniforms while:

-processing a grievance beyond the first step of the grievance procedure;
-appearing as a grievant or witness at a third-party proceeding;
-appearing as an observer at contract negotiations in accordance with the parties' current MOU; and,
-appearing at a meeting related to a grievance or third-party proceeding such as a settlement conference.

      Contrary to the Agency's arguments, nothing in Article 33, Section 33.2.b(1)-(4) demonstrates that an employee participating in the activities described therein is "performing duties as a technician" as defined by section 709(b)(3). Accordingly, we find that Article 33, Section 33.2.b(1)-(4) is not inconsistent with section 709(b)(3). See id.; see also National Association of Government Employees, Local R3-84, SEIU, AFL-CIO and District of Columbia National Guard, 23 FLRA 536, 539-40 (1986) (NAGE, Local R3-84) (proposal providing that employee technicians and union officials [ v56 p867 ] 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(b)(3)). The same result applies with respect to Article 33, Section 33.2.c, 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(b)(3). See NAGE, Local R3-84.

      Next, we find that, because section Article 33, Section 33.2.c involves the use of official time under section 7131(d) of the Statute, that portion of the provision is 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, including for the purpose of appearing as observers at contract negotiations, 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 at 495 n.7, 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 preclude the negotiability of official time entitlements under section 7131(d) of the Statute. id.

      We reach the same result here because Article 33, Section 33.2.c 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 Article 33, Section 33.2.b(1)-(4). As Article 33, Section 33.2.c is concerned with official time rather than duty time, Article 33, Section 33.2.c 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 Article 33, Section 33.2.b(1)-(4), we reject the Agency's argument that Article 33, Section 33.2.b(1)-(4) 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 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(b)(3) or management's right to assign work under the Statute. [n6] 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. 144

   The Union requests that the provision be severed in two essential respects. First, the Union states that Section 33.2.c is severable from Section 33.2.b. Second, the Union states that within Section 33.2.b, each of the paragraphs, or subsections, is severable from the other. The Agency views the subsections within Section 33.2.b as being severable but notes an interdependence between Sections 33.2.b and 33.2.c.


Footnote # 2 for 56 FLRA No. 144

   We note, as we did in Puerto Rico National Guard, 56 FLRA 493, 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 # 3 for 56 FLRA No. 144

   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