Association of Civilian Technicians, Montana Air Chapter 29 (Union) and U.S. Department of Defense, National Guard Bureau, Montana National Guard, Helena, Montana (Agency)

[ v57 p55 ]

57 FLRA No. 19

ASSOCIATION OF CIVILIAN TECHNICIANS
MONTANA AIR CHAPTER 29
(Union)

and

U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MONTANA NATIONAL GUARD
HELENA, MONTANA
(Agency)

0-NG-2553

_____

DECISION AND ORDER ON
A NEGOTIABILITY ISSUE

April 5, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one provision disapproved by the Agency head under § 7114(c) of the Statute. [n2] 

      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  [n3] 

Section 6-4...
a.      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 or witness in any third-party proceeding.
(Only the underlined portion is in dispute.)

III.     Positions of the Parties

A.     Agency

      The Agency contends that the provision is contrary to law on two grounds, namely, 32 U.S.C. § 709(b)(3) and § 7106(a)(2)(B) of the Statute. [n4] 

      First, the Agency contends that the provision is inconsistent with 32 U.S.C. § 709(b)(3). [n5]  The Agency [ v57 p56 ] claims that the Authority has held that management discretion to permit employees to wear civilian attire while performing technician duties applies only to employees occupying certain competitive, non-military positions and does not apply to "military technicians." Statement of Position at 3. [n6] 

      The Agency also states 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. at 4. Relying on the language of § 709 and its legislative history, the Agency asserts that the phrase, "while performing duties as a technician" in § 709(b)(3) is intended to mean "while employed as a military technician and engaged in employment activities as a military technician . . . in other words, while at their job." Id.

      The Agency argues that a technician's participation as a grievant or witness 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 5. Even in the event of a subpoena from an "administrative agency," the Agency contends that a technician's participation in a third-party proceeding is at the "acquiescence" and "directive" of the Agency. Id. at 6.

      As further support for its claim that the provision is contrary to § 709(b)(3), the Agency cites other statutory provisions to reinforce its view that when a technician participates in a third-party proceeding as a witness for the Union or Agency, it is at the direction of the Agency and, therefore, such participation constitutes the performance of technician duties. First, the Agency cites 5 C.F.R. § 551.424(b), which provides that official time granted an employee by an agency is considered hours of work, for the proposition that Union-called witnesses on official time are in a duty status. Second, the Agency cites 5 U.S.C. § 6322(b), which provides that a federal employee is performing official duties during the period when that employee is assigned by the agency to participate in a judicial proceeding to testify either on behalf of the federal government or in the employee's official capacity.

      As its second contrary to law claim, the Agency contends that the provision is inconsistent with management's right to assign work under § 7106(a)(2)(B) of the Statute. In this regard, the Agency states that the participation of a technician as a witness for the Agency is the performance of "technician duties" within the meaning of § 709(b)(3) and, therefore, concerns management's right to assign work.

B.     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), 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 5. To interpret § 709(b)(3) as the Agency suggests would, according to the Union, create an unnecessary conflict between § 709 and § 7131 of the Statute.

      The Union also disputes the Agency's reliance on 5 C.F.R. § 551.424, which provides that official time granted an employee by an agency is considered hours of work. The Union argues that § 709(b)(3) controls and does not require the wearing of a uniform during all hours of work. Rather, the Union asserts that that statutory provision requires the wearing of a uniform only while performing technician duties.

      The Union also disputes the Agency's reliance on 5 U.S.C. § 6322(b). The Union argues that 5 U.S.C. § 6322(b) concerns judicial proceedings and is not applicable to the administrative proceedings described in the provision.

      Alternatively, the Union contends that "[e]ven if `work' were being performed during the times to which the provision applies, [the provision] concerns the wearing of clothing, which is a method and means of performing work [that is] negotiable under § 7106(b)(1)." Response at 5. [ v57 p57 ]

IV.     Analysis and Conclusions

A.     Meaning of the Provision

      The provision would permit bargaining unit employees to wear attire other than the military uniform while appearing as grievants or witnesses in any third-party proceeding. The parties agree that the phrase "third-party proceeding" means an administrative proceeding before the Authority, Federal Service Impasses Panel, or an arbitrator, and that the provision applies to witnesses testifying on behalf of the Union and the Agency.

B.     The Provision Is Not Inconsistent with the Military Uniform Requirement in § 709(b)(4)

      As we stated earlier, see note 5, § 709 was amended on October 5, 1999. [n7]  As amended, § 709(b)(4) 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."

      In interpreting statutory language,

the task of resolving a dispute over the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." If the statute's language is plain, that is, if Congress' intent is apparent from the language, "it is also where the inquiry should end, for where . . . the statute's language is plain, the `sole function of the courts is to enforce it according to its terms.'"

United States Gov't Printing Office, Washington, D.C., 51 FLRA 1088, 1092 (1996) (citations omitted).

      The plain wording of § 709(b) expressly imposes four requirements in subparts (1)-(4) on persons employed as technicians under § 709(a): § 709(b)(1) through (3) require an employee to be a dual status military technician, a member of the National Guard and hold the specified military grade, respectively; § 709(b)(4) requires a technician to wear the appropriate military uniform "while performing duties as a military technician (dual status)."

      In examining these requirements, it is significant that Congress expressly limited the imposition of the uniform requirement under § 709(b)(4) to certain times during the technician's tenure of employment, that is, when the employee is performing duties as a military technician. This limitation does not apply to § 709(b)(1) through (3), which require technicians to maintain their military status. The fact that Congress included a limitation on the uniform requirement based on the performance of technician duties in § 709(b)(4) must be given meaning. If Congress intended that technicians wear the military uniform at all times while employed in their jobs, as the Agency maintains, then Congress could have easily made that clear. Instead, Congress limited the requirement to wear the uniform to those occasions when employees are performing duties as a military technician. See BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994) ("`it is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another'") (citing Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994)). On its face, § 709(b)(4) does not require wearing the military uniform at all times merely as a function of the employee's status or employment as a military technician; the military uniform is required only when the employee is performing duties as a military technician.

      Next, in determining what activities fall within the performance of "duties as a military technician" under § 709(b)(4), we look to the Authority's long-standing interpretation of substantially similar language. In NAGE, Local R3-84, 23 FLRA 536, 539 (1986) (NAGE), the Authority determined that, in examining the agency's technician uniform requirement, third-party proceedings "do not constitute employee performance of technician duties." The Authority reached the same determination following the enactment of § 709(b)(3), which required the wear of the uniform during the performance of "technician duties," in the face of the Authority's prior holding that third-party proceedings did not constitute "technician duties." In ACT, Roughrider Chapter, 56 FLRA 256 (2000), the Authority examined both the plain wording of § 709(b)(3) and its legislative history, neither of which contained a definition of the phrase, "while performing duties as a technician." [ v57 p58 ] Id. at 257. The pertinent legislative history of § 709(b)(3) stated merely that § 709 provided that military technicians must wear the military uniform "in their jobs." H.R. Conf. Rep. No. 104-450, at 841 (1996), reprinted in 1996 U.S.C.C.A.N. 238, 366. The Authority did not view this statement as evidence that, in enacting this provision, Congress intended to attribute to the phrase "performance of technician duties" any meaning different from the plain meaning the Authority had applied in NAGE. The Agency provides no basis for the Authority to view the legislative history of § 709(b)(3) any differently than it did in ACT, Roughrider Chapter.

      Although the wording of § 709(b)(4) has changed, neither that change nor the legislative history of the amendment warrants a departure from our precedent. The legislative history reveals that the amendment of § 709(b) 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. A new § 709(b)(1), not relevant here, was added and § 709(b)(3) became § 709(b)(4), modified to require the wearing of the military uniform "while performing duties as a military technician (dual-status)." No basis is presented to conclude that the change in § 709(b)(4) reflects any congressional intent to alter the Authority's long-standing holding that third-party proceedings do not constitute technician duties. As such, our holding that third-party proceedings do not constitute technician duties applies equally to witnesses called by the Agency and the Union. We note that the Agency has neither drawn a distinction based on whether witnesses appear on behalf of the Union or Agency, nor has the Agency offered any basis or support for drawing that distinction.

      We also reject the Agency's argument that employees are performing technician duties when appearing as grievants or witnesses for the Union and Agency at third-party proceedings based on consideration of 5 C.F.R. § 551.424(b) and 5 U.S.C. § 6322(b). We find that the Agency's reliance on these provisions is misplaced since neither is applicable here. First, time that is considered hours of work under § 551.424(b) is used to determine an employee's entitlement to minimum wages or overtime pay under the Fair Labor Standards Act. See 5 C.F.R. § 551.401(d). Second, 5 U.S.C. § 6322(b) deals with pay status for certain employees when summoned or assigned by an agency to testify in their official capacity or produce official records. The legislative history of 5 U.S.C. § 6322 clearly reveals that this provision was enacted to ensure that employees would be paid for such activities. Senate Report No. 91-1371, reprinted in 1970 U.S.C.C.A.N. 5014, 5015. ("The major purpose of this legislation is to alleviate financial hardship now imposed on employees of the United States and of the District of Columbia resulting from their service as a witness, a juror or an official representative from the agency in which he serves.") Therefore, consideration of these regulatory and statutory provisions does not compel us to conclude that appearing as a witness at a third-party proceeding constitutes technician duties under § 709(b)(4) of the Technician's Act.

      We disagree with our dissenting colleague's view that the provision is inconsistent with the Technician Act in relation to an employee acting as an agency witness "because that activity is controlled by an agency and is primarily for the benefit of the agency." The dissent fails to draw a meaningful distinction between an employee testifying as an agency-called as opposed to a union-called witness. The task being performed, testifying at a third-party proceeding, is the same, regardless of status.

      Accordingly, we find that the provision is not inconsistent with § 709(b)(4).

C.     The Provision Does Not Affect Management's Right to Assign Work

      The right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See, e.g., Nat'l Educ. Ass'n., Overseas Educ. Ass'n., Laurel Bay Teachers Ass'n., 51 FLRA 733, 739 (1996). Nothing in the wording of the provision or the Union's statement of intent directs the Agency to assign work to a technician or to refrain from assigning work to a technician. [n8]  Rather, the provision only addresses the attire a technician will wear in the circumstances described in the provision. Therefore, we conclude that the provision does not affect management's right to assign work under § 7106(a)(2)(B) of the Statute. [n9] 

      In sum, we conclude that the provision is not inconsistent with § 709(b)(4) and that it does not affect management's right to assign work under the Statute. Accordingly, we order the Agency to rescind its disapproval of the provision. [ v57 p59 ]

V.     Order

      The Agency shall rescind its disapproval of the provision.


File 1: Authority's Decision in 57 FLRA No. 19
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 57 FLRA No. 19 - Authority's Decision

   Chairman Cabaniss' opinion, concurring, in part, and dissenting, in part, is set forth at the end of this decision.


Footnote # 2 for 57 FLRA No. 19 - Authority's Decision

   In addition to the decision issued today, we address similar provisions in the following decisions, which are also issued on this date: ACT, Wisconsin Chapter 26, 57 FLRA No. 20 (Apr. 5, 2001) (Chairman Cabaniss concurring in part and dissenting in part); Georgia ACT, 57 FLRA No. 21 (Apr. 5, 2001) (Chairman Cabaniss concurring in part and dissenting in part); ACT, Alabama Air Chapter, 57 FLRA No. 22 (Apr. 5, 2001) (Chairman Cabaniss concurring in part and dissenting in part).


Footnote # 3 for 57 FLRA No. 19 - Authority's Decision

   The petition for review originally included section 6-4 a.(1) of the instant provision and four other provisions. Subsequently, the Agency rescinded its disapproval of section 6-4 a.(1) and the other provisions. Accordingly, they will not be considered further.


Footnote # 4 for 57 FLRA No. 19 - Authority's Decision

   In addition to these grounds, the Agency cites 10 U.S.C. Chapter 45 as a law with which the provision is in conflict. That chapter pertains to uniforms worn by members of the armed forces, including members of the National Guard. Among other things, the chapter describes the wearing of the uniform while not on active duty, the disposition of exterior articles of the uniform upon discharge and the wearing of religious apparel consonant with the wearing of the uniform. The Agency does not address the applicability of this chapter to the provision and makes no argument in support of its claim. Therefore, we summarily dismiss the Agency's bare assertion. See United States Dep't of Veterans Affairs, Med. Ctr., Coatesville, Pa., 56 FLRA 966, 971 (2000).


Footnote # 5 for 57 FLRA No. 19 - Authority's Decision

   The version of § 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) (Authorization Act). Accordingly, we apply § 709, as amended, in deciding this case. We note that the pre-amendment version, § 709(b)(3), required National Guard technicians to "wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician." We also note that Authority decisions addressing similar provisions that were issued subsequent to the effective date of the amendment continued to rely on § 709(b)(3), which was cited by the parties. The Authority noted that none of the parties apprised it of the amendment nor claimed that it had become effective. See, e.g., ACT, Puerto Rico Army Chapter, 56 FLRA 493, 494 n.3 (2000), reconsideration denied, 56 FLRA 807 (2000), petition for review filed as to other matters, No. 00-1486 (D.C. Cir. Nov. 17, 2000). In this case, by contrast, it is clear that § 709(b)(4) applies.


Footnote # 6 for 57 FLRA No. 19 - Authority's Decision

   The parties variously describe the bargaining unit employees covered by the provision as "military technicians," "dual status technicians," or "technicians." The affected employees are "dual status" military technicians, signifying that they are civilian employees who, as a condition of their continued civilian employment, must maintain military membership in the National Guard. See ACT, New York State Council, 45 FLRA 17, 19 (1992). The provision in this case applies to employees in their civilian technician capacity. We understand the parties' arguments to address the application of the provision in this respect, notwithstanding a reference to "military" technicians.


Footnote # 7 for 57 FLRA No. 19 - Authority's Decision

   As relevant here, § 709(b) provides in pertinent part:

(b)     Except as authorized in subsection (c), a person employed under subsection (a) must meet each of the following requirements:
(1)     Be a military technician (dual status) as defined in section 10216(a) of title 10.
(2)     Be a member of the National Guard.                              
(3)     Hold the military grade specified by the Secretary concerned for that position.
(4)     While performing duties as a military technician (dual status), wear the uniform appropriate for the member's grade and component of the armed forces.

See 32 U.S.C.A. § 709 (West Supp. 2000).


Footnote # 8 for 57 FLRA No. 19 - Authority's Decision

   In so finding, contrary to our dissenting colleague's statements, we make no conclusions regarding whether the concepts and scope of technician duties under § 709 of the Technician Act and the assignment of work under § 7106(a)(2)(B) of the Statute are