Association of Civilian Technicians, Wisconsin Chapter 26 (Union) and U.S. Department of Defense, National Guard Bureau, Wisconsin National Guard, Madison, Wisconsin (Agency)

[ v57 p60 ]

57 FLRA No. 20

ASSOCIATION OF CIVILIAN TECHNICIANS
WISCONSIN CHAPTER 26
(Union)

and

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

0-NG-2510

_____

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.     Provision  [n3] 

Article 8
. . . .
SECTION 7 - EXCEPTIONS TO WEAR OF THE MILITARY UNIFORM: Recognizing that certain Excepted Service employees must wear the military uniform while performing their technician duties, and 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.     Officers and Stewards will not be required to wear the military uniform while:
(1)     Performing representational duties at third step grievance proceedings.
(2)     Representing the Union in a third-party proceeding.
(3)     Appearing as a witness in any third-party proceeding.
(4)     Attending a labor/management training session.
(5)     When attending formal union-management consultations, or during contract negotiations.
b.     Employees in the bargaining unit will not be required to wear the military uniform while:
(1)     Processing a grievance under the negotiated grievance procedure at the third step.
(2)     Appearing as a grievant, appellant, or witness before a third-party proceeding.
(3)     Appearing as negotiator at contract negotiations.
(4)     Attending a labor/management session in connection with any third-party proceeding.
(5)     When in an official travel status, traveling by commercial or private transportation. [ v57 p61 ]
(6)     While participating as committee members, witnesses at a hearing or data collectors in the Federal Wage Survey.
c.     Reasonable time at the workplace will be allowed officers, stewards and employees to change into and out of the military uniform under the circumstances stated in subsections a and b of this article.

(Only the underlined portions are in dispute.)

III.     Positions of the Parties

A.     Agency

      With respect to subsection 7b of the provision, the Agency makes essentially the same arguments that were presented in ACT, Montana. Briefly stated, the Agency claims that the provision is contrary to 32 U.S.C. § 709(b)(3) and management's right to assign work under § 7106(a)(2)(B) of the Statute. [n4]  As to § 709(b)(3), the Agency argues, based on legislative history, that the requirement to wear the military uniform "`while performing duties as a technician'" applies while technicians are "at their job." Statement of Position at 10. In the Agency's view, this includes participation in third-party proceedings.

      With respect to § 7106(a)(2)(B) of the Statute, the Agency further states that any of the assignments described in the provision, including time to change from the uniform to civilian attire, "would abrogate management's right to assign the technician to any other duties during that time." Id. at 11. In support, the Agency cites ACT, Wisconsin Chapter, 26 FLRA 682 (1987).

B.     Union

      The Union also makes essentially the same arguments as in ACT, Montana. Briefly, 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 negotiated under 5 U.S.C. § 7131(d)." Response at 12. According to the Union, to interpret § 709(b)(3) as the Agency suggests would create an unnecessary conflict between § 709 of the Technician Act and § 7131 of the Statute. Lastly, the Union seeks severance of the paragraphs in subsection 7b.

IV.     Analysis and Conclusions

A.     Meaning of the Provision

      Subsection 7b,               sentences 7b(1), 7b(2) and 7b(4), respectively, would permit technicians to wear attire other than the military uniform while processing grievances at the third step of the negotiated grievance procedure, as witnesses at third-party proceedings, and during labor-management sessions in connection with any third-party proceeding. An example of the labor-management sessions would be settlement conferences related to third-party proceedings. The parties agree that the provision applies to witnesses testifying at third-party proceedings on behalf of the Union and the Agency.

      Subsection 7c provides that officers, stewards and employees will have time to change their attire when they shift between technician duties and the activities pertaining to Union officers and stewards described in subsection 7a or the activities pertaining to other technicians described in subsection 7b. Based on the record in this case, and consistent with our interpretation of substantially identical provisions, we interpret subsection 7c to provide official time to officers, stewards and employees to change clothes prior to and subsequent to performing the activities in subsections 7a or 7b. See ACT, Mad City and Badger State Chapters, 56 FLRA 863, 867 (2000).

B.     Subsection 7b Is Not Inconsistent with § 709(b)(4) and Does Not Affect § 7106(a)(2)(B) of the Statute

      In ACT, Montana, the Authority concluded that a similar provision permitting technicians to wear attire other than the military uniform when appearing as grievants or witnesses at third-party proceedings was not inconsistent with either § 709(b)(4) or management's right to assign work under § 7106(a)(2)(B) of the Statute. [n5] 

      With regard to § 709(b)(4), the Authority determined that it required the wearing of the military uniform "only when the employee is performing duties as a military technician," and that participation in third-party proceedings as a grievant or witness called by the [ v57 p62 ] Agency or Union does not fall within the plain meaning of the phrase "duties as a military technician (dual status)." ACT, Montana, slip op. at 8-9. In so concluding, the Authority noted that the Agency drew no distinction based on whether witnesses appear on behalf of the Union or Agency, and offered no basis or support for drawing that distinction. [n6]  Moreover, the Authority rejected the claim that consideration of the legislative history of the pre-amendment version, § 709(b)(3), warrants a different interpretation of technician duties. Like the provision in ACT, Montana, the instant provision would apply when a technician processes a grievance, participates in a third-party proceeding, or attends a meeting related to a third-party proceeding such as a settlement conference. These activities do not fall within the plain meaning of the phrase "duties as a military technician (dual status)" in § 709(b)(4).

      As to management's right to assign work under § 7106(a)(2)(B), the Authority concluded that the provision did not affect this right since there was nothing in the wording of the provision that either directed the Agency to assign work or required the Agency to refrain from assigning work to a technician. [n7]  Rather, the Authority found that the provision only addressed the attire a technician wears at third-party proceedings. ACT, Montana, slip op. at 11.

      The Agency has provided no arguments in this case warranting a different result with respect to the circumstances covered by subsection 7b. Consequently, we find that subsection 7b is not contrary to law. [n8] 

C.     Subsection 7c Does Not Affect § 7106(a)(2)(B) of the Statute

      Subsection 7c 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 subsections 7a and 7b. Previously, the Authority has found that similar provisions are not contrary to management's right to assign work under § 7106(a)(2)(B). See, e.g., ACT, Mad City and Badger State Chapters, 56 FLRA 863 (2000); ACT, Puerto Rico Army Chapter, 56 FLRA 493 (2000), reconsideration denied, 56 FLRA 807 (2000), petition for review filed as to other matters, No. 00-1486 (D.C. Cir. Nov. 17, 2000). See also NAGE, Local R3-84, 23 FLRA 536, 540 (1986); NAGE, SEIU, 26 FLRA 515, 524 (1987). In reaching that result, the Authority relied on precedent holding that it is necessary to carve out an exception to § 7106(a) to maintain the negotiability of matters involving official time under § 7131(d) of the Statute. See ACT, Mad City and Badger State Chapters, 56 FLRA at 867, citing United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146, 152 n.7 (1997). The Authority determined that the right of management to exercise its rights under § 7106(a) of the Statute does not preclude the negotiability of official time entitlements under § 7131(d) of the Statute. Id.

      The Agency has presented no arguments warranting a different result in this case. Consequently we find that subsection 7c is not contrary to management's right to assign work.

V.     Order

      The Agency shall rescind its disapproval of the provision. [ v57 p63 ]


Appendix

Section 709(b)(3) provides:

(b)     A technician employed under subsection (a) shall, while so employed--

. . .
(3)     wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician.

Section 709(b)(4) provides:

(b)     Except as authorized in subsection (c), a person employed under subsection (a) must meet each of the following requirements:

. . .
(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.


File 1: Authority's Decision in 57 FLRA No. 20 and Appendix
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 57 FLRA No. 20 - 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. 20 - Authority's Decision

   In addition to the decision issued today, we address similar provisions in the following decisions, which are also issued this date: ACT, Montana Air Chapter 29, 57 FLRA No. 19 (Apr. 5, 2001) (Chairman Cabaniss concurring in part and dissenting in part) (ACT, Montana); 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. 20 - Authority's Decision

   The petition for review originally included paragraphs b.(5) and (6) of the instant provision and one other provision. Subsequently, the Agency rescinded its disapproval of them. Accordingly, they will not be considered further.


Footnote # 4 for 57 FLRA No. 20 - Authority's Decision

   As we explained in ACT, Montana, § 709(b)(3) was amended by the National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 524, 113 Stat. 512, 599 (1999). See ACT, Montana, 57 FLRA No. 19, slip op. at 3 n.5. Section 709(b)(4) is the version currently in effect that we apply in deciding this case. The relevant portions of the pre-amendment version, § 709(b)(3), and § 709(b)(4) are set forth in the Appendix to this decision.


Footnote # 5 for 57 FLRA No. 20 - Authority's Decision

   As in ACT, Montana, the parties describe the bargaining unit employees covered by the provision as "military technicians," "dual status technicians," or "technicians." For the same reason explained in ACT, Montana, we find that the instant provision applies to employees in their civilian technician capacity. See ACT, Montana, 57 FLRA No. 19, slip op. at 4 n.6.


Footnote # 6 for 57 FLRA No. 20 - Authority's Decision

   For the same reasons provided in ACT, Montana, we disagree with our dissenting colleague's view that the provision is inconsistent with the Technician Act to the extent that the testimony of an Agency-called witness is "controlled by the agency