Georgia Association of Civilian Technicians (Union) and United States Department of Defense, National Guard Bureau, Georgia Army and Air National Guard, Atlanta, Georgia (Agency)

[ v57 p64 ]

57 FLRA No. 21

GEORGIA ASSOCIATION OF CIVILIAN
TECHNICIANS
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
GEORGIA ARMY AND AIR NATIONAL GUARD
ATLANTA, GEORGIA
(Agency)

0-NG-2566

_____

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

Section 7.3 Exceptions
Under the following conditions, excepted Technicians will not be required to wear the military uniform:
. . .
a.      All excepted Technicians when:
     (3) Appearing as a grievant or witness in any third-party proceeding.

III.     Positions of the Parties

A.     Agency

      The Agency makes essentially the same arguments that were made 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. The Agency also argues that the provision is inconsistent with 32 U.S.C. § 709(b)(4). [n3]  More specifically as to § 709(b)(3), the Agency argues based on the language and legislative history of this section, 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 4. In the Agency's view, this includes participation in third-party proceedings. As to § 709(b)(4), the Agency contends that, as that section applies to military technicians, it "is not subject to discretion by management," and that the "recent[] amend[ments] . . . clarify the absence of any such discretion." [n4]  Id. at 2. Also, in support of this position, the Agency cites ACT, Mile High Chapter, 53 FLRA 1408 (1998). The Agency also relies on 5 C.F.R. § 551.424(b) and 5 U.S.C. § 6322(b) to support its view that technicians appearing as grievants or witnesses for the Union or Agency are performing technician duties under § 709(b)(4) on duty status or as an official duty and must wear the military uniform. Further, without any explanation, the Agency asserts that the provision is contrary to 10 U.S.C. Chapter 45. [ v57 p65 ]

B.     Union

      The Union also makes essentially the same arguments as in ACT, Montana. Citing Authority precedent, the Union maintains that the provision does not violate 32 U.S.C. § 709(b)(3) and management's right to assign work. Alternatively, the Union contends 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 that is negotiable under 5 U.S.C. § 7106(b)(1)." Response at 2.

IV.     Analysis and Conclusions

A.     Meaning of the Provision

      The provision states that unit employees are not required to wear the military uniform while appearing as grievants or witnesses at third-party proceedings. The parties agree that the provision applies to witnesses testifying on behalf of the Union and the Agency.

B.     The Provision Is Not Contrary to Law

      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 Agency or Union does not fall within the plain meaning of the phrase "duties as a military technician (dual status)." [n6] ACT, Montana, slip op. at 8-9. The Authority also rejected any reliance on 5 C.F.R. § 551.424(b) and 5 U.S.C. § 6322(b) as neither of these provisions was applicable to determining what constitutes duties as a military technician under § 709(b)(4). 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. Further, the Authority summarily dismissed the Agency's unsupported claim that the provision conflicts with 10 U.S.C. Chapter 45. The Agency provides no arguments warranting a different result in this case.

      To the extent the Agency now argues that § 709(b)(4) clarifies that the Agency has no discretion regarding military technicians wearing the military uniform, we reject this contention as well. As we noted in ACT, Montana, the change in § 709(b)(4) reflects the underlying purpose of its amendment, which was to authorize the hiring of non-dual status technicians in the National Guard. See H.R. Rep. No. 106-162, § 525, 1999 WL 331881. We find nothing in the wording or legislative history of § 709(b)(4) that supports the Agency's position. Further, the Agency's reliance on ACT, Mile High Chapter is misplaced since the instant provision is distinguishable from the proposal in ACT, Mile High Chapter, which expressly involved the wearing of civilian attire while performing technician duties.

      With respect to management's right to assign work under § 7106(a)(2)(B), we concluded in ACT, Montana 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]  As above, the Agency has not provided any arguments warranting a different result in this case. [n8] 

      Thus, based on the foregoing and consistent with the reasons expressed in ACT, Montana, we find that the provision is not contrary to § 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.

V.     Order

      The Agency shall rescind its disapproval of the provision. [ v57 p66 ]


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. 21 and Appendix
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 57 FLRA No. 21 - Authority's Decision

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


Footnote # 2 for 57 FLRA No. 21 - 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); ACT, Wisconsin Chapter 26, 57 FLRA No. 20 (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. 21 - 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 # 4 for 57 FLRA No. 21 - Authority's Decision

   Although the Agency refers to "recent[] amend[ments]" in relation to § 709(b)(4), the only legislative history expressly quoted and discussed relates to § 709(b)(3).


Footnote # 5 for 57 FLRA No. 21 - 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. 21 - 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 an agency and is primarily for the benefit of the agency." Infra at 8.


Footnote # 7 for 57 FLRA No. 21 - Authority's Decision

   In so finding, cont