Association of Civilian Technicians, Alabama Air Chapter (Union) and United States Department of Defense, National Guard Bureau, Alabama National Guard, Montgomery, Alabama (Agency)

[ v57 p67 ]

57 FLRA No. 22

ASSOCIATION OF CIVILIAN TECHNICIANS
ALABAMA AIR CHAPTER
(Union)

and

UNITED STATES DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
ALABAMA NATIONAL GUARD
MONTGOMERY, ALABAMA
(Agency)

0-NG-2567

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two provisions disapproved by the Agency head under § 7114(c) of the Statute. [n2] 

      For the reasons that follow, we find that the provisions are not contrary to law or regulation and order the Agency to rescind its disapproval.

II.     Provision 1  [n3] 

Article 6, Official Time for Labor Organization Representatives
Section 6-4     Civilian Attire
Employees in the Bargaining Unit will not be required to wear the military uniform while processing a grievance at any step of the negotiated grievance procedure; or, appearing as a grievant, appellant or witness in any third-party proceeding. The parties agree that in these situations the employees are not performing their assigned technician duties.

III.     Positions of the Parties

A.     Agency

      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]  The Agency also argues that the provision is inconsistent with 32 U.S.C. § 709(b)(4). [n5]  More specifically as to § 709(b)(3), the Agency argues that the requirement to wear the military uniform "'while performing duties as a technician'" applies while technicians are "at their job." [n6]  Statement of Position (SOP) at 4. In the Agency's view, this includes participation in third-party proceedings. As to § 709(b)(4), the Agency contends that, as amended, that section applies to military technicians and "is not subject to discretion by management." Id. at 3. Also, in support of this position, the Agency cites ACT, Mile High Chapter, 53 FLRA 1408 (1998). The Agency [ v57 p68 ] 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 as 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.

      In addition, the Agency asserts that any reliance on NAGE, Local R3-84, 23 FLRA 536 (1986) is no longer valid in light of the definition of duty and "the recent amendments to § 709." SOP at 9. Further, the Agency claims that this case is distinguishable from ACT, Roughrider Chapter, 56 FLRA 256 (2000) and ACT, Alabama Nat'l Guard, 56 FLRA 581 (2000), since in this case the "unit members are explicitly serving as witnesses either on behalf of the union or the agency." SOP at 8. With respect to the latter, the Agency asserts that such activity clearly constitutes the performance of technician functions while in a duty status. Id. Lastly, without any explanation, the Agency asserts that the provision is contrary to 10 U.S.C. Chapter 45.

B.     Union

      The Union also makes essentially the same arguments as in ACT, Montana. Briefly, the Union maintains that the provision does not violate 32 U.S.C. § 709(b)(4) 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 § 7106(b)(1) of the Statute." Response at 2.

IV.     Analysis and Conclusions

A.     Meaning of the Provision

      The disapproved portion of 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 testifying on behalf of the Union or Agency 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. [n7] 

      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)." 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 under § 709(b)(4), as amended, the Agency has no discretion regarding military technicians wearing the military uniform and that Agency-called witnesses are performing duties as military technicians while in a duty status, we reject both of these contentions as well. First, in Georgia ACT, also issued this date, the Authority addressed and rejected the claim that the change in § 709(b)(4) clarifies the Agency's lack of discretion regarding military technicians wearing the military uniform. See Georgia ACT, 57 FLRA No. 21, slip op. at 5. Here, the Agency makes no arguments warranting a different result in this regard.

      Second, in ACT, Montana, the Authority concluded that its holding -- that participation in third-party proceedings does not constitute technician duties -- applies equally to witnesses called by the Agency as to those called by the Union. 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. Here, without any explanation, the Agency argues that Agency-called witnesses, as opposed to Union-called witnesses, are performing technician functions. The Agency does not explain, and we are unable to discern, the significance of the status of [ v57 p69 ] Agency-called, as opposed to Union-called, witnesses. Section 709(b)(4) refers to the performance of duties as a military technician and the "duties" of Union and Agency called witnesses are the same. [n8] 

      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. [n9]  As above, the Agency has not provided any arguments warranting a different result in this case.

      Thus, consistent with the reasons expressed in ACT, Montana, and Georgia ACT, 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. [n10]  Accordingly, we order the Agency to rescind its disapproval of the provision.

V.     Provision 2  [n11] 

c.     Retention Registers
     (1)     Technicians are listed in descending order, within their competitive levels, starting with the technician with the most points. They shall be classified on a retention register on the basis of their tenure of employment, length of service, and performance in descending order as follows:
          (a)     By tenure group I, group II, group III, and
          (b)     Within each group by years of service as augmented by credit for performance beginning with the earliest service date (Service Computation Date).
     (2)     A technician's entitlement to additional service credit for performance shall be based on the technician's three most recent annual performance ratings within the last four (4) years IAW [in accordance with] 5 C.F.R. 351.
     (3)     The additional service credit for a technician's performance shall be expressed in additional years of service based on the mathematical average of the last three performance appraisals. The conversion of ratings for previous rating patterns will be IAW [in accordance with] 5 C.F.R. 351.504. Current annual performance rating patterns will be computed as noted below.
          (a)     Sixteen additional years of service for each performance rating of Exceeds Standards.
          (b)     Twelve additional years of service for each performance rating of Meets Standards.
          (c)     No service for a Below Standards performance rating.
     (4)     Tiebreaker will be the Technician Service Date.

VI.     Positions of the Parties

A.     Agency

      The Agency's arguments are essentially the same as the arguments in ACT, Montana Air Chapter No. 29, 56 FLRA 674 (2000) (Nat'l Guard Bureau). [n12] 

      Briefly stated, the Agency asserts that the provision conflicts with National Guard TPR 300 (351), an Agency regulation for which there is a compelling need. That regulation provides that, in the event of a reduction-in-force (RIF), technicians' names will be arranged on retention registers "in descending order within each competitive level by tenure group, and technician performance appraisal score." National Guard TPR 300 (351), section 3-2(d) (Nov. 22, 1993) (Attachment to Statement of Position). The Agency argues that the provision would establish a seniority-based retention system and, as such, conflicts with the regulation, which establishes retention standing based on performance alone. [ v57 p70 ]

      The Agency contends that the regulation is essential to its mission and consistent with effective and efficient Government and implements a nondiscretionary mandate to the Agency under the Technician Act, 32 U.S.C. § 709(f), [n13]  and 5 U.S.C. § 2301(b) and (c). [n14]  In this regard, the Agency points to its need to retain the best performers. The Agency also contends that TPR 300 (351) is necessary to ensure the maintenance of the merit principles set out at 5 U.S.C. § 2301(b)(5) and (6). [n15]  In particular, the Agency claims that the provision is inconsistent with an efficient Government and with retention based on performance.

B.     Union

      The Union's arguments are also essentially the same as in Nat'l Guard Bureau. Stated succinctly, the Union maintains that the retention system encompassed by TPR 300 (351) is not essential, does not implement a nondiscretionary mandate under law, and is not necessary to ensure the maintenance of merit principles. The Union also states that the provision would not require retention of any employees who are not qualified or do not acceptably perform their duties.

VII.     Analysis and Conclusions

A.     Meaning of the Provision

      The parties agreed that "[a]s worded, [the] provision prescribes the manner in which unit employees will be listed on the retention register for purposes of a RIF, namely by descending order of tenure group and, within tenure group, by descending order based on years of service augmented by credit for performance." Post-Petition Conference Record at 3-4. Moreover, the parties "noted that the provision [here] determined length of service based on an employee's service computation date, as contrasted with [the proposal in Nat'l Guard Bureau], which used an employee's technician service date." Id. at 4. In this regard, the parties agreed that the distinction between "service computation date" and "technician service date" is "the latter phrase referred only to length of service as a National Guard civilian technician[,]" while the former referred to length of service as a federal employee. Id.

      In addition, the parties agreed that "the phrase `years of service augmented by credit for performance' in the provision meant that retention standing would be determined by a combination of length of service and service credit based upon performance." Id. The Union further explained that "the number of years of service form the base of an employee's retention standing and points derived from the employee's performance rating are added [and] expressed in terms of years of service." Id.

B.     The Provision Is Not Inconsistent with an Agency Regulation for Which There Is a Compelling Need

      In Nat'l Guard Bureau, the Authority addressed a substantially similar proposal that determined the order in which unit employees are listed on RIF retention registers. In that case, the Authority found that the Agency had not established a compelling need for TPR 300(351) under any of the three bases stated in § 2424.50 of the Authority's Regulations and concluded that the proposal was within the duty to bargain. [n16]  The Authority found that the Agency had not established how the proposal's consideration of length of service and performance would have a detrimental effect on military readiness. The Authority further found that the Agency had not [ v57 p71 ] established that TPR 300(351) was necessary to ensure the maintenance of merit principles or that it implemented a nondiscretionary mandate under law.

      Although the proposal in Nat'l Guard Bureau and the instant provision are different, the Agency's arguments do not establish that the difference is relevant to our determination. In Nat'l Guard Bureau, the proposed retention standing was based on length of service, defined as each employee's "technician service date," along with additional credit for performance. The provision in this case defines retention standing based on each employee's "service computation date" along with additional credit for performance. In both cases, retention standing is defined as a combination of length of service and performance. While "service computation date" can be a more extensive period of time, we do not find that difference as significant. As a result, the Agency has provided no basis upon which to depart from the analysis and reasoning in Nat'l Guard Bureau. Consequently, we conclude that the Agency has not established a compelling need for the regulation.

VIII.     Order

      The Agency shall rescind its disapproval of the provisions.


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. 22 and Appendix
File 2: Opinion of Chairman Cabaniss


Footnote # 1 for 57 FLRA No. 22 - 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. 22 - Authority's Decision

   In addition to the decision issued today, we address provisions that are similar to Provision 1 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); Georgia ACT, 57 FLRA No. 21 (Apr. 5, 2001) (Chairman Cabaniss concurring in part and dissenting in part).


Footnote # 3 for 57 FLRA No. 22 - Authority's Decision

   In the Post-Petition Conference, the Agency stated that its disapproval pertained only to the portion involving third-party proceedings and not the portion concerning the processing of grievances.


Footnote # 4 for 57 FLRA No. 22 - Authority's Decision

   Although the Agency does not expressly reference § 709(b)(3) in its Statement of Position, the Agency quotes from and makes arguments concerning relevant portions of that section. Consequently, we view the Agency as claiming that the provision is contrary to § 709(b)(3).


Footnote # 5 for 57 FLRA No. 22 - 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 # 6 for 57 FLRA No. 22 - Authority's Decision

   Here, we note that the Agency actually relies on the language and legislative history of § 709(b)(3) in asserting that the provision is inconsistent with § 709(b)(4).


Footnote # 7 for 57 FLRA No. 22 - 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 # 8 for 57 FLRA No. 22 - 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 and is primarily for the benefit of the agency." Infra at 14.


Footnote # 9 for 57 FLRA No. 22 - 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 the same.


Footnote # 10 for 57 FLRA No. 22 - Authority's Decision

   In view of this result, there is no need for the Authority to address the Union's § 7106(b)(1) claim.


Footnote # 11 for 57 FLRA No. 22 - Authority's Decision

   In the Post-Petition Conference, the parties agreed that the wording of the provision as stated in the Petition for Review, which was limited to paragraph (1), constitutes the language in dispute. Post-Petition Conference Record at 1. However, in its statement of position, the Agency included the remainder of the provision as being in dispute and the Union did not object. We, therefore, address the entire provision.


Footnote # 12 for 57 FLRA No. 22 - Authority's Decision

   The Nat'l Guard Bureau case to which we now refer is a different Authority decision than the ACT, Montana case discussed with respect to Provision 1, even though the parties are the same.


Footnote # 13 for 57 FLRA No. 22 - Authority's Decision

   32 U.S.C. § 709(f) provides, in pertinent part, that, "Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned-":

(3) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned . . . .

Footnote # 14 for 57 FLRA No. 22 - Authority's Decision

   Relevant portions of 5 U.S.C. § 2301(b) are set forth in note 15, infra. Section 2301(c) provides, in pertinent part:

(2) the head of such entity shall, pursuant to authority otherwise available, take any action, including the issuance of rules, regulations, or directives;

which is consistent with the provisions of this title and which the . . . head . . . determines is necessary to ensure that personnel management is based on and embodies the merit system principles.


Footnote # 15 for 57 FLRA No. 22 - Authority's Decision

   5 U.S.C. § 2301(b)(5) and (6) provide:

(5) The Federal work force should be used efficiently and effectively.
(6) Employees should be retained on the basis of the adequacy of their performance, inadequate performance