DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU KANSAS NATIONAL GUARD TOPEKA, KANSAS and JAYHAWK CHAPTER #104, ASSOCIATION OF CIVILIAN TECHNICIANS

In the Matter of

DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

KANSAS NATIONAL GUARD

TOPEKA, KANSAS

and

 

JAYHAWK CHAPTER #104, ASSOCIATION

OF CIVILIAN TECHNICIANS

 

Case No. 01 FSIP 25

 

ARBITRATOR’S OPINION AND DECISION

    Jayhawk Chapter #104, Association of Civilian Technicians (Union or ACT) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, National Guard Bureau, Kansas National Guard, Topeka, Kansas (Employer).

    Following an investigation of the request for assistance, arising from ground rules negotiations for their initial collective bargaining agreement (CBA),(1) the Panel asserted jurisdiction and directed the parties to submit the matter to the undersigned for mediation-arbitration by telephone. Accordingly, I conducted a teleconference with the parties on March 1, 2001. During the mediation phase of the proceeding, the parties resolved all but one of the issues in dispute. Following those efforts, an arbitration hearing was conducted on the remaining issue during which the parties were afforded an opportunity to submit proposals and provide evidence and arguments. Following the hearing, the parties were directed to submit final statements in support of their proposals. Those statements were received on March 8, 2001, and the record is now closed.

BACKGROUND

    The Employer provides operational military units to support the U.S. Army. The Union represents approximately 400 bargaining-unit employees at the headquarters in Topeka and approximately 18 armories located throughout Kansas. The employees are "dual status technicians"(2) who work in such positions as aircraft mechanic; heavy mobile equipment repairman; heavy mobile equipment inspector; welder; tool and parts attendant; computer specialist; and production controller. Their grades range from GS-4 through -11 and WG-5 through -12.

ISSUE AT IMPASSE

    The sole issue in dispute is whether bargaining-unit employees who are members of the Union negotiating team should be required to wear their military uniforms while engaged in bargaining over the parties’ initial CBA.

POSITIONS OF THE PARTIES

1. The Employer’s Position

    The Employer proposes the following wording:

Members of the Kansas National Guard will wear the military uniform while in a duty status pursuant to Federal law. Military Technicians, not in a duty status, are free to wear appropriate civilian attire.

The Employer contends that military technicians are National Guard members holding Federal positions for pay, benefits and liability purposes. As such, the military uniform is integral to the accomplishment of work performed in direct support of the military mission. The Employer acknowledges that the issue of wearing the military uniform has been contentious over the years, and that the FLRA has previously determined that proposals similar to the Union’s proposal in this dispute are negotiable.(3) The Employer asserts, however, that in those cases the FLRA misinterpreted Congress’ intent. Moreover, it maintains that Congress, through an amendment to the Technicians Act, resolved the issue "once and for all" by mandating the wearing of the military uniform by military technicians. The Employer argues that, had Congress wished to craft an exception to the statutory requirement, it would have done so in the amendment.

    The Employer asserts that the Union’s main argument in support of its proposal, that official time is not considered to be "duty time," and technicians are not, therefore, required to be attired in the military uniform, is in error. It contends that there is no distinction between "official time" and "duty time," and points out that the FLRA has determined that time spent by Union representatives on official time constitutes "hours of work," as defined by Government-wide regulations.(4) The Employer further argues that Section 7131 of the Statute grants official time to Union representatives to engage in collective bargaining "during the time the employee would otherwise be in a duty status." For these reasons, the Employer argues that Union representatives on official time are performing work in their capacity as military technicians and must wear the military uniform.

    Finally, the Employer contends that the Union has failed to proffer any evidence that wearing the military uniform during negotiations detracts from Union representatives’ abilities to fulfill their representational functions, particularly when the responsibility to conduct such negotiations largely has been delegated to a National ACT representative who is unaffiliated with the military. The Employer disputes the Union’s contention that, if military uniforms are required, a parity gap will exist between the parties because of the respective rank of the negotiators. It asserts that the Employer representatives have "great respect" for the civilian technicians, and claims that the Union’s proposal would hasten the elimination of common military customs and courtesies.

2. The Union’s Position

    The Union proposes the following:

Labor Organization negotiators will not be required to wear the military uniform while engaged in the collective bargaining process. This includes all travel, preparation for, and attendance at bargaining sessions. Military titles will not be required.

The FLRA has repeatedly held that technicians engaged in labor-management relations activities are not "performing duties as a technician" within the meaning of 32 U.S.C. § 709(b)(3), and that Union proposals which would permit technicians to wear civilian attire for such activities are not inconsistent with that provision. Technicians who are labor representatives are entitled to "official time" under 5 U.S.C. § 7131(a) when preparing for, traveling to, or participating in collective bargaining negotiations. The Union contends that "official time" is non-duty time.(5) It argues that labor-management negotiations should not occur in a militarized environment. The Union points out that the Employer’s negotiators outrank the Union’s militarily, creating an inequality at the bargaining table if military uniforms are worn and military customs and courtesies are observed. It argues that such inequalities should be avoided.(6)

OPINION

    In the view of this arbitrator, the Employer has failed to successfully justify its position that requires the wearing of the military uniform during collective bargaining activities. The basis of the analysis is three (3) fold:

    First, the Employer has failed to provide a compelling rationale that warrants re-consideration of a well-established line of cases from the Federal Labor Relations Authority and the Federal Service Impasses Panel.

    Second, the Employer’s reliance on the 1999 Amendments to the Technicians Act, 32 U.S.C. § 709, as the basis for its position is misplaced. Those amendments do not address the relevant question or alter the previous interpretation of official time or duty status.

    Third, I find the Employer’s contention that requiring the Union negotiators to wear military uniforms and engage in military customs and courtesies while conducting collective bargaining activities does not place the Union team at a disadvantage to be unrealistic and naive at best.

    With respect to the first point, the Employer acknowledges that the case law is not in their favor, but argues that the FLRA has misinterpreted Congress’ intent in their rulings. This arbitrator finds the FLRA’s analysis of Congressional intent much more persuasive than that of the Employer.

    In Roughrider, the FLRA agreed with an Administrative Law Judge’s (ALJ) conclusion that Provision 1, which permits a technician to wear civilian attire at third party proceedings, is not inconsistent with the requirements in 32 U.S.C. § 709(b)(3), which requires a technician to wear a military uniform while performing duties as a technician. The Agency in that case did not establish that participation by a technician in third party proceedings represented "while performing duties as a technician" in subsection 709(b)(3).

    In Roughrider, the Agency argued, as the Kansas National Guard does, that the very participation of employees in collective bargaining activities is inherently linked to their employment status as technicians as support for their argument that the labor representatives should be required to wear the military uniform while bargaining. The FLRA ALJ’s response was that subsection (b)(3) is directed at the clothing technicians wear while performing technician duties, citing the FLRA’s decision in Association of Civilian Technicians, Mile High Chapter and U.S. Department of Defense, Colorado Air National Guard, 140th Fighter Wing, 53 FLRA 1408 (1998). The ALJ also observed that "the drafters of § 709(b)(3) were capable of indicating that the requirement to wear uniforms was to apply more broadly," yet they chose not to.

    In National Association of Government Employees, Local R3-84, SEIU, AFL-CIO and District of Columbia Air National Guard, 23 FLRA 539 (1986)(NAGE, Local R3-84), the FLRA found that for the purpose of the technician uniform requirement, third party proceedings do not constitute employee performance of technician duties. Although the NAGE case was concluded prior to the 1999 Amendments to the Technicians Act, 32 U.S.C. § 709, in Roughrider the FLRA concludes that "our review of the legislative history of section 709 (b) (3) reveals no evidence that Congress intended to attribute to the phrase ‘performance of technician duties’ any meaning different from the plain meaning applied to the term by the [FLRA] in NAGE, Local R3-84."

    As to the Employer’s second argument, that recent amendments to the Technicians Act mandate the wearing of the military uniform by military technicians and therefore resolves the issue "once and for all," I disagree with their interpretation of those amendments and their relevance in this case. In a recent FLRA case, Association of Civilian Technicians, Montana Air Chapter and the Montana National Guard, 57 FLRA No. 19 (April 5, 2001), I find the FLRA’s language in this decision to be enlightening:

. . . it is significant that Congress expressly limited the imposition of the uniform requirement under § 709 (b) to certain times during the technician’s tenure of employment, that is, when the employee is performing duties as a military technician . . . 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 uniform to those occasions when employees are performing duties as a military technician . . . 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.

    Finally, the Union maintains that to require the wearing of uniforms during collective bargaining activity would create an inequality at the bargaining table and result in labor management negotiations occurring in a militarized environment. The Employer argues that there is no basis for the Union’s premise that the requirement to wear a military uniform and engage in military customs while negotiating will put the Union at disadvantage. They maintain that the Union has not presented any evidence to substantiate their claim that this practice would place the Union in a disadvantageous position. The Employer also disputes the Union’s argument since the principal negotiator for the Union is a civilian national representative to whom the requirement would not apply anyway.

    On the merits, this Arbitrator disagrees with the Employer’s viewpoint. As a general rule, laws requiring collective bargaining aim, among other things, at balancing what is almost always an uneven playing field between employer and union. The collective bargaining process is, by definition, a process which attempts to somewhat level the playing field: laws which enable employees to collectively bargain the terms and conditions of their employment require the parties to jointly determine the contractual language which will govern their relationship, in lieu of one side being able to unilaterally impose their will.

    Even in the private sector, the conventional wisdom is that absent statutory protection, most labor organizations would be at a distinct disadvantage to the generally stronger resources available to employers. In the military environment, life outside of collective bargaining is governed by a clearly defined set of titles, ranks and customs that establish a hierarchy of status. To extend that hierarchy into collective bargaining places a labor organization in the position of negotiating with representatives of higher rank. This dynamic makes the job of the labor organization, the group that is negotiating to obtain a share of the employer’s resources, even more difficult than it already is.

    In fairness to this particular Employer, during the hours that I spent on the teleconference hearing with the parties, I felt that they did not attempt to abuse their higher rank in the conversations I conducted with the Union. There did seem to be a personal, friendly relationship, especially between the labor relations staff and the local Union negotiator.

    But this issue is not about a particular set of individuals and the way in which they conduct themselves. Negotiators, be they elected or appointed, often change. This issue surfaces fundamental questions of fairness and equality over the conditions which will govern the collective bargaining relationship of the parties, regardless of which individuals are physically present at the table. That being the case, I believe strongly that to require that union negotiators wear the military uniform and observe military protocol and customs while negotiating is to unbalance this power on the side of the Employer.

DECISION

    Having carefully reviewed all the facts and having carefully evaluated the evidence and arguments submitted by the parties, I hereby order the adoption of the Union’s proposal on this issue.

Edward F. Hartfield

Arbitrator

May 15, 2001

Southfield, Michigan

1.  The Union won an election in 1995 to represent employees formerly represented by Local R14-87, National Association of Government Employees (NAGE), SEIU, AFL-CIO. NAGE and the Employer had been parties to a CBA since 1982.

2.  The Technicians Act, 32 U.S.C. § 709, as amended in 1999, provides:

(a) Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsections (b) and (c), persons may be employed as technicians in-

(1) the administration and training of the National Guard; and

(2) the maintenance and repair of supplies issued to the National Guard or the armed forces.

(b) Except as authorized in subsection (c), a person employed under subsection (a) must meet 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, wear the uniform appropriate for the member’s grade and component of the armed forces.

See National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 524, 113 Stat. 512, 599 (1999). As the Federal Labor Relations Authority (FLRA) noted in Association of Civilian Technicians, Mad City and Badger State Chapters and U.S. Department of Defense, National Guard Bureau, Wisconsin National Guard, Madison, Wisconsin, 56 FLRA No. 144 (September 29, 2000), the Technicians Act was amended, in part, to authorize the Secretaries of the Army and Air Force to employ non-dual status technicians in the National Guard. The Amendment became effective on February 6, 2000.

3.  In this regard, the Employer references, among other cases, Association of Civilian Technicians, Roughrider Chapter and U.S. Department of Defense, North Dakota National Guard, Bismark, North Dakota, 56 FLRA No. 33 (April 27, 2000)(Roughrider)(holding union proposal which permits a technician to wear civilian attire at third-party proceedings “is not inconsistent with the requirements of 32 U.S.C. § 709(b)(3)”).

4.  The Employer cites Association of Civilian Technicians, Old Hickory Chapter and U.S. Department of Defense, North Carolina National Guard Bureau, Raleigh, North Carolina, 55 FLRA No. 139 (1999)(Old Hickory Chapter). In Old Hickory Chapter, the FLRA rejected the union’s argument that there are essentially two categories of employee time, duty and non-duty, and held that Section 7131 of the Statute “creates a third distinct category of time: official time, when an employee is performing representational functions for the union while receiving compensation from the agency.” The FLRA further determined that “both official time and duty time -- unlike non-duty time such as annual leave –- ‘shall be considered hours of work.’ 5 C.F.R. § 551.424(b).”

5.  The Union relies in this regard on Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 105 (1983), where the Supreme Court addressed whether union representatives engaged in collective bargaining under section 7131(a) of the Statute are entitled to related travel and per diem expenses. In holding that union representatives were not entitled to travel and per diem expenses, the Court noted:

[T]he right to a salary conferred by § 7131(a) obtains only when ‘the employee otherwise would be in a duty status’ (emphasis supplied). This qualifying language strongly suggests that union negotiators engaged in collective bargaining are not considered in a duty