11:0475(81)NG - ACT, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, NY -- 1983 FLRAdec NG

 11 FLRA No. 81
 
 ASSOCIATION OF CIVILIAN TECHNICIANS,
 NEW YORK STATE COUNCIL
 Union
 
 and
 
 STATE OF NEW YORK, DIVISION OF
 MILITARY AND NAVAL AFFAIRS,
 ALBANY, NEW YORK
 Agency
 
                                            Case No. O-NG-96
 
  ORDER DENYING MOTION TO STAY DECISION AND ORDER ON
 NEGOTIABILITY ISSUE
 
    This matter is before the Authority on a motion by the National Guard
 Bureau on behalf of the Adjutant General of the State of New York,
 Division of Military and Naval Affairs, for a stay of the Authority's
 Decision and Order in Association of Civilian Technicians, New York
 State Council and State of New York, Division of Military and Naval
 Affairs, Albany, New York, 11 FLRA No. 81 (1983), as to Union Proposal
 5.
 
    The proposal in question concerns the wearing of the military uniform
 by National Guard technicians.  With regard to the proposal, the
 Agency's sole contention was that the proposal was not within the duty
 to bargain to the extent it would apply to persons outside the
 bargaining unit.  The Agency conceded that the proposal was negotiable
 with respect to bargaining unit employees by stating that "however,
 insofar as the proposal concerns personnel included in the exclusively
 recognized bargaining unit, it is a proper subject to negotiations." /1/
 Since the Union reasonably interpreted the proposal to be applicable
 only to bargaining unit employees, and in the absence of any other
 Agency contention, the Authority held the proposal to be within the duty
 to bargain.
 
    In now seeking a stay, the Agency essentially contends that the
 Authority's decision in this case was prematurely issued under section
 2423.5 of the Authority's Rules and Regulations, 5 CFR 2423.5 (1983),
 since the Court, in State of New York, Division of Military and Naval
 Affairs v. FLRA, 696 F.2d 202 (2d Cir. 1982), remanded an unfair labor
 practice case to the Authority for further proceedings on the issue of
 whether the wearing of a uniform by National Guard technicians is a
 matter subject to section 7106(b)(1) of the Statute.  /2/ It concludes
 that the Authority's decision in this case should be stayed pending
 completion of the remanded unfair labor practice proceedings, that a
 stay would avoid a conflicting decision by the Authority, and that
 denial of a stay would frustrate the decision of the Court.
 
    The Agency's motion, however, reflects a misapprehension as to the
 operation and effect of section 7106(b)(1).  That section enumerates
 certain matters which are negotiable at the election of the Agency.  As
 such, even if the attire which technicians may wear while engaged in
 their civilian duties is ultimately determined to be encompassed by
 section 7106(b)(1), that issue would be negotiable at the election of
 the Agency.  As noted above, the Agency in this case expressly
 considered Union Proposal 5 to be "a proper subject for negotiations,"
 thereby electing to bargain over this specific proposal insofar as it
 applied to bargaining unit employees.  On the record in this case,
 therefore, a stay will not result in any conflict between a decision of
 the Authority and the Court, and it is not necessary to stay the
 Authority's decision in this case pending resolution of the remanded
 unfair labor practice case.
 
    Accordingly, IT IS ORDERED that the Agency's motion be, and it hereby
 is, denied.  Issued, Washington, D.C., September 22, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Agency Statement of May 16, 1979, as incorporated into its
 Statement of July 20, 1979.
 
 
    /2/ Section 7106(b)(1) provides:
 
          Sec. 7106.  Management rights
 
                                .  .  .  .
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency, on the numbers, types, and
       grades of employees or positions assigned to any organizational
       subdivision, work project, or tour of duty, or on the technology,
       methods, and means of performing work(.)