23:0262(33)AR - Wyoming Air NG (WANG) and NAGE,Local No. 14-76 -- 1986 FLRAdec AR
[ v23 p262 ]
The decision of the Authority follows:
23 FLRA No. 33 WYOMING AIR NATIONAL GUARD (WANG) Agency and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES (NAGE), LOCAL NO. 14-76 Union Case No. 0-AR-1117 DECISION I. STATEMENT OF THE CASE This matter is before the Authority on an exception to the award of Arbitrator James A. Evenson filed on behalf of the Agency by the Departments of the Army and the Air Force, National Guard Bureau under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition. /*/ II. BACKGROUND AND ARBITRATOR'S AWARD The grievance in this case arose when prior to the expiration of the parties' collective bargaining agreement the Agency notified the Union that on expiration of the agreement, it was electing no longer to be bound by the practice embodied in Article XXIX, Section 1 of the agreement relating to the wearing of the military uniform by civilian technicians. The Agency also notified the Union that beginning on a specified date, which constituted the Agency's determination as to when the agreement expired, civilian technicians would be required in accordance with agency regulation to wear the military uniform while performing technician duties. Article XXIX, Section 1 of the agreement provided that technicians had the option while performing their technician duties of wearing either the appropriate military uniform or "standard civilian attire . . . approved by the Adjutant General." A grievance was filed and submitted to arbitration essentially disputing that the agreement expired on the date specified by the Agency. In resolving the grievance the Arbitrator noted that consistent with the decisions of the Authority, the parties agreed that the requirement that civilian technicians wear the military uniform is a permissive subject of bargaining under section 7106(b)(1) of the Statute and that on expiration of the parties' collective bargaining agreement, the Agency at that time could require the wearing of the military Uniform. In agreement with the Union, however, he determined that the agreement had not expired on the date specified by the Agency and that the Agency had violated the agreement by requiring the wearing of the military uniform beginning on that date. Accordingly, as his award, the Arbitrator sustained the grievance and ordered the Agency to comply with the terms of the collective bargaining agreement until the agreement expired. III. EXCEPTION The Agency contends that the award is contrary to section 7106(a)(1) of the Statute. Specifically, the Agency argues that the wearing of the military uniform by civilian technicians while performing technician duties is necessary to carry out the mission of the Agency and for purposes of internal security. Although the Agency concedes that the decisions of the Authority have only found the uniform-wearing requirement to be a permissive subject of bargaining, the Agency maintains that it has the right under section 7106(a)(1) to require the wearing of the military uniform as part of its internal security practices. In support of this position, the Agency states that since airplanes of the Puerto Rico National Guard have been destroyed, the wearing of the military uniform by all civilian technicians is a reasonable security practice and precaution. Accordingly, the Agency concludes that the award is deficient by enforcing the provision of the agreement which grants civilian technicians the option of wearing standard civilian attire. IV. ANALYSIS AND CONCLUSIONS As recognized by the parties and by the Arbitrator, all decisions of the Authority after its decision and order on remand in Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984), aff'd sub nom. New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir.), cert denied, 106 S. Ct. 137 (1985), addressing the bargaining obligation with respect to the requirement of civilian technicians to wear the military uniform have decided that the requirement constitutes a method and means of performing work within the meaning of section 7106(b)(1) of the Statute and consequently is a permissive subject of bargaining. Although the Authority has been presented with the issue of whether the uniform-wearing requirement constituted a matter of internal security, the Authority determined that it was not necessary to decide the issue. Adjutant General, State of Ohio, Ohio Air National Guard, Worthington, Ohio, 21 FLRA No. 124 (1986). In order to resolve the Agency's exception in this case, it is necessary to determine whether the Arbitrator's award interferes with management's right to determine its internal security practices. We find solely in the circumstances of this case that the Agency fails to establish that the Arbitrator's award is contrary to section 7106(a)(1) of the Statute. As noted, the Arbitrator's award merely permits, until the expiration of the agreement (which may already have occurred), civilian technicians of the Wyoming Air National Guard the option of wearing standard civilian attire that has been approved by the Adjutant General. The Agency in its exception and supporting arguments fails to demonstrate in what manner this award prevents the Agency from protecting its property from loss, destruction, or disclosure. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983, 985-87 (1982), remanded as to other matters sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 82-2225 (D.C. Cir. Jan. 19, 1984). Likewise, the Agency fails to demonstrate in what manner the award interferes with management's right to determine the mission of the Agency. Thus, no basis is provided for finding the award deficient. V. DECISION Accordingly, the Agency's exception is denied. Issued, Washington, D.C., August 18, 1986. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In its opposition the Union contends that the National Guard Bureau lacks standing to file an exception to the award because the Bureau was not a party to the arbitration. However, the Authority finds that the exception was properly filed by the Bureau on behalf of the Wyoming Air National Guard. See U.S. Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, Local 1917, 20 FLRA No. 41 (1985).