23:0536(73)NG - NAGE Local R3-84, SEIU and District of Columbia Air NG -- 1986 FLRAdec NG

[ v23 p536 ]
The decision of the Authority follows:

 23 FLRA No. 73
                                            Case No. 0-NG-1237
                         I.  Statement of the Case
    The petition for review in this case comes before the Authority
 because of a negotiability appeal filed under section 7105(a)(2)(E) of
 the Federal Service Labor-Management Relations Statute (the Statute).
 It raises issues concerning the negotiability of a single Union
                            II.  Union Proposal
                                 ARTICLE V
                               UNION RIGHTS
          Section 4.  In order not to breach the statutory duty of Fair
       representation to all bargaining unit employees without regard to
       union membership the parties agree to the following:
          A.  Officers and Stewards will not be required to wear the
       military uniform while:
          1.  Performing representational duties.
          2.  Representing the Union in a third party proceeding.
          3.  Serving as a member of the Union's negotiating team.
          4.  Appearing as a witness in any third party proceeding.
          5.  Representing the Union on a committee established by the
          6.  Attending a labor/management training session.
          B.  Employees in the bargaining unit will not be required to
       wear the military uniform while:
          1.  Processing a personnel grievance under the negotiated
       grievance procedure.
          2.  Appearing as a grievant or witness before a third party
          3.  Appearing as an observer at contract negotiations.
          4.  Attending a labor/management session.
          C.  Reasonable time will be allowed officers, stewards and
       employees to change in and out of the military uniform under the
       circumstances stated in subsection (A-B) of this Article.
                       A.  Positions of the Parties
    The Agency argues that the proposal is outside the duty to bargain
 because (1) the Union has waived its right to bargain on the proposal;
 (2) the proposal is inconsistent with 32 U.S.C. Section 709;  (3) the
 proposal is inconsistent with the Agency's right to determine the
 "methods and means" of performing its work under section 7106(b)(1) of
 the Statute, as such right was explained in Division of Military and
 Naval Affairs, State of New York, Albany, New York and New York Council,
 Association of Civilian Technicians, 15 FLRA 288 (1984), aff'd New York
 Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d
 Cir. 1985), cert. denied 106 S.Ct. 137 (1985);  and (4) the proposal is
 not an "appropriate arrangement" under section 7106(b)(3) of the
 Statute.  The Union disputes the Agency's arguments and asserts that the
 proposal is within the Agency's duty to bargain.
                       B.  Analysis and Conclusions
              1.  Did the Union waive its right to bargain?
    The Agency asserts that the Union waived its right to negotiate this
 proposal when the Union agreed to allow the Agency to end a practice
 established under an expired collective bargaining agreement.  Under
 that practice technicians were allowed to wear civilian attire when they
 were performing their technician duties.  The issue raised by the
 Agency's contention is essentially one of contractual interpretation.
 To the extent the parties are in dispute as to the intended application
 of their agreement regarding the wearing of the military uniform, that
 dispute should be resolved through other appropriate procedures.  The
 existence of that dispute does not preclude us from, nor require us to
 delay, deciding whether the Union's proposal is nonnegotiable under the
 Statute.  See American Federation of Government Employees, AFL-CIO,
 Local 2736 and Department of the Air Force, Headquarters 379th Combat
 Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302
          2.  Does the proposal conflict with the Agency's rights
                under section 7106(b)(1)?
    The Agency asserts that the proposal is inconsistent with its rights
 under section 7106(b)(1) of the Statute as explained by the Authority in
 Division of Military and Naval Affairs.  We conclude that the proposal
 does not conflict with the Agency's rights under section 7106(b)(1).
 Our reasons, which are interrelated and discussed fully below, are
 these:  first, the labor-management activities covered by the proposal
 do not concern the performance of the Agency's work within the meaning
 of section 7106(b)(1) of the Statute;  second, the Agency's purpose in
 imposing the uniform requirement would not be furthered by applying the
 requirement to technicians when they are involved in labor-management
    In Division of Military and Naval Affairs, supra, 15 FLRA 288, the
 Authority held that decisions on whether National Guard technicians must
 wear military attire while performing technicians' duties were
 negotiable only at the election of the Agency because these decisions
 concerned the right to determine the "methods and means" of performing
 work under section 7106(b)(1) of the Statute.  The Authority reached
 that conclusion, as explained in the decision, in view of the unique
 status National Guard technicians have as compared to other Federal
 civilian employees.  As a result of their essential role in achieving
 mobilization of the parttime Guard into a military force and their
 functions in performing technician duties, they must possess a highly
 developed sense of esprit de corps and military discipline which the
 Authority found was furthered by the wearing of military attire.  This
 reasoning does not apply to the proposal here.
    The proposal's exceptions to the Agency's uniform requirement concern
 labor-management activities -- the joint efforts of employees, the
 Union, and the Agency's management officials in setting and
 administering technicians' conditions of employment.  These activities
 do not constitute employee performance of technician duties.  They are
 not the Agency's "work." National Federation of Federal Employees, Local
 541 and Veterans Administration Hospital, Long Beach, California, 12
 FLRA 270, 274 (1983);  American Federation of Government Employees,
 AFL-CIO, Local 2761 and U.S. Department of the Army, U.S. Army Adjutant
 General Publication Center, St. Louis, Missouri, 14 FLRA 438, 440-41
 (1984).  When acting as union representatives employees are serving in a
 different capacity than when they are performing the duties of their
 positions.  The Statute protects the rights of employees to serve as
 union representatives in order to promote the public interest in
 collective bargaining.  To achieve that objective, the Statute frees
 employees functioning as union representatives from many of the
 constraints to which they would otherwise be subject as employees so as
 to enabl