[ v56 p526 ]
56 FLRA No. 82
ASSOCIATION OF CIVILIAN
TECHNICIANS TONY KEMPENICH
MEMORIAL, CHAPTER 21
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
MINNESOTA NATIONAL GUARD
DECISION AND ORDER ON
July 31, 2000
Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of three provisions disapproved by the Agency head under section 7114(c) of the Statute.
For the reasons set forth below, we reach the following conclusions:
Provision 1, which requires the Agency to grant official time to union officials for lobbying Congress on pending or desired legislation, is contrary to law. However, the portion of the provision that relates solely to the granting of official time to lobby Congress regarding desired legislation is not contrary to law.
Provision 2, which allows technicians to wear civilian attire while processing grievances at any step of the negotiated grievance procedure, is not contrary to law.
Provision 3 requires the Agency to use civilian terms of address in verbal or written communications with technicians involved in a dispute concerning their conditions of employment. However, the Union does not challenge the Agency Head's disapproval of the portion of the provision referring to verbal communications. The remaining portion of the provision that relates solely to use of civilian terms of address in written communications is not contrary to law.
Accordingly, we direct the Agency head to rescind its disapproval of Provision 2 and of the portions of Provisions 1 and 3 that are not contrary to law.
II. Provision 1
6-3 Granting of Official Time
a. Official time will be granted to union officials in the following manner:
(1) . . . The supervisors are responsible for authorizing the use of official time. . . . Supervisory permission will be granted except when there are work-related reasons, which preclude such release. Ordinary workload/backlog will not preclude the release of the requesting union official.
(2) Union officers and officials will be granted a block of 240 hours for official time functions exclusive of management directed activities, such as serving on partnerships or other boards. The Union officers and officials shall be responsible for recording the use of this time and may request additional time from the HRO as needs arise. A report on the number of hours used shall be submitted to the HRO annually at the end of each fiscal year.
(3) While not all-inclusive some examples of representational functions for which official time is authorized are:
. . .
(d) Union officials when representing Federal Employees by visiting, phoning and writing to elected representatives in support [of] or opposition to pending or desired legislation which would impact the working conditions of employees represented by the labor organization.
[Only the underlined portion in 3(d) has been disapproved by the Agency head.] [ v56 p527 ]
A. Positions of the Parties
The Agency contends that the provision is contrary to "recurring provisions in the yearly [DOD] Appropriations Act." Statement of Position at 4. In this regard, the Agency maintains that the Authority has found that identical sections of prior Appropriations Acts "prohibit the use of official time by DOD personnel to lobby on behalf of their labor organizations." Id. citing Office of the Adjutant General, New Hampshire National Guard, Concord, New Hampshire, 54 FLRA 301 (1998) (Member Wasserman dissenting) (New Hampshire National Guard), aff'd sub nom. Granite State Chapter, Association of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999) (Granite State Chapter v. FLRA); Headquarters, National Guard Bureau, Washington, D.C., Nevada Air National Guard, Reno, Nevada, 54 FLRA 595 (1998) (Member Wasserman dissenting) (Nevada Air National Guard), aff'd sub nom. Association of Civilian Technicians, Silver Barons Chapter and Silver Sage Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000).
The Agency also contends that the Authority erred when it held in National Federation of Federal Employees, Local 122 and U.S. Department of Veterans Affairs, Regional Office, Atlanta, Georgia, 47 FLRA 1118 (1993) (NFFE, Local 122), that a similar proposal was negotiable based solely on its interpretations of sections 7102 and 7131(d) of the Statute, without considering the applicability of 18 U.S.C. § 1913. In this regard, the Agency urges the Authority to "reexamine and correct its previous ruling on this issue." Statement of Position at 4.
Furthermore, the Agency argues that lobbying activities by Union officials, as public citizens, fall within the General Accounting Office's (GAO's) definition of prohibited grass roots lobbying as "`an indirect attempt to influence pending legislation by urging members of the public to contact legislators to express support of, or opposition to the legislation or to request them to vote in a particular manner.'" Id. at 6, quoting Alleged Grass Roots Lobbying By A CSA Recipient, B-202787(1) (unpublished 1981).
The Agency also opposes the Union's request to sever the provision on the grounds that it is neither required nor practicable. The Agency claims that the Union's first severance request, which involves deleting from the provision any reference to pending legislation "merely changes the wording from applying to both introduced legislation and legislation the union wishes to have a member of Congress introduce to applying to legislation the union wishes to have introduced." Id. at 6. The Agency insists that regardless of this change, "[t]he meaning and intent of the provision is the same whether it is severed or not, with the issue being the use of official time for lobbying." Id. Regarding the Union's second severance request, which involves removing Section 6(3) in its entirety, the Agency contends that this request would "delete all the examples of appropriate use of official time[, and thus result in the] delet[ion of] approved agreement language." Id. Hence, the Agency argues that "this `severance' would have the Authority rewrite the agreement to delete approved and appropriate language." Id.
The Union argues that the Authority has previously held that similar provisions are not inconsistent with 18 U.S.C. § 1913 and § 8001 of the DOD Appropriations Act, and that the Agency has not "present[ed any] new arguments warranting reconsideration of the Authority's decisions on these points." Union's Response at 3.
The Union also maintains that the holdings in Office of Adjutant General, Georgia Department of Defense, Atlanta, Georgia, 54 FLRA 654 (1998) (Georgia Department of Defense), Nevada Air National Guard and New Hampshire National Guard, that similar provisions are inconsistent with § 8012 of the Appropriations Act, are incorrect for a number of reasons. First, the Union maintains that the "implicit repeal . . . of Defense employees' right to lobby Congress on official time is not clearly required by the Appropriations Acts." Union's Response at 3. Second, the Union argues that the Statute and the Defense Appropriations Act "reasonably can be construed not to conflict" and the Authority overlooked its duty to reconcile these statutes. Id. at 4. Third, the Union contends that the Authority's interpretation of the Defense Appropriations Act leads to the "unacceptable conclusion that employee activities on paid annual leave constitute use of appropriated funds, and that § 8012 therefore prohibits employees from [exercising their First Amendment right to petition Congress for redress of grievances] while on annual leave." Id. at 5.
Fourth, the Union argues that "[a]part from principles of statutory construction, the Authority's past interpretation of provisions like § 8012 is implausible" and that "[t]here is no reason to believe that Congress intended to single out DOD employees for discriminatory treatment." Id. (footnote omitted.) The Union notes that Congress considered and rejected legislation [ v56 p528 ] "that would have eliminated federal employees' statutory right to official time for lobbying." Id. at 6, n.7. Specifically, the Union notes that testimony presented on the Workplace Integrity Act during hearings before Congress "revealed no recognition that Congress already had enacted a ban on official time for lobbying by DoD employees . . . and that the question presented by [the Act] was whether to extend that ban to employees of other agencies." Id.
Fifth, the Union maintains that "the right to use official time for lobbying [under the Statute] prevails because it is more specific than the general prohibition against use of appropriat[ed funds] for lobbying." Id.
Lastly, the Union seeks severance of the provision in two ways. First, the Union requests eliminating from section 6(3)(d) the words "or opposition to pending or." Petition for Review at 3. The Union maintains that under this option, "union officials would be entitled to use official time to communicate with elected representatives about desired legislation," but not pending legislation. Id. at 4. Furthermore, the Union maintains that the remaining portion of the provision would not conflict with § 8012 of the Appropriations Act since the Act only prohibits lobbying as to pending legislation. Union's Response at 9.
Second, the Union requests eliminating all of section 6(3) and not solely section 6(3)(d) that was disapproved by the Agency head. In this regard, the Union contends that "no language would appear in the contract regarding the specific purposes for which union officials may use [their] 240 hours of official time." Petition for Review at 4. The Union contends that section 6(3) is not necessary since the contract requires union officials to report only the amount of official time used and not the "specific purposes." Id. Furthermore, the Union maintains that supervisors may "disapprove requests for official time (that are within the 240 hours allowed) only for work-related reasons, and not for reasons pertaining to the specific purposes for which the official time will be used." Id.
B. Meaning of the Provision
There is no dispute that the provision, as executed by the parties, would require the Agency to grant official time to union officials for lobbying Congress on pending or desired legislation.
In the post-petition conference held pursuant to section 2424.23 of the Authority's Regulations, the parties discussed the Union's severance requests. The parties agreed that removing the words "or opposition to pending or," would "allow for the use of official time by union officials to visit, phone or write to elected representatives regarding legislation that the officials would like to see passed but that has not yet been introduced by the House of Representatives or Senate at the time the officials visit, phone or write their elected representatives." Conference Record at 2. Regarding the Union's second severance request whereby all of section 6(3) would be deleted, the parties agreed that such a deletion "signifies that there would be no requirement that a union representative provide a reason for requesting official time and that the only basis on which an agency manager could disapprove an official time request would be for work-related reasons, as specified elsewhere in section 6-3(a)." Id.
C. Analysis and Conclusions
1. The Provision as Executed by the Parties is Contrary to Law
In Association of Civilian Technicians, Old Hickory Chapter and U.S. Department of Defense, North Carolina National Guard Bureau, Raleigh, North Carolina, 55 FLRA 811, 812 (1999) (ACT, North Carolina), an Authority majority held that "a proposal to grant official time for lobbying activities that include[s] `pending legislation' is inconsistent with the plain wording of the Defense Appropriation Lobbying Statute[, section 8012 or its predecessor section 8015]" and "[a]s a result, . . . outside the duty to bargain because [such proposals are] contrary to law." Id., citing Nevada Air National Guard, 54 FLRA at 324-25; New Hampshire National Guard, 54 FLRA at 310-11, 313; and Georgia Department of Defense, 54 FLRA at 665-66. The First and Ninth Circuit Courts of Appeals have upheld this precedent finding that proposals/provisions such as the one at issue involving "pending legislation" are contrary to law based on this inconsistency with the Appropriations Act. [n1]
Most of the Union's arguments presented in this case have been considered and rejected in prior decisions. [n2] None of the additional arguments persuades us [ v56 p529 ] to depart from this precedent finding the provision as written contrary to law.
As to these additional arguments, the Authority has not previously addressed the Union's constitutional claim that the Authority's precedent leads to the "unacceptable" result of denying union members their First Amendment right to lobby Congress while on annual leave. Union's Response at 5. Nonetheless, we find that this claim is without merit. [n3] The underlying premise of the Union's argument is that annual leave and official time should be treated in the same fashion under section 8012 since both constitute paid non-duty time. However, the Authority has clarified the "critical distinction[s] between official time and annual leave." ACT, North Carolina, 55 FLRA at 813. In this regard, the Authority stated that the Statute restricts the use of official time in two ways. First, the Statute allows employees to use official time to perform certain specified activities under section 7131: Negotiation of collective bargaining agreements, participation in FLRA proceedings, and representation in connection with other matters covered by the Statute. Second, section 7131(b) of the Statute prohibits employees from using official time to perform internal union business, including the solicitation of membership, elections of union officials, and collection of dues. However, the Authority has noted that an employee on annual leave is "not subject to the restrictions in section 7131." Activities that may not be conducted on official time, such as internal union business, may be performed on annual leave. ACT, North Carolina, 55 FLRA at 813. The Authority has made no finding that section 8012 prohibits the use of annual leave to lobby Congress.
In addition, as relevant here, the Authority has rejected the Union's contention, raised in ACT, North Carolina, that employee time is categorized as either duty time or non-duty time by pointing out that official time is a "distinct third category of time." Id. In this connection, the Authority stated that
Unlike regular duty time, an employee's activities on official time are not directed by the agency. Unlike annual leave, an employee's activities on official time are restricted by the Statute. In this connection, we note that both official time and duty time -- unlike non-duty time such as annual leave -- `shall be considered hours of work.'
Id. (citing 5 C.F.R. § 551.424(b) and noting that employees on official time are covered by the Federal Employees Compensation Act while employees on annual leave are not). In light of these distinctions, we find that the Union's argument is without merit.
Finally, we find unavailing the Union's argument attacking the Authority's interpretation of § 8012 of the Appropriations Act as "implausible" in light of testimony presented to Congress on other legislation. In this regard, the Ninth Circuit reaffirmed the First Circuit and Authority's interpretation that precludes the use of appropriated funds by DOD employees to lobby Congress on pending legislation. ACT, Silver Barons Chapter v. FLRA, 200 F.3d at 592 ("Here, Congress expressed a clear intent to repeal sections 7131 and 7102 of the [Statute] as they are read to allow DOD employees to use official time to lobby Congress"). The Union has not established how testimony regarding other legislation negates this clear congressional intent.
2. The Portion of the Provision Authorizing Official Time Concerning Desired Legislation Is Not Contrary to Law
We grant the Union's request to sever the provision by eliminating the words, "or opposition to pending or," and find that the remaining portion of the provision is not contrary to section 8012 of the DOD Appropriations Act. [n4]
Generally, the Authority grants requests to sever where portions of proposals can stand independent of the remainder of the proposals and such portions have been specifically addressed by the parties. See, e.g., Professional Airways Systems Specialists, District No. 6, PASS/NMEBA and U.S. Department of the Navy, U.S. Marine Corps, Marine Corps Air Station, Cherry Point, North Carolina, 54 FLRA 1130, 1131 (1998) (Professional [ v56 p530 ] Airways Systems Specialists) (Authority denied Union's request to sever sentences, phrases or words that did not stand independently of the section of which they are an integral part). Without the words "or opposition to pending or," we find that the provision is capable of standing alone and would deal solely with granting official time to union officials to lobby Congress on desired legislation. In this regard, we adopt the parties' agreed upon definition of desired legislation, as legislation that the union officials wish to see enacted, but that has not yet been introduced in the House of Representatives or Senate at the time of the officials' lobbying activities. Conference Record at 2.
We also find that the remaining portion of the provision is to the same effect as that addressed in Association of Civilian Technicians, Razorback Chapter 117 and U.S. Department of Defense, National Guard Bureau, Arkansas National Guard, Camp Robinson, North Little Rock, Arkansas, 56 FLRA No. 62 (June 6, 2000) (ACT, Razorback Chapter 117) (Member Cabaniss concurring). In that case, the Authority held that a provision granting official time to union officials to lobby Members of Congress regarding desired legislation, as opposed to pending legislation, is not inconsistent with section 8012 of the DOD Appropriations Act. In this connection, "[d]esired legislation, . . . is separate and distinct from the plain meaning of `pending' as used in the DOD Appropriations Act and the proposals/provisions previously examined by the Authority." Id., slip op. at 8. Therefore, provisions regarding desired legislation "fall outside the scope of the Appropriations Act's prohibition against lobbying regarding pending legislation," and are not inconsistent with the Appropriations Act. Id. at 9. [n5]
In sum, we find that the provision as executed by the parties involving pending legislation is contrary to section 8012 of the 1999 DOD Appropriations Act. However, the remaining portion of the provision as it relates to desired legislation is not contrary to law. Accordingly, we direct the Agency head to rescind its disapproval of this portion of the provision, in line with section 2424.40(c) of the Authority's Regulations. [n6]
III. Provision 2
6-5 Civilian Attire
. . .
f. Employees in the bargaining unit will not be required to wear the military attire while processing a grievance at any step of the negotiated grievance procedure.
A. Positions of the Parties
The Agency contends that the provision conflicts with 32 U.S.C. § 709(b)(3) (hereinafter "section 709"). [n7] In support, the Agency cites to the text of section 709 as it existed prior to its amendment on October 5, 1999. [n8] The Agency maintains that 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) (ACT, Mile High Chapter), after reviewing the legislative history of section 709(b)(3), the Authority held that "the wearing of civilian attire by military technicians was inconsistent with law," and that in this regard, the Agency's "discretion was confined to competitive, nonmilitary positions only." Statement of Position at 9. Moreover, the Agency maintains that "the language `while performing duties as a technician' . . . mean[s] while employed as a technician and engaged in employment activities as a [ v56 p531 ] technician . . . [or] in other words, while at their job[s]." Id. The Agency also claims that the legislative history of section 709(b)(3) supports its interpretation.
Further, the Agency rejects the Union's claims that the provision grants official time to employees when they appear as grievants or witnesses at third party proceedings. The Agency argues that "participating in administrative, third-party forums is intrinsically linked to employment for the purposes described under 32 U.S.C. § 709(a)[,]" since such forums are "used to resolve employment issues between management and employees." Id. at 10. The Agency maintains that unlike a union representative who represents the labor organization or bargaining unit member, an employee "appearing as a grievant or witness represents [himself/herself] as a technician seeking redress of a grievance regarding an event or situation arising from his/her employment as a technician, or as a technician testifying to events he/she has observed as a technician." Id. (emphasis in original).
The Union maintains that the provision does not conflict with 32 U.S.C. § 709(b)(3) since the Act requires technicians to wear the military uniform while performing duties as a technician, and not "at all times" while employed as a technician as the Agency claims. Union's Response at 11. In this regard, the Union notes that the Act neither states nor can be interpreted to provide that technicians must wear the military uniform "while processing a grievance at any step of the negotiated grievance procedure." Id.
The Union claims that the Authority's adoption of the Agency's view, which prohibits technicians from using official time to process grievances and to appear at third party proceedings, would "create a conflict between 32 U.S.C. § 709(b)(3) and section 7131(d) of the Statute." Id. at 11. The Union argues that the two "[s]tatutory provisions . . . should be construed so as to be consistent with each other." Id. at 12. According to the Union, a technician processing a grievance is "either (a) on official time or (b) performing a task for which official time lawfully could be negotiated under [section 7131(d) of the Statute]." Id. at 11.
B. Meaning of the Provision
We adopt the parties' meaning of the provision, as agreed to at the post-petition conference, allowing technicians to wear civilian attire when "going to, attending and coming from meetings with agency representatives at the steps of the negotiated grievance procedure, including arbitration." Conference Record at 3.
C. Analysis and Conclusions
We find that the provision is not contrary to law. In this regard, the Authority has previously addressed similar provisions. See Association of Civilian Technicians, Puerto Rico Army Chapter and U.S. Department of Defense, National Guard Bureau, Puerto Rico National Guard, San Juan, Puerto Rico, 56 FLRA No. 77 (2000) (Provision 1). More particularly, in Association of Civilian Technicians, Roughrider Chapter and U.S. Department of Defense, North Dakota National Guard, Bismark, North Dakota, 56 FLRA 256 (2000) (ACT, Roughrider Chapter), the Authority held that a provision 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). [n9] The Authority found that "the plain meaning of the phrase `while performing duties as a technician' in section 709(b)(3) would include technician work, and not third-party proceedings." Id. at 256-57 (citing National Association of Government Employees, Local R3-84, SEIU, AFL-CIO and District of Columbia Air National Guard, 23 FLRA 536, 539 (l986) (NAGE, Local R3-84) (the Authority found that, for purpose of the technician uniform requirement, third-party proceedings "do not constitute employee performance of technician duties"). The Authority rejected the agency's claim that "the participation by a technician in the third-party proceedings . . . is the performance by that employee of technician duties as a representative of a military organization." Id. at 256. The Authority also rejected the Agency's claim [ v56 p532 ] that the provision would conflict with § 709 since third-party proceedings are "used to resolve employment issues between management and employees," where an employee "appearing as a grievant or witness represents [himself/herself] as a technician seeking redress of a grievance[,] or as a technician testifying to events [he/she] has observed as a technician." See Judge's Decision in ACT, Roughrider Chapter, 56 FLRA at 259. The Authority adopted the Judge's conclusion that the "Agency's argument . . . is undercut by the Authority's view . . . that subsection (b)(3) is directed at the clothing technicians must wear `while performing duties.'" Id. at 260 [Footnote omitted.] The Authority adopted the Judge's further conclusion that "[i]t is thus insufficient that the employee's participation in a third-party proceeding relates to her status as an employee and that status happens to be that of a technician." Id.
The provision at issue here would permit technicians to wear civilian attire while going to, attending and coming from meetings with agency representatives at any step of the negotiated grievance procedure, including arbitration. In this regard, we find that the Agency's reliance on ACT, Mile High Chapter is misplaced since the proposal in that case involved the wearing of civilian attire while performing technician duties and as a result conflicted with section 709(b)(3). Here, allowing employees to wear civilian attire when participating in an arbitration or other third party proceeding does not involve technician duties and is thus consistent with precedent established by ACT, Roughrider Chapter.
Accordingly, we find that this provision is not contrary to law and direct the Agency head to rescind its disapproval of the provision. [n10]
IV. Provision 3
22-1 Employee Representative Title
a. communications . . . . directed to a Federal Civil Service Technician in his/her capacity as a labor organization representative shall not include any reference to that employee's title, status or rank within any other organization outside of the recognized bargaining unit.
b. This same consideration will also be extended to a bargaining unit member who is involved in any dispute relative to the bargaining unit members [sic] employment or condition of employment. The appropriate title will be "Mr." or "Ms."
[Only the underlined portion is in dispute.]
A. Positions of the Parties
The Agency maintains that the provision conflicts with 32 U.S.C. § 709(b)(3), as amended, which mandates the wearing of the military uniform by technicians. In this regard, the Agency maintains that "[t]he addressing of members in military uniform, whether it be in written or verbal communications, is one of the many means of military customs and courtesies employed by the armed forces for the maintaining of discipline and esprit de corps." Statement of Position at 13. The Agency maintains that the Authority "has long recognized that the, `requirement that civilian technicians observe military customs and courtesies whenever they are wearing the military uniform is so inextricably related to the wearing of the military uniform that the observance of these customs and courtesies must be considered as part of the uniform-wearing requirement.' Id.
Further, the Agency contends that although "[i]t is recognized that the provision limits the addressing of military technicians to those who have a dispute relative to the member's employment or condition of employment," such "dispute[s . . . are] subject to the law requiring the wear[ing] of the uniform." Id. In this respect, the Agency reiterates its arguments made in relation to Provision 2 that third-party proceedings are "intrinsically linked to employment for the purposes described under [§ 709(a),]" since they serve to "resolve employment issues between management and employees." Id. at 14. The Agency also notes that other types of dispute [ v56 p533 ] resolution outside the formal grievance or appeal system would relate to an employee's technician duties. Id.
In response to the Authority's request, at the post-petition conference, for any written material describing the forms of address used in connection with the wearing of the military uniform, the Agency submitted Section 1.6 of Army Regulation 600-20 that shows the grades of military rank used in the Army, including pay grades, titles of address and abbreviations. In addition, the Agency emphasizes that the use of military rank is inherent to the very nature of the National Guard's "critical mission" of "defend[ing] the United States and its interests," and cites 10 U.S.C. 10216(b), which "lists the priorities for the management of military technicians," as support for this proposition. Id. The Agency maintains that "[t]o dilute any aspect of the military customs and courtesies, to include how a member is addressed [whether verbally or in writing] is to erode the very structure of our national defense by placing a `weak link' at the very heart of our military forces, which is discipline." Id. at 15.
Finally, the Agency objects to the Union's request to sever this provision in order to focus solely on the issue of using civilian forms of address in written correspondence to technicians. In this connection, the Agency argues that severance is not practicable since the meaning and intent of the provision remains the same and the central issue still concerns addressing technicians using military versus civilian terms.
The Union seeks severance of the provision so that the portion relating to verbal communications is removed, and the issue before the Authority concerns the use of civilian terms of address in written communications. The Union maintains that severance is practicable since "[w]ritten communication is clearly distinguishable from oral communication." Union's Response at 16.
The Union contends that the remaining portion of the provision involving solely written communications does not violate 32 U.S.C. § 709(b)(3). The Union emphasizes that the "[o]bservance of military customs and courtesies" only attaches to the wearing of the military uniform under § 709(b)(3) when employees are performing technician duties. Id. at 13. In this regard, the Union claims that "[m]ilitary customs and courtesies do not pervade all aspects of technician employment . . . only when technicians actually are wearing the military uniform." Id. at 15. The Union argues that since technicians receive written correspondence related to employment disputes at home during unpaid, off-duty time, the technicians are not required to wear the military uniform and as a result need not observe military custom or courtesies. The Union also contends that the provision would permit the Agency to deliver such written communications to technicians' work addresses. Id. at 14. Finally, the Union contends that the provision is a negotiable procedure under section 7106(b)(2) and does not involve management's right to determine the method and means of performing work.
B. Meaning of the Provision
At the post-petition conference, the Union explained that although the parties' use of the phrase "same consideration" in (b) applied to the verbal and written communications expressed in (a), the Union was only challenging the Agency's disapproval as to written communications. The Union further explained that (b) would require that "in any written communication to a bargaining unit employee regarding any dispute relative to the employee's conditions of employment, there would be no reference to the employee's title, status or rank." Conference Record at 3-4. The Union also stated that "`any dispute' would include grievable matters and could include other formal processes, such as EEOC proceedings." Id. at 4. In this regard, the record states that the "Agency representatives understood that the provision would operate in this manner." Id. Finally, the parties "discussed, but disagreed, on whether the wearing of the military uniform includes forms of address that will be used in written communications." Id.
We adopt the meaning of the provision that was discussed by the parties during the post-petition conference. The conference record states that the Agency understood that the provision, as executed, would require the Agency to address employees by the terms Mr. or Ms., rather than by their military rank or title, in verbal or written communications when employees are involved in any dispute about grievable matters or other formal proceedings relating to the employees' conditions of employment. Conference Record at 4.
C. Analysis and Conclusions
We grant the Union's request to sever the provision and address solely written communications, as opposed to verbal communications. We find that the Agency's reasons for opposing severance -- that the meaning and intent of the provision remain the same and the central issue still concerns whether technicians are addressed by military or civilian terms -- do not provide a sufficient basis upon which to deny the request. [ v56 p534 ] Although the remaining portion of the provision still involves the issue of whether to use civilian or military forms of address, the remaining portion concerning written communications is capable of standing alone and presents different factual considerations. See Professional Airways Systems Specialists, 54 FLRA at 1131; ACT, Rhode Island Chapter, 55 FLRA at 424 (when provisions or their subparts present distinct legal or factual questions, they may be treated separately).
We further find that the provision as severed, involving written communications, is not contrary to law. The Agency's argument, that section 709(b)(3) prohibits the use of civilian terms of address in written communications to technicians who are involved in disputes regarding grievable matters or other formal proceedings relating to conditions of employment, is unavailing. [n11] As stated earlier, section 709(b)(3) requires technicians to wear the military uniform when performing technician duties. Section 709(b)(3) is neither germane nor applicable to how the Agency addresses technicians in written correspondence relating to grievable matters and other formal proceedings relating to employees' conditions of employment.
The Agency has not provided any other arguments regarding the remaining portion of the provision involving solely written correspondence that convince us otherwise. We note that the Agency mentions section 1.6 of AR 600-20, which states that "[w]hen military personnel (chaplains excepted) are addressed or referred to, orally or in writing, the grade of rank or title of address will normally be used." [n12] In line with Authority precedent, we find that the words, "will normally," indicate that the Agency has discretion to decide when to use military versus other forms of address. See Local 3, International Federation of Professional and Technical Engineers, AFL-CIO and Naval Sea Systems Command Detachment, PERA (Crudes) Philadelphia, 25 FLRA 714, 721 (1987) (use of the term "normally" indicates that the Agency retains discretion).
In addition, the Agency cites 10 U.S.C. § 10216, which primarily deals with DOD's annual request to Congress for authorization of end strengths (or numbers) for military technicians. However, section 10216 does not address any issue of relevance to the Authority's consideration of appropriate forms of address for military technicians and thus provides no support for the Agency's argument.
Based on the foregoing, we find that the portion of Provision 3 relating to written communications concerning grievable matters and other formal proceedings involving employees' conditions of employment is not contrary to law. Therefore, we order the Agency head to rescind its disapproval of this portion of the provision. [n13]
The Agency shall rescind its disapproval of Provision 2 and the portions of Provisions 1 and 3 that are not contrary to law.
Footnote # 1 for 56 FLRA No. 82
Footnote # 2 for 56 FLRA No. 82
Similarly, the Authority has rejected claims, such as that made by the Agency here, that the provision conflicts with 18 U.S.C. § 1913 and the Authority should re-examine its holding in NFFE, Local 122. In U.S. Department of the Army, Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920 (1997), the Authority examined whether 18 U.S.C. § 1913 prohibits the use of official time for union officials to lobby Congress and concluded that it did not. The Agency has not provided any new arguments that would support a conclusion to the contrary in this case.
Footnote # 3 for 56 FLRA No. 82
We note that the Union raised the same First Amendment argument in its appeals to the First and Ninth Circuits. The First Circuit concluded that "the Union's derivative constitutional arguments are unpersuasive[,]" and stated that "[s]ection 8015 does not in any way affect what Union [M]embers can do during their annual leave." Granite State Chapter v. FLRA, 173 F.3d at 28 & n.3. The Ninth Circuit did not specifically address the Union's constitutional claim in its decision.
Footnote # 4 for 56 FLRA No. 82
We deny the Union's second request to remove all of section 6(3), including contract language that was approved by the Agency head and that is now in effect. In this regard, we find that the Union's request is an attempt to renegotiate the collective bargaining agreement rather than an appropriate or proper severance request. Cf. International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 820 (1996), citing International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 45 FLRA 1154, 1162 (1992) (substantive revision of proposals is not the Authority's function).
Footnote # 5 for 56 FLRA No. 82
Member Cabaniss reiterates her position, expressed in her concurring opinion in ACT, Razorback Chapter 117, that the Authority's construction of the Department of Defense Lobbying Statute does not comport with the underlying congressional intent, even though the Authority's interpretation is consistent with the language therein.
Footnote # 6 for 56 FLRA No. 82
(c) Cases involving provisions. If the Authority finds that a provision, or any severable part thereof, is not contrary to law, rule or regulation, or is bargainable at the election of the agency, the Authority will direct the agency to rescind its disapproval of such provision in whole or in part as appropriate. . . .
Footnote # 7 for 56 FLRA No. 82
We note that the version of section 709 on which the Agency relies was amended on October 5, 1999. See National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, § 524, 113 Stat. 512, 599 (1999). The amendment was designed, in part, to authorize the Secretaries of the Army and Air Force to employ non-dual status technicians in the National Guard. See H.R. Rep. No. 106-162, § 525, 1999 WL 331881. By its terms, the amendment was to take effect 180 days after receipt by Congress of a plan or report relating to the hiring of non-dual status technicians. The amendment added a new section 709(b)(4) which provides that dual status technicians "[w]hile performing duties as a military technician (dual status), wear the uniform appropriate for the member's grade and component of the armed forces." None of the parties apprised the Authority of this amendment or whether it is currently in effect. Under these circumstances, we continue to apply section 709(b)(3). However, even if the amendment were in effect, it would not alter the result we reach in this case in view of the substantial similarity in language between sections 709(b)(3) and 709(b)(4) and the absence of any legislative history warranting a different result.
Footnote # 8 for 56 FLRA No. 82
Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection (b) of this section 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) A technician employed under subsection (a) shall, while so employed-
(1) be a member of the National Guard;
(2) hold the military grade specified by the Secretary concerned for that position; and
(3) wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician.
See 32 U.S.C. § 709 (1994 & Supp. II 1996) (amended 1999).
Footnote # 9 for 56 FLRA No. 82
Footnote # 10 for 56 FLRA No. 82
We find that it is unnecessary to address the parties' differing positions regarding whether employees may use official time when processing grievances at any step of the negotiated grievance procedure as this decision stands whether or not employees are granted official time for processing grievances.
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Footnote # 13 for 56 FLRA No. 82