Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs (Authority decision, September 22, 1983)

Final FLRA decision. The Authority denied a motion to stay its earlier negotiability ruling. Under 5 U.S.C. § 7123(a), a person aggrieved by a final Authority order may generally seek judicial review within 60 days of issuance. A review petition does not itself stay the order.

Plain-English summary

The National Guard Bureau asked the Authority to stay an earlier ruling that a union proposal about technicians wearing military uniforms was negotiable. It argued that a related unfair labor practice case had been remanded by a court and might produce a conflicting decision. The Authority found that the agency had already elected to bargain over the proposal as it applied to bargaining unit employees. It denied the stay because the pending case did not require suspending its ruling.

Decision snapshot

• Authority: 5 U.S.C. § 7106(b)(1).
• Outcome: Agency motion to stay earlier negotiability decision denied.
• Key point: An agency's election to bargain over the proposal removed the claimed conflict with a related remanded case.

Full text (FLRA public release)

[ v11 p475 ]

11:0475(81)NG

The decision of the Authority follows:

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(.)