23:0730(95)NG - NAGE, Service Employees International Union and Missouri NG -- 1986 FLRAdec NG
[ v23 p730 ]
The decision of the Authority follows:
23 FLRA No. 95 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO Union and MISSOURI NATIONAL GUARD Agency Case No. 0-NG-1300 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is 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), and concerns the negotiability of one Union proposal. The proposal, which appears in the Appendix to this Decision, essentially provides that National Guard civilian technicians will be given the option of wearing standardized civilian attire rather than the military uniform. Based on the following, we find the proposal nonnegotiable. II. Positions of the Parties The Union asserts that its proposal is an appropriate arrangement for employees adversely affected by the Agency's decision to require civilian technicians to wear the military uniform and is negotiable under section 7106(b)(3) of the Statute. In support of its contention, it relies on the Authority's decision in American Federation of Government Employees, Local 217 and Veteran's Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13 (1986). It characterizes that decision as standing for the proposition that, while the decision to require employees to wear a uniform may be a management right, the type of uniform is negotiable as an appropriate arrangement. It asserts that, in light of its decision in Veterans Administration, the Authority should reconsider its previous decisions on the issue of National Guard civilian technicians wearing the military uniform and requests that the Authority conduct a hearing on the matter. It further asserts that, when measured against the criteria which the Authority has articulated for determining whether a matter is negotiable as an appropriate arrangement, /1/ this proposal constitutes an arrangement for adversely affected employees which does not excessively interfere with the Agency's right to determine its internal security practices. /2/ The Agency notes that the Authority has held that the requirement that civilian technicians wear the military uniform is a methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. For example, Division of Military and Naval Affairs, State of New York, Albany, New York Council, Association of Civilian Technicians, 15 FLRA 288 (1984), aff'd sub nom. New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied 106 S.Ct. 137 (1985). It argues that the Union's proposal in this case is not an appropriate arrangement because it excessively interferes with the Agency's right under section 7106(b)(1) in that it would totally eliminate the right to determine the methods and means of performing work. III. Analysis and Conclusions A. The Circumstances in Veterans Administration, 21 FLRA No. 13, Are Distinguishable from Those Present Here In the Veterans Administration case, the record established that the purpose of requiring employees to wear a uniform was to allow ready identification of employees for security purposes. In that context, the Authority found that negotiation over the specific type of uniform did not interfere with the purpose for which the uniform requirement was adopted. However, the purpose of lthe uniform requirement, insofar as National Guard technicians are concerned, is different. The National Guard Bureau requires technicians to wear the military uniform to foster military discipline, promote uniformity, encourage esprit de corps, incrrease the readiness of the military forces for early deployment and enhance identification of the National Guard as a military organization. /3/ Given that context, the type of uniform, i.e., a military uniform, is critical to achieving the purpose for which the Agency has adopted the uniform requirement. In view of the different circumstances present in the two cases, no reconsideration of the Authority's previous determinations in the National Guard cases is called for and the Union's request for a hearing is denied. B. The Union's Proposal Does Not Constitute an Appropriate Arrangement The Union has identified several instances where it contends that employees have been adversely affected as a result of the Agency's requirement that they wear the military uniform. Assuming that the Union's contentions are accurate, the Authority finds that, in view of the relationship between the military nature of the uniform and the purpose for which the uniform requirement was adopted, a proposal allowing employees to elect to wear a nonmilitary uniform would negate the Agency's right to determine the methods and means of performing work. A proposal which in this manner totally abrogates the exercise of a management right excessively interferes with the right and is not negotiable as an appropriate arrangement under section 7106(b)(3). See American Federation of Government Employees, AFL-CIO, Local 3186 and Department of Health and Human Services, Office of Social Security Field Operations, Philadelphia Region, 23 FLRA No. 30 (1986) (Proposal 1). This is not to say, however, that under all circumstances proposed exceptions to the uniform requirement must be found non-negotiable. See National Association of Government Employees, Local R3-84, SEIU, AFL-CIO and District of Columbia Air National Guard, 23 FLRA No. 73 (1986), in which the Authority found negotiable a proposal which excepted employees from the uniform requirement when engaged in specified labor-management activitgies. Thus, some portions of the Union's proposal which seek specific exceptions to the uniform requirement might be found negotiable, if severed from a proposed overall option of wearing nonmilitary attire. We do not consider this question further here. The Authority generally does not consider parts of a proposal separately, unless the parties specifically so request, which was not done in the present case. See Local 32, American Federation of Government Employees v. FLRA, 774 F.2d 498, 505 (D.C. Cir. 1985). IV. Order Pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C. October 31, 1986. /s/ Jerry Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). (2) Contrary to the Union's statement, the Agency has not asserted that the proposal conflicts with its right under section 7106(a) to determine its internal security practices. (3) See Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984). APPENDIX Section 12. A. Excepted Technicians throughout the State shall wear an agreeed-upon Standard Civilian Attire (SCA). B. Exception: Excepted Technicians who wish to remain in the military uniform shall, within 30 days from the date of approval of this Agreement, or 30 days from the date of employment, whichever comes later, notify the Technician Personnel Officer (TPO), in writing, of their intent to remain in the military uniform. Upon receipt of such notice by the TPO, they shall remain in the military uniform for the life of this Agreement. C. The military uniform will continue to be worn by all excepted Technicians: (1) When engaged in recruiting/retention activities, provided the Technicians have advance knowledge of such activities; (2) When serving as a crew member or non-crew member, or riding as a passenger in a military aircraft; (3) During all higher headquarters inspections or announced visits of officials higher than State Headquarters; (4) When in TDY status to a military installation, unless such wear is exempted by policy guidance or regulation from higher authority; (5) When working in Technician status in support of UTAs, AT, or any other military function involving Drill-Status Guardsmen (DSGs) in a military duty status; and (6) When actively serving on a Base Defense Force. D. Neither the Military uniform nor the SCA will be worn by Technicians: (1) When in an official travel status while traveling by commercial or private transportation; (2) When attending courses of instruction in a Technician status at locations other than military installations, facilities or complexes, except as required by the facility conducting the course; (3) When serving as labor representatives while engaged in labor agreement negotiations; and (4) While participating as data collectors during a Federal Wage System survey. E. The Parties agree that the provisions of this Section of this Article will be strictly adhered to and that they will provide mutual support when correcting violations that might occur. F. All SCA items of wear will be purchased, maintained and replaced at the personal expense of the Technician. G. SCA, specified as follows for all members of the bargaining unit, will be uniform in style and color: (1) Blue shirt with either long or short sleeves -- (A) When worn, SCA shirt will always be tucked in at the waist; (B) A blue name tape, 1"X6", stenciled or embroidered with the Technician's last name, in black if stenciled, or black thread if embroidered, will be worn over the right pocket of the shirt, or in a similar position on the shirt if it has no pocket; (C) The SCA shirt may be of cotton poplin, twill, chambray, nylon or knit. (2) Full-length blue SCA trousers or slacks, or skirts, will be worn -- those with belt loops will be worn with a plain black belt, leather, knit, or woven, with a plain open-face buckle. Blue jeans will not be worn. (3) A blue jacket may be worn when required for an individual Technician's comfort, and a name tape of the same style and markings used on the SCA shirt will be worn in the same place on the jacket. (4) As required by prevailing climatic conditions, a blue coat of fingertip, or knee length, or an SCA parka with or without a hood, may be worn when required for the comfort of the individual Technician. (5) When out of doors, the following type black or blue headgear may be worn -- (A) Baseball-type cap, or (B) In cold weather, a knit stocking cap. Local Commanders may, at their discretion, restrict wear of headgear on the flight lines. (6) Footwear will be in a standardized black color, low quarter or ankle length shoes, boots, or insulated boots; (A) socks will be black of any weight preferred; (B) overshoes may be worn when required and will be of standard plain design, pullover, buckle or zippered. (7) Undershirts, if worn, will be plain, white, of T-shirt design, circular neck, without ornamentation of any kind, and must always be worn tucked into the trouser, slack or skirt waist. (8) Blue sweaters, pullover, cardigan style, or zippered, with or without sleeves, may be worn for the comfort of the individual Technician. (9) Ponchos, raincoats or rain suits may be worn when required by foul weather conditions, and will be safety yellow. (10) Technicians who wear the SCA and who continue to work during a pregnancy will wear the SCA modified for maternity wear; Technicians who wear the military uniform and who continue to work during a pregnancy will follow the provisions of the appropriate AR or AFR. (11) No ornamentation other than the name tape specified in G(1)(B) and (3) above, no insignia of military rank, no display or membership pins, buttons, jewelry or like items will be worn on the SCA items of wear at any time. H. It will be the responsibility of each Technician who wears the SCA to maintain his personal attire in a serviceable and presentable manner and condition and he will replace frayed, faded, torn, indelibly spotted, or chemically eroded items with least possible delay. I. Military grooming standards will be adhered to by all Technicianss at all times, to enable achievement of a smooth and rapid transition of Technicians to military status in emergencies, in keeping with the missions of the Missouri National Guard and of the Agency; grooming standards will be as specified in the appropriate AR or AFR. J. No mixture of military uniform items and SCA items, or of normal civilian non-military, non-SCA items and SCA items will ever be permitted and wear of any mixed attire will be forcefully discouraged by both Parties except for required safety items. K. If Technicians select the SCA, the military uniforms issued to them in excess of their regular military allowance will be turned in to their military unit within 30 days after the date the SCA-wear option becomes effective at their work location. L. The Parties agree that the provisions of this Section of this Article will be strictly adhered to and that they will provide mutual support for making corrections of violations that might occur.