26:0682(84)NG - ACT, Wisconsin Chapter, and Wisconsin Army National Guard -- 1987 FLRAdec NG



[ v26 p682 ]
26:0682(84)NG
The decision of the Authority follows:


 26 FLRA No. 84
 
 ASSOCIATION OF CIVILIAN TECHNICIANS,
 WISCONSIN CHAPTER
 Union
 
 and
 
 WISCONSIN ARMY NATIONAL GUARD
 Agency
 
                                            Case No. 0-NG-1080
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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 presents issues
 concerning the negotiability of five Union proposals.  We find that all
 the proposals are outside the duty to bargain.
 
    II.  Proposal 1
 
          All Civilian Technicians required to wear the military uniform
       on a daily basis in the performance of their duties will be
       provided the following services at the employer (sic) expense:
 
          a.  Sewing services for attaching regulation required names and
       other service and unit identifying patches to the uniforms and all
       other protective gear and cold weather clothing required by the
       employer.
 
          b.  Laundering services of all required military items of
       clothing required to be worn in the performance of civilian
       technicians duties.
 
    A.  Positions of the Parties
 
    In general the Agency maintains that since all the proposals involved
 concern the military uniform and relate to the military aspects of
 technician employment, they do not concern conditions of employment.
 The Agency also contends that the proposal is inconsistent with 5 U.S.C.
 section 5901, which provides for the payment of uniform allowances.  The
 Agency's position is that under this provision the payment of allowances
 is restricted to employees who are not furnished with a uniform and that
 all enlisted military technicians are furnished with a military uniform.
 
    The Union contends that all the proposals relate to conditions of
 employment of civilian technicians and do not concern the military
 aspects of this employment.  The Union also contends that section 5901
 does not apply to all bargaining -- unit employees, some of whom are
 commissioned or warrant officers who receive an initial uniform
 allowance instead of being furnished with a military uniform.  The Union
 finally contends that this proposal is negotiable because it concerns
 the impact and implementation of the Agency's determination to require
 the wearing of the military uniform.
 
    B.  Analysis and Conclusions
 
    We find that the proposal is outside the duty to bargain for a reason
 other than that argued by the parties.
 
    Subchapter I of 5 U.S.C. chapter 59, of which section 5901 cited by
 the Agency is a part, provides authorization for annual appropriations
 by Congress to agencies which require employees to wear a prescribed
 uniform in the performance of official duties and which do not furnish
 that uniform.  The provisions of the subchapter further provide that
 these funds in specified amounts will be used to either furnish the
 employee the prescribed uniform or pay the employee an allowance for a
 uniform.  The subchapter was originally enacted as the Federal Employees
 Uniform Allowance Act of 1954, Pub. L. No. 83-763, 68 Stat. 1114 (1954).
  The legislative history of this original enactment indicates that the
 allowance was appropriated for both the purchase and "upkeep" of the
 prescribed uniform.  S. Rep. No. 1992, 83d Cong., 2d Sess., reprinted in
 1954 U.S. Code Cong. & Admin. News 3816, 3826.  The provisions of the
 subchapter further provide that when the prescribed uniform is
 furnished, or a uniform allowance is paid by the agency under another
 statute or regulation in existence on September 1, 1954, a uniform may
 not be furnished or an allowance paid under subchapter I.  Finally, the
 subchapter provides for regulations for the administration of the
 payment of allowances.
 
    From our examination of these provisions, we conclude that 5 U.S.C.
 chap. 59, subchapter I deals comprehensively with the payment of a
 uniform allowance by an agency for the maintenance of the uniform which
 the agency requires employees to wear.  Because all bargaining -- unit
 employees are required to wear the military uniform, regardless of
 military rank or grade, we find that the proposal as it relates to all
 bargaining -- unit employees pertains to a matter which is specifically
 provided for by Federal statute.  Thus, under section 7103(a)(14)(C) of
 the Statute, the proposal concerns a matter which is excluded from the
 "conditions of employment" over which an agency can be required to
 bargain.  See American Federation of Government Employees, AFL-CIO,
 Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21
 FLRA No. 104 (1986) (proposal 1).  In view of this conclusion, it is not
 necessary to decide whether the payment of the proposed uniform
 allowance is authorized under or precluded by the subchapter.  See id.,
 slip op. at 3.
 
    III.  Proposals 4 and 8
 
    Proposal 4
 
          Hats and caps will not be required within an employees assigned
       work area.  Any special deviations or requirements resulting from
       the above may be negotiated locally between local shop stewards
       and supervisors.
 
    Proposal 8
 
          In order to identify civilian Technicians from active duty
       force members, National Guard AGR, FTTD, FTS and other personnel
       not in a civilian pay status, each civilian technician will be
       issued a name tag measuring 1" x 3" in size with a light blue
       background and engraved white letters bearing his/her full name
       followed by civilian pay grade (abbreviated GS-09 or WG-09).
       Immediately beneath the name will be engraved "Civilian
       Technician".
 
    A.  Positions of the Parties
 
    The Agency contends that these proposals relate to the military
 aspects of technician employment and therefore do not concern conditions
 of employment.  It also contends that requiring technicians to wear the
 military uniform constitutes an internal security practice under section
 7106(a)(1) and that the proposals interfere with that determination by
 directing how and when the military uniform will be worn.  The Agency
 similarly contends that the proposals interfere with management's rights
 to determine the method and means of performing work by eliminating the
 requirement to wear military hats or caps in the workplace and by
 substituting the proposed name tag for the name tag prescribed for the
 military uniform.
 
    In response, the Union first maintains that there is no issue in this
 case concerning the requirement to wear a uniform.  Thus, the Union
 argues that there is no need to decide whether the requirement to wear a
 uniform constitutes a matter of internal security as alleged by the
 Agency.  The Union further maintains that the proposals do not interfere
 with management's rights under sections 7106(a)(1) or (b)(1).  Instead,
 they concern negotiable procedures and appropriate arrangements under
 section 7106(b)(2) and (3) with respect to the requirement that the
 military uniform be worn in performing official duties.
 
    B.  Analysis and Conclusions
 
    Since (1) the uniform wearing requirement applies to technicians in
 their civilian status when performing their official duties, and (2)
 technicians can be disciplined for violations of uniform wearing
 requirements (see proposal 11), we reject the Agency's contention that
 these proposals relate to the military aspects of technician employment
 and therefore do not concern conditions of employment.  We also reject
 the Agency's contention that the proposals interfere with its right to
 determine its internal security practices under section 7106(a)(1) as
 not supported in the record.  That is, even assuming for the purpose of
 this decision that the uniform requirement constitutes a determination
 of an internal security practice under section 7106(a)(1), the Agency
 fails to demonstrate in what manner the proposals prevent the Agency
 from protecting its property from loss, destruction, or disclosure.  See
 Wyoming Air National Guard (WANG) and National Association of Government
 Employees (NAGE), Local No. 14-76, 23 FLRA No. 33 (1986).
 
    We find, however, that these proposals are negotiable only at the
 election of the Agency, and since the Agency has elected not to bargain
 on them, they are nonnegotiable.  The proposals directly interfere with
 management's right under section 7106(b)(1) to determine the methods and
 means of performing work and are not procedures or appropriate
 arrangements under section 7106(b)(2) and (3).
 
    The Authority has previously held that the requirement that civilian
 technicians wear the military uniform is a method and means of
 performing work within the meaning of section 7106(b)(1) of the Statute.
  See, for example, 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 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).  That conclusion was reached
 in view of the use by the National Guard of the requirement to wear the
 military uniform to foster military discipline, promote uniformity,
 encourage esprit de corps, increase the readiness of the military forces
 for early deployment and enchance identification of the National Guard
 as a military organization.  15 FLRA at 293.
 
    The Authority found that because the traditional means of instilling
 esprit de corps and military discipline are not available for use with
 personnel who are employed in a civilian status, the wearing of the
 military uniform is indispensible as a constant reminder to technicians
 that they are members of an organization which is essentially military
 and subject to mobilization at a moment's notice.  Id. at 294.  These
 factors distinguish the right to require the wearing of a military
 uniform and to determine its composition from an agency's rights with
 regard to other uniforms.  See, for example, United States Immigration
 and Naturalization Service, Port of Entry, San Ysidro, California, 25
 FLRA No. 30 (1987) for a discussion of the agency's rights to require
 the wearing of a non-military uniform and to determine its composition
 in the context of employee rights under section 7102.
 
    In this context, we think that the specific type of uniform, that is,
 the prescribed military uniform, is critical to achieving the purposes
 for which the Agency has adopted the uniform requirement.  Compare
 National Association of Government Employees, Service Employees
 International Union and Missouri National Guard, 23 FLRA No. 95 (1986),
 where we found 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
 method and means of performing work.  Thus, we find that proposals 4 and
 8, which would allow employees to deviate from the prescribed components
 of the military uniform, directly interfere with the Agency's right to
 determine the method and means of performing work.  The proposals
 therefore substantively interfere with the right and do not constitute
 negotiable procedures under section 7106(b)(2).
 
    In arguing that these proposals constitute appropriate arrangements,
 the Union states that proposal 4 is intended to clarify requirements for
 the wearing of hats and caps in working areas to ensure employee safety
 and that proposal 8 is intended to distinguish technicians from active
 duty military personnel to avoid any misunderstandings that a technician
 is not in a military duty status despite wearing the military uniform.
 Assuming that these proposals constitute an "arrangement" for employees
 adversely affected by the exercise of a management right, the proposals
 totally abrogate the exercise by the Agency of the right to determine
 the method and means of performing work.  That is because the Agency's
 right here concerns the wearing of a prescribed military uniform, the
 composition of which is not negotiable, the proposals, would, therefore,
 excessively interfere with the right and are not negotiable as
 appropriate arrangements under section 7106(b)(3).  See, for example,
 Colorado Nurses Association and Veterans Administration Medical Center,
 Ft. Lyons, Colorado, 25 FLRA No. 66 (1987) (proposal 4), petition for
 review filed sub nom., Colorado Nurses Association v. FLRA, Case No.
 87-1104 (D.C. Cir. Feb. 25, 1987).
 
    IV.  Proposal 10
 
          While wearing a military uniform in civilian technician pay
       status, employees will not be required to salute or bear arms
       except under special circumstances which will be discussed and
       negotiated with the exclusive bargaining agent.  /1/ (Footnote
       added.)
 
    A.  Positions of the Parties
 
    The Union asserts that the intent of this proposal is to require the
 Agency to place bargaining-unit technician employees in an appropriate
 military status before it could order them to bear arms.  The Union
 claims that this proposal merely seeks to ensure that employees are in
 an appropriate legal status when directed to bear arms.  The Agency
 contends that the proposal interferes with its rights to determine
 internal security practices and to direct employees under section
 7106(a).
 
    B.  Analysis and Conclusions
 
    We find that the proposal is outside the duty to bargain for reasons
 other than those argued by the parties.
 
    The focus of the proposal is clearly on a duty assignment, the
 bearing of arms, to be made while a technician is in a work status as an
 employee under the Statute.  Such an assignment constitutes the
 assignment of work within the meaning of section 7106(a)(2)(B) of the
 Statute.  See, for example, Association of Civilian Technicians and
 Statue of Georgia National Guard, 2 FLRA 581 (1980).  Because the
 expressed intent of the proposal is to prohibit assignment of such work
 and instead require the bearing of arms to be a military assignment
 while the technician is in a military status, we find that the proposal
 directly interferes with the agency's right to assign work under the
 Statute.  Accordingly, the proposal is not a negotiable procedure under
 section 7106(b)(2).  In addition, because the proposal would completely
 prohibit the Agency from assigning such work to a technician employee,
 the proposal excessively interferes with that right, in our view, and is
 not negotiable as an appropriate arrangement under section 7106(b)(3).
 /2/ See, for example, Colorado Nurses Association, 25 FLRA No. 66
 (proposal 4).  Although a proposal may recognize external limitations on
 the exercise of a management right -- for example, by requiring that the
 right be exercised in accordance with law -- a proposal may not impose
 substantive limitations in and of itself.  National Federation of
 Federal Employees, Local 1167 and Department of the Air Force,
 Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base,
 Florida, 6 FLRA 574, 577 (1981).
 
    V.  Proposal 11
 
          Technicians in a civilian pay status and wearing a military
       uniform shall not be intimidated or charged under the military
       rules of conduct for an alleged improper wear of the military
       uniform.
 
    A.  Positions of the Parties
 
    The Union describes this proposal as an ateempt to acquire a written
 guarantee that any infraction occasioned by a technician's improper
 wearing of the military uniform will be dealt with by the technician's
 civilian supervisor rather than by the military unit to which the
 technician is assigned.  The Union also intends to establish in
 contractual terms the manner in which wearing of the military uniform
 must be dealt with by the Agency.  The Agency argues that the proposal
 seeks to preclude the discipline of civilian technicians for the
 improper wearing of the military uniform.  Thus, the Agency contends
 that the proposal conflicts with its right under section 7106(a)(2)(A)
 to take disciplinary action for violations of administrative rules and
 practices.  The Agency also argues that to the extent the proposal
 concerns military discipline the proposal does not concern conditions of
 employment.
 
    B.  Analysis and Conclusions
 
    We find that the proposal is nonnegotiable.  To the extent that the
 proposal is intended to preclude the imposition of military discipline
 by the technician's military unit, the proposal does not concern
 conditions of employment over which an agency can be required to
 bargain.  To the extent that the proposal, as intended to be applied by
 the Union, precludes discipline for infractions regarding the wearing of
 the military uniform, it violates the Agency's right to take
 disciplinary action under section 7106(a)(2)(A) of the Statute and is
 not a negotiable procedure under section 7106(b)(2). Moreover, since the
 proposal would prohibit the disciplining of civilian technicians for
 certain matters, it excessively interferes with the exercise of the
 Agency's right to take disciplinary action and is not a negotiable
 appropriate arrangement under the Statute.  See See National Association
 of Government Employees, Local R14-87 and Kansas Army National Guard, 21
 FLRA No. 4 (1986).
 
    VI.  Order
 
    The Union's petition for review is dismissed.
 
    Issued, Washington, D.C., April 28, 19