26:0682(84)NG - ACT, Wisconsin Chapter, and Wisconsin Army National Guard -- 1987 FLRAdec NG
[ v26 p682 ]
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, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In its Reply Brief the Union withdrew the portion of this proposal regarding the requirement to salute. (2) In view of these findings, it is unnecessary to rule on the Agency's other contentions.