32:0539(79)NG - - AFGE Local 3006 and Idaho Army and Air NG - - 1988 FLRAdec NG - - v32 p539
[ v32 p539 ]
The decision of the Authority follows:
32 FLRA No. 79
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3006
IDAHO ARMY AND AIR NATIONAL GUARD
Case No. 0-NG-1504
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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 two proposals.
During renegotiation of the parties' collective bargaining agreement, the Union proposed that National Guard civilian technicians be allowed to wear patches on their military uniforms and caps that would identify them as civilian personnel. The Union also proposed that technicians who serve as union representatives be allowed to wear badges on their uniforms that would identify them as union officials. For the reasons which follow, we find that the proposals are nonnegotiable.
A. Proposal l - Section C.a.
Recognizing the fact that excepted service technicians are civilian employees, and not full-time military personnel, a mutually agreed upon civilian patch, and cap, will be authorized. These items will be worn while in a civilian technician status.
B. Proposal 2 - Section C.b.
Furthermore, recognizing the need for Union representatives to be visible to the bargaining unit employees, a separate, and distinct badge will be authorized, for wear by Union officials.
III. Positions of the Parties
A. The Agency
The Agency contends that the proposals interfere with management's right under section 7106(b)(1) of the Statute to determine the methods and means of performing work, a matter which is negotiable only at its election. The Agency argues that it has determined that a prescribed military uniform will be worn by civilian technicians while they are performing technician functions. The Agency maintains that the proposals would interfere with its right under section 7106(b)(1) to make that determination by allowing employees to deviate from the prescribed uniform.
The Agency also contends that Proposal 2 is distinguishable from the proposal found negotiable by the Authority in National Association of Government Employees, Local R3-84, SEIU, AFL-CIO and District of Columbia Air National Guard, 23 FLRA 536 (l986). The proposal in that case provided that technicians need not wear the military uniform while engaged in labor-management activities. The Authority held that the proposal did not interfere with management's rights under section 7106(b)(1). The Agency argues that Proposal 2 would violate section 7106(b)(1) because it would allow the wearing of a union badge on the military uniform while the technicians are performing technician functions.
B. The Union
The Union concedes that the proposals involve a modification of the prescribed military uniform. However, the Union contends that the proposals do not interfere with management's rights under section 7106(b)(1) because they do not conflict with the purposes for which the Agency requires the wearing of a military uniform. As to Proposal 2, the Union argues that an employee's right under section 7102 of the Statute to wear union insignia must be balanced against management's rights under section 7106(b)(1). The Union also argues that, even if Proposal 2 is found to interfere with management's rights, the proposal is negotiable as an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute.
The requirement that National Guard civilian technicians wear a prescribed military uniform while performing technician duties constitutes management's determination of the methods 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, 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, 474 U.S. 846 (1985). Moreover, "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." Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 686 (1987) (emphasis in original). Proposals which allow employees to deviate from the prescribed military uniform directly interfere with management's right under section 7106(b)(1) to determine the methods and means of performing work and do not constitute negotiable procedures under section 7106(b)(2) of the Statute. Id. at 686-87. The composition of the prescribed military uniform is not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Any attempt through negotiations to modify or add to the prescribed military uniform would "totally abrogate" management's decision to use the military uniform as a means of accomplishing the mission of the National Guard. Id. at 687.
B. Proposal 1
The Union concedes that Proposal 1 constitutes a modification of the prescribed military uniform. We reject the Union's argument that the proposed modification--permitting the use of patches and caps to identify technicians as civilian employees--is compatible with the purposes to be achieved by the requirement of a prescribed military uniform. The military nature of National Guard civilian technician uniforms distinguishes cases involving the technician uniform requirement from cases involving other Federal employees required to wear uniforms. Compare Wisconsin Army National Guard, 26 FLRA at 686 with American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 25 FLRA 1028, 1031-32 (1987).
Thus, consistent with Wisconsin Army National Guard, we find that the proposal interferes with management's right to determine the methods and means of performing the Agency's work under section 7106(b)(1) of the Statute. Therefore, Proposal 1 is negotiable only at the Agency's election. We also find, consistent with Wisconsin Army National Guard, that Proposal 1 would "totally abrogate" management's rights under section 7106(b)(1) and thus would not constitute a negotiable "appropriate arrangement" within the meaning of section 7106(b)(3).
C. Proposal 2
Proposal 2 permits Union representatives to wear badges which identify them as Union officials while they are performing technician duties. Unit employees, including Union representatives, are required to wear the prescribed military uniform when they are performing technician duties. Compare District of Columbia Air National Guard, 23 FLRA at 539 (a proposal which permitted union representatives to wear clothing other than the prescribed military uniform while they were performing labor-management acitivities in a representational capacity was held to be negotiable because labor-management activities do not constitute technician duties). Therefore, as the Union concedes, Proposal 2 constitutes a modification of the prescribed military uniform. Accordingly, consistent with our decision as to Proposal 1, Proposal 2 interferes with management's right to determine the methods and means of performing the Agency's work. As a result, Proposal 2 is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3).
In considering whether Proposal 2 constitutes an appropriate arrangement, we note at the outset that it concerns the wearing of union insignia, which is a matter covered by section 7102 of the Statute. While Proposal 2 is thus distinguishable from Proposal 1, we conclude that the distinction is not sufficient to render Proposal 2 negotiable under section 7106(b)(3).
In Division of Military and Naval Affairs, State of New York, 15 FLRA at 294, the Authority found that the military uniform requirement was "indispensable" to the establishment of the identity of technicians as members of an organization which is essentially military. The Authority found that in the absence of traditional military practices such as drill, military courtesy and protocol, the wearing of the military uniform was essential to the maintenance of military discipline and esprit de corps.
Nonmilitary additions to or modifications of the required uniform are incompatible with the purpose of maintaining the military identity of civilian technicians which is necessary to the accomplishment of their mission. See Wisconsin Army National Guard, 26 FLRA at 687 (composition of the prescribed military uniform is nonnegotiable). In our view, the military uniform can fulfill the purposes for which the Agency determined that it was a necessary means only if it remains an exclusively military uniform.
The military uniform requirement does not preclude unit employees from exercising their rights under section 7102 to support the Union in other ways. We find, therefore, that even assuming Proposal 2 constitutes an "arrangement" for employees adversely affected by