38:1005(84)NG - - ACT and DOD, NG Bureau, Rhode Island NG, Providence, RI - - 1990 FLRAdec NG - - v38 p1005



[ v38 p1005 ]
38:1005(84)NG
The decision of the Authority follows:


38 FLRA No. 84

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

ASSOCIATION OF CIVILIAN TECHNICIANS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

RHODE ISLAND NATIONAL GUARD

PROVIDENCE, RHODE ISLAND

(Agency)

O-NG-1813

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 18, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two proposals.

Proposal 1 prescribes monetary awards to be paid to employees who attain specified levels of performance. Proposal 2, a multi-part proposal, relates to the wearing of the military uniform by civilian technicians who must be members of the National Guard: (1) parts a, h, and i concern the provision of uniforms by the Agency; (2) parts b, d, f, and g involve the wearing of the uniform at the workplace; (3) part c addresses military courtesy; and (4) part e addresses the disciplining of civilian technicians.

For the following reasons, we find that Proposal 1 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with applicable Government-wide regulations. Further, we find that parts b, c, d, e, f, and g of Proposal 2 are nonnegotiable under section 7106(b)(1) of the Statute because they directly interfere with the Agency's right to determine the methods and means of performing work. We also find that parts a, h, and i of Proposal 2 are negotiable.

II. Proposal 1

Article XXII, Section 4, Performance Ratings

A. AWARDS.

1. A Sustained superior performance award of 15% of salary will be granted for OUTSTANDING RATING.

2. A Sustained superior performance award of 10% of salary will be granted for EXCELLENT RATING.

3. A Sustained superior performance award of 5% of salary will be awarded for FULLY ACCEPTABLE RATING.

A. Positions of the Parties

The Agency contends that Proposal 1 is inconsistent with: (1) its right to determine the Agency's budget under section 7106(a)(1) of the Statute; and (2) 5 C.F.R. §§ 430.503(f) and 430.506(a). The Agency notes that Proposal 1 requires performance awards ranging from 5 to 15 percent of an employee's salary depending on the individual's performance rating. The Agency asserts that the proposal directly interferes with its right to determine its budget because the proposal "could cause a vast reallocation of funds in order to pay the performance awards under the union's proposal." Statement of Position at 1.

The Agency also claims that it "would not be able to reprogram monies since 5 CFR 430.503 and 506 require the monetary performance awards come from within existing appropriated funds." Id. (emphasis in original). Accordingly, the Agency argues that the proposal "is directly related to existing appropriated funds, the budget, and therefore, is inconsistent with 5 CFR 503 and 506, a government-wide regulation." Id.

The Union argues that Proposal 1 is consistent with applicable regulations. The Union claims that the proposal establishes a procedure by which the Agency will grant performance awards and "does not interfere with the Agency's right to establish the performance standards which employees must meet in order to be entitled to a cash award." Reply Brief at 1.

The Union rejects the Agency's claim that this proposal violates management rights under 5 C.F.R. §§ 430.503(f) and 430.506(a) because, according to the Union, the proposal does not "prevent management from reviewing the performance awards required by the proposal for consistency with applicable budgetary limitations." Id.

The Union asserts that the Agency may adjust awards within the ranges established in the proposal in order to ensure that awards remain within limitations established by existing appropriated funds. Finally, the Union alleges that "management is not precluded by law or regulation from reallocating funds to increase the amount available in its awards budget to comply with the proposal should that be necessary." Id.

B. Analysis and Conclusion

5 C.F.R. § 430.503(c)(1) provides as follows:

Agency procedures for making performance awards determinations must include a requirement for review and approval of each determination by an official of the agency who is at a higher level than the official who made the initial decision, unless there is no official at a higher level in the agency, and also by the official(s) with responsibility for managing the performance awards within the agency.

The regulation requires two things. First, in addition to a review of the determination by an agency official at a higher level than the recommending official, each determination also must be reviewed and approved by the agency manager of the performance awards budget. Tidewater Virginia Federal Employees, Metal Trades Council and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 37 FLRA 938, 950 (1990) (Norfolk Naval Shipyard). Second, the review and approval must encompass the determination of each individual award. Id. We note, in this regard, that the expressed authority to review and approve inherently encompasses the authority to review and disapprove. Id.

Proposal 1 provides that a "performance award . . . will be granted . . . ." In addition, the proposal specifies the mandatory award to be awarded at each covered performance level. Thus, we reject the Union claims that "the proposal would not prevent management from reviewing the performance awards required by the proposal for consistency with applicable budgetary limitations[]" and that "[n]othing in the plain wording of the proposal would prohibit the Agency from reviewing performance awards to determine whether the awards are consistent with its awards budget." Reply Brief at 1. Further, we reject the Union's claim that "[t]he Agency may adjust awards within the ranges established in the proposal in order to ensure that the awards remain within limitations established by existing appropriated funds." Id. The proposal does not establish ranges of awards; it requires awards based solely on performance ratings and percentages of salaries.

The plain language of Proposal 1 requires the Agency to provide specified performance awards to all employees who attain the specified levels of performance. Consequently, Proposal 1 would require approval of performance awards in situations where, under 5 C.F.R. § 430.503, Agency officials are authorized to disapprove those awards. We conclude, therefore, that Proposal 1 is inconsistent with 5 C.F.R. § 430.503(c). See Norfolk Naval Shipyard, 37 FLRA at 950. The regulations published by OPM at 5 C.F.R., part 430 are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. See National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 28 FLRA 1052, 1055 (1987). Accordingly, as Proposal 1 is inconsistent with 5 C.F.R. § 430.503(c), it is nonnegotiable under section 7117(a)(1) of the Statute.

We note, in this regard, that Proposal 1 is distinguishable from the disputed proposal in American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA No. 65 (1990) (Aberdeen Proving Ground) and Proposals 11 and 12 in National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, 38 FLRA No. 46 (1990) (Naval Underwater Systems Center), which addressed performance awards and which the Authority found to be negotiable. In Aberdeen Proving Ground, we found that the proposal was negotiable because, unlike the proposal in the instant case, it did not "require that an award be given nor prevent the Agency from reducing the amount of an award below the range set forth in the proposal in the face of 'budgetary limitations.'" Slip op. at 5. Similarly, in Naval Underwater Systems Center, we found Proposals 11 and 12 to be negotiable because they did not "mandate that awards be given," and thus did not "nullify the review process required by 5 C.F.R. § 430.503(c)(1)." Slip op. at 37.

Based on the foregoing, we find that Proposal 1 is nonnegotiable under section 7117(a)(1) of the Statute. As the proposal is nonnegotiable under section 7117(a)(1) of the Statute, it is unnecessary to address the Agency's argument that the proposal is nonnegotiable because the proposal directly interferes with the Agency's right to determine its budget under section 7106(a)(1) of the Statute. Compare Norfolk Naval Shipyard, 37 FLRA at 947-949 (the Authority found that although a similar proposal did not interfere with the Agency's right to determine its budget, the proposal was nonnegotiable under section 7117(a)(1) because it was inconsistent with 5 C.F.R. § 430.503(c)(1)).

III. Proposal 2

Article XXVI, Attire

a. The Employer will provide seven (7) sets of uniforms which are required to be worn in each functional work area, to all Bargaining Unit Personnel. The Employer will provide a direct exchange program for worn, torn, or clothing soiled too badly to be rendered clean and presentable in the performance of day to day duties.

b. The Employer will negotiate with the Exclusive Representative, the specific Military uniform items and class of uniform which will be worn in each functional work area. Once established, the Employer may not order, coerce, or in any way influence a Bargaining Unit Member to change the prescribed Military attire because it is temporarily or permanently desirable by the Employer without first engaging in consultations and negotiations with the Union.

c. Saluting shall not be required while wearing the uniform in a Technician status. Technicians are Federal Civilian Employees and violation of a saluting requirement would be a USCMJ violation and not a violation of the FPM or NGB Civilian Technician directives.

d. In order to define a Technician from those in AGR or Active duty status, special name tags will be supplied to the Technician showing that he is a Civilian Technician. e.g. John H. Jones-Technician

e. As the Technician is a Civilian employee, no attempt shall be made to intimidate or charge a Technician under the military rules of conduct for improper wear of the military uniform.

f. Hats and/or caps will not be required to be worn within the National Guard Compounds.

g. During the summer months, (May 1st to September 30th), Technicians will have the option of removing their blouses and working in Tee Shirts only. When desired, ball caps may be worn as an optional item of head gear. This attire will not be worn in situations where dealing with the public is probable.

h. All uniforms will be worn as issued by the employer to the bargaining unit employee's [sic].

i. Uniforms issued to full time bargaining unit employee's [sic] shall be separate and in addition to those issued to all Guard persons.

A. Positions of the Parties

The Agency claims that Proposal 2 relates to the wearing of military uniforms by civilian technicians who must be members of the National Guard under 32 U.S.C. § 709. The Agency argues that the Authority has consistently held that the requirement that National Guard technicians wear military uniforms constitutes a methods and means of performing work under section 7106(b)(1) of the Statute.

The Agency asserts that parts b, d, e, f, g, and h of the proposal, which concern wearing of the uniform and imposition of discipline for improperly wearing the uniform, are identical to proposals found nonnegotiable by the Authority in Association of Civilian Technicians Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (Wisconsin Army National Guard). The Agency claims that part c of the proposal concerns customs and courtesy requirements that the Authority found to constitute the methods and means of performing work in American Federation of Government Employees, AFL-CIO, Local 3006 and The Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA 816 (1990) (Adjutant General). The Agency argues that "[s]ince management has opted not to negotiate over customs and courtesies, the proposal is nonnegotiable" under Adjutant General. Statement of Position at 2.

Finally, the Agency contends that parts a and i of the proposal provide for the supplying of military uniforms to military technicians and an exchange program for worn clothing. The Agency notes that "the issuance of the uniforms, in specified quantities is controlled by military policy and regulation, and since the wear of the military uniform is a matter local management has chosen not to bargain, [parts a and i] are not bargainable[.]" Id.

The Union states that parts a and i of the proposal are negotiable because the Statute "requires that when [an] Agency supplies uniforms to be worn by bargaining unit personnel, [b]argaining may be allowed over uniforms to be supplied or uniform allowances but not both." Reply Brief at 2. The Union claims that "[e]ach civilian employee is entitled to change his/her clothing on a daily basis and at a minimum must be provided with the proper amount of clothing to satisfy this requirement." Id.

The Union argues that parts b, c, d, and e of the proposal concern requirements that specifically apply to the military rather than to civilian employees. The Union contends that to "impose military requirements upon civilian employees is ludicr[ous]." Id. The Union argues that the Authority "must take a stand and seperate [sic] the military requirements and the civilian requirements of all Federal Employee's [sic]." Id.

As to parts f and g of the proposal, the Union states that these parts seek limited modification of the prescribed wearing of the military uniform by allowing civilian technicians to wear t-shirts and either a baseball cap or no hat within the confines of their work stations. The Union argues that "[b]ecause the public is restricted from access to the work sites there is little possibility [that] these employees will meet the public." Id. The Union claims that these parts are not inconsistent with the Agency's right under section 7106(b)(1) to determine the methods and means of performing work.

Finally, the Union contends that part h of the proposal merely states that civilian technicians will wear their uniforms as issued by the Agency. The Union asserts that any additions to the uniforms required by the Agency "shall be supplied by the Agency and any cost associated with the additions shall be borne by the Agency." Id. at 2.

B. Analysis and Conclusions

1. Parts b, d, f, and g

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. Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288, 294 (1984) (Division of Military and Naval Affairs), 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). See also National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740, 743 (1990).

Parts b, d, f, and g of the proposal would allow employees to deviate from the specified components of the military uniform prescribed by the Agency: (1) part b requires that the Agency negotiate with the Union over the specific military uniform items and class of uniform which will be worn and that the Agency would not make any changes in the uniforms without negotiating with the Union; (2) part d requires that the Agency supply special name tags that would identify an individual as a civilian technician; (3) part f waives the requirement that civilian technicians wear hats or caps within the National Guard compounds; and (4) part g allows civilian technicians to wear t-shirts instead of military blouses during the summer months and wear baseball hats as an optional item of head gear. Because the Agency has the right under section 7106(b)(1) of the Statute to require that a specific military uniform be worn by civilian technicians while performing their duties, parts b, d, f, and g of the proposal directly interfere with the Agency's right pursuant to section 7106(b)(1) of the Statute to determine the methods and means of performing work. Wisconsin Army National Guard, 26 FLRA at 684-687.

Parts b, d, f, and g of the proposal directly interfere with the Agency's right pursuant to section 7106(b)(1) of the Statute to determine the methods and means of performing work. The Union does not argue that parts b, d, f, and g of the proposal constitute appropriate arrangements under section 7106(b)(3) of the Statute. Therefore, as the Agency has elected not to bargain on such matters, parts b, d, f, and g of the proposal are outside the duty to bargain.

2. Part c

The Authority has held that:

[T]he requirement that civilian technicians observe military customs and courtesies whenever they are wearing the military uniform is so inextricably related to the wearing of the military uniform that the observance of these customs and courtesies must be considered as part of the uniform- wearing requirement. Therefore, the requirement that civilian technicians observe military customs and courtesies when wearing the military uniform constitutes a methods and means of performing work.

Association of Civilian Technicians, Michigan State Council and Michigan Air National Guard, 32 FLRA 1207, 1211 (1988).

Part c of Proposal 2 waives the requirement that civilian technicians observe military courtesy while wearing their military uniforms. As the Agency has the right under section 7106(b)(1) of the Statute to require that military customs and courtesies be observed by civilian technicians when they are wearing uniforms, we conclude that part c directly interferes with the Agency's right to determine the methods and means of performing work under section 7106(b)(1). Adjutant General, 34 FLRA at 822.

Part c directly interferes with the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. As the Union has not argued that part c of Proposal 2 constitutes an appropriate arrangement under section 7106(b)(3) and as the Agency has elected not to bargain on such matters, part c of Proposal 2 is outside the duty to bargain.

3. Part e

Part e of the proposal precludes the Agency from disciplining civilian technicians under the United States Code of Military Justice for the improper wear of military uniforms. A proposal which precludes discipline for infractions regarding the wearing of the military uniform directly interferes with the Agency's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. Wisconsin Army National Guard, 26 FLRA at 689.

Consistent with Wisconsin Army National Guard, we find that part e of Proposal 2, which precludes discipline for infractions regarding the wearing of the military uniform, directly interferes with the Agency's right to take disciplinary action under section 7106(a)(2)(A) of the Statute. As the Union did not argue that part e of Proposal 2 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, part e is nonnegotiable.

4. Parts a, h, and i

Part a of the proposal requires the Agency to provide seven sets of uniforms to each civilian technician and an exchange program for worn clothing. Part h of the proposal requires that the military uniforms be worn by the technicians as issued by the Agency and that any additional items added to the uniform be provided by the Agency. Part i of the proposal provides that seven sets of uniforms issued to civilian technicians shall be separate from and in addition to those issued to all National Guardsmen.

The Agency contends that "[m]ilitary uniforms are provided free of charge to technicians in sufficient numbers as provided for by military regulation." Statement of Position at 2. Therefore, the Agency asserts that the number of uniforms issued to civilian technicians is controlled by military policy and regulation, and "since the wear of the military uniform is a matter local management has chosen not to bargain, [parts a, h, and i of Proposal 2] are not bargainable, as they relate to matters that are negotiable only at the election of management." Id.

We reject the Agency's argument that because parts a, h, and i of the proposal address uniforms, they are nonnegotiable because the Agency has chosen not to bargain on the issue of the wearing of uniforms. We find that parts a, h, and i of the proposal do not involve the wearing of uniforms but, rather, parts a and i are concerned with the number of uniforms that each civilian technician will receive from the Agency and part h requires the Agency to provide any additional items that it may require the civilian technicians to wear as part of the prescribed uniform. In this regard, we find that parts a, h, and i of the proposal are similar to Proposal 2h found negotiable in American Federation of Government Employees, Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1034 (1988) (Air Force Logistics Command).

In Air Force Logistics Command, Proposal 2h required the Agency to provide each employee a specified number of uniforms on a yearly basis. The Authority noted that 5 U.S.C. § 5901(a) authorizes agencies, whose employees are required by law or regulation to wear a prescribed uniform, to furnish employees with uniforms at a cost not to exceed $125 a year or to pay each employee an allowance for uniforms not to exceed $125 annually. The Authority noted that, as in the instant case, Proposal 2h did not prescribe a particular amount of money to be expended on the uniforms. Therefore, the Authority found that Proposal 2h was negotiable under section 7117(a)(1) and within the duty to bargain.

The Agency does not argue, and there is no basis on which to conclude, that parts a, h, and i are inconsistent with 5 U.S.C. § 5901(a). Therefore, based on Air Force Logistics Command, we find that as parts a, h, and i of the proposal do not directly interfere with management's right to determine the methods and means of performing work pursuant to section 7106(b)(1) of the Statute, those parts are negotiable.

IV. Order

The Agency must upon request, or as otherwise agreed to by the parties, negotiate over parts a, h, and i of Proposal 2.(*) The Union's petition for review as to Proposal 1 and parts b, c, d, e, f, and g of Proposal 2 is dismissed.




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