42:0877(61)CA - - DOD, NG Bureau, Alexandria, Virginia and IL Army NG, Springfield, IL and NFFE 1655 - - 1991 FLRAdec CA - - v42 p877



[ v42 p877 ]
42:0877(61)CA
The decision of the Authority follows:


42 FLRA No. 61

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

ALEXANDRIA, VIRGINIA

AND

ILLINOIS ARMY NATIONAL GUARD

SPRINGFIELD, ILLINOIS

(Respondents)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1655

(Charging Party/Union)

5-CA-00253

DECISION AND ORDER

October 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

The complaint alleges that the Respondent Illinois Army National Guard (Illinois Guard) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the Union over proposals concerning the subject of uniform allowance. The complaint further alleges that the Respondent National Guard Bureau (National Guard) violated section 7116(a)(1) of the Statute by directing the Illinois Guard not to bargain with the Union over the subject of uniform allowance. For the reasons stated below, we find that the complaint must be dismissed.

II. Facts

The Union is the exclusive representative of a unit of employees of Respondent Illinois Guard. Respondent National Guard advises Respondent Illinois Guard "on matters such as labor relations and such advice is regularly followed." Stipulation at 2.

Respondent Illinois Guard requires unit employees to wear a uniform during duty hours. Unit employees who are enlisted soldiers receive uniforms free of charge. Unit employees who are officers receive a one-time allotment of $400 to purchase uniforms. Approximately 8 to 10 unit employees are officers.

Prior to January 1, 1990, employees of the Federal Government who were required to wear uniforms such as those worn by the unit employees in this case were authorized, pursuant to 5 U.S.C.§ 5901, an allowance, not to exceed $125 per year, for the purchase of uniforms.(1) Effective January 1, 1990, the National Defense Authorization Act for Fiscal Years 1990 and 1991 (NDAA), Public Law 101-189 (November 29, 1989), amended title 10 of the United States Code by adding section 1593, which provides for certain uniform allowances for civilian employees of the Department of Defense.(2)

On December 12, 1989, the Union requested Respondent Illinois Guard to negotiate over uniform allowances and submitted the following proposal:

1. This article will affect all civilian officers and warrant officers who presently purchase their own uniforms, and are members of the bargaining unit. The Employer will provide the following:

2. Each civilian employee who is required . . . to wear a prescribed uniform in the performance of official duties will be paid an allowance.

3. In lieu of providing an allowance, each civilian employee will be provided all uniform[]s required in the performance of official duties.

4. The amount of allowance paid, and the cost of uniforms provided to civilian employee will not exceed four-hundred dollars ($400.00) per year.

5. This article will take effect on January 1, 1990.

Exhibit 2 to Stipulation.

By letter dated December 2, 1989, Respondent Illinois Guard informed the Union that it needed to consult with Respondent National Guard before responding to the Union's request. On December 10, 1989, Respondent National Guard advised Respondent Illinois Guard that "the entire subject of the increase in the maximum allowance for uniforms was non-negotiable." Stipulation at 5, para. 15. On January 2, 1990, Respondent Illinois Guard advised the Union, by telephone, that it "would not negotiate with the Union" over provisions in the NDAA based on Respondent National Guard's advice and, on January 3, Respondent Illinois Guard confirmed, in writing, that Respondent National Guard "has advised . . . [that] the provisions of the [NDAA] are non-negotiable." Exhibit 4 to Stipulation.

By letter dated January 15, 1990, the Union again requested negotiations and submitted the following revised proposal:

1. This article will affect all civilian officers and warrant officers who presently purchase their own uniforms, and are members of the bargaining unit. The Employer will provide the following:

2. Each civilian employee who is required . . . to wear a prescribed uniform in the performance of official duties will be paid an allowance as described below or will be provided with the prescribed uniform.

3. The amount of allowance paid, if applicable, will be four hundred dollars ($400) per year.

4. This article will take effect on January 1, 1990.

Exhibit 5 to Stipulation. The Union stated that the "substantive change" in the new proposal was the requirement that the "allowance be $400.00 since this amount is within the Employer's discretion . . . ." Id. The Union requested a written allegation of nonnegotiability if Respondent Illinois Guard was "still of the belief that our proposal is not negotiable[.]" Id. at 2.

By letter dated January 24, 1990, Respondent Illinois Guard responded that "under existing law [the Union's] proposal is not bargainable." Exhibit 6 to Stipulation. Subsequently, the Union filed the unfair labor practice charge which led to the complaint in this case.(3)

III. Positions of the Parties

A. General Counsel

The General Counsel argues, based on Internal Revenue Service, 29 FLRA 162 (1987) (IRS), that Respondent Illinois Guard violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the issue of uniform allowance. The General Counsel asserts that "[t]here is no evidence here of any waiver or of any contractual provisions dealing with the issue of uniform allowances." General Counsel's Brief at 7. Therefore, the General Counsel argues that Respondent Illinois Guard was obligated to bargain "over any negotiable proposals concerning uniform allowances." Id. The General Counsel contends, in this regard, that the Respondents' position was "that the entire subject matter was non-negotiable, not that the specific proposals submitted by the Union were non-negotiable." Id. at 8 (emphasis in original; citations omitted). According to the General Counsel:

. . . 10 U.S.C.§ 1593 grants the agency discretion to pay employees a uniform allowance or provide them with uniforms. Thus, to the extent that the Respondents have discretion to pay allowances or provide uniforms, they must bargain over these issues. Once again, whether or not the specific proposals offered by the Union were negotiable is irrelevant. Regardless of whether or not the Union's proposals fell within the Respondents' area of discretion, the Respondents' flat refusal to bargain over anything related to uniforms or uniform allowances precluded good faith bargaining over the subject.

Id. at 12.

Finally, the General Counsel contends that Respondent National Guard violated section 7116(a)(1) of the Statute when it directed Respondent Illinois Guard to unlawfully refuse to bargain with the Union, and thereby interfered with the bargaining relationship between the Union and Respondent Illinois Guard.

B. Respondents

The Respondents contend that "the [U]nion proposal is not bargainable since the employer has no authority nor discretion under [5 U.S.C.§] 5901 to pay a civilian clothing allowance for wearing the military uniform." Respondents' Brief at 1. According to the Respondents, the disputed allegation of nonnegotiability was made in good faith and was not inconsistent with FLRA precedent or judicial decisions.

IV. Analysis and Conclusions

In Decision on Petition for Amendment of Rules, 23 FLRA 405, 407-08 (1986), the Authority stated the following with respect to unfair labor practice complaints involving allegations of nonnegotiability:

Sections 2423.5 and 2424.5 of the Authority's Rules and Regulations provide, in pertinent part, that where a labor organization files an unfair labor practice charge which involves a negotiability issue and also files a petition for review of the same negotiability issue, it is required to choose which procedure to pursue first. Cases which involve only an agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained, and which do not involve alleged unilateral changes in conditions of employment, must be processed exclusively under the negotiability procedures in part 2424 of the Authority's Rules and Regulations. . . .

Unfair labor practice remedies are available in appropriate refusal to bargain situations, such as (1) where the refusal to negotiate is accompanied by unilateral changes in conditions of employment; and (2) where an agency refuses to bargain over a proposal substantially identical to one which the Authority has previously determined to be negotiable under the Statute.

(Footnote and citations omitted.) The Authority's construction of the Statute and its regulations was affirmed by the U.S. Court of Appeals for the District of Columbia Circuit. National Labor Relations Board Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987). See also Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990) (Montana ACT) (court concluded, without addressing the validity of sections 2423.5 and 2424.5 of the Authority's regulations, that agency head's disapproval of contractual provision under section 7114(c) of the Statute constituted a contemplated change in conditions of employment within the meaning of those regulations).

There is no argument by the General Counsel that this case involves a contemplated change in conditions of employment. Similarly, there is no allegation that the Respondents refused to bargain over proposals that are substantially similar to proposals previous held negotiable by the Authority. In fact, as noted previously, the General Counsel argues that the question of the negotiability of the Union's proposals is irrelevant. Instead, according to the General Counsel, this case is controlled by the Authority's decision in IRS because "the Respondents' flat refusal to bargain over anything related to uniforms or uniform allowances precluded good faith bargaining over the subject." General Counsel's Brief at 12.

We reject the General Counsel's contention. The record before us establishes only that the Respondents refused to bargain over the Union's proposals because, in the Respondents' view, the proposals were nonnegotiable. We note, in this regard, that Respondent National Guard advised Respondent Illinois Guard that "the entire subject" of the NDAA's increase in uniform allowances was "non-negotiable." Stipulation at 5, para. 15. Respondent National Guard's argument could be interpreted as encompassing an allegation that, apart from issues concerning the consistency of the Union's proposals with law, it was not obligated to bargain over the proposals. However, Respondent Illinois Guard's responses to the Union's proposals confirm that its refusal to bargain over the proposal was based solely on the alleged nonnegotiability of the proposals. In its response to the first Union proposal, Respondent Illinois Guard stated that, according to Respondent National Guard, "the provisions of [the NDAA] are non-negotiable." Exhibit 4 to Stipulation. In its response to the second proposal, Respondent Illinois Guard clarified its position:

The intent of your proposal is very clear in that you are asking the agency to provide $400.00 for each civilian officer and warrant officer who are members of the bargaining unit and must purchase their own uniforms. The prescribed uniform would be worn in the performance of their official duties.

[It] is the agency's position that under existing law your proposal is not bargainable.

Exhibit 6 to Stipulation.

It is clear from Respondent Illinois Guard's responses that the Respondents took the position that the Union's proposals were nonnegotiable because they believed that the proposals were inconsistent with law. Moreover, there is no evidence or argument that the Respondents' position was based on anything other than the reasons given in the responses. That is, there is no argument that Respondent Illinois Guard asserted that, apart from questions of negotiability, it had no obligation to bargain over the Union's proposals because, for example, the Union had no right to initiate mid-term bargaining or the Union had waived such right.

We find that, based on advice from Respondent National Guard, Respondent Illinois Guard declared nonnegotiable the Union's proposals concerning uniform allowances and that Respondent Illinois Guard's refusal to bargain over the proposals was based on that allegation. As such, this case is clearly distinguishable from IRS. In IRS, the agency "did not raise any negotiability arguments as a basis for its refusal to bargain on the Union's proposals." IRS, 29 FLRA at 168 n.5. Instead, in IRS, the agency refused to bargain over the union's proposals on the ground that management had no obligation to bargain over union-initiated mid-term proposals.

Based on the foregoing, we conclude that this case involves only the Respondents' allegation that the Union's proposals are nonnegotiable. As there is no contention that the case involves an actual or contemplated change in conditions of employment or a refusal to bargain over a proposal substantially similar to one previously held negotiable by the Authority, this case must be processed exclusively under the negotiability procedure in part 2424 of the Authority's Rules and Regulations. Accordingly, we will dismiss the complaint. In so doing, we express no view on whether the Union's proposals are negotiable.

V. Order

The complaint is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. 5 U.S.C. § 5901 provides, in pertinent part:

§ 5901. Uniform allowances

There is authorized to be appropriated annually to each agency of the Government of the United States, . . . an amount not to exceed $125 mul