43:1257(101)NG - - NFFE Local 1655 and DOD, NG Bureau, IL NG, Springfield, IL - - 1992 FLRAdec NG - - v43 p1257
[ v43 p1257 ]
The decision of the Authority follows:
43 FLRA No. 101
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
ILLINOIS NATIONAL GUARD
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
January 31, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on 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 one proposal concerning a uniform allowance for National Guard civilian technicians.
For the following reasons, we find that the proposal is negotiable.
Uniform Allowance: Civilian Employees
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 by law or regulation 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.
III. Positions of the Parties
The Agency interprets the proposal as requiring that all bargaining unit employees holding the military rank of warrant officer or commissioned officer be provided a $400 uniform allowance each year. The Agency states that Agency policy requires bargaining unit employees to wear the prescribed military uniform "while performing military technician duties as a civilian employee." Agency Statement of Position at 1.
The Agency notes that, pursuant to Public Law 101-509, 104 Stat. 1456, section 5901 of title 5 of the United States Code was amended to authorize Federal agencies to provide a uniform allowance not to exceed $400. The Agency asserts that because, under 5 U.S.C. §§ 5902 and 5903, the Office of Personnel Management (OPM) is responsible for promulgating regulations governing the adjustment, and providing for the administration, of the allowance established under 5 U.S.C. § 5901, it is clear that 5 U.S.C. § 5901 "provides for civilian clothing allowances." Id. at 2 (emphasis in original). According to the Agency, civilian technicians wear the prescribed military uniform in the performance of their duties and OPM has "no jurisdiction" over that uniform. Id. The Agency notes that the Authority has held that the Agency has the right under section 7106(b)(1) of the Statute to require civilian technicians to wear the prescribed military uniform while performing civilian technician duties. The Agency concludes that "[m]ilitary uniforms clearly do not fall within the purview of the appropriations discussed in 5 U.S.C. [§] 5901." Id.
The Agency also notes that, under 10 U.S.C. § 1593, the Secretary of Defense is authorized to pay a uniform allowance to civilian employees who are required by law or regulation to wear a prescribed uniform in the performance of official duties. The Agency states that 10 U.S.C. § 1593 is intended "to provide allowances for civilians wearing civilian uniforms." Id. at 3.
The Agency states that a commissioned officer or warrant officer in the National Guard is also a member of the military and that the "right to wear the uniform is afforded a military officer through appointment in the military services." Id. The Agency argues that the military aspects of civilian technician employment do not concern conditions of employment and are not within the duty to bargain. According to the Agency, "[e]ven though the technicians are required to wear the uniform while performing their military duties, the acquisition of that uniform and the wearing requirement stems from the membership in the military." Id.
The Agency analogizes the requirement to wear and to acquire the military uniform to the requirement that civilian technicians "maintain a compatible military position," and notes that the Authority has held that this latter requirement does not concern technicians' conditions of employment. Id. The Agency concludes that, because the military uniform has a "direct nexus" to the military aspects of technicians' employment, which are not conditions of employment, the maintenance and upkeep of the military uniform is not a condition of employment. Id.
The Agency further notes that officers are "not furnished military uniforms per se" because they "receive a military allowance of three hundred dollars ($300) under Army Regulation 37-104-3." Id. at 4. The Agency argues that because officers are already receiving a uniform allowance under regulation, to allow the Union to bargain to "provide officers dual allowances" would be to allow bargaining over a matter that is "not contemplated nor permitted by law and/or regulation." Id.
Finally, the Agency claims that even if the proposal concerns a matter affecting conditions of employment, the proposal is nonnegotiable because 5 U.S.C. § 5901(a) "grants authority to the head of the [A]gency to pay allowances" and 10 U.S.C. § 1593 "appoints the Secretary of Defense to administer [section] 5901."(1) Id. The Agency states that the authority of the Agency head has not been delegated to the local level, that is, to "the Adjutant General of Illinois," and concludes that officials at the local level have "no authority or responsibility to negotiate" on the proposal. Id. According to the Agency, "if such authority had existed, the [U]nion proposal would not have been declared non-bargainable." Id.
The Union states that the meaning and intent of the proposal are clear. According to the Union, under the proposal, "bargaining unit employees required by the employer to wear a uniform will be either provided with the uniform or paid an allowance of $400 per year." Petition for Review at 2. The Union states that the bargaining unit employees covered by the proposal are civilian employees who are required to wear a uniform by the employer.
IV. Analysis and Conclusions
The proposal requires that bargaining unit employees, including officers and warrant officers, who are required to wear a uniform, will be paid a uniform allowance of $400 a year or will be provided with the prescribed uniform. The record indicates that the employees in the unit are civilian technician employees of the National Guard. For the following reasons, we find that the proposal is negotiable.
We note at the outset that the Agency interprets the proposal as applying only to commissioned officers and warrant officers who are members of the bargaining unit. However, the plain wording of the proposal requires the Agency to provide a uniform, or a uniform allowance, to "each civilian employee." Moreover, as worded, the proposal specifically notes that the allowance would also apply to officers and warrant officers who provide their own uniforms and who are in the unit. Therefore, consistent with the plain wording, we interpret the proposal as requiring the Agency to provide a uniform, or a uniform allowance, to all civilian technician employees in the bargaining unit, including unit employees who are commissioned officers or warrant officers.
We reject the Agency's claim that the proposal does not concern a matter affecting conditions of employment because the proposal concerns the military aspects of civilian technicians' employment. In particular, to the extent that the Agency interprets the proposal as pertaining to the wearing of the military uniform by technicians performing their official duties in a military status, we reject that interpretation. Rather, the wording of the proposal and the record in the case support the conclusion that the proposal is intended to apply to the wearing of the military uniform by technicians performing their official duties while in a civilian status.
The Agency's argument that the proposal does not concern a matter pertaining to conditions of employment is premised on the fact that the uniform that technicians are required to wear while performing their duties is the military uniform. Based on that fact, the Agency concludes that matters pertaining to the provision of that uniform to employees must involve the military aspects of civilian technician employment. The defect in the Agency's argument is that it is premised on the nature of the uniform rather than the status of the employees who wear the uniform.
The Authority has consistently held that proposals concerning the requirement that technicians wear the military uniform while in a civilian status do not concern the military aspects of technician employment but concern matters affecting the conditions of employment of civilian technicians. See, for example, Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 685 (1987) (Wisconsin Army National Guard). Because the proposal in this case requires the Agency to provide the uniforms, or a uniform allowance, for employees who are required to wear the military uniform while performing the official duties of their positions in a civilian status, we find, consistent with Wisconsin Army National Guard, that the proposal concerns a matter relating to the conditions of employment of unit employees.
The Agency argues that the proposal does not concern a matter that is covered by 5 U.S.C. § 5901(a) or 10 U.S.C. § 1593 because the proposal concerns the military uniform and those statutory provisions apply, respectively, to employees of the Federal Government and to civilian employees of the Department of Defense. We reject the Agency's argument. National Guard civilian technicians are employees within the meaning of 5 U.S.C. § 5901(a). See 5 U.S.C. § 2105(a)(1)(F); 32 U.S.C. § 709(c). 5 U.S.C. § 5901(a) authorizes an agency to provide uniforms, or a uniform allowance, to employees and contains no limitations on the nature of the uniform covered by that authorization. There is no basis in the wording of 5 U.S.C. § 5901(a), and the Agency presents no other grounds, for concluding that 5 U.S.C. § 5901(a) does not cover the provision of uniforms, or a uniform allowance, to National Guard civilian technicians who wear the military uniform in the performance of their official duties in a civilian status.
Moreover, the proposal requires the Agency to provide military uniforms, or a uniform allowance covering military uniforms, for National Guard civilian technicians who are required by the Agency to wear those uniforms while performing the official duties of their positions in a civilian status. We conclude, therefore, that the proposal concerns the provision of uniforms, or a uniform allowance, for "a civilian employee of the Department of Defense who is required by law or regulation to wear a prescribed uniform in the performance of official duties" within the meaning of 10 U.S.C. § 1593.
As to the Agency's argument that the proposal would require "dual allowances" for officers, there is no evidence in the record to support the conclusion, and the Agency does not claim, that the uniform allowance provided in Army Regulation 37-104-3 is intended to cover purchase of uniforms for use in the performance of civilian duties. Rather, as discussed by the Agency, Army Regulation 37-104-3 appears to provide an allowance to officers for uniforms used in the performance of their military duties. In other words, the Agency has not demonstrated that the uniform allowance provided under the Army regulation is intended for the same purpose as the allowance provided by the proposal.
We conclude that the Agency has not demonstrated that the uniform allowance provided by the proposal and the allowance under the regulation are provided for the same purpose or on the same basis. We also conclude that the Agency has not demonstrated that providing different allowances for different purposes and on different bases is contrary to law and regulation. The Agency has cited no provision of law or regulation that precludes separate allowances for military and civilian purposes. Consequently, we reject the Agency's argument. We note in this connection that the Agency has not claimed that the proposal is inconsistent with Army Regulation 37-104-3a or that a compelling need exists under section 7117(a)(2) of the Statute and section 2424.11 of our Rules and Regulations for that regulation.
Finally, the Agency argues that even if the subject of providing a uniform or a uniform allowance is a matter concerning the conditions of employment of unit employees, the proposal is nonnegotiable because the Agency head's authority under 5 U.S.C. § 5901(a) and 10 U.S.C. § 1593 to pay for uniforms or an allowance has not been delegated to the Adjutant General of Illinois. We reject this argument.
The Authority has consistently held that where authority concerning a matter relating to conditions of employment resides at a higher level within an agency, the agency is nevertheless obligated to bargain over that matter and to provide representatives who are empowered to negotiate and enter into agreements on all matters within the scope of negotiations in the bargaining unit. See, for example, National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 622 (1990); Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 361 (1986), affirmed sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 818-20 (D.C. Cir. 1987); Boston District Recruiting Command, Boston, Massachusetts, 15 FLRA 720, 723-25 (1984). Consequently, the fact that the Secretary of Defense has not delegated the authority to provide uniforms, or a uniform allowance, for civilian employees, a matter which is the subject of an otherwise negotiable proposal, does not present a basis for finding that the proposal is nonnegotiable.
Accordingly, we conclude that the proposal is negotiable.
The Agency must upon request, or as otherwise agreed to by the parties, bargain on the proposal.(2)
5 U.S.C. § 5901 provides, in relevant part, as follows:
§ 5901. Uniform allowances
(a) There is authorized to be appropriated annually to each agency of the Government of the United States, including a Government owned corporation, and of the Government of the District of Columbia, on a showing of necessity or desirability, such sums as may be necessary to carry out this subchapter. The head of the agency concerned, out of funds made available by the appropriation, shall--
(1) furnish to each of these employees a uniform at a cost not to exceed $400 a year (or such higher maximum amount as the Office of Personnel Management may establish under section 5902);
(2) pay to each of these employees an allowance for a uniform not to exceed $400 a year (or such higher maximum amount as the Office of Personnel Management may establish under section 5902).
The allowance may be paid only at the times and in the amounts authorized by the regulations prescribed under section 5903 of this title. When the agency pays direct to the uniform vendor, the head of the agency may deduct a service charge of not more than 4 percent.
(b) When the furnishing of a uniform or the payment of a uniform allowance is authorized under another statute or regulation existing on September 1, 1954, the head of the agency concerned may continue the furnishing of the uniform or the payment of the uniform allowance under that statute or regulation, but in that event a uniform may not be furnished or allowance paid under this section.
10 U.S.C. § 1593 provides as follows:
§ 1593. Uniform allowance: civilian employees
(a) Allowance authorized.--(1) The Secretary of Defense may pay an allowance to each civilian employee of the Department of Defense who is required by law or regulation to wear a prescribed uniform in the performance of official duties.
(2) In lieu of providing an allowance under paragraph (1), the Secretary may provide a uniform to a civilian employee referred to in such paragraph.
(3) This subsection shall not apply with respect to a civilian employee of the Defense Intelligence Agency who is entitled to an allowance under section 1606 of this title.
(b) Amount of allowance.--Notwithstanding section 5901(a) of title 5, t