47:0743(68)NG - - ACT and DOD, NG Bureau, RI NG, Providence, RI - - 1993 FLRAdec NG - - v47 p743



[ v47 p743 ]
47:0743(68)NG
The decision of the Authority follows:


47 FLRA No. 68

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)

0-NG-1813

(38 FLRA 1005 (1990))

_____

DECISION AND ORDER ON REMAND

May 26, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Rhode Island v. Federal Labor Relations Authority, 982 F.2d 577 (D.C. Cir. 1993) (R.I. National Guard v. FLRA). The court remanded our decision regarding parts a, h, and i of Proposal 2 in Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 38 FLRA 1005 (1990) (R.I. National Guard). On remand, we conclude that the three parts are negotiable.

II. Background

In R.I. National Guard, there were two proposals in dispute. As relevant here, the Authority found that parts a, h, and i of Proposal 2 were negotiable. These parts provide:

(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.

(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.

III. The Decision and Order in 38 FLRA 1005

As noted in our earlier decision, the Agency argued, with respect to parts a and i, that "'[m]ilitary uniforms are provided free of charge to technicians in sufficient numbers as provided for by military regulation." R.I. National Guard, 38 FLRA at 1014. In this connection, the Agency asserted that "'the issuance of 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 negotiable.'" Id. at 1011. The Agency also asserted that part h concerned the wearing of military uniforms and, as such, was identical to proposals the Authority had found nonnegotiable in prior decisions.

We found that parts a and i concerned the number of uniforms that each civilian technician would receive from the Agency and that part h required the Agency to provide any additional items that it required technicians to wear. We noted that the three parts were similar to a proposal 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), petition for review denied sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988) (Air Force Logistics Command), because it was not inconsistent with 5 U.S.C. § 5901.(1)

We found that "[t]he Agency [did] not argue, and there [was] no basis on which to conclude" that parts a, h, and i were inconsistent with 5 U.S.C. § 5901(a). R.I. National Guard, 38 FLRA at 1015. Therefore, based on Air Force Logistics Command, we concluded that parts a, h, and i were negotiable.

IV. Court's Decision

The court found that the Authority "generously translated" the Agency's "reference to 'the wear of the military uniform' as 'a matter local management has chosen not to bargain[,]'" into a claim that parts a, h, and i interfered with the Agency's right to determine the method and means of performing work under section 7106(b)(1) of the Statute. R.I. National Guard v. FLRA, 982 F.2d at 580. The court also found, however, that the Authority had not adequately explained why the three parts did not conflict with the Agency's authority under section 7106(b)(1). Accordingly, the court remanded the case to the Authority.

The court refused to consider the Agency's claim that the three parts conflicted with 37 U.S.C. § 418 because, according to the court, that claim was made for the first time in court. The court stated that the question of whether, on remand, the Agency could pursue this argument "is initially for the FLRA to determine." R.I. National Guard v. FLRA, 982 F.2d at 580.

V. Analysis and Conclusions

The issues before us are whether: (1) parts a, h, and i directly interfere with the Agency's right to determine the method and means of performing work within the meaning of section 7106(b)(1) of the Statute; and (2) the Agency may pursue its argument based on 37 U.S.C. § 418.

A. Method and Means of Performing Work

The Authority employs a two-prong test to determine whether a proposal directly interferes with management's right to determine the methods and means of performing work. First, an agency must show a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1451 (1992).

The requirement that technicians wear a prescribed uniform while performing work constitutes the Agency's determination of the methods and means of performing work under section 7106(b)(1) of the Statute. See National Association of Government Employees, Locals R12-122, R-12-222 and U.S. Department of Defense, Washington National Guard, Tacoma, Washington, 38 FLRA 295, 304 (1990). Determinations regarding the composition of the uniform also constitute an exercise of that right. See The Adjutant General, Massachusetts National Guard, Boston, Massachusetts, 36 FLRA 312 (1990).

In this case, however, the Agency has made no attempt to demonstrate a direct and integral relationship between the requirements that it provide to technicians a specified number of uniforms and additional items required as part of the uniforms and the accomplishment of the Agency's mission, and no such relationship is apparent to us. In this regard, we find that parts a, h, and i do not involve or seek to limit the Agency's determination that a specified uniform is required; its determination as to the composition of the uniform; or its determination as to the circumstances where the uniform must be worn. The Agency has not established any link between the three parts of the proposal and the technicians' performance of work, and, thus, has not satisfied the first prong of the test.

The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (NFFE, Local 1167). A party failing to meet its burden acts at its peril. U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration, Payment Center Locals, Local 1760, 36 FLRA 466, 475 (1990) (Payment Center Locals, Local 1760). Based on the record in this case, we find that the Agency has failed to establish that parts a, h, and i conflict with its right to determine the methods and means of performing the Agency's work.

B. 37 U.S.C. § 418

Pursuant to section 2424.6(a)(2) of our Rules and Regulations, 5 C.F.R. § 2424.6(a)(2), the Agency filed a statement of position in R.I. National Guard. Although section 2424.6(a)(2) provides that a "statement shall cite the section of any law, rule or regulation relied upon as a basis for the allegation[,]" the Agency did not in its statement refer to, cite, or otherwise rely on 37 U.S.C. § 418 as a basis for alleging that parts a, h, and i were nonnegotiable. As noted previously, the court did not require the Authority to address whether the proposal conflicts with 37 U.S.C. § 418 and, instead, held that the question of whether the Agency could pursue that argument was for the Authority to determine.

As stated previously, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. For example, NFFE, Local 1167, 681 F.2d 886; Payment Center Locals, Local 1760, 36 FLRA 466. In this case, the Agency raised the 37 U.S.C. § 418 for the first time on appeal to the court. As the applicability of 37 U.S.C. § 418 was never raised before the Authority, we will not address it here.(2)

C. Summary

We find that the Agency has not established that parts a, h, and i of Proposal 2 interfere with the Agency's right to determine the methods and means of performing work. Accordingly, we find that the three parts of the proposal are negotiable.

VI. Order

The Agency must, upon request, or as otherwise ag