47:1175(109)CA - - NG Bureau and NFFE - - 1993 FLRAdec CA - - v47 p1175

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47:1175(109)CA
The decision of the Authority follows:


47 FLRA No. 109

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL GUARD BUREAU

(Respondent/Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

(Charging Party/Union)

WA-CA-20859

_____

DECISION AND ORDER

July 15, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel did not file an opposition to the Respondent's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to adopt and implement a decision of the Federal Service Impasses Panel concerning the authorization of payment of uniform allowances and the allocation of uniforms to bargaining unit employees of the Louisiana Army and Air National Guard. The Judge found that the Respondent violated the Statute as alleged, and granted the General Counsel's motion for summary judgment.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

The Respondent concedes "that the Authority has issued a prior ruling on the negotiability of a proposal substantially identical to the provision at issue[,]" in National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Illinois National Guard, Springfield, Illinois, 43 FLRA 1257 (1992) (Illinois National Guard). Exceptions at 1. The Respondent contends, however, that the Authority's decision in that case was incorrectly decided.

The Authority has held that an agency violates section 7116(a)(1) and (5) of the Statute when it refuses to bargain over a proposal that is the same or substantially identical to a proposal the Authority has previously determined to be negotiable. U.S. Department of Health and Human Services, Public Health Service and Centers for Disease Control, National Institute for Occupational Safety and Health, Appalachian Laboratory for Occupational Safety and Health, 39 FLRA 1306, 1311 (1991), and cases cited therein.

The Respondent argues that neither 5 U.S.C. § 5901 nor 10 U.S.C. § 1593, on which the outcome of this case is based, apply to the purchase of military uniforms to be worn by technicians, and that there is no other law authorizing payment of funds to furnish uniforms to technicians in their military status or to furnish an allowance to the technicians for such a purpose. Therefore, it argues, an order to bargain on proposals to provide such uniforms or allowances would violate the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B).

The Authority has held that an agency "acts at its peril when it refuses to negotiate about a proposal which is substantially identical to a proposal previously found negotiable, without regard to whether [the agency] raises 'new' or 'old' arguments." U.S. Department of the Army, Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA 409, 420 (1990). Although in Illinois National Guard the Anti-Deficiency Act was not specifically discussed, the applicability of both 5 U.S.C. § 5901 and 10 U.S.C. § 1593 were thoroughly discussed and considered.

Respondent's reliance on National Federation of Federal Employees, Locals 642, 1911, 1966, and 2024 and U.S. Department of the Interior, Oregon State Office, Bureau of Land Management, 35 FLRA 1034 (1990), is misplaced. In that case, the Authority found a proposal nonnegotiable because it would have obligated an agency to indemnify a union for litigation costs in the absence of statutory authority for expenditure of Federal funds for those purposes. The Authority stated that "[c]ontractual indemnification clauses that would bind a Federal agency to pay money before an appropriation is made for that purpose are unenforceable under the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B)[.]" Id. at 1037. The proposal at issue here would not bind the Respondent to pay money before an appropriation is made. Rather, in Illinois National Guard, the Authority determined that such payments are authorized by 5 U.S.C. § 5901 and 10 U.S.C. § 1593.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the National Guard Bureau shall:

1. Cease and desist from:

(a) Failing and refusing to comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 92 FSIP 85 by failing and refusing to adopt the language ordered by the Panel regarding the payment of uniform allowances and the allocation of uniforms.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 92 FSIP 85 by adopting the language ordered by the Panel regarding the payment of uniform allowances and the allocation of uniforms.

(b) Post at its Louisiana Army and Air National Guard, Jackson Barracks, New Orleans, Louisiana facilities where there are employees represented by the National Federation of Federal Employees, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 92 FSIP 85 by failing or refusing to adopt the language ordered by the Panel regarding the payment of uniform allowances and the allocation of uniforms.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL comply with the Decision and Order of the Federal Service Impasses Panel in Case No. 92 FSIP 85 by adopting the language ordered by the Panel regarding the payment of uniform allowances and the allocation of uniforms.

_______________________________
(Activity)

Dated: __________________ By: ________________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relat