48:0412(40)NG - - ACT, AZ Army Chapter 61 and DOD, NG Bureau, AZ NG - - 1993 FLRAdec NG - - v48 p412



[ v48 p412 ]
48:0412(40)NG
The decision of the Authority follows:


48 FLRA No. 40

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

ASSOCIATION OF CIVILIAN TECHNICIANS

ARIZONA ARMY CHAPTER 61

(Union)

and

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

ARIZONA NATIONAL GUARD

(Agency)

0-NG-2126

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 1, 1993

_____

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 two proposals. The proposals involve the provision of uniforms to civilian technician employees of the National Guard and the exchange of worn and unserviceable uniforms. For the reasons which follow, we find that the proposals are negotiable.

II. Proposals 1-2

Proposal 1

Section 3. The Employer will provide, at no cost to the employee, ten complete sets of uniforms of the type the Employer determines the technician will typically wear in the position the technician is employed in. In the case of mechanic positions the Employer agrees to also provide a Field jacket or other cold weather outer clothing, two coveralls and two pairs of insulated gloves. This clothing is in addition to and separate from any uniforms or clothing issued to a technician as a member of the National Guard.

Proposal 2

Section 4. The Employer agrees to allow and provide for the direct exchange of worn or unserviceable items issued to the technician in section three (3) of this Article.

III. Positions of the Parties

A. Agency

The Agency claims that the proposals relate to the military aspects of technician employment and, therefore, do not concern the conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute and are nonnegotiable. The Agency requests that we reconsider 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), wherein we found that a proposal requiring that technicians be provided with a uniform allowance was negotiable.

The Agency next asserts that even if the proposals do not concern military aspects of technician employment, the proposals are still nonnegotiable because "no aspect of civilian personnel law authorizes the expenditure of funds for issuance of or payment for purchase of military uniforms." Statement of Position (Statement) at 5. The Agency argues that neither 5 U.S.C. § 5901 nor 10 U.S.C. § 1593, which provide for the issuance or allowances for the purchase of civilian uniforms, applies to the purchase of military uniforms to be worn by technicians.(1) The Agency contends that these provisions are applicable to such employees as security guards, firemen, and maintenance personnel and that 5 U.S.C. § 5901, in particular, is applicable to civilian employees of the Immigration and Naturalization Service, the U.S. Customs Service, the National Park Service, and the U.S. Forest Service. Also, the Agency contends that the use of such terms as "technician," "reserve technician," or "military reserve technician" in certain legislation pertaining specifically to military technicians, as opposed to the terms "employee" and "civilian employee" that are used in 5 U.S.C. § 5901 and 10 U.S.C. § 1593, indicates that technicians "are not intended to be included within the coverage" of 5 U.S.C. § 5901 and 10 U.S.C. § 1593. Id. at 6.

Additionally, the Agency contends that the issuance of military uniforms or the payment of allowances for the purchase of military uniforms for members of the National Guard are matters that are "totally controlled" by 37 U.S.C. §§ 415-418 and, therefore, are matters that are specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute.(2) Id. at 8. The Agency argues, therefore, that the proposals concern matters excluded from the definition of conditions of employment and are nonnegotiable.

The Agency further contends that even if the proposals concern conditions of employment, the proposals are nonetheless nonnegotiable because the issuance of military uniforms to technicians or the purchase of such uniforms for technicians constitutes a methods and means of performing the Agency's work. The Agency asserts that for full-time civilian technicians to receive extra benefits, like a special uniform issuance or allowance, not available to the part-time, traditional members "would create a schism in the unit which would [not] contribute to the maintenance of the organization as an effective military force." Id. at 12. The Agency also contends that if technicians have an unlimited "fair wear and tear replacement policy[]" that is not available to their fellow members, this extra benefit would be seen by the other members as "unwarranted and unearned." Id. The Agency states that the proposals "would only work to the detriment of the good order and discipline and the esprit de corps which the Authority found to be essential" to the accomplishment of the mission of the National Guard in Division of Military and Naval Affairs, State of New York, Albany, New York and New York Council, Association of Civilian Technicians, 15 FLRA 288 (1984) (Division of Military and Naval Affairs), aff'd, 757 F.2d 502 (2d Cir. 1985), cert. denied, 474 U.S. 846 (1985). Id.

Finally, the Agency claims that Proposal 1 is nonnegotiable because it "exceeds the dollar amount authorized by [5 U.S.C. § 5901 or 10 U.S.C. § 1593] for allocation for uniforms." Id. at 13 (emphasis omitted). The Agency asserts that the majority of the technicians in the bargaining unit are engaged in wage grade work. According to the Agency, the appropriate military attire for this work is the Battle Dress Uniform (BDU). The Agency states that the "price for an incomplete BDU (shirt and pants) absent patches, shoes, socks, hat and other accoutrements is $42.45[,]" and that the price for 10 sets of the incomplete uniform would be $424.50. Id. The Agency also states that the estimated cost for a complete BDU, including accoutrements, is $114.55 and that 10 sets of the complete BDU "would far exceed the $400 authorized" by 5 U.S.C. § 5901 or 10 U.S.C. § 1593 for issuance of uniforms or payment as an allowance. Id. The Agency asserts, therefore, that Proposal 1 is nonnegotiable because it requires the allocation of funds beyond that authorized by law.

B. Union

The Union asserts that the Agency's contention that the proposals involve the military aspects of technician employment was rejected by the Authority in Illinois National Guard. The Union contends that the Agency has not offered any compelling reasons why the Authority should reconsider that decision.

The Union states that the Agency's assertion that 5 U.S.C. § 5901 and 10 U.S.C. § 1593 do not apply to uniforms worn by civilian technicians is without merit. According to the Union, a reading of 5 U.S.C. § 5901 and 10 U.S.C. § 1593 "makes it apparent that they apply to 'civilian employees' of the Department of Defense [DOD] who may be required to wear a prescribed uniform in the performance of official duties." Response at 3. The Union claims that National Guard civilian technicians are covered by 5 U.S.C. § 5901 and 10 U.S.C. § 1593 because they are civilian employees of DOD. The Union contends that the argument that 5 U.S.C. § 5901 and 10 U.S.C. § 1593 do not apply to uniforms worn by technicians was also rejected in Illinois National Guard and the Agency has offered no compelling reason to overrule that decision.

The Union also asserts that 37 U.S.C. §§ 415-418 apply "exclusively to the provision of uniforms to military members of the armed forces." Id. The Union states that the disputed proposals in this case concern uniforms that are to be worn by civilian employees of DOD and argues that the subject matter of those proposals is "clearly outside the scope of the statute relied upon by the Agency." Id. (emphasis in original). The Union further states that, although these statutory provisions were not relied on by the agency in Illinois National Guard, the Army Regulation, AR-37-104-3, that was relied on by the agency in that case is derived from the statutory authority of title 37. The Union contends that, in Illinois National Guard, the Authority found that the agency had not demonstrated that the uniform allowance provided under title 37 and the uniform allowance prescribed by the proposal at issue in that case were provided for the same purpose or on the same basis. According to the Union, the Authority also found that the agency had not cited any law or regulation that precluded separate allowances for military and civilian purposes.

The Union further contends that the Agency has not demonstrated that the decision as to the number of uniforms provided to technicians constitutes a determination of the methods or means of performing work. The Union states that although the requirement that technicians wear the military uniform has been held to constitute a determination of the methods and means of performing work, a proposal providing for an additional allotment of the required uniform has no relationship to the performance of an employee's duties. The Union states that "[w]hile wearing the uniform may, in the Agency's view, promote morale and discipline, possession of extra sets has no relationship to this goal." Id. at 5.

Finally, the Union notes the Agency's argument that, under the current price structure, furnishing 10 sets of uniforms would exceed the statutory $400.00 allowance. The Union does not concede that the proposal would require an expenditure of funds in excess of the statutory limitation, but asserts that, to the extent the Agency is correct, it "would consent to a modification of its proposals so that [the] statutory allowance is not exceeded in this case." Id.

IV. Analysis and Conclusions

Proposal 1 requires the Agency to provide, without cost, 10 complete sets of uniforms of the type civilian technicians are required to wear for the positions in which they are employed and additional clothing for employees in mechanic positions to wear in cold weather. The proposal specifies that the required clothing is separate from any clothing issued to technicians as members of the National Guard. Proposal 2 requires the Agency to provide for the direct exchange of worn or unserviceable uniforms. For the following reasons, we find that the proposals are negotiable.

A. Proposals 1 and 2 Concern the Civilian Aspects of Technician Employment

We reject the Agency's argument that the proposals concern the military aspects of technician employment.

First, by its terms, Proposal 1 does not concern uniforms that are issued to technicians as members of the National Guard. We also find, based on the record, that Proposal 2 does not concern uniforms that are issued to technicians as members of the National Guard. Rather, the proposals concern the uniforms worn by technicians as civilian employees of the National Guard. In short, we find that the proposals concern the uniforms worn by technicians in their civilian capacity, rather than their military capacity. Consequently, we conclude that the proposals concern the civilian aspects of technician employment and constitute matters pertaining to conditions of employment within the meaning of section 7103(a)(14) of the Statute.

Moreover, we note that the Agency's argument is premised on the military nature of the uniform technicians are required to wear. As we pointed out in Illinois National Guard, however, that premise is defective. The decisive consideration is the status of the personnel who wear the uniform. We have 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 rather concern matters affecting the conditions of employment of civilian technicians. See U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 47 FLRA 1213, 1218 (1993) (National Guard Bureau); Illinois National Guard, 43 FLRA at 1261. The Agency's argument that the proposals concern the military aspects of technician employment provides no basis for concluding that the proposals are nonnegotiable or for reconsidering our decision in Illinois National Guard.

B. 5 U.S.C. § 5901 and 10 U.S.C. § 1593

We reject the Agency's arguments concerning 5 U.S.C. § 5901 and 10 U.S.C. § 1593.

In Illinois National Guard, we found that civilian technician employees of the National Guard are employees of the Federal Government covered by 5 U.S.C. § 5901 and civilian employees of the Department of Defense covered by 10 U.S.C. § 1593. In particular, the definition of the term "employee" for purposes of 5 U.S.C. § 5901 is set forth in 5 U.S.C. § 2105(a). The definition of the term "civilian employee" for purposes of 10 U.S.C. § 1593 is also, pursuant to 10 U.S.C. § 1586(a)(2), set forth in 5 U.S.C. § 2105(a). 5 U.S.C. § 2105(a)(1)(F) specifically includes civilian technicians of the National Guard within the definition of "employee." Consequently, we find that, by the plain terms of 5 U.S.C. § 2105(a)(1)(F), civilian technician employees of the National Guard are employees of the Federal Government who are covered by 5 U.S.C. § 5901 and 10 U.S.C. § 1593. See Illinois National Guard, 43 FLRA at 1261. See also 32 U.S.C. § 709(c).

Moreover, because Congress specifically included civilian technician employees of the National Guard within the definition of the employees covered by 5 U.S.C. § 5901 and 10 U.S.C. § 1593, we find it irrelevant that Congress may have used different terms to refer to technicians in other statutes. We note in this connection that the terms referenced by the Agency--for example, "reserve technician" or "military reserve technician"--may also include civilian technicians employed by the Army and Air Force Reserve. See also 5 U.S.C. § 3329, 5 U.S.C. § 8401(30), and 10 U.S.C. § 261(a).

As to the Agency's claim that 5 U.S.C. § 5901 and 10 U.S.C. § 1593 do not authorize the Agency to provide military uniforms, we note that both statutory provisions permit agencies to provide employees with the uniforms that they are required to wear in performing their official duties. Nothing in 5 U.S.C. § 5901 and 10 U.S.C. § 1593 precludes an agency from providing military uniforms if that is the uniform that employees covered by those provisions are required to wear in the performance of their official duties. Moreover, Proposals 1 and 2 do not require the Agency to provide military uniforms. Rather, the proposals require only that the Agency provide complete sets of the type of uniform that the Agency requires the technicians to wear in performing their duties. The decision to require the military uniform is the Agency's determination. Finally, we find that the Agency has not demonstrated that civilian technician employees of the Army National Guard are prohibited from wearing the military uniform in the course of performing their official duties as civilian employees. See, for example, 10 U.S.C. §§ 771-772.

As to the Agency's argument that Proposal 1 is inconsistent with 5 U.S.C. § 5901 and 10 U.S.C. § 1593 because it requires an expenditure of funds for uniforms that exceeds the statutory limit, we note at the outset that the proposal does not prescribe a particular amount to be expended for uniforms. Rather, the proposal specifies a certain number of complete sets of uniforms and certain additional clothing and equipment. Moreover, although the Agency presents evidence supporting its claim that the cost of 10 complete sets of uniforms would exceed the statutory maximum, the Union explicitly does not concede the Agency's claim. Response at 5. We note, of course, that to the extent implementation of the proposal would require the expenditure of more than $400 to provide uniforms to each employee covered by the proposal, the proposal would be inconsistent with 5 U.S.C. § 5901 and 10 U.S.C. § 1593.

However, the Union does not concede that the uniforms will cost what the Agency claims and we will not resolve competing claims as to the actual costs of uniforms. As we stated with respect to 5 U.S.C. § 5901 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) (AFLC), petition for review denied, 865 F.2d 1329 (D.C. Cir. 1988) (order):

In our view, it is not the role of the Authority to judge comparative costs of particular items of uniform clothing. The statutory maximum allows the parties considerable latitude for bargaining and we conclude that it would best effectuate the Statute to permit them to explore possibilities for agreement within the statutory maximum.

Consequently, consistent with AFLC, we find that to the extent the proposal may be implemented consistent with 5 U.S.C. § 5901, which the Union indicates is its intent, we find that the proposal is consistent with law within the meaning of section 7117(a)(1) of the Statute. We also find that the same considerations apply to 10 U.S.C. § 1593.

C. Proposals 1 and 2 Do Not Concern Matters That Are Specifically Provided for by Federal Statute

In National Guard Bureau, 47 FLRA at 1219, we held that nothing in the wording of 37 U.S.C. §§ 415-418 addresses uniform allowances for National Guard technicians who are required to wear military uniforms while in civilian, rather than military, status. We concluded that the respondent had failed to demonstrate that the issuance of military uniforms to civilian technician employees of the National Guard was nonnegotiable because it is specifically provided for by 37 U.S.C. §§ 415-418. The Agency's arguments provide no basis for reversing our holding in National Guard Bureau. Consequently, we find that the Agency has not demonstrated that Proposals 1 and 2 are nonnegotiable because they are specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute.

D. Section 7106(b)(1) of the Statute

We reject the Agency's arguments concerning management's right, under section 7106(b)(1) of the Statute, to determine the methods and means of performing work.

The Authority employs a two-part 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 and integral 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, for example, Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 47 FLRA 743 (1993) (Rhode Island National Guard).

We find that, under the first part of the two-part test, the Agency has failed to demonstrate that there is a direct and integral relationship between the subject matter of Proposals 1 and 2 and the accomplishment of the Agency's mission. Specifically, we find that the Agency has not shown that there is a direct and integral relationship between the requirement that it provide technicians with a certain number of uniforms and with other clothing and equipment, or the requirement that it establish a clothing exchange, and the accomplishment of the Agency's mission and no such relationship is apparent to us. See Rhode Island National Guard, 47 FLRA at 746. We have found that it is necessary to the accomplishment the Agency's mission that the Agency be able to require civilian technicians to wear the military uniform to perform their duties while in a civilian status. See, for example, Division of Military and Naval Affairs. However, we can find no basis on which to conclude that it is necessary to the accomplishment of the Agency's mission that the Agency be able to decide how many sets of that uniform, or of other required clothing and equipment, it will provide to civilian technicians or whether it will exchange worn or unserviceable uniforms.

Rather than establishing a direct link between the numbers of uniforms provided technicians and the Agency's mission under the first part of the two-part test, the Agency's argument appears to be an attempt to demonstrate that the proposals directly interfere with the mission-related purposes for which the Agency requires technicians to wear the military uniform. However, unless the Agency establishes that the subject matter of the proposals is within the scope of the right under the first part of the two-part test, there is no need to address arguments concerning whether the proposals directly interfere with the right under the second part of the test. Moreover, in our view, the Agency's argument that proposals providing "extra benefit[s]," like a special uniform allowance or issuance for civilian technicians, that are not afforded to military members of the National Guard undermine esprit de corps is simply a general claim that collective bargaining by civilian technicians is incompatible with the military mission of the Guard. Statement at 12. We previously rejected a similar argument in National Guard Bureau.

Consequently, we conclude that the Agency has not demonstrated that the proposals concern the exercise of management's right to determine the methods and means of performing work.

V. Order

The Agency must, upon request, or as otherwise agreed to by the parties, negotiate on Proposals 1 and 2.(3)

APPENDIX

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); or

(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, the amount of an allowance paid, and the cost of uniforms provided, under subsection (a) to a civilian employee may not exceed $400 per year.

(c) Treatment of allowance.--An allowance paid, or uniform provided, under subsection (a) shall be treated in the same manner as is provided in section 5901(c) of title 5 for an allowance paid under that section.

(d) Use of appropriated funds for allowance.--Amounts appropriated annually to the Department of Defense for the pay of civilian employees may be used for uniforms, or for allowance for uniforms, as authorized by this section and section 5901 of title 5.




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

1. The relevant provisions of 5 U.S.C. § 5901 and 10 U.S.C. § 1593 are set fo