Office of the Adjutant General, Missouri National Guard, Jefferson City, Missouri (Respondent) and Association of Civilian Technicians, Show-Me Air #93 and Army #94 Chapters (Charging Party/Union)

[ v58 p418 ]

58 FLRA No. 103

OFFICE OF THE ADJUTANT GENERAL
MISSOURI NATIONAL GUARD
JEFFERSON CITY, MISSOURI
(Respondent)

and

ASSOCIATION OF CIVILIAN TECHNICIANS
SHOW-ME AIR #93 and ARMY #94 CHAPTERS
(Charging Party/Union)

DE-CA-01-0445

_____

DECISION AND ORDER

March 31, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions. The case is based upon a stipulated record.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide employees three additional sets of duty uniforms in violation of Article 8 of the parties' agreement.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II.      Background and Judge's Decision

      The Charging Party claimed that the Respondent [n1]  failed to provide employees three additional sets of duty uniforms in violation of Article 8 of the parties' agreement. [n2]  The Respondent argued that it would be illegal to comply with the agreement provision. The Respondent had requested authority to utilize Federal funds for the additional uniforms to comply with Article 8. The Respondent noted that if funds were not available, "it would appear the state would have to fund additional uniforms." Judge's Decision at 4, Stip. ¶12. The Respondent was told that Federal funds were not available because such a distribution of funds would conflict with the Common Table of Allowances and that the Respondent had "no authority to issue more uniforms." Judge's Decision at 6 and 7, Stip. ¶22 and 24. Thereafter, the Respondent notified the Charging Party that the Agency was unable to honor Article 8 because of guidance received from the National Guard Bureau. Judge's Decision at 7, Stip. ¶23.

      The Respondent did not dispute that it had failed to provide three sets of duty uniforms to each dual status technician in accordance with Article 8, but set forth defenses to its conduct, i.e., that neither Federal nor state funds were available for such purchases. The Judge found that the Respondent's actions constituted a repudiation of the parties' agreement, but examined whether the Respondent's actions were justified if the agreement provision was contrary to law and thus not enforceable under the Statute. In this regard, the Judge found that the Respondent made only generalizations regarding the Anti-Deficiency Act, 31 U.S.C. § 1341, and the Purpose Statute, 31 U.S.C. § 1301. According to the Judge, the record also shows that the National Guard Bureau has not ordered the Respondent to refuse to furnish the uniforms.

      The Judge also found that in a previous matter involving the same Respondent, it had been ordered to furnish uniforms in accordance with a prior collective bargaining agreement provision. The Judge noted that the stipulation contains no information on how those uniforms were funded, but they apparently were furnished. The Judge concluded that because the Respondent was able to furnish those uniforms, and has presented no explanation as to how those uniforms were funded, it lends support to the General Counsel's contention that the uniforms at issue in this case can be funded legally and provided to the employees. [ v58 p419 ]

      Finally, the Respondent argued in its reply brief that the uniform provision is unenforceable because it would violate the Constitution of Missouri, Article IV, Section 28, if state funds were used to provide the additional uniforms. The Judge found that the parties' stipulation contains no evidence related to the Missouri constitution and its appropriations regarding prohibited use of Missouri funds. Under these circumstances, the Judge found that the evidence failed to establish that the state of Missouri could not be responsible for the purchase of the additional uniforms.

      Accordingly, the Judge found that the Respondent violated § 7116(a)(1) and (5) of the Statute by failing to comply with Article 8 of the parties' collective bargaining agreement.

III.     Positions of the Parties

A.     Respondent's Exceptions

1.     Contrary to Federal Statute and Regulation

      The Respondent asserts that Article 8 of the parties' agreement is inconsistent with its Appropriations Act and that Army and Air Force regulations limit the number of uniforms which can be issued. The Respondent argues that no appropriations are available to provide extra uniforms, beyond those enumerated in the regulations. According to the Respondent, the Common Table of Allowances (CTA) 50-900 applies to the Army National Guard and authorizes four sets of uniforms per enlisted soldier. Likewise, the Respondent states that Air Force Instruction (AFI) 36-3014 applies to the Air National Guard and authorizes issuance of up to four uniforms. The Respondent states that gratuitous replacement of the uniforms is provided in-kind, based on fair wear and tear. Moreover, according to the Respondent, neither Army nor Air Force regulations authorize the National Guard to issue more than the four standard uniforms to "dual status" technicians. See Exceptions at 2.

      The Respondent contends that, contrary to the Judge's findings, the above referenced authorities are not generalizations but the specific authorities which prohibit the Respondent from providing additional uniforms. The Respondent argues that it is a basic premise of fiscal law that public funds cannot be expended without specific authority. The Respondent asserts that the uniforms cannot be purchased absent specific authority to do so and that there is no evidence in the record that such authority exists.

      The Respondent asserts that this provision is unenforceable because it is contrary to both federal and state law. Specifically, the Respondent argues that it is contrary to the Anti-Deficiency Act and the Purpose Statute, as well as the Missouri Constitution. Therefore, the Respondent asserts that its refusal to honor the provision is consistent with Authority precedent which has held that an agency does not have to follow an agreement provision it discovers is contrary to law.

2.     Based on FLRA Regulation

      The Respondent objects to the Judge's reliance on another administrative law judge's decision in an earlier Missouri National Guard unfair labor practice case issued on August 16, 2000. The Respondent contends that although the Judge initially wrote that the case was without precedential value, the Judge subsequently stated that it "`lends support'" to the Charging Party's argument, and thus is relying on it in violation of § 2423.41 of the Authority's Regulations. See Exceptions at 3. [n3] 

3.     Use of State Funds

      The Respondent argues that there are constitutional limits on whether state funds could be used for the purchase of uniforms for the National Guard technicians. The Respondent relies on Article IV, Section 28 of the Missouri Constitution which provides, in pertinent part, that "`No money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law[.]'" See Exceptions at 3.

      The Respondent asserts, as the Judge found, that the parties did not stipulate that the Missouri legislature has appropriated money for the uniforms. Moreover, the Respondent contends that there is no evidence that the legislature appropriated funds for the uniform purchase. Absent such evidence, and no such evidence is in the record, the Respondent argues that purchasing the additional uniforms would violate the Missouri Constitution.

4.     FLRA Precedent

      The Respondent contends that if an employer negotiates and signs an agreement and then claims that it cannot be honored because it violates some law or regulation, the illegal provisions are unenforceable and deemed void. The Respondent asserts that the Authority has held that collective bargaining provisions that are contrary to law are not enforceable under the Statute. [ v58 p420 ] Therefore, the Respondent argues that a respondent's refusal to comply with such a provision does not constitute an unlawful repudiation of that agreement. The Respondent relies on GSA, Washington, D.C., 50 FLRA 136 (1995) (GSA).

B.     General Counsel's Opposition

1.     Contrary to Federal Statute and Regulation

      The General Counsel argues that the Respondent only provided generalities to support its argument that enforcement of Article 8 would violate fiscal law. According to the General Counsel, nothing in the Respondent's exception changes the Judge's conclusion that insufficient evidence exists to prove that providing the uniforms would result in the expenditure of funds that it does not have or cannot obtain. The General Counsel relies on Assoc. of Civilian Technicians, Evergreen and Rainier Chapters, 57 FLRA 475 (2001) (Evergreen and Rainier) (Authority found that the agency failed to demonstrate that the proposal was inconsistent with the Anti-Deficiency Act because nothing in the proposal required the expenditure of funds in excess of, or prior to, an appropriation covering uniforms).

      To the extent that the Respondent attempts to establish a violation of fiscal law without any evidence regarding the cost of the uniforms, the General Counsel argues that the proposal deals with the number of uniforms, not the amount of money spent on them. The General Counsel relies on Assoc. of Civilian Technicians, Ariz. Army Chapter 61, 48 FLRA 412 (1993) (Ariz. Army Chapter) (Authority determined that nothing in the proposal prescribed that a specific amount of money be spent for uniforms, and there was no evidence in the record about the amount of money each uniform would cost).

      The General Counsel contends that it is erroneous for the Respondent to assert that Article 8 would violate a government-wide regulation because the term "government-wide regulation" refers to regulations and official declarations of policy which apply to the Federal civilian work force as a whole and are binding on the Federal agencies and officials to which they apply. The General Counsel also contends that neither the Army's CTA 50-900 nor the Air Force's AFI 36-3014 were submitted to the Judge in the Stipulation as part of the record in this case. The General Counsel argues that, to the extent this exception should be considered, neither the CTA nor the AFI rise to the level of a government-wide regulation under § 7117 of the Statute because neither is applicable throughout the Federal government.

      Finally, to the extent the Respondent relies on advice from higher-level National Guard Bureau management, the General Counsel asserts that such advice is merely a legal opinion and could not be construed as prohibiting the Respondent from complying with Article 8.

2.     Based on Authority Regulation

      The General Counsel argues that the Judge's passing reference to a previous case involving the same parties was not central to her decision. Furthermore, the General Counsel asserts that, while administrative law judge decisions are not precedential, judges may refer to them as instructive.

3.     Use of State Funds

      The General Counsel asserts that, contrary to the Respondent's argument, the Judge did not make a finding that the Respondent could provide additional uniforms by using state funds. According to the General Counsel, the decision merely states that the evidence fails to establish that the state could not be responsible for the purchase of the additional uniforms. The General Counsel also notes that the Judge concluded that "`whether an appropriation from the Missouri legislature would have to be approved prior to the purchase of the uniforms is not an issue before me.'" See Opposition at 9. The General Counsel also notes that the Respondent relies on an article of the Missouri Constitution, although that document was not included in the parties' stipulation in this case.

4.     FLRA Precedent

      The General Counsel addressed Authority precedent in its comments regarding the Respondent's contrary to law arguments, above, and need not be repeated here. While the General Counsel addressed Authority precedent, no argument was made specifically on the repudiation of the agreement or a purported illegal provision.

IV.      Analysis and Conclusions

A.     The Decision is not Contrary to Federal Statute
and Regulation

      The Respondent's arguments do not demonstrate that Article 8 is inconsistent with law or regulation. The Anti-Deficiency Act, 31 U.S.C. § 1341, precludes an agency from expending funds: (1) in excess of those appropriated for the fiscal year in which the expenditure is made; and (2) prior to their appropriation. 31 U.S.C. § 1341(a)(1)(A) and (B). See, e.g., Evergreen and Rainier, 57 FLRA at 483. Nothing in Article 8, however, [ v58 p421 ] requires the expenditure of funds in excess of, or prior to, an appropriation covering uniforms.

      Moreover, the Respondent has not demonstrated that Article 8 is inconsistent with government-wide regulation. The Authority has concluded that a regulation is a government-wide regulation under § 7117 of the Statute if it is generally applicable throughout the government. See Overseas Educ. Assoc., Inc., 22 FLRA 351, 354 (1986), aff'd 827 F.2d 814 (D.C. Cir. 1987). The regulations relied on by the Respondent, the Army's CTA 50-900 and the Air Force's AFI 36-3014, do not constitute government-wide regulations within the meaning of § 7117 of the Statute. As the regulations relied on by the Respondent do not constitute government-wide regulations within the meaning of § 7117 of the Statute, the Respondent's exception is without merit.

      We note that the Respondent objects to the Judge's consideration of its claims as "generalizations." In this regard, the Respondent relied on the Anti-Deficiency Act and the Purpose Statute, without explaining in detail which provision of each statute would prohibit the expenditure of funds for additional uniforms. Those statements notwithstanding, the Judge's analysis of the Respondent's arguments properly examined and resolved the legal issues raised thereby. Accordingly, the Respondent's contention is without merit.

B.      The Decision does not Violate Authority Regulation

      Under § 2423.41(a) of the Authority's Regulations, in the absence of the filing of exceptions within the established time limits, the findings, conclusions, and recommendations of the decision of the administrative law judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority. Although such judges' decisions are without precedential value, there is nothing in the Authority's regulations which prohibits referencing or considering such prior decisions.

      In this case, the Judge referred to a prior judge's decision involving the same parties regarding furnishing uniforms, to which exceptions were not filed. The Judge relied on the parties' stipulation regarding this earlier decision, and based on that decision concluded that the Respondent had found some way to comply. Therefore, the result in the prior case supported the contention that the Respondent could legally provide the uniforms at issue in this case. In referencing the earlier decision, the Judge was not relying on the precedential value of that decision, but on the fact that in complying with the earlier decision, the Respondent provided additional uniforms to bargaining unit members, and in so doing, acted inconsistently with its arguments here. [n4]  Thus, the Respondent's exception provides no basis on which to find the Judge's decision deficient.

C.     The Judge did not Err by Finding that the Respondent Could Provide Additional Uniforms by Using State Funds

      The Respondent's assertion regarding the Judge's remarks about the use of state funds is mistaken. As the General Counsel observes, the Judge only stated that "the evidence fails to establish that the state of Missouri could not be responsible for the purchase of the additional uniforms." See Judge's Decision at 18. Because the parties made no stipulations regarding the Missouri Constitution, there is nothing in the record on which the Judge could make a determination regarding use of state funds in this case. The Judge merely concluded that there was nothing in the record that would indicate a restriction on the use of state funds toward the purchase of uniforms and therefore provide the Respondent some basis for its defense. The Respondent's exception thus provides no basis on which to find the Judge's decision deficient.

D.     The Decision does not Violate FLRA Precedent

      Where an agreement provision is contrary to law or unenforceable, an agency is not required to abide by that provision. The agency's failure to follow an illegal agreement provision does not constitute a repudiation of the parties' agreement. See GSA, 50 FLRA at 139; United States Dep't of Energy, Washington, D.C., 34 FLRA 361, 366 (1990). The Respondent argues that Article 8 is such an unenforceable provision because it is contrary to law. Specifically, the Respondent contends that Article 8 is contrary to the Anti-Deficiency Act, the Purpose Statute, and the Missouri Constitution.

      The Respondent has not shown how Article 8 is contrary to the Anti-Deficiency Act or the Purpose Statute. Because the Respondent has not demonstrated how the provision is contrary to either of the statutes cited, those contentions are without merit.                               

      Moreover, the Respondent has not demonstrated that the provision, or the award, is contrary to the Missouri [ v58 p422 ] Constitution. In examining whether funds for the purchase of uniforms pursuant to Article 8 might be found in state funds, the Judge stated that "the evidence fails to establish that the state of Missouri could not be responsible for the purchase of the additional uniforms." See Judge's Decision at 18. Because the Respondent did not demonstrate before the Judge that state funds could not be used for uniform purchase, the Respondent has failed to demonstrate that the provision is contrary to the Missouri Constitution.

V.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Office of the Adjutant General, Missouri National Guard, Jefferson City, Missouri, shall:

      1. Cease and desist from:

      (a) Failing and refusing to comply with Article 8 of the collective bargaining agreement with the Association of Civilian Technicians, Show-Me Air #93 and Army #94 Chapters, the exclusive representative of certain of its employees, with respect to the issuance of employee uniforms.

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

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

      (a) Comply with Article 8 of the collective bargaining agreement with the Association of Civilian Technicians, Show-Me Air #93 and Army #94 Chapters, the exclusive representative of certain of its employees, by issuing three uniforms to employees as required by Section A.

      (b) Post at its facilities, where bargaining unit employees are located, 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 Missouri Adjutant General, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notice 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.

      (c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver 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
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Office of the Adjutant General, Missouri National Guard, Jefferson City, Missouri, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

      We hereby notify employees that:

WE WILL NOT fail and refuse to honor our collective bargaining agreement with the Association of Civilian Technicians, Show-Me Air #93 and Army #94 Chapters, by refusing to comply with Article 8, with respect to the issuance of employee 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, upon request of the Association of Civilian Technicians, Show-Me Air and Army Chapters, issue three uniforms to bargaining unit employees as required by Article 8, Section A of our collective bargaining agreement.

      ______________________________

                              (Respondent/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, Denver Regional Office, Federal Labor Relations Authority, who address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204, and whose telephone number is: (303)844-5224.


File 1: Authority's Decision in 58 FLRA No. 103
File 2: ALJ Decision


Footnote # 1 for 58 FLRA No. 103 - Authority's Decision

   Additional charges were initially filed against the National Guard Bureau but were withdrawn and we will not discuss them further.


Footnote # 2 for 58 FLRA No. 103 - Authority's Decision

   Article 8 Uniforms for Excepted Service Technicians

(A) Technicians are required by Federal Statute to wear the military uniform. In doing so, management agrees that serviceable uniforms will be provided by the Missouri National Guard in the amount of three (3) sets of duty uniforms for each dual status technician. This number of uniforms is in addition to their normal military issue of uniforms.

      . . . .

(G) Compliance with the terms of this article will be accomplished within six (6) months of the signing of this agreement.

Footnote # 3 for 58 FLRA