DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU LOUISIANA ARMY AND AIR NATIONAL GUARD JACKSON BARRACKS NEW ORLEANS, LOUISIANA and COUNCIL OF LOUISIANA NATIONAL GUARD LOCALS, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
In the Matter of )
DEPARTMENT OF DEFENSE )
NATIONAL GUARD BUREAU )
LOUISIANA ARMY AND AIR NATIONAL )
JACKSON BARRACKS )
NEW ORLEANS, LOUISIANA )
and ) Case No. 92 FSIP 85 )
COUNCIL OF LOUISIANA NATIONAL )
GUARD LOCALS, NATIONAL FEDERATION )
OF FEDERAL EMPLOYEES )
The Council of Louisiana National Guard Locals, National Federation of Federal Employees (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, National Guard Bureau, Louisiana Army and Air National Guard, Jackson Barracks, New Orleans, Louisiana (Employer).
The Panel determined that the case should be resolved through written submissions from the parties,(1) with the Panel to take
whatever action it deemed appropriate to resolve the dispute. Submissions were made pursuant to these procedures, and the Panel has now considered the entire record.
The Employer's mission is to operate a flight line of military aircraft, and to keep them in readiness for mobilization. The Union represents approximately 700 National Guard technicians, WG-5 through -12. The parties' previous collective-bargaining agreement expired on July 11, 1990. They have implemented all agreed-upon provisions of a successor agreement, with the exception of the matter at impasse in the instant case.
The parties primarily disagree over when uniform allowances authorized under applicable law(2) should be implemented.
1. The Union's Position
The Union essentially proposes that: (1) those employees required to wear a prescribed military uniform not furnished by management be granted an annual $400 uniform allowance; (2) those employees required to wear a prescribed uniform which is furnished by management be authorized to receive six sets of their normal workday uniform, to include T-shirts and socks; and (3) the parties be required aggressively to pursue "the maximum allowance/uniforms authorization allowed by law, rule, or regulation for members of the bargaining unit" as soon as the provision goes into effect.
The intent of the proposal "is to provide uniforms or an allowance for all civilians in the bargaining unit for the wearing of the uniform by technicians while performing their official duties in a civilian status." It "would apply and implement the new law that was recently passed." The proposal is equitable
because the National Guard Bureau requires all employees in the bargaining unit, "with the exception of competitive service employees under Title 32" to wear the military uniform. The Employer should, therefore, "provide sufficient supplies of the uniform for these employees or should pay them an allowance so the employees can purchase them and provide upkeep for them, including any replacement costs." While a number of bargaining-unit employees are provided uniforms in connection with their military obligations (1 weekend per month and 2 weeks per year), this is insufficient for the requirements of their civilian employment. Moreover, unit employees who are officers or warrant officers currently "receive no allowance whatsoever, nor are they provided with uniforms."
The last part of its proposal would ensure that "the allowance be immediately effected." The Employer's proposal, on the other hand, would delay implementation until regulations have been established not only by DOD and the National Guard Bureau, but also by the Louisiana Army and Air National Guard. Because the National Guard Bureau "has in effect said that [it] is not going to provide regulations at this time," the Employer is attempting to "delay that implementation as long as possible." The intent of the law, however, is "to bring equity and justice to these employees," a goal which would be thoroughly thwarted if the Employer's position were to prevail.
2. The Employer's Position
The Employer proposes that:
Uniform allowance[s] and the number of uniforms issued to military technicians will be consistent with law, rule, or regulation for the Louisiana Army and Air National Guard technician. The above is contingent upon implementing regulations promulgated pursuant to the statutory authority [10 U.S.C. § 1593].
It states that "it cannot appropriate funds for uniforms when there is no law discovered in which to authorize such payments." In this regard, "the law as cited by the Union does not conclusively indicate applicability to the National Guard [t]echnician [p]rogram." While the Employer "is not totally opposed" to the Union's proposal, it also "may conflict with law, rule, or regulation." Its position is supported by a legal opinion from its Staff Judge Advocate Office indicating that "there must be a promulgated regulation to implement the law in order to authorize a uniform allowance." In addition, enlisted technicians are provided uniforms on the same basis "as our active duty counterparts in the United States Army and United States Air Force," and may also turn in worn or soiled uniforms and receive replacement items. In view of the foregoing, "management can only offer its counterproposal as indicated above," which is "a positive approach to a complex problem."
Having examined the evidence and arguments in this case, we conclude that a modified version of the Union's proposal should serve as the basis for resolving the dispute. Preliminarily, we note that the Employer's position is somewhat ambiguous. In this regard, if the Employer's argument is that it cannot legally provide uniform allowances unless a specific regulation has been promulgated authorizing the Louisiana Army and Air National Guard to implement the provisions of 10 U.S.C. § 1593, this position must be rejected. In our view, because the FLRA has found a proposal substantively identical to the Union's fully negotiable,(3) should the Panel decide to order its adoption, there are no legal impediments to doing so. Put another way, if a negotiable proposal is imposed by the Panel to resolve a dispute, the Employer is called upon to take whatever action is necessary for its implementation.
To the extent that the Employer is arguing on the merits, however, that the Panel should not require the payment of a uniform allowance until there is an implementing regulation specifically applying the law to the Louisiana Army and Air National Guard, the record does not justify such a result. The Union, on the other hand, has argued convincingly that 10 U.S.C. § 1593 was intended to
provide financial relief to those employees required to wear a military uniform while performing their official duties in a civilian status, and that its proposal is consistent with that intent.
Thus, based on the record in this case, we shall order the parties to adopt a modified version of the Union's proposal such that: (1) for those employees who are required to wear a prescribed uniform not furnished by the Employer, an annual allowance of $400 be provided for the initial purchase, upkeep, and replacement of such uniforms; and (b) for those employees required to wear a prescribed uniform which is furnished by the Employer, uniforms worth $400 be provided each year. Our resolution of this issue modifies the Union's proposal in two respects. First, our modification of part two of its proposal should ensure that the total value of the uniforms provided by management falls within the statutory guidelines. Second, given our previous conclusion that there is no legal requirement that resolution of this dispute await the promulgation of specific regulations to implement the provisions of 10 U.S.C. § 1593, part three of the Union's proposal shall be eliminated from our Order.(4)
Pursuant to the authority vested in it by 5 U.S.C. § 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under 5 C.F.R. § 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under
§ 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the following wording:
(1) For those employees who are required to wear a prescribed uniform not furnished by the Employer, an annual allowance of $400 shall be provided for the initial purchase, upkeep, and replacement of such uniforms; (2) for those employees who are required to wear a prescribed uniform which is furnished by the Employer, it shall provide each year uniforms worth $400.
By direction of the Panel.
Linda A. Lafferty
May 12, 1992
1. 1The parties initially filed separate requests for assistance after an impasse was reached regarding their successor collective- bargaining agreement in Case Nos. 91 FSIP 215 and 228, which included the uniform-allowance issue at impasse in the instant case. After consolidating the cases and determining the dispute should be resolved through written submissions, the Panel discovered that a proposal concerning the payment of uniform allowances substantively identical to the Union's proposal (but involving different parties) was before the Federal Labor Relations Authority (FLRA) for a negotiability determination. The Panel then declined to retain jurisdiction over the entire dispute until the negotiability of the proposal was determined. In National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Illinois National Guard, Springfield, Illinois, 43 FLRA No. 101 (January 31, 1992)(National
Guard Bureau), the FLRA found the union's proposal fully negotiable. Shortly thereafter, the Union filed the instant request for assistance. In reaching its conclusion, the FLRA specifically stated that "the fact that the Secretary of Defense has not delegated the authority to provide uniforms, or a uniform allowance, for civilian employees, does not present a basis for finding that the proposal is nonnegotiable."
2. 210 U.S.C. § 1593, among other things, authorizes the Secretary of Defense to pay an allowance, or provide a uniform, to each civilian employee of the Department of Defense (DOD) who is required by law or regulation to wear a prescribed uniform in the performance of official duties. The amount of the allowance paid, and the cost of uniforms provided, "may not exceed $400 per year."
3. 3See the FLRA's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988), which clarifies the Panel's authority to consider duty-to-bargain issues raised by the parties during impasse proceedings, and National Guard Bureau, supra note 1.
4. 4In this regard, the FLRA has held that a Panel decision becomes final and subject to agency head review as of the date of its issuance, and an agency head has 30 calendar days from the date of issuance to approve or disapprove the decision or it becomes effective and binding on the parties on the 31st day. See, for example, American Federation of Government Employees, National Veterans Affairs Council and U.S. Department o