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). Determination