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47 FLRA No. 112

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

NATIONAL GUARD BUREAU

ALEXANDRIA, VIRGINA

and

OREGON MILITARY DEPARTMENT

OREGON NATIONAL GUARD

SALEM, OREGON

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2986, AFL-CIO

(Charging Party/Union)

SF-CA-20715

_____

DECISION AND ORDER

July 16, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1 of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and Respondent National Guard Bureau (Respondent National Guard)⁽¹⁾ filed briefs with the Authority.

The complaint alleges that Respondent National Guard violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by interfering with the bargaining relationship between Respondent Oregon National Guard (Respondent Oregon Guard) and the Union. According to the complaint, Respondent National Guard advised Respondent Oregon Guard to declare nonnegotiable a Union proposal that is substantially identical to a proposal found negotiable by the Authority 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). The complaint further alleges that Respondent Oregon Guard violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the proposal. For the following reasons, we find that the Respondents violated the Statute as alleged in the complaint.

II. Facts

The Union is the exclusive representative of a unit of employees of Respondent Oregon Guard who are required to wear a uniform during duty hours. The majority of the unit employees are civilian technicians, who are issued uniforms free of charge. The unit also includes administrative employees, who purchase their uniforms. Respondent Oregon Guard requires the uniforms to include certain badges and patches. In the past, most unit employees had the required badges and patches sewn onto the uniforms at their own expense.

In February 1992, the Union submitted bargaining proposals to Respondent Oregon Guard for a successor term agreement. One of the proposals addressed employee work and protective clothing. The parties subsequently reached agreement on a provision for protective clothing. Shortly thereafter, the Union submitted the following proposal regarding work clothing:

Section a.

Employer required work clothing, to include all required badges, tapes, insignias will be furnished to all Employees by the Employer.

Section b.

The Employer is responsible for cleaning and maintenance of all Employer required work clothing.

Stip., Exh. 5.

Respondent Oregon Guard submitted the proposal to Respondent National Guard to ascertain whether Respondent National Guard considered the proposal negotiable. The parties continued to negotiate and, by mid-May 1992, reached agreement on all issues except for the above proposal. The Union then requested Respondent Oregon Guard's position on the negotiability of the proposal. On June 11, 1992, Respondent National Guard informed Respondent Oregon Guard that the proposal was nonnegotiable and, on that same date, Respondent Oregon Guard notified the Union that the proposal was "outside the obligation . . . to bargain[.]" Stip., Exh. 6. Subsequently, the Union filed the unfair labor practice charge which led to the complaint in this case.⁽²⁾

III. Positions of the Parties

A. General Counsel

The General Counsel argues that Respondent Oregon Guard violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over section a. of the Union's proposal.⁽³⁾ The General Counsel asserts, in this regard, that section a. is substantially identical to a proposal the Authority found negotiable in Illinois National Guard. The General Counsel also argues that Respondent National Guard violated section 7116(a)(1) of the Statute by interfering with the bargaining relationship between Respondent Oregon Guard and the Union by advising Respondent Oregon Guard to declare the Union's proposal nonnegotiable. The General Counsel further argues that, even if Respondent Oregon Guard was acting under orders from Respondent National Guard, the Authority should find that Respondent Oregon Guard violated the Statute because "to do otherwise would not effectuate the purposes and policies of the Statute." G.C.'s Brief at 7.

B. Respondents

Respondent National Guard argues that the Union's proposal is nonnegotiable because it concerns a military aspect of technician employment and, therefore, is not a condition of employment within the meaning of section 7103(a)(14) of the Statute.⁽⁴⁾ In this regard, Respondent National Guard asserts that the uniform is a function of the technician's membership in a reserve component of the Army or Air Force. The Respondent contends that the issuance of the military uniform is analogous to requirements that technicians maintain a compatible military assignment in order to maintain his or her technician position.

Respondent National Guard further argues that the issuance of military uniforms to National Guard technicians, is specifically provided for by 37 U.S.C. §§ 415-418, and therefore, is not a condition of employment within the meaning of 5 U.S.C. § 7103(a)(14)(C) of the Statute.⁽⁵⁾ In particular, the Respondent asserts that under these provisions, the President is responsible for determining the quantity and kinds of uniforms to be worn by the enlisted personnel of the Armed Forces, including National Guard technicians who hold either enlisted or officer military rank. Respondent National Guard maintains, in this regard, that 5 U.S.C. § 5901 and 10 U.S.C. § 1593 do not apply here.⁽⁶⁾

Finally, Respondent National Guard argues that the issuance of military uniforms to National Guard technicians constitutes a method or means of performing the work of the National Guard and, as such, is nonnegotiable under section 7106(b)(1) of the Statute. In this regard, the Respondent states that National Guard units are comprised of civilian technicians and "traditional part-time members of the Guard." Respondent's Brief at 11. The Respondent alleges that if the technicians receive "an extra benefit, [such as] a special uniform issuance . . . not available to . . . [traditional members]," then other members will perceive the technicians as different and this perception will create a schism in the unit resulting in an ineffective military force. Id. at 12.

IV. Analysis and Conclusions

An agency violates section 7116(a)(1) and (5) of the Statute if it refuses to bargain over a proposal which is substantially identical to proposals the Authority has previously determined to be negotiable. For example, U.S. Department of Defense Dependents Schools, Dependents Schools, Mediterranean Region, Madrid, Spain, 38 FLRA 755 (1990) (Dependents Schools, Mediterranean Region). The General Counsel contends, and we agree, that section a. of the Union's proposal is substantially identical to a proposal which we found negotiable in Illinois National Guard.⁽⁷⁾

Although Respondent National Guard has raised several defenses on behalf of itself and Respondent Oregon Guard relating to Oregon Guard's refusal to negotiate with the Union over the disputed proposal, we note that, with one exception, each of the arguments previously has been rejected by the Authority. Moreover, as we stated in Fort Stewart Schools and reaffirm here, a respondent 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 a respondent raises "new" or "old" arguments. Fort Stewart Schools, 37 FLRA at 420. To hold otherwise would undermine the collective bargaining process by encouraging agencies to continue the litigation of negotiability issues. Id.

Respondent National Guard's assertion that the issuance of uniforms to National Guard technicians concerns a military aspect of technician employment was rejected by the Authority in Illinois National Guard, 43 FLRA at 1260-61. See also Wisconsin Army National Guard, 26 FLRA at 685. The assertion that the issuance of a military uniform is analogous to the requirement that civilian technicians maintain compatible military positions was also rejected by the Authority in Illinois National Guard, where the Authority determined that civilian technicians are employees, within the meaning of 5 U.S.C. § 5901(a), and that there is no limitation on the nature of the uniform covered by that statute. Illinois National Guard, 43 FLRA at 1261. The Authority also found that the provision of uniforms to National Guard technicians is covered by 10 U.S.C. § 1593. Id. at 1261-62. More recently, the Authority rejected arguments that proposals requiring an agency to provide prescribed uniforms to its employees interferes 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. See Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 38 FLRA 1005 (1990) (Rhode Island National Guard), remanded sub nom. U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence Rhode Island v. FLRA, No. 91-1090 (D.C. Cir. Jan. 15, 1993) decision on remand, 47 FLRA 743, 745-46 (1993).

In addition to the arguments previously considered, and rejected, by the Authority, Respondent National Guard also raises a new argument: that the issuance of military uniforms to National Guard technicians is specifically provided for by 37 U.S.C. §§ 415-418 and, therefore, does not concern a condition of employment within the meaning of section 7103(a)(14)(C) of the Statute.⁽⁸⁾ As we have noted previously, these provisions concern uniform allowances to which officers and enlisted members of the armed forces and the National Guard are entitled.

The Union's proposal concerns the issuance of uniforms to National Guard technicians, who are required to wear a uniform while performing civilian duties. In this regard, the Respondent does not dispute that the affected technicians are in civilian status while performing these duties. Moreover, the Authority has previously held that proposals concerning the issuance of uniforms to employees who are required to wear a military uniform while performing their civilian duties concern matters relating to the conditions of employment of civilian employees. Illinois National Guard, 43 FLRA at 1261.

Contrary to the Respondent's argument, nothing in the language of 37 U.S.C. §§ 415-418 addresses uniform allowances for National Guard technicians who are required to wear uniforms while in civilian status. Therefore, we conclude that the Respondent has failed to demonstrate that the issuance of military uniforms to civilian National Guard technicians is nonnegotiable because it is specifically provided for by sections 415-418 of the U.S. Code.

The record in this case establishes that Respondent National Guard informed Respondent Oregon Guard that Oregon Guard had no obligation to bargain over the Union's proposal. Thus, we conclude that Respondent National Guard unlawfully interfered in the collective bargaining relationship between Respondent Oregon Guard and the Union in violation of section 7116(a)(1) of the Statute. See Commander Naval Air Pacific, San Diego, California and Naval Air Station Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 676 (1991). Further, the record indicates that Respondent Oregon Guard violated section 7116(a)(1) and (5) of the Statute when it declared nonnegotiable the disputed proposals and refused to bargain over it further. See, for example, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and Ogden Air Logistics Center, Hill Air Force Base, Utah, 46 FLRA 1184, 1186 (1993) (Hill Air Force Base). In this regard, the Authority previously has found, in some circumstances, that it would not effectuate the purposes and policies of the Statute to find a respondent liable for refusing to bargain when the respondent acted at the direction of a higher-level in the affected organization. For example, 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, 1317 (1991) (PHS and CDC). Compare Hill Air Force Base, 46 FLRA at 1186 (although it acted at the direction of a higher-level organizational entity, the subordinate activity was found to have violated section 7116(a)(1) and (5) of the Statute when it refused to negotiate with the union over negotiable union-initiated proposals). In such cases, the Authority has found the higher-level respondent responsible not only for interfering with the lower-level's bargaining relationship with the affected union, but also for the refusal to bargain itself. See PHS and CDC, 39 FLRA at 1317. That is, the Authority has found that the higher-level entity violated section 7116(a)(1) and (a)(5). Here, however, Respondent National Guard was not charged by the General Counsel with violating section 7116(a)(5) of the Statute. Accordingly, as it is clear that Respondent Oregon Guard unlawfully refused to bargain with the Union, we conclude that it is appropriate to find such violation by Respondent Oregon Guard.

In other cases, the Authority has found a retroactive bargaining order appropriate to remedy a refusal to bargain over a proposal that is substantially identical to a proposal the Authority previously found negotiable. See Dependents Schools, Mediterranean Region, 38 FLRA at 759; Fort Stewart Schools, 37 FLRA at 422. See generally, National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc) (discussing Authority's wide discretion to fashion remedies for unfair labor practices, including retroactive bargaining orders). No reason is argued or apparent that such a bargaining order should not apply in this case. Accordingly, we will, among other things, order Respondent Oregon Guard to negotiate over the disputed proposal and to apply the results of that bargaining retroactively to the date when the Respondent alleged that the proposal was nonnegotiable.

VI. Order

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

A. The National Guard Bureau shall:

1. Cease and desist from:

(a) Taking actions which interfere with the collective bargaining relationship between the American Federation of Government Employees, Local 2986, AFL-CIO and the Adjutant General, State of Oregon, Oregon Military Department, Oregon National Guard.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

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

(a) Post at all of its facilities where bargaining unit employees are located copies of the attached Notice (APPENDIX A) on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chief of the National Guard Bureau, 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.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco 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.

B. The Oregon Military Department, Oregon National Guard, Salem, Oregon, shall:

1. Cease and desist from:

(a) Failing and refusing to negotiate with the American Federation of Government Employees, Local 2986, AFL-CIO, over a proposal concerning employee work clothing which is substantially identical to a proposal previously found negotiable by the Authority.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

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

(a) Upon request, negotiate in good faith with the American Federation of Government Employees, Local 2986, AFL-CIO, over the proposal submitted by the Union in connection with Article 38, Section a., and apply the results of the negotiations retroactively to June 11, 1992.

(b) Post at all of its facilities where bargaining unit employees are located copies of the attached Notice (APPENDIX B) on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Adjutant General of the Oregon National Guard, 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.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco 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.

APPENDIX A

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 take actions which interfere with the collective bargaining relationship between the American Federation of Government Employees, Local 2986, AFL-CIO, and the Oregon Military Department, Oregon National Guard, Salem, Oregon.

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

Date: ___________________ _____________________________

Chief, National Guard Bureau
Alexandria, Virginia

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, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is (415) 744-4000.

APPENDIX B

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 refuse to negotiate with the American Federation of Government Employees, Local 2986, AFL-CIO (AFGE), the exclusive representative of our employees, in connection with a proposal involving employee work clothing, on the basis that the proposal is nonnegotiable, or any other proposal that is substantially identical to a proposal previously found negotiable by the Federal Labor Relations Authority.

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 from AFGE, bargain in good faith over the proposal submitted in connection with employee work clothing which we rejected as nonnegotiable on June 11, 1992, and apply retroactively to that date the results of such bargaining.

Date: _______________________ ___________________________

Adjutant General
Oregon Military Department
Oregon National Guard
Salem, Oregon

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, San Francisco Regional Office, Federal Labor Relation Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is (415) 744-4000.

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

1. Respondent Oregon Guard did not file a separate brief.

2. The Union also filed a negotiability appeal under section 2424.1 of the Authority's Rules and Regulations and, pursuant to section 2424.5 of the regulations, elected to pursue the unfair labor practice charge first. Accordingly, the negotiability appeal has been held in abeyance pending disposition of the complaint in this case.

3. Neither the complaint nor the stipulation of facts distinguishes between sections a. and b. of the proposal. However, the General Counsel's brief expressly addresses only section a. of the Union's proposal and, in its answer to the complaint, Respondent National Guard asserted that section b. is substantially identical to a proposal the Authority found nonnegotiable in Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (Wisconsin Army National Guard). We agree with Respondent National Guard and, accordingly, conclude that neither Respondent acted unlawfully with respect to section b. U.S. Department of the Army, Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA 409, 420 (1990) (Fort Stewart Schools).

4. 5 U.S.C. § 7103(a)(14) provides in pertinent part:

'conditions of employment' means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters--

. . .

(C) to the extent such matters are specifically provided for by Federal statute[.]

5. 37 U.S.C. §§ 415-417 provide generally for allowances to officers in the armed forces, and reserve officers, for reimbursement for the purchase of required uniforms and equipment. 37 U.S.C. § 418, entitled "Clothing allowance: enlisted members," authorizes the President to prescribe the quantity and kind of clothing to be furnished annually to an enlisted member of the armed forces or the National Guard, and also authorizes the President to prescribe the amount of a cash allowance to be paid if clothing is not furnished.

6. 5 U.S.C. § 5901, entitled "Uniform allowances," authorizes agencies, whose employees are required by law or regulation to wear uniforms, to furnish employees with uniforms at a cost not to exceed $400 a year or to pay each employee an allowance for uniforms not to exceed $400 annually. 10 U.S.C. § 1593, entitled "Uniform allowance: civilian employees," authorizes the Secretary of Defense to pay an allowance, or provide a uniform, to civilian employees of the Department of Defense who are required by law or regulation to wear a uniform.

7. The disputed proposal in Illinois National Guard provided:

1. This article will affect all civilian officers and warrant officers who presently purchase their own uniforms, and are members of the bargaining unit. The Employer will provide the following:

2. Each civilian employee who is required by law or regulation to wear a prescribed uniform in the performance of official duties will be paid an allowance as described below or will be provided with the prescribed uniform.

3. The amount of allowance paid, if applicable, will be four hundred dollars ($400) per year.

Illinois National Guard, 43 FLRA at 1257-58.

8. The Authority referenced, but did not resolve, this argument in Rhode Island National Guard, 47 FLRA at 747.

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