[ v55 p63 ]
55 FLRA No. 18
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1669
U.S. DEPARTMENT OF DEFENSE
ARKANSAS AIR NATIONAL GUARD
188TH FIGHTER WING
FORT SMITH, ARKANSAS
DECISION AND ORDER ON A
January 8, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This case is before the Authority on a petition for review of a negotiability issue filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition for review contains one proposal that would require the Agency to be responsible for attaching emblems to uniforms worn by civilian technician employees. For the reasons that follow, we find that the proposal is within the duty to bargain.
A. The technician act and its 1996 amendments
The Union represents approximately 300 civilian technicians employed by the Agency. National Guard technicians are unique, dual-status employees who must, as a condition of their civilian employment, become and remain members of the National Guard, maintaining the particular military grade specified for their civilian positions. 32 U.S.C. 709(b),(d),(e) (the technician act); see 5 U.S.C. 2105(a)(1)(F); The Association of Civilian Technicians, Pennsylvania State Council and Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 3 FLRA 50, 51 n.1 (1980).
In 1996, the technician act was amended to include a requirement that technicians wear a military uniform while performing their technician duties. Pub. L. 104-106, sec. 1038(a), 110 Stat. 432; Pub. L. 104-201, sec. 654, 110 Stat. 2583 (the 1996 amendments). [n1] This statutory change codified a long-standing rule that technicians wear the military uniform while performing their duties. See Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984), aff'd sub nom. New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied 474 U.S. 846 (1985). Along with the statutory requirement to wear a military uniform, the 1996 amendments provided that technician officers are entitled to receive uniform allowances pursuant to 37 U.S.C. § 417 and that technician enlisted personnel are entitled to receive uniforms or uniform allowances pursuant to 37 U.S.C. § 418. [n2] Through these amendments, uniform allowances and uniforms previously supplied under sections 417 and 418 only for military service are also supplied for technician duties.
The proposal at issue in this case was submitted to the Agency during negotiation of the parties' collective bargaining agreement and relates to the military uniforms that technicians are required to wear while performing their technician duties.
B. Union's Proposal
The employer will provide uniforms in a ready to wear fashion. All emblems, name tags, insignia etc. will be attached, and any cost will be borne by the agency.
C. Positions of the Parties
The Agency contends that the proposal is outside the duty to bargain for three reasons.
First, the Agency asserts that the proposal is contrary to 37 U.S.C. §§ 417 and 418. According to the Agency, the 1996 amendments mandate the reversal of previous Authority precedent finding that proposals concerning uniform allowances for civilian technicians are within the duty to bargain. In particular, the Agency asserts that the previous decisions were premised on the fact that uniform allowances for civilian technicians were authorized under 5 U.S.C. § 5901 and 10 U.S.C. § 1593 (sections 5901 and 1593), which govern uni- [ v55 p64 ] forms for all Defense Department civilian employees. Statement of Position at 3 (citing Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412 (1993) (Arizona National Guard)). The Agency argues that, under the 1996 amendments, it may no longer provide uniform allowances under sections 5901 and 1593, and that this change renders negotiation over the proposal contrary to sections 417 and 418, as amended.
Second, the Agency asserts that the 1996 amendments make the subject of uniforms for technicians a "military aspect of technician employment." Statement of Position at 5 (citing National Federation of Federal Employees, Local 1655 and Adjutant General of Illinois, 20 FLRA 829 (1985)). Therefore, according to the Agency, the proposal does not concern a condition of employment, as defined in section 7106(a)(14) of the Statute. The Agency claims that Congress' intent to make the wearing of the uniform a military issue is established by: (1) the reference in the 1996 amendments to "members [of the military]," rather than to "employees"; (2) the fact that the 1996 amendments were codified in title 37; and (3) the exclusion of "member[s] of the uniformed services" from the definition of "employee" in section 7103(a)(2)(B)(ii) of the Statute.
Third, the Agency contends that the amendments to sections 417 and 418 "deal comprehensively with" the subject of uniforms for technicians. Statement of Position at 6 (citing National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 525-26 (1987) (Adjutant General); Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (Wisconsin Army National Guard)). Therefore, in addition to the reason set forth in the immediately preceding paragraph, the Agency contends that the proposal does not concern a condition of employment, within the meaning of section 7103(a)(14) of the Statute, for this reason as well.
The Union argues that the proposal concerns "nothing more than what is provided" under sections 417 and 418 to members of the military. Union's Response at 1. According to the Union, sewing services for members of the military are provided either directly by the Agency or through a "chit" system in Agency laundry facilities. Id.
The Union states that it does not dispute the Agency's assertions that recent amendments codify the requirement that technicians are required to wear a uniform while performing their technician duties, and that title 5 is no longer applicable to uniform allowances for technicians. However, the Union asserts that it "does dispute management's argument that Congress meant for Technicians to bear an expense not even required by Basic Military Personnel." Id. at 2.
III. Meaning of the Proposal
Consistent with its wording and the Union's statement of intent, the proposal would require the Agency to provide "ready to wear" uniforms, with emblems attached. Where the Agency does not attach the emblems through its sewing services, employees would be issued "chits" to procure these services through contractors currently employed at Agency laundry facilities.
A. The proposal is not inconsistent with the specific terms of Sections 417 and 418
The parties agree that sections 417 [n3] and 418, as amended, eliminate the prior authority to pay a uniform allowance to technicians under sections 5901 and 1593. [n4] However, there is nothing in the terms of sections 417 or 418 with which the proposal is inconsistent. Specifically, nothing in section 417 or 418 would prohibit the Agency from agreeing to supply uniforms "ready to wear," or to provide sewing services through existing base facilities. In fact, sections 417 and 418 are silent as to both the condition of the uniforms to be supplied and any bargaining obligations regarding that matter.
The Agency contends, nevertheless, that the proposal conflicts with sections 417 and 418 because: (1) the Authority has held that the "only basis" for bargain- [ v55 p65 ] ing on uniforms and allowances is sections 5901 and 1593; and (2) sections 5901 and 1593 no longer apply by virtue of the 1996 amendments. We accept, for this analysis, the parties' agreement that sections 5901 and 1593 do not apply in determining whether this proposal is within the duty to bargain. See supra n.4. Further, we agree with the Agency that the 1996 amendments render inapplicable previous Authority decisions holding that sections 417 and 418 --prior to their amendment -- did not apply to technicians. See Arizona National Guard, 48 FLRA at 418 (citing National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Illinois National Guard, Springfield, Illinois, 43 FLRA 1257, 1261-62 (1992) (Illinois National Guard) and 32 U.S.C. § 709(c)); U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia and Oregon Military Department, Oregon National Guard, Salem Oregon, 47 FLRA 1213, 1219 (1993). The Agency has not explained, however, how these points, or any others, make the proposal inconsistent with sections 417 and 418, as amended.
The mere fact that the authority to provide uniforms or pay allowances is not based in sections 5901 and 1593, but in sections 417 and 418, does not render negotiation over this subject inconsistent with sections 417 and 418. The newly amended language of sections 417 and 418 does not reveal any inconsistency between the terms or the structure of these sections and collective bargaining over this proposal. There is no indication that Congress specifically intended that these amendments would affect collective bargaining over this matter, or that it intended that this issue should be revisited by the Authority.
Put simply, the fact that uniforms and uniform allowances are, under the 1996 amendments, authorized under sections 417 and 418 does not, in and of itself, create an inconsistency between the proposal and the terms of amended sections 417 and 418. We thus reject the Agency's argument to the contrary.
B. The proposal does not relate to a military aspect of technician employment
The Authority has held that, although technicians may negotiate concerning their "employment in a civilian capacity," Congress did not intend that they be permitted to negotiate over "the military aspects of civilian technician employment" Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters, 120th Fighter Interceptor Group, (ADTAC), 20 FLRA 717, 739 (1985) (Montana Air National Guard) (finding reenlistment not subject to negotiation). In ratifying this doctrine, which applies only to this unique type of employee, the U.S. Court of Appeals for the District of Columbia Circuit explained:
National Guard technicians are both civilian employees and enlistees in National Guard units. The two worlds they simultaneously inhabit are understandably governed by very different rules of employee-employer relations. As members of the Guard, technicians are subject to military authority; as civilian employees, they are covered by the . . . [Statute], which permits them to bargain over conditions of their employment. . . .
National Federation of Federal Employees, Local 1623 v. FLRA, 852 F.2d 1349, 1350-51 (D.C. Cir. 1988).
The rule that collective bargaining for technicians turns on whether the matter at issue is a military or civilian aspect of their employment requires that the Authority draw a line between the two types of employment conditions, recognizing that "the military side of technicians' employment takes precedence" Id. at 1351. Thus, for example, the Authority has found that a proposal that relates to the military grade of technicians is a military matter outside the duty to bargain, while a proposal that position descriptions list the required "Military Occupational Specialty" is a civilian matter within the duty to bargain. See Association of Civilian Technicians, Pennsylvania State Council and Adjutant General of Pennsylvania, 29 FLRA 1292, 1295, 1300 (1987); see also Montana Air National Guard, 20 FLRA at 722 (finding RIF reinstatement proposal that disregarded military compatibility requirements outside duty to bargain).
The Authority has applied this rule to issues relating to military uniforms, consistently holding that proposals relating to the wearing of the uniform during the time when technician duties are performed relates to civilian, rather than military, aspects of technician employment. See Arizona National Guard, 48 FLRA at 417; U.S. Department of Defense, National Guard Bureau, Illinois National Guard, Springfield, Illinois, 43 FLRA 1257, 1261 (1992); Wisconsin Army National Guard, 26 FLRA at 685. In so holding, the Authority reasoned that the uniforms in question were "worn by technicians as civilian employees of the National Guard" and that the decisive consideration was not "the military nature of the uniform," but "the status of the personnel who wear the uniform." Arizona National Guard, 48 FLRA at 417.
[ v55 p66 ] According to the Agency, this result is no longer correct, because the 1996 amendments make the supplying of uniforms a military matter. We are not persuaded, however, that the terms of the 1996 amendments or their legislative history support the Agency's position. To begin with, the wording of sections 417 and 418 does not support viewing the supplying of uniforms for technician employment as a military, rather than civilian matter. Indeed, sections 417 and 418 specifically refer to the provision of uniforms to an individual "while employed as a National Guard technician." Section 417(d), 418(b) (emphasis added). Thus, the Amendments do not alter the fact that the uniforms are worn during the time when the individual is performing technician duties, which has previously been recognized as relating to civilian aspects of their employment. See Arizona National Guard, 48 FLRA at 417.
Further, as we noted in Association of Civilian Technicians, Mile High Chapter and U.S. Department of Defense, Colorado Air National Guard, 140th Fighter Wing, 53 FLRA 1408, 1414-15 (1998) (Colorado Air National Guard), the legislative history of the 1996 amendments is "spare." Congress did not reveal any intent to make such matters as sewing services military matters. In particular, the only reference to the uniform provision and allowance sections of the 1996 amendments is in the Senate Report accompanying the appropriations bill, which states that the amendments would "place technician officers on the same footing as Active Guard and Reserve officers for purposes of qualifying for a uniform allowance." S. Rep. 104-112, section 333 (July 12, 1995). A requirement that qualifications for uniform allowances be the same for active duty officers and technicians does not imply that technicians cannot negotiate concerning other aspects of these sections.
The Agency points to a reference in subsection (a) of the 1996 amendments to "members'" grade, as evidence that the wearing of the uniform is a military matter. Statement of Position at 4. However, the Agency ignores the full context of this reference, which is that a technician will "wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician." 1996 amendments, section 1937(a); amending 32 U.S.C. 709(b) (emphasis supplied). The full sentence thus refers to technician duties, which relates to the civilian aspects of their employment. [n5]
Moreover, the foregoing reference to "members" is not contained in the subsections of the 1996 amendments that address uniforms and uniform allowances. Rather, the reference appears in subsection (a), the requirement codified in 32 U.S.C. 709(b)(3) that technicians wear the military uniform. The Authority recently addressed this subsection of the 1996 amendments. See Colorado Air National Guard, 53 FLRA at 1412. In that case, the Authority concluded that the newly added requirement in section 709(b)(3), that technicians "wear the uniform appropriate for the [member's] grade . . . while performing duties as a technician[,]" was not subject to negotiation because section 709(b) did not afford the Secretary the discretion to waive this requirement, as required by the proposal at issue. The Authority reached this conclusion by construing the requirement to wear a uniform consistently with the requirements, in sections 709(b)(1) and 709(b)(2), that technicians maintain military membership in the National Guard and hold compatible military and civilian grade levels, respectively. Id. at 1415; Montana Air National Guard, 20 FLRA at 739.
Unlike the requirement that technicians wear the uniform, which appears in section 709(b), the supplying of uniforms and the payment of allowances are addressed in sections 417 and 418. Nothing in the language of these sections indicates Congress' intent to limit the discretion of the Secretary to negotiate over the terms under which uniforms or allowances would be supplied.
The Agency also states that "by placing the provisions on providing uniforms . . . under title 37 [which relates to allowances of the uniformed services]. . . Congress was clearly making the issue one of the military membership of . . ." technicians. However, the Agency provides no support for so concluding, and it is not self-evident, that the title of the United States Code in which a provision is placed determines, by itself, whether a matter concerns a condition of employment. This is especially true when the subject matter of the statutory provision concerns employment as a technician, which is inherently civilian.
In this regard, the Agency notes that members of the "uniformed services" are excluded from the definition of "employee" -- and as a result from coverage under the Statute -- by section 7103(a)(2)(B)(ii). However, the 1996 amendments did not change the fact that technicians are civilian employees under 5 U.S.C. § [ v55 p67 ] 2105(a)(1)(F), and are thereby entitled to bargain over their conditions of civilian employment under the Statute. This dichotomy, between the exclusion of military members from the Statute and the inclusion of National Guard technicians in their civilian status, does create a unique situation. Among other things, this dichotomy necessitates the line, described above, that the Authority has drawn between civilian conditions of employment, which are within the duty to bargain, and military aspects of technician service, which are outside the duty to bargain. Where, as here, the statutory terms indicate that the matter is one relating to employment as a technician, and the matter otherwise qualifies as a condition of employment under the definition set forth in section 7103(a)(14) of the Statute, it does not lose its status as a condition of employment simply because the terms governing the matter are included in a provision that also governs military matters.
C. The comprehensiveness of the uniform allowance provisions does not dictate that this subject is specifically provided for by federal statute
The Agency also asserts that the amendments to section 417 and 418 were intended to "deal comprehensively" with the issue of uniforms and uniform allowances in a manner that makes bargaining inappropriate. The Agency relies on two prior cases that found proposals relating to uniform allowances to be outside the duty to bargain on this ground. Adjutant General, 26 FLRA at 525-26; Wisconsin Army National Guard, 26 FLRA at 683-84.
The Authority has recently clarified, however, that the comprehensiveness of a statutory scheme is not, in itself, a sufficient basis to find a matter outside the duty to bargain because the matter is "specifically provided for by Federal statute" under section 7103(a)(14)(C). See International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 685 (1995), aff'd mem. sub nom. Bureau of Engraving and Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996) (BEP). The appropriate inquiry, as set forth in BEP, is whether the statute at issue provides the Agency the discretion to agree to the proposal. Id. at 681-85.
Here, the Union states, and the Agency does not dispute, that the proposal for the attachment of emblems onto uniforms seeks the same services as are provided to enlisted personnel. Further, the Agency does not claim that it does not have the discretion to provide these services to technicians under sections 417 and 418. There is no basis, therefore, to find that the matter is specifically provided for by Federal statute and not a condition of employment.
In addition, with respect to the prior case law cited by the Agency, Adjutant General, 26 FLRA at 525, and Wisconsin Army National Guard, 26 FLRA at 682, we read those cases as construing the proposals at issue to require expenditures in addition to, and therefore inconsistent with, the expenditures for uniforms provided in section 5901. See also American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1061-62 (1988) (distinguishing Adjutant General). As the Authority has explained, proposals relating to technician uniform allowances that are otherwise within the duty to bargain are inconsistent with law if they require an expenditure greater than the maximum amount permitted by law. Arizona National Guard, 48 FLRA at 419. To the extent that the cases relied on by the Respondent suggest that the comprehensive nature of section 5901, by itself, forecloses any bargaining on the subject of uniform allowances, they are superseded by, and inconsistent with, Arizona National Guard and BEP, and will not be followed.
For the reasons stated, we find that the proposal that is the subject of this negotiability appeal is within the duty to bargain under the Statute.
The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over the proposal.
Section 1038 provides in pertinent part:
Wearing of Uniform by National Guard Technicians.
(a) Requirement.--Section 709(b) of title 32, United States Code, is amended to read as follows:
"(b) Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall, while so employed --
"(1) be a member of the National Guard;
"(2) hold the military grade specified by the Secretary concerned for that position; and
"(3) wear the uniform appropriate for the member's grade and component of the armed forces while performing duties as a technician.".
[ v55 p68 ] (b) Uniform Allowances for Officers.--Section 417 of title 37, United States Code, is amended by adding at the end the following:
"(d)(1) For purposes of sections 415 and 416 of this title, a period for which an officer of an armed force, while employed as a National Guard technician, is required to wear a uniform under section 709(b) of title 32 shall be treated as a period of active duty (other than for training).
"(2) A uniform allowance may not be paid, and uniforms may not be furnished, to an officer under section 1593 of title 10 or section 5901 of title 5 for a period of employment referred to in paragraph (1) for which an officer is paid a uniform allowance under section 415 or 416 of this title."
(c) Clothing or Allowances for Enlisted Members.--Section 418 of title 37, United States Code, is amended--
(1) by inserting "(a)" before "The President"; and
(2) by adding at the end the following:
"(b) In determining the quantity and kind of clothing or allowances to be furnished pursuant to regulations prescribed under this section to persons employed as National Guard technicians under section 709 of title 32, the President shall take into account the requirement under subsection (b) of such section for such persons to wear a uniform.
"(c) A uniform allowance may not be paid, and uniforms may not be furnished, under section 1593 of title 10 or section 5901 of title 5 to a person referred to in subsection (b) for a period of employment referred to in that subsection for which a uniform allowance is paid under section 415 or 416 of this title.".
37 U.S.C. § 417 states in pertinent part:
(c) For the purposes of sections 415(a)-(c) and 416 of this title and subsections (a) and (b), an officer may count only that duty for which he is required to wear a uniform.
(d)(1) For purposes of sections 415 and 416 of this title, a period for which an officer of an armed force, while employed as a National Guard technician, is required to wear a uniform . . . shall be treated as a period of active duty (other than for training).
(2) A uniform allowance may not be paid, and uniforms may not be furnished, to an officer under section 1593 of title 10 or section 5901 of title 5 for a period of employment referred to in paragraph (1) for which an officer is paid a uniform allowance under section 415 or 416 of this title. [n6]
37 U.S.C. § 418 provides in pertinent part:
(a) The President may prescribe the quantity and kind of clothing to be furnished annually to an enlisted member of the armed forces or the National Guard, and may prescribe the amount of a cash allowance to be paid to such a member if clothing is not so furnished to him.
(b) In determining the quantity and kind of clothing or allowances to be furnished pursuant to regulations prescribed under this section to persons employed as National Guard technicians under section 709 of title 32, the President shall take into account the requirement under subsection (b) of such section for such persons to wear a uniform.
(c) A uniform allowance may not be paid, and uniforms may not be furnished, under section 1593 of title 10 or section 5901 of title 5 to a person referred to in subsection (b) for a period of employment referred to in that subsection for which clothing is furnished or a uniform allowance is paid under this section.
Footnote # 1 for 55 FLRA No. 18
Footnote # 2 for 55 FLRA No. 18
Footnote # 3 for 55 FLRA No. 18
We note that, while both parties refer in their arguments to both "uniforms" and "uniform allowances," the proposal itself contains no reference to uniform allowances, and we do not understand the Union's reference to a "chit" system to constitute an allowance. Thus, it is not apparent that section 417, which relates only to officers' uniform allowances, is even implicated by this case. Nevertheless, in order to address the parties arguments responsively, and because there appears to be no legally relevant distinction between uniforms and allowances for the purposes of this case, we examine the proposal as if it applies to both uniforms and to uniform allowances.
Footnote # 4 for 55 FLRA No. 18
For purposes of this case, we accept the parties' agreement that sections 417 and 418 provide the only relevant authority to pay uniform allowances to technicians. However, we note that sections 417(c)(2) and 418(c) -- which refer to allowances not being available under sections 5901 and 1593 "for a period" that they are paid under 417 or 418 -- could be construed as permitting the payment of an allowance under sections 5901 and 1593 in the event an allowance or uniform were not supplied under sections 417 and 418.
Footnote # 5 for 55 FLRA No. 18
The Agency further notes, with respect to a different argument, that section 417 refers to officers' time in uniform as "active duty." Statement of Position at 2, citing section 417(d)(1). The entire phrase used in this section, however, is that the technician time "shall be treated as a period of active duty" for the limited purpose of determining the amount of an allowance. This implies that technician service is not considered active duty for other purposes.
Footnote # 6 for 55 FLRA No. 18
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