[ v26 p682 ]
26:0682(84)NG
The decision of the Authority follows:
26 FLRA No. 84
ASSOCIATION OF CIVILIAN TECHNICIANS,
WISCONSIN CHAPTER
Union
and
WISCONSIN ARMY NATIONAL GUARD
Agency
Case No. 0-NG-1080
DECISION AND ORDER ON NEGOTIABILITY ISSUES
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of five Union proposals. We find that all
the proposals are outside the duty to bargain.
II. Proposal 1
All Civilian Technicians required to wear the military uniform
on a daily basis in the performance of their duties will be
provided the following services at the employer (sic) expense:
a. Sewing services for attaching regulation required names and
other service and unit identifying patches to the uniforms and all
other protective gear and cold weather clothing required by the
employer.
b. Laundering services of all required military items of
clothing required to be worn in the performance of civilian
technicians duties.
A. Positions of the Parties
In general the Agency maintains that since all the proposals involved
concern the military uniform and relate to the military aspects of
technician employment, they do not concern conditions of employment.
The Agency also contends that the proposal is inconsistent with 5 U.S.C.
section 5901, which provides for the payment of uniform allowances. The
Agency's position is that under this provision the payment of allowances
is restricted to employees who are not furnished with a uniform and that
all enlisted military technicians are furnished with a military uniform.
The Union contends that all the proposals relate to conditions of
employment of civilian technicians and do not concern the military
aspects of this employment. The Union also contends that section 5901
does not apply to all bargaining -- unit employees, some of whom are
commissioned or warrant officers who receive an initial uniform
allowance instead of being furnished with a military uniform. The Union
finally contends that this proposal is negotiable because it concerns
the impact and implementation of the Agency's determination to require
the wearing of the military uniform.
B. Analysis and Conclusions
We find that the proposal is outside the duty to bargain for a reason
other than that argued by the parties.
Subchapter I of 5 U.S.C. chapter 59, of which section 5901 cited by
the Agency is a part, provides authorization for annual appropriations
by Congress to agencies which require employees to wear a prescribed
uniform in the performance of official duties and which do not furnish
that uniform. The provisions of the subchapter further provide that
these funds in specified amounts will be used to either furnish the
employee the prescribed uniform or pay the employee an allowance for a
uniform. The subchapter was originally enacted as the Federal Employees
Uniform Allowance Act of 1954, Pub. L. No. 83-763, 68 Stat. 1114 (1954).
The legislative history of this original enactment indicates that the
allowance was appropriated for both the purchase and "upkeep" of the
prescribed uniform. S. Rep. No. 1992, 83d Cong., 2d Sess., reprinted in
1954 U.S. Code Cong. & Admin. News 3816, 3826. The provisions of the
subchapter further provide that when the prescribed uniform is
furnished, or a uniform allowance is paid by the agency under another
statute or regulation in existence on September 1, 1954, a uniform may
not be furnished or an allowance paid under subchapter I. Finally, the
subchapter provides for regulations for the administration of the
payment of allowances.
From our examination of these provisions, we conclude that 5 U.S.C.
chap. 59, subchapter I deals comprehensively with the payment of a
uniform allowance by an agency for the maintenance of the uniform which
the agency requires employees to wear. Because all bargaining -- unit
employees are required to wear the military uniform, regardless of
military rank or grade, we find that the proposal as it relates to all
bargaining -- unit employees pertains to a matter which is specifically
provided for by Federal statute. Thus, under section 7103(a)(14)(C) of
the Statute, the proposal concerns a matter which is excluded from the
"conditions of employment" over which an agency can be required to
bargain. See American Federation of Government Employees, AFL-CIO,
Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21
FLRA No. 104 (1986) (proposal 1). In view of this conclusion, it is not
necessary to decide whether the payment of the proposed uniform
allowance is authorized under or precluded by the subchapter. See id.,
slip op. at 3.
III. Proposals 4 and 8
Proposal 4
Hats and caps will not be required within an employees assigned
work area. Any special deviations or requirements resulting from
the above may be negotiated locally between local shop stewards
and supervisors.
Proposal 8
In order to identify civilian Technicians from active duty
force members, National Guard AGR, FTTD, FTS and other personnel
not in a civilian pay status, each civilian technician will be
issued a name tag measuring 1" x 3" in size with a light blue
background and engraved white letters bearing his/her full name
followed by civilian pay grade (abbreviated GS-09 or WG-09).
Immediately beneath the name will be engraved "Civilian
Technician".
A. Positions of the Parties
The Agency contends that these proposals relate to the military
aspects of technician employment and therefore do not concern conditions
of employment. It also contends that requiring technicians to wear the
military uniform constitutes an internal security practice under section
7106(a)(1) and that the proposals interfere with that determination by
directing how and when the military uniform will be worn. The Agency
similarly contends that the proposals interfere with management's rights
to determine the method and means of performing work by eliminating the
requirement to wear military hats or caps in the workplace and by
substituting the proposed name tag for the name tag prescribed for the
military uniform.
In response, the Union first maintains that there is no issue in this
case concerning the requirement to wear a uniform. Thus, the Union
argues that there is no need to decide whether the requirement to wear a
uniform constitutes a matter of internal security as alleged by the
Agency. The Union further maintains that the proposals do not interfere
with management's rights under sections 7106(a)(1) or (b)(1). Instead,
they concern negotiable procedures and appropriate arrangements under
section 7106(b)(2) and (3) with respect to the requirement that the
military uniform be worn in performing official duties.
B. Analysis and Conclusions
Since (1) the uniform wearing requirement applies to technicians in
their civilian status when performing their official duties, and (2)
technicians can be disciplined for violations of uniform wearing
requirements (see proposal 11), we reject the Agency's contention that
these proposals relate to the military aspects of technician employment
and therefore do not concern conditions of employment. We also reject
the Agency's contention that the proposals interfere with its right to
determine its internal security practices under section 7106(a)(1) as
not supported in the record. That is, even assuming for the purpose of
this decision that the uniform requirement constitutes a determination
of an internal security practice under section 7106(a)(1), the Agency
fails to demonstrate in what manner the proposals prevent the Agency
from protecting its property from loss, destruction, or disclosure. See
Wyoming Air National Guard (WANG) and National Association of Government
Employees (NAGE), Local No. 14-76, 23 FLRA No. 33 (1986).
We find, however, that these proposals are negotiable only at the
election of the Agency, and since the Agency has elected not to bargain
on them, they are nonnegotiable. The proposals directly interfere with
management's right under section 7106(b)(1) to determine the methods and
means of performing work and are not procedures or appropriate
arrangements under section 7106(b)(2) and (3).
The Authority has previously held that the requirement that civilian
technicians wear the military uniform is a method and means of
performing work within the meaning of section 7106(b)(1) of the Statute.
See, for example, Division of Military and Naval Affairs, State of New
York, Albany, New York and New York Council, Association of Civilian
Technicians, 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, 106 S.Ct. 137 (1985). That conclusion was reached
in view of the use by the National Guard of the requirement to wear the
military uniform to foster military discipline, promote uniformity,
encourage esprit de corps, increase the readiness of the military forces
for early deployment and enchance identification of the National Guard
as a military organization. 15 FLRA at 293.
The Authority found that because the traditional means of instilling
esprit de corps and military discipline are not available for use with
personnel who are employed in a civilian status, the wearing of the
military uniform is indispensible as a constant reminder to technicians
that they are members of an organization which is essentially military
and subject to mobilization at a moment's notice. Id. at 294. These
factors distinguish the right to require the wearing of a military
uniform and to determine its composition from an agency's rights with
regard to other uniforms. See, for example, United States Immigration
and Naturalization Service, Port of Entry, San Ysidro, California, 25
FLRA No. 30 (1987) for a discussion of the agency's rights to require
the wearing of a non-military uniform and to determine its composition
in the context of employee rights under section 7102.
In this context, we think that the specific type of uniform, that is,
the prescribed military uniform, is critical to achieving the purposes
for which the Agency has adopted the uniform requirement. Compare
National Association of Government Employees, Service Employees
International Union and Missouri National Guard, 23 FLRA No. 95 (1986),
where we found that in view of the relationship between the military
nature of the uniform and the purpose for which the uniform requirement
was adopted, a proposal allowing employees to elect to wear a
nonmilitary uniform would negate the agency's right to determine the
method and means of performing work. Thus, we find that proposals 4 and
8, which would allow employees to deviate from the prescribed components
of the military uniform, directly interfere with the Agency's right to
determine the method and means of performing work. The proposals
therefore substantively interfere with the right and do not constitute
negotiable procedures under section 7106(b)(2).
In arguing that these proposals constitute appropriate arrangements,
the Union states that proposal 4 is intended to clarify requirements for
the wearing of hats and caps in working areas to ensure employee safety
and that proposal 8 is intended to distinguish technicians from active
duty military personnel to avoid any misunderstandings that a technician
is not in a military duty status despite wearing the military uniform.
Assuming that these proposals constitute an "arrangement" for employees
adversely affected by the exercise of a management right, the proposals
totally abrogate the exercise by the Agency of the right to determine
the method and means of performing work. That is because the Agency's
right here concerns the wearing of a prescribed military uniform, the
composition of which is not negotiable, the proposals, would, therefore,
excessively interfere with the right and are not negotiable as
appropriate arrangements under section 7106(b)(3). See, for example,
Colorado Nurses Association and Veterans Administration Medical Center,
Ft. Lyons, Colorado, 25 FLRA No. 66 (1987) (proposal 4), petition for
review filed sub nom., Colorado Nurses Association v. FLRA, Case No.
87-1104 (D.C. Cir. Feb. 25, 1987).
IV. Proposal 10
While wearing a military uniform in civilian technician pay
status, employees will not be required to salute or bear arms
except under special circumstances which will be discussed and
negotiated with the exclusive bargaining agent. /1/ (Footnote
added.)
A. Positions of the Parties
The Union asserts that the intent of this proposal is to require the
Agency to place bargaining-unit technician employees in an appropriate
military status before it could order them to bear arms. The Union
claims that this proposal merely seeks to ensure that employees are in
an appropriate legal status when directed to bear arms. The Agency
contends that the proposal interferes with its rights to determine
internal security practices and to direct employees under section
7106(a).
B. Analysis and Conclusions
We find that the proposal is outside the duty to bargain for reasons
other than those argued by the parties.
The focus of the proposal is clearly on a duty assignment, the
bearing of arms, to be made while a technician is in a work status as an
employee under the Statute. Such an assignment constitutes the
assignment of work within the meaning of section 7106(a)(2)(B) of the
Statute. See, for example, Association of Civilian Technicians and
Statue of Georgia National Guard, 2 FLRA 581 (1980). Because the
expressed intent of the proposal is to prohibit assignment of such work
and instead require the bearing of arms to be a military assignment
while the technician is in a military status, we find that the proposal
directly interferes with the agency's right to assign work under the
Statute. Accordingly, the proposal is not a negotiable procedure under
section 7106(b)(2). In addition, because the proposal would completely
prohibit the Agency from assigning such work to a technician employee,
the proposal excessively interferes with that right, in our view, and is
not negotiable as an appropriate arrangement under section 7106(b)(3).
/2/ See, for example, Colorado Nurses Association, 25 FLRA No. 66
(proposal 4). Although a proposal may recognize external limitations on
the exercise of a management right -- for example, by requiring that the
right be exercised in accordance with law -- a proposal may not impose
substantive limitations in and of itself. National Federation of
Federal Employees, Local 1167 and Department of the Air Force,
Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base,
Florida, 6 FLRA 574, 577 (1981).
V. Proposal 11
Technicians in a civilian pay status and wearing a military
uniform shall not be intimidated or charged under the military
rules of conduct for an alleged improper wear of the military
uniform.
A. Positions of the Parties
The Union describes this proposal as an ateempt to acquire a written
guarantee that any infraction occasioned by a technician's improper
wearing of the military uniform will be dealt with by the technician's
civilian supervisor rather than by the military unit to which the
technician is assigned. The Union also intends to establish in
contractual terms the manner in which wearing of the military uniform
must be dealt with by the Agency. The Agency argues that the proposal
seeks to preclude the discipline of civilian technicians for the
improper wearing of the military uniform. Thus, the Agency contends
that the proposal conflicts with its right under section 7106(a)(2)(A)
to take disciplinary action for violations of administrative rules and
practices. The Agency also argues that to the extent the proposal
concerns military discipline the proposal does not concern conditions of
employment.
B. Analysis and Conclusions
We find that the proposal is nonnegotiable. To the extent that the
proposal is intended to preclude the imposition of military discipline
by the technician's military unit, the proposal does not concern
conditions of employment over which an agency can be required to
bargain. To the extent that the proposal, as intended to be applied by
the Union, precludes discipline for infractions regarding the wearing of
the military uniform, it violates the Agency's right to take
disciplinary action under section 7106(a)(2)(A) of the Statute and is
not a negotiable procedure under section 7106(b)(2). Moreover, since the
proposal would prohibit the disciplining of civilian technicians for
certain matters, it excessively interferes with the exercise of the
Agency's right to take disciplinary action and is not a negotiable
appropriate arrangement under the Statute. See See National Association
of Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (1986).
VI. Order
The Union's petition for review is dismissed.
Issued, Washington, D.C., April 28, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In its Reply Brief the Union withdrew the portion of this
proposal regarding the requirement to salute.
(2) In view of these findings, it is unnecessary to rule on the
Agency's other contentions.