United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU ILLINOIS NATIONAL GUARD SPRINGFIELD, ILLINOIS
and LAND OF LINCOLN CHAPTER #120, ASSOCIATION OF CIVILIAN TECHNICIANS	Case No. 01 FSIP 208

DECISION AND ORDER

    Land of Lincoln Chapter #120, Association of Civilian Technicians (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 (NGB), Illinois National Guard, Springfield, Illinois (Employer).

    Following an investigation of the request for assistance, arising from negotiations over a successor collective bargaining agreement (CBA), the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving the outstanding issues. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Pursuant to this procedural determination, a Panel Member conducted an informal conference with the parties on December 18, 2001.⁽¹⁾ At the close of the proceeding, the parties remained at impasse over provisions in two articles, Article 28, Discipline and Adverse Action, and Article 34, Uniforms. The Staff has reported to the Panel, and it has now considered the entire record, including the parties’ pre- and post-conference written submissions in support of their final offers.

BACKGROUND

    The Employer’s mission is to provide operational military units to support the United States Army. It is headquartered in Springfield, Illinois, and has several armories across the State. The Union represents approximately 300 Wage Grade (WG) and General Schedule (GS) civilian technicians⁽²⁾ who work in such positions as heavy-duty mobile equipment operator, ground safety manager, flight manager, and mechanic, at grades ranging from GS-5 through GS-13 and WG-5 through WG-12. The parties entered into an initial CBA in 1980, which remains in effect until the successor CBA is implemented.

ISSUES AT IMPASSE

    The two issues before the Panel are: (1) whether suspensions and removals of employees should be stayed until any appeal of the action has been exhausted and the action upheld in accordance with 32 U.S.C. § 709(f)⁽³⁾or under the terms of the parties’ negotiated grievance procedure;⁽⁴⁾ and (2) whether bargaining-unit employees should receive three extra sets of Battle Dress Uniforms (BDU), in addition to the uniforms that the Employer provides at the outset of an employee’s career.

POSITIONS OF THE PARTIES

1. Article 28 - Discipline and Adverse Actions

    a. The Union’s Position

    The Union proposes that any suspension or removal be stayed while the employee exhausts the review procedures set forth in either TPR 752 or in the parties’ negotiated grievance procedure. The proposal would require the Employer to retain such employees in a duty status during the appeal unless the agency determines that the employee’s continued presence in the workplace during the appeal period poses a threat to other employees or could result in damage to government property.⁽⁵⁾

    The proposal constitutes a reasonable measure to ensure that employees subject to suspension or removal do not suffer unnecessary and unwarranted economic harm. One example of such harm is the possible foreclosure on a mortgage while an employee awaits appellate review of management’s disciplinary decision. Its adoption would also lessen the likelihood of affected employees suffering damage to their reputations in instances where the discipline is found to be unjust. In this connection, under "make whole" remedies available in TPR 752 and through grievance-arbitration, an employee may never fully recover from such injury. Technicians are vulnerable to these negative consequences because "normally [they] will not quit their jobs to escape punishment." The Employer’s concern that retaining employees in the workplace who it proposes to suspend or remove would upset good order and efficiency is unjustified; the provision only minimally encroaches on the Employer’s right to discipline because appeals are typically exhausted within 60 days, and the Employer has occasionally delayed imposing discipline for "many months." Finally, the Union denies that its proposal violates Federal law or impermissibly impedes management’s rights.

    b. The Employer’s Proposal

    The Panel should order the Union to withdraw its proposal, thereby maintaining the status quo. The current practice should not be changed because there is no evidence that any technicians have suffered "economic harm" or injury to reputation as a result of an unjust disciplinary or adverse action. As such, the remedies available in TPR 752 or through grievance-arbitration, under which an unjustly disciplined employee may be "made whole" for losses of salary and benefits, have not been shown to be inadequate. Furthermore, the "checks and balances in the current TPRs and NGB regulations . . . ensure the accused rights to respond and to representation throughout the proceeding." The proposal also interferes with management’s right under section 7106(a)(2)(A) of the Statute to administer timely and appropriate discipline. Retaining an employee whom management has decided to remove from the workplace during the pendency of an appeal or grievance "would always be contrary to [the] good morale of the remainder of the workforce" and the agency’s legitimate interest in order and stability. Finally, the adoption of its position would be consistent with recent decisions in which the Panel has determined that stay provisions, particularly in a military setting, could undermine the effectiveness of discipline and negatively impact operational efficiency.⁽⁶⁾

CONCLUSIONS

    Having carefully considered the record presented by the parties on this issue, we shall order the Union to withdraw its proposal.⁽⁷⁾ In our view, the Union has failed to demonstrate the need to alter the status quo. While it claims that the proposal is required to protect employees from the consequences of unjust disciplinary and adverse actions, it has not introduced evidence that any technicians have suffered economic harm or injury to their reputations on account of management decisions which subsequently were overturned on appeal. The proposal, therefore, appears to be based solely on speculation that such injuries may befall technicians. This provides an insufficient basis for changing the current practice, particularly in a military organization where the effectiveness of discipline is of paramount importance. Of equal significance, the proposal also would encourage the filing of appeals merely to stay disciplinary and adverse actions, regardless of merit. For these reasons, we are persuaded that employees should continue to rely on traditional remedies if they are the subject of such actions.

2. Article 34 - Uniforms

    a. The Union’s Proposal

    The Union proposes that the Employer provide three additional sets of BDUs for each dual-status technician. Accordingly, the uniform issue would consist of three sets of either summer BDUs or three sets of winter BDUs, in any combination. For other personnel required to wear a Class A or B uniform, the Employer would furnish two extra sets of a requested uniform (Class A or B).⁽⁸⁾ The Union also proposes that the Employer contract with a laundry service to pick up and deliver soiled BDUs that have been exposed to toxic or hazardous material, such as jet fuel, grease, synthetic fluids, and other contaminants that should not be washed in a home laundry facility.

    The Union contends that, as a result of the NGB’s successful lobbying efforts, Congress enacted legislation in 1996 requiring technicians to wear military uniforms in the performance of their civilian work. Thus, "for any state to now say they cannot provide the uniform or clean them is without merit." While both traditional military Guardsmen and technicians receive four sets of BDUs at the outset of their careers, technicians’ work assignments cause them to wear out their uniforms more quickly than military personnel.⁽⁹⁾ Unlike military personnel, technicians do not receive a monthly clothing allowance, and many technicians have replaced worn or unserviceable uniforms with their own funds. Because of these disparities, the Employer should be required to provide additional BDUs to technicians.⁽¹⁰⁾ Indeed, the National Guard in four other states have recognized these differences by agreeing in CBAs to provide additional sets of BDUs to technicians. More sets of uniforms are also necessary because technicians’ work with heavy machinery and aircraft, causing their BDUs to become contaminated with grease, oil and jet fuel. Contrary to the Employer’s assertion, coveralls are not provided at every duty facility. In addition, providing a laundry service to clean uniforms befouled by contaminants "is in accordance with various state and county guidelines in the proper handling of toxic and hazardous waste generated by the Employer."⁽¹¹⁾

b. The Employer’s Position

The Employer proposes to maintain the status quo under which employees do not receive extra uniforms or paid laundry service. Technicians are "individually responsible for the care and cleaning of required uniforms," and existing procedures keep technicians properly attired. In that regard, under the "fair wear and tear" exchange policy, technicians may trade in uniforms deemed unserviceable. The exchange policy recognizes the increased amount of uniform wear a technician incurs. Moreover, technicians working in automotive shops or other areas which expose them to fuel and grease are provided coveralls sufficient to protect and "extend the utility life" of the uniforms. Employees’ use of coveralls, and the standard governing fair wear and tear exchanges, make it rare for a technician to exchange "more than one uniform at a time."⁽¹²⁾ Furthermore, internal regulations also prohibit the Employer from expending funds to procure clothing and equipment above the current authorization.⁽¹³⁾ Finally, the Defense Field Advisory Service "does not allow the use of Federal funds for the cleaning of individual uniforms."

CONCLUSIONS

    After thoroughly reviewing the record the parties provided addressing the merits of this dispute, we conclude that the Union has not demonstrated a need for deviating from the current uniform policy. In this regard, the record indicates that technicians may, under the Employer’s regulations, exchange worn or unserviceable uniforms which meet the "fair wear and tear" criteria, apparently without restriction on the number of times replacements may be sought.⁽¹⁴⁾ Moreover, because the Union is proposing to change the status quo, it bears the initial burden of justifying the need to do so. It has provided little support, however, for its contentions that the current exchange policy is inadequate. For example, the assertion that technicians, on their own initiative, have incurred personal expenses to replace unserviceable uniforms, is not substantiated by any evidence. Nor has the Union cited actual instances where technicians have been reprimanded or otherwise disciplined on account of the appearance of their uniforms. Accordingly, the Union shall be ordered to withdraw its proposal.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

1. Article 28, Discipline and Adverse Actions

    The Union shall withdraw its proposal.

 

2. Article 34, Uniforms

    The Union shall withdraw its proposal.

 

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 13, 2002

Washington, D.C.

1. At the informal conference, the parties voluntarily resolved issues in three articles concerning official time, Union office equipment, and vehicle identification. On January 8, 2002, while the unresolved issues were pending before the Panel, the appointments of the Panel Members serving at that time, including the Panel Member who conducted the informal conference in this dispute, were retired by President Bush.

2. Under the National Guard Technicians Act, 32 U.S.C. § 709 (1988), civilian technicians must maintain military membership in a National Guard unit, and their military and civilian jobs must be compatible.

3. 32 U.S.C. § 709(f)(4) provides the Adjutant General of the jurisdiction with authority to make final determinations on the suspension or removal of employees.

4. A suspension or removal may be challenged by a civilian technician pursuant to NGB Technician Personnel Regulations (TPR) 752, which could result in a hearing before the Adjutant General or a neutral Hearing Examiner. During successor negotiations, the Employer agreed that a technician could also elect to grieve the adverse action through the parties’ negotiated grievance procedure.

5. In those circumstances, the Employer may: (1) assign the employee to duties where he or she is no longer a threat to safety or property; (2) allow the employee to take leave, or carry the employee in a leave status if the employee has absented him/herself from the work site without requesting leave; (3) curtail the notice period if there is reasonable cause to believe that the employee has committed a crime for which a sentence of imprisonment may be imposed; or (4) place the employee in a paid, non-duty status until the appeal or grievance proceeding has been exhausted.

6. The Employer cites Department of Defense, National Guard Bureau, Delaware National Guard, Wilmington, Delaware and Delaware Chapter, Association of Civilian Technicians, Case No. 01 FSIP 47 (May 24, 2001) Panel Release No. 440, where the Panel ordered the union to withdraw its proposal to stay suspensions or reductions-in-grade until the appeal procedure had been exhausted and the action upheld in accordance with 32 U.S.C. § 709(f).

7. The Employer’s assertion that the Union’s proposed stay provision violates management’s right to discipline is not supported by decisions of the Federal Labor Relations Authority (FLRA). In this regard, the FLRA has held that proposals to stay imposition of discipline pending review under statutory appeals or contractual grievance processes are negotiable procedures under § 7106(b)(2) of the Statute. See, for example, American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130 (1990). Because we have determined to resolve the dispute on stays by adopting the Employer’s position, however, it is unnecessary to address this matter further.

8. The Union indicated that of the 300 bargaining-unit employees, 135 are technicians who must wear BDUs; the remainder are administrative personnel who are required to wear Class A or B uniforms.

9. On average, technicians work approximately 280 days per year; traditional Guardsmen work about 40 days per year.

10. The Union points out that the Panel previously has adopted a compromise ordering the employer to provide additional sets of BDUs based, in part, on the fact that technicians wear their uniforms more frequently than do military personnel. See Department of Defense, National Guard Bureau, Virginia National Guard, Blackstone, Virginia and Southside Chapter, Association of Civilian Technicians, Case Nos. 01 FSIP 89 and 91 June 25, 2001, Panel Release No. 441.

11. In support of this part of its proposal, the Union alleges one instance in which a bargaining-unit employee washed BDUs that contained work-related contaminants and was cited for causing contaminated material to be placed in the public water supply.

12. Army Regulation 710-2, dated October 31, 1997, defines “fair wear and tear” as:

Loss or impairment of appearance, effectiveness, worth, or utility of an item that has occurred solely because of normal and customary use of the item for its intended purpose.

13. The Employer references an internal regulation, the Common Table and Allowance, (CTA) 50-900.

14. We note, pursuant to the policy, that even uniforms that have suffered an “impairment of appearance” may be exchanged.