[ v55 p420 ]
55 FLRA No. 70
ASSOCIATION OF CIVILIAN TECHNICIANS, INC.
RHODE ISLAND CHAPTER
(Union)
and
U.S. DEPARTMENT OF DEFENSE
RHODE ISLAND NATIONAL GUARD
PROVIDENCE, RHODE ISLAND
(Agency)
0-NG-2342
and
ASSOCIATION OF CIVILIAN TECHNICIANS
FIRST COAST AND HURRICANE CHAPTERS
(Union)
and
U.S. DEPARTMENT OF DEFENSE
FLORIDA NATIONAL GUARD
OFFICE OF THE ADJUTANT GENERAL
ST. AUGUSTINE, FLORIDA
(Agency)
0-NG-2344
_____
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
April 30, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
These consolidated cases are before the Authority on petitions for review of negotiability issues filed by the Unions under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petitions for review concern the negotiability of a proposal that would require the Agency to provide uniform allowances for civilian employees of the Rhode Island National Guard (Case No. 0-NG-2342), and a provision disapproved by the Agency head of the Florida National Guard to furnish uniforms and provide uniform allowances for civilian employees (Case No. 0-NG-2344). For the reasons that follow, we find that the proposal and the provision are within the duty to bargain. [n1]
II. Background and the Technician Act and Its 1996 and 1997 Amendments
The Unions represent civilian technicians employed by the Agencies. 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); Association of Civilian Technicians, Pennsylvania State Council and the 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 National Defense Authorization Act for Fiscal Year 1996, hereafter "the Authorization Act of 1996"). In 1997, Congress enacted a technical amendment, hereafter "the Authorization Act of 1997"), to correct an inconsistency in section 418(c), which was added by the Authorization Act of 1996. [n2] We take official notice of the technical amendment contained in the Authorization Act of 1997, and we understand reference in the pleadings by the parties to be based on the clarified language. Subsequent references in this decision to the "Authorization Act" or to "the amendments" refer to the language as corrected by this technical amendment in the Authorization Act of 1997. [n3] Neither party is prejudiced thereby. [ v55 p421 ]
This statutory change embodied in the amendments 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 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. Through the amendments to sections 417 and 418, uniform allowances and uniforms previously authorized under sections 417 and 418 only for military service are also authorized for technician duties. Prior to these amendments, uniform allowances for civilian National Guard technicians were authorized for technician duties only under 5 U.S.C. § 5901 (for employees of Federal agencies in general) and under 10 U.S.C. § 1593 (for civilian employees of the Department of Defense). [n4]
The proposal and the provision at issue in these cases were submitted to the Agency during negotiation of the parties' collective bargaining agreements and relate to the military uniforms that civilian technicians are required to wear while performing their technician duties.
III. Case No. 0-NG-2342
A. Union's Proposal
Union Proposal on Uniform Allowance
(A Proposed Amendment to Article XXV, Section 1, Agreement Between the Adjutant General of Rhode Island and the Rhode Island Chapter, Association of Civilian Technicians, Inc., [RIACT] 1994-1997)
The Employer and Association agree to the following:
(a) Procedures for payment and processing uniform allowance to bargaining unit members employed under a permanent or indefinite appointment, who are required to wear a prescribed military uniform, and who are not prohibited by statute from receiving a clothing allowance, will be in accordance with memorandum, TAGRI-HR, dated 18 January 1996, subject: HRMO Information Letter No. 700-1 (Procedures for Payment and Processing Uniform Allowance to Rhode Island National Guard Technicians), and memorandum, TAGRI-HR, dated 18 January 1996, subject: Individual Bargaining Unit Member Procedures for Payment and Processing of Annual Uniform Allowance. [Representative sections of the memoranda are set out in Appendix C.]
(b) Disbursement of this annual clothing allowance will be made in June 1996 and June 1997.
(c) The Employer retains its right to establish internal management procedures under current law and regulations, to accomplish the payment of this uniform allowance, not inconsistent with this agreement and the Employer's obligations under Chapter 71 of Title 5.
B. Positions of the Parties
1. Agency
The Agency contends that the proposal is outside the duty to bargain for three reasons.
First, the Agency contends that the proposal is contrary to 37 U.S.C. § 417, as it pertains to officers, and § 418 concerning enlisted personnel, because, it asserts, the proposal is based on 5 U.S.C. 5901 and 10 U.S.C. 1593. In that connection, the Agency contends that the proposal would require it to provide uniforms and uniform allowances pursuant to §§ 5901 and 1593, rather than under the amended §§ 417 and 418.
Second, the Agency asserts that the proposal deals with a topic that has become a military aspect of technician employment, and for that reason, as well, it is therefore no longer a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Agency claims that Congress' intent to make the wearing of military uniforms by National Guard civilian technicians a military aspect of technician employment is shown by a "three-pronged comprehensive change" that would mandate wearing of the uniform for all dual-status technicians; defray the cost under provisions of law applicable to military members; and close loopholes to preclude double payment for military uniforms. Statement of Position at 7.
Third, the Agency argues that the proposal deals with a topic that is now comprehensively provided for by statute, and for that reason is no longer within the duty to bargain. [ v55 p422 ]
2. Union
The Union asserts in its Petition for Review that the Authorization Act continues to leave the subject of uniform allowances within the Agency's broad discretion, because it does not specifically require that discretion to be exclusive of other laws. Therefore, the proposal is not outside the duty to bargain.
The Union contends that the proposal is not contrary to sections 417 and 418, as amended, because the proposal limits the proposed contractual entitlement to those technicians "who are not prohibited by statute from receiving a clothing allowance." Petition for Review at 5. This is consistent with the amendments to sections 417 and 418, according to the Union.
Since the applicable federal statutes, as amended in 1996, grant the agency unlimited discretion to provide uniform allowances to enlisted technicians, and limited discretion to provide allowances to officer technicians--and since nothing indicates this discretion is exclusive of the federal collective bargaining law--uniform allowance proposals falling within the agency's lawful discretion are negotiable conditions of employment.
Petition for Review at 5.
Regarding the Agency's assertion that the amendments make uniforms a military aspect of technician employment, the Union argues that the fact that the amendments are under Title 37, dealing with military matters, does not mandate such a result. First, it states that nothing in the amendments requires that uniform allowances come from military pay accounts. Second, whether a uniform allowance concerns a condition of employment is not determined by where the provision is located within the U.S. Code, or by the account from which the allowance might be paid, but rather by the facts of the case.
Finally, the Union argues that federal statutes on uniform allowances, as they were amended by the Authorization Act, "reveals that these laws continue to leave uniform allowances within the agency's broad discretion." Id. at 3.The Union states that the Agency does not dispute that the Amendments expressly authorize payment of allowances, nor that it has discretion to determine both the amounts to be provided to enlisted technicians, and the upper limit of the amounts for officer technicians. "[T]o the extent a federal statute leaves an otherwise negotiable subject within an agency's discretion, the statute leaves that subject within the . . . definition of negotiable `conditions of employment.' [citing National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923 933 (1994)]. [NFFE Council Of VA Locals]" Union's Response at 3-4.
C. Meaning of the Proposal
The proposal concerns procedures for payment of the military uniform allowance for unit members who are technicians required to wear the uniform and who are not prohibited by statute from receiving a clothing allowance. The proposal states that the procedures will be in accordance with two memoranda, which are set out in Appendix C. The memoranda, in turn, reference 5 U.S.C. § 5901 and 10 U.S.C. § 1593, providing that procedures for processing the uniform allowances will be established under authority of these referenced sections.
The Union states that the proposal expressly limits the application of the proposed procedure to those technicians "who are not prohibited by statute from receiving a clothing allowance." Petition for Review at 5, quoting the proposal. The Union states that the proposal would apply consistent with the law, to the effect that "if a technician does not receive uniforms or allowances under [§ 417 or § 418], the technician may receive them under 5 U.S.C. § 5901 and 10 U.S.C. § 1593. See 37 U.S.C. §§ 417(d)(2) and 418(c)." Id. at n.1.
Consistent with the Union's statement, and the plain meaning of the proposal, the proposal establishes procedures that require the Agency to provide uniform allowances only to technicians not prohibited by law from receiving them.
D. Analysis
1. The Proposal Is Not Inconsistent With Law
Prior to the amendments, the Authority held that there was a duty to bargain about uniform allowances for civilian National Guard Technicians. See U.S. Department of Defense, National Guard Bureau, Alexandria, Virginia, 47 FLRA 1213 (1993). The Authority subsequently determined that there is nothing in the terms of the amended sections 417 or 418 that is inconsistent with a proposal to bargain over aspects of military uniforms for technicians. Arkansas Air National Guard. The proposal in this case differs from that in Arkansas Air National Guard because it contains a statement that procedures for payment of uniform allowance will be in accordance with the memoranda set out in Appendix C, which reference sections 5901 and 1593. See n.3, supra. However, we noted in Arkansas Air National Guard that sections 417 and 418, [ v55 p423 ] which refer to allowances not being available under sections 5901 and 1593, "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." Id. at 64 n.4.
The parties in Arkansas Air National Guard did not dispute that sections 417 and 418 are the exclusive statutory authority for National Guard uniform allowances. However, that issue is raised in this case. As sections 417 and 418 amended the Agency's organic statute, we must determine whether Congress expressed clear intent on the question. If we determine, employing traditional tools of statutory construction, that Congress has spoken directly and had an intention on the precise issue, we must give that intention effect, "and that is the end of the matter." Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (Chevron). If the statute is silent or ambiguous with respect to the specific issue, we must determine whether the agency's interpretation is based on a permissible construction of the statute. If a question is not directly addressed, we may not substitute our own construction of a statutory provision for a reasonable interpretation made by the agency. Thus, in such a case we must defer to the agency's construction if it is reasonable. See id. at 843-44; Indian Educators Federation, New Mexico Federation of Teachers and U.S. Department of the Interior, Bureau of Indian Affairs, Albuquerque and Navajo Areas, 53 FLRA 696, 707 (1997).
Under the first prong of Chevron, we must first determine whether Congress expressed an intention that payment of a uniform allowance is to be available only under sections 417 and 418, as contended by the Agency. The language of subsections of 417 and 418 that directly addresses uniform allowances clearly indicates to us that sections 417 and 418 were not intended to be exclusive. Section 417(d)(2) provides that a uniform allowance may not be paid to an officer under sections section 1593 or section 5901 for a period for which the officer is paid an allowance under section 415 or 416. Similarly, section 418(c) provides that an allowance may not be paid to an enlisted technician under sections 1593 or 5901 for which an allowance is paid under section 418.
From this statutory language, we conclude that sections 417 and 418 are not intended to preclude allowances for uniforms under sections 5901 and 1593. The plain wording requires only that payments not be made under 5901 and 1593 for periods for which payments have been made under 417 or 418. In other words, the plain meaning of sections 417 and 418 is to preclude duplicative payments. By precluding duplicative payments, Congress acknowledged the continued viability of sections 5901 and 1593 as alternative sources for uniform allowances, rather than replacing them. If the alternative payment authority no longer existed, Congress would not have deemed it necessary to preclude duplicative payments.
In view of our finding that Congress did not intend for sections 417 and 418 to be exclusive, it is not necessary for us to decide whether the Agency's interpretation to the contrary is reasonable under the second prong of Chevron. As the intent of Congress clearly was that sections 417 and 418 not be the exclusive authority on which to base uniform allowances, the proposal is not inconsistent with law.
2. The Proposal Concerns A Condition Of Employment
Both the argument that the topic of wearing military uniforms by technicians relates to a military aspect of technician employment, and the argument that the subject of military uniforms is specifically provided for by statute, were addressed by the Authority in Arkansas Air National Guard, issued subsequent to the proceedings in this case. For the reasons therein, we conclude that the proposal here does not relate to a military aspect of technician employment, see id., at 65-67, and we find further that provision of military uniforms for civilian technicians is not specifically provided for by Federal statute, see id. at 67.
For the foregoing reasons, the proposal is not contrary to law, concerns a condition of employment within the meaning of section 7103(a)(1) of the Statute, and is within the duty to bargain.
IV. Case No. 0-NG-2344
A. The Disapproved Provision
The provision concerns an exchange program for worn, torn or soiled uniforms in need of replacement because of normal wear and tear, and procedures for obtaining replacements. Paragraphs (a), (b), (d) and (e) set out detailed procedures for obtaining replacement uniforms. Like our construct of the proposal in 0-NG-2342, the provision precludes double benefits or payment. Thus, paragraph (f) precludes exchange of uniforms for any officer if paid a uniform allowance under sections 415 or 416; (g) prohibits exchange or allowances under 1593 or 5901 to enlisted technicians who receive a uniform allowance under 415 or 416; and (h) states that an enlisted technician not entitled to receive uniform allowances under 1593 or 5901 shall receive uniforms or allowances under section 418. [ v55 p424 ]
Paragraph (c) of the provision would prohibit discipline of a technician for reporting to work in a soiled or torn uniform if a replacement uniform had been requested in a prescribed manner but not provided within time limits set out in the provision.
The text of the provision is set out in Appendix D.
B. Background
The provision was disapproved by the Agency head, under the authority of section 7114(c) of the Statute, on the ground that it conflicts with the Authorization Act.
C. Positions of the Parties
1. Agency
The Agency's arguments respecting uniform exchange are substantially identical to those made by the Agency in 0-NG-2342.
The Agency asserts that under the section of the provision dealing with discipline, an employee would be "totally immune from discipline" for failure to meet standards of cleanliness or neatness if the new uniform has not been delivered within the time frame set out in the provision. Statement of Position at 10. The Agency claims this is identical in effect to Provision 7 in American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133 (1995) (AFGE Local 1900), and contrary to law.
2. Union
a. Uniform Exchange
The Union contends that the provision is not inconsistent with law. It states that the provision provides that officer technicians are not to receive uniforms for any period for which they receive allowances under title 37. "This is precisely what the new law states," asserts the Union. Response at 2. "The contract provision is identical to, and therefore fully consistent with, the new law." Id. According to the Union, the Authorization Act expressly authorizes the provision of uniforms to enlisted technicians and contains no restrictions. Accordingly, the Union contends, "[a] contract providing uniforms can hardly be deemed `inconsistent' with a law that expressly authorizes the provision of these uniforms and that contains no restriction whatsoever on their provision." Id.
The Union also asserts, on the same basis as stated in 0-NG-2342 regarding uniform allowances, that the topic of uniform exchange has not become a military aspect of technician employment.
The Union's final argument on the topic of uniform exchange, contrary to the Agency, is that the topic remains a negotiable condition of employment because the provision of uniforms, and uniform exchange, is not specifically provided for by the Authorization Act. The Union notes that the Authority already has held that the provision of uniforms under title 5 or title 10 is negotiable. The Union contends that, as to officers, the Authorization Act limits the circumstances under which uniforms may be provided under title 5 or title 10, but "does not prohibit contracts providing uniforms to officers when those circumstances do exist." Response at 4. The Union states that as the Agency does not dispute that section 418 authorizes provision of uniforms to enlisted technicians, the subject remains negotiable.
The Union concludes its argument that the provision for uniform exchange continues to be a negotiable condition of employment by stating that a subject remains negotiable unless a statute "specifically requires" that an agency's discretion be exclusive of other laws. Nothing in the new law specifically requires exclusive exercise of discretion. Response at 4, quoting NFFE Council of VA Locals, 49 FLRA at 933.
b. Discipline
The Union states that management's right to discipline is not absolute, but must be in accordance with applicable laws, citing United Power Trades Organization and U.S. Department of the Army, Corps Of Engineers, Walla Walla, Washington, 44 FLRA 1145 (1992) (United Power Trades Organization) (proposal prohibiting discipline for disobeying unlawful order negotiable; proposal does not interfere with disciplinary right and would be appropriate arrangement even if it did). The Union contends that discipline of an employee under the circumstances suggested here--for reporting to work in a soiled uniform when management fails to provide a replacement after the technician properly sought one--"would be unconscionable and unlawful, because it would not be `for cause,'" citing the requirement of 32 U.S.C. § 709(e)(3), and Technician Personnel Regulation 752. Response at 5 (cited paragraph defines "cause" for taking adverse action).
The Union argues that even if the provision were found to interfere with the management right to discipline, it would nevertheless be negotiable because it is a § 7106(b)(3) appropriate arrangement, just as provision [ v55 p425 ] of clean, untorn uniforms themselves is an appropriate arrangement for employees asked to wear them. The Agency's interest in discipline under the circumstances "is, at most, negligible," states the Union. Response at 5, citing United Power Trades Organization, 44 FLRA at 1176.
D. Meaning of the Provision
The provision's procedures for obtaining replacements for worn, torn or soiled uniforms in need of replacement because of normal wear and tear are set out in paragraphs (a), (b), (d) and (e). Paragraphs (f), (g) and (h) preclude benefits under the provision for any period when a technician is paid a uniform allowance under sections 415 or 416, or under sections 1593 or 5901. Paragraph (c) prohibits discipline for reporting to work in a soiled or torn uniform if a replacement had been properly requested but not provided within time limits set out in the provision.
E. Analysis of the Provision
1. The Provision As A Whole As It Relates To Uniform Exchange Is Not Inconsistent With Law
a. Officer Technicians
The Union here seeks clothing exchange. As part of this plan, paragraph (f) of the provision provides that other sections of the provision, dealing with replacement of uniforms, do not apply to any officer technician for any period for which the technician receives an allowance under 37 U.S.C. sections 415 or 416. The plain language of the provision, as with the proposal in 0-NG-2342, is not inconsistent with the Authorization Act because, like the Act, the provision prohibits double benefits for uniforms. We conclude that the provision as a whole as it relates to uniform exchange is not inconsistent with law as to the officer technicians.
b. Enlisted Technicians
The provision is not inconsistent with the Authorization Act, section 418(c) of which prohibits duplicative payments, because the provision itself precludes duplicative military uniform benefits. Like paragraph (f) in the case of officer technicians, paragraph (g) precludes duplicative benefits for enlisted technicians, under sections 1593 or 5901, for any period for which a uniform allowance is paid under sections 415 or 416. Paragraph (h) provides that enlisted technicians not entitled to receive allowances under section 1593 or 5901 shall receive the uniform benefits referenced in the provision. Thus, the provision explicitly precludes duplication of benefits.
We therefore conclude that the provision as a whole as it relates to uniform exchange is not inconsistent with law as to enlisted technicians.
2. The Provision Concerns A Condition Of Employment
Both the argument that the topic of wearing of military uniforms by technicians relates to a military aspect of technician employment, and that the subject is specifically provided for by Federal statute, were recently addressed by the Authority in Arkansas Air National Guard, 55 FLRA at 65-67. For the reasons therein, we conclude that the provision in its entirety does not relate to a military aspect of technician employment, and we also find that provision of military uniforms for civilian technicians is not specifically provided for by Federal statute.
3. Paragraph (c), Which Concerns Discipline, Is Inconsistent With Law
a. The Negotiability Of Paragraph (c), Is Severable From the Determination Regarding the Rest of the Provision
When union proposals or their subparts present distinct legal or factual questions, they may be treated separately. Defense Logistics Council v. FLRA, 810 F.2d 234, 239-40 (D.C. Cir. 1987); Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 807 n.7 (1991).
The Agency makes a distinct argument regarding paragraph (c) of the disapproved provision, asserting that paragraph (c) is inconsistent with management's right to discipline provided in section 7106(a)(2). In addition, the parties treat paragraph (c) separately from the rest of the provision. Therefore, the grounds for severance are present.
Accordingly, we find that the negotiability of paragraph (c) presents a distinct legal question as to whether it interferes with the management right to discipline, and is subject to a distinct legal analysis, which follows.
b. Paragraph (c) of the Provision Interferes With Management's Right to Discipline
Paragraph (c) provides that the Agency will not discipline a technician for reporting in a soiled or torn uniform if the technician has properly and timely [ v55 p426 ] requested a replacement uniform and it has not been provided.
The essence of the Union's argument is that the Agency should not be permitted to discipline a technician for behavior resulting from its own failure to meet the procedural requirements of the provision. The effect of this paragraph would be to prohibit management from initiating discipline for specified conduct. Therefore, it is contrary to section 7106(a)(2)(A). See American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 616-17 (1997) (Proposal 8) (provision that would prohibit discipline for refusal to obey an order that would endanger employee's personal safety or the safety of others interferes with right to discipline because prevents management from disciplining for specified conduct); American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4th Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 202 (1993) (Proposal 15) (proposal to prohibit agency from disciplining employee for failing to obey an order that would require employee to place self in danger of death or serious bodily harm directly interferes with right to discipline because proposal prevents management from disciplining employees for specified conduct).
c. Paragraph (c) Is Not A Negotiable Appropriate Arrangement
The Union contends that even if the provision interferes with the management right to discipline, it would be an appropriate arrangement under section 7103(b)(3). As section 7103(b)(3) is an exception to section 7106(a), we proceed to discuss whether paragraph (c) of the provision is a negotiable "appropriate arrangement" under section 7103(b)(3) of the Statute. See National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995); Association of Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150 (D.C. Cir. 1994).
The approach for determining whether a provision is within the duty to bargain under section 7103(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that approach, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). The adverse effect need not flow from the management right that a given proposal affects. E.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office), 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part).
The claimed arrangement must also be sufficiently "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of management's right(s). E.g., id. As the Authority reaffirmed, relying on United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol, Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996).
The Agency submits that the effect of the discipline paragraph is identical to the provision prohibiting adverse action for poor performance caused by the failure of management to provide customary training opportunities in AFGE Local 1900, 51 FLRA at 140-41, Provision 7. Provision 7 provided that adverse actions would not be taken against employees for poor performance caused by management's failure to provide training due to lack of funds or mission requirements. The Union in that case did not dispute that the provision interfered with the right to direct employees and assign work. However, it argued that the provision constituted an appropriate arrangement.
The Authority stated in AFGE Local 1900 that the obligation to provide training was contractually-created, and the disputed sentence established a mechanism to protect employees adversely affected by management's failure to adhere to that contractual obligation. Consequently, the provision was not an arrangement because it addressed an adverse effect that resulted from denial of a negotiated benefit, not the exercise of a management right. As a result, the provision was nonnegotiable.
That provision is similar to the paragraph on discipline under consideration here. The procedures by which an employee obtains a replacement uniform are created by negotiations, and confer a benefit on employ- [ v55 p427 ] ees. Thus, the discipline paragraph in the instant case mitigates the effect of the breach of the Agency's contractual duty rather than the exercise of a management right. We find the restriction on discipline in paragraph (c) to be indistinguishable from the restriction in AFGE Local 1900. Accordingly, it is not negotiable as an appropriate arrangement.
F. Summary Of Negotiability Findings On Provision In Case No. 0-NG-2344
We find that the provision's procedures for replacing worn, torn or soiled uniforms are not inconsistent with law, and concern a condition of employment. Therefore, we order the Agency head's disapproval of paragraphs (a), (b) and (d) through (h) be rescinded. However, paragraph (c) of the provision interferes with management's right to discipline, and is not an appropriate arrangement. The Agency head will not be directed to rescind the disapproval of that aspect of the provision, for the reasons given above.
V. Order
In Case No. 0-NG-2342, the Agency shall, upon request or as otherwise agreed to by the parties, negotiate over the proposal in that case.
It is ordered, in Case No. 0-NG-2344, that the Agency shall rescind its disapproval of paragraphs (a), (b) and (d) through (h) of the provision at issue in that case. It is further ordered that the negotiability appeal as to paragraph (c) of the provision at issue in Case No. 0-NG 2344 is dismissed.
APPENDIX A
I. Section 1038 of the Public Law that comprises the 1996 Military Authorization Act amended 32 U.S.C. § 709(b) 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.
[Prior to the amendment, section (b) provided:
[(b) Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall, while so employed, be a member of the national Guard and hold the military grade specified by the Secretary concerned for that position.]
II. Title 37 U.S.C. sections 415 and 416, which were not changed by the DOD Authorization Act of 1996, are as follow:
§ 415. Uniform Allowance; Officers; Initial Allowance
(a) Subject to subsection (b), an officer of an armed force is entitled to an initial allowance of not more than $200 as reimbursement for the purchase of required uniforms and equipment. . . .
(b) An officer who has received an initial uniform reimbursement or allowance under any other law is not entitled to an initial allowance under subsection (a). . . .
§ 416. Uniform allowance; officers, additional allowances
(a) In addition to the allowance provided by section 415 of this title, a reserve officer of an armed force . . . is entitled to not more than $100 as reimbursement for additional uniforms and equipment required on that duty, for each time that the officer enters on active duty for a period of more than 90 days.
(b) Subsection (a) does not apply to a tour of active duty if-- [ v55 p428 ]
(1) the officer, during that tour or within a period of two years before entering on that tour, received, under any law, an initial uniform reimbursement or allowance of more than $200; or
(2) the officer enters on that tour within two years after completing a period of active duty of more than 90 days' duration.
III. The following sections of 37 U.S.C. were added by the 1996 Military Authorization Act:
§ 417. Uniform allowance: officers; general provisions
***
(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.
IV. Sections 418(b) and (c) were added to § the original § 418:
§ 418. Clothing allowance; enlisted members
(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.
[Note: This is the form of section 418(c) as a result of the 1997 DOD Authorization Act, clarifying that section by substituting the underlined words. Previously, under the 1996 DOD Authorization Act, § 418(c) ended with the words "section 415 or 416 of this title."]
APPENDIX B
10 U.S.C. § 1593 provides:
§ 1593. Uniform allowance: civilian employees
(a) Allowance authorized.--(1) The Secretary of Defense may pay an allowance to each civilian employee of the Department of Defense who is required by law or regulation to wear a prescribed uniform in the performance of official duties.
(2) In lieu of providing an allowance under paragraph (1), the Secretary may provide a uniform to a civilian employee referred to in such paragraph.
(3) This subsection shall not apply with respect to a civilian employee of the Defense Intelligence Agency who is entitled to an allowance under section 1622 of this title.
(b) Amount of allowance.--Notwithstanding section 5901(a) of title 5, the amount of an allowance paid, and the cost of uniforms provided, under subsection (a) to a civilian employee may not exceed $400 per year.
(c) Treatment of allowance.--An allowance paid, or uniform provided, under subsection (a) shall be treated in the same manner as is provided in section 5901(c) of title 5 for an allowance paid under that section.
(d) Use of appropriated funds for allowance.--Amounts appropriated annually to the Department of Defense for the pay of civilian employees may be used for uniforms, or for allowance for uniforms, as authorized by this section and section 5901 of title 5.
5 U.S.C. § 5901 provides:
§ 5901. Uniform allowances
(a) There is authorized to be appropriated annually to each agency of the Government of the United States, including a Government owned corporation, and of the government of the District of Columbia, on a showing of necessity or desirability, such sums as may be necessary to carry out this subchapter. The head of the agency concerned, out of funds made available by the appropriation, shall--
(1) furnish to each of these employees a uniform at a cost not to exceed $400 a year (or [ v55 p429 ] such higher maximum amount as the Office of Personnel Management may establish under section 5902); or
(2) pay to each of these employees an allowance for a uniform not to exceed $400 a year (or such higher maximum amount as the Office of Personnel Management may establish under section 5902).
The allowance may be paid only at the times and in the amounts authorized by the regulations prescribed under section 5903 of this title. When the agency pays direct to the uniform vendor, the head of the agency may deduct a service charge of not more than 4 percent.
(b) When the furnishing of a uniform or the payment of a uniform allowance is authorized under another statute or regulation existing on September 1, 1954, the head of the agency concerned may continue the furnishing of the uniform or the payment of the uniform allowance under that statute or regulation, but in that event a uniform may not be furnished or allowance paid under this section.
(c) An allowance paid under this section is not wages within the meaning of section 409 of title 42 or chapters 21 and 24 of title 26.
APPENDIX C
Representative sections of the two memoranda referred to in proposal O-NG-2342 follow:
HEADQUARTERS, RHODE ISLAND
NATIONAL GUARD
Armory of Mounted Commands
1051 North Main Street
Providence, RI 02904-5753
TAGRI-HR (690) 18 January 1996
MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: HRMO Information Letter No. 700-1 (Procedures for Payment and Processing Uniform Allowance to Rhode Island National Guard Technicians) (Change 1)
1. References:
a. 5 USC 5901.
b. 10 USC 1593.
c. DODI 1418.2, dated 5 May 1969.
d. DoD Financial Management Regulation, Volume 8, Chapter 3, paragraph 031501.
e. Article XXV, Agreement Between the Adjutant General of Rhode Island and the Rhode Island Chapter Association of Civilian Technicians, Inc. (RIACT)(1994-1997).
2. Under authority of references 1a and 1b, the Rhode Island National Guard has agreed within reference 1e to provide an annual uniform allowance to bargaining unit technicians employed under permanent or indefinite appointments, who are required to wear a prescribed military uniform.
****
3. Under provisions of reference 1e, the Rhode Island National Guard (RING) will pay each collective bargaining unit member a $300 uniform allowance for purchase of military uniform items authorized within Table 1 or 2, AFI 36-3014 (RIANG) or Table 1 or 2, CTA 50- 900 (RIARNG), modified under provisions of reference 1c. Payment of this allowance will be made from available Technician Pay Funding to all bargaining unit members employed under a permanent or indefinite appointment, who are required to wear a military uniform.
****
6. The following responsibilities are established:
a. The Human Resources Management Office (HRMO) is responsible to:
[perform various duties regarding payment for allowances and record-keeping].
SUBJECT:
FOR THE COMMANDER:
/ S /
ALEXANDER M. LINDSAY
COL, AV
Personnel Officer
DISTRIBUTION:
A(+ANG)
President RIACT [ v55 p430 ]
HEADQUARTERS, RHODE ISLAND
NATIONAL GUARD
Armory of Mounted Commands
1051 North Main Street
Providence, RI 02904-5753
TAGRI-HR (690) 18 January 1996
MEMORANDUM FOR SEE DISTRIBUTION
SUBJECT: Individual Bargaining Unit Member Procedures for Payment and Processing of Annual Uniform Allowance
1. References
a. 5 USC 5901.
b. 10 USC 1593
c. DODI 1418.2, dated 5 May 1969.
d. DoD Financial Management Regulation, Volume 8, Chapter 3, paragraph 031501.
e. Article XXV, Agreement Between the Adjutant General of Rhode Island and the Rhode Island Chapter Association of Civilian Technicians, Inc. (RIACT)(1994-1997).
f. Memorandum, TAGRI-HR, dated 18 January 1996, subject: HRMO Information Letter No. 700- 1 (Procedures for Payment and Processing Uniform Allowance to Rhode Island National Guard Technicians)(Change 1).
2. The purpose of this memorandum is to provide individual bargaining unit members payment, processing, and accountability guidelines associated with the annual uniform allowance authorized by references 1a and 1e and established in reference 1f.
****
FOR THE COMMANDER:
/ S /
ALEXANDER M. LINDSAY
COL, AV
Personnel Officer
APPENDIX D
Provision rejected by Agency head in 0-NG-2344:
ARTICLE XXVI
ATTIRE
Section 26.1 - Military Uniforms
a. The Employer will provide a direct exchange program for worn, torn, or soiled clothing, which occurs as a result of normal wear and tear, and which is in too bad a condition to be rendered clean and presentable in the performance of day to day duties. Duty time will be authorized for the purpose of exchanging unserviceable uniforms to the extent that a supply function is co-located at the work site and which is otherwise charged to support the technician involved.
b. Technicians in need of replacement uniforms will obtain a request for replacement uniforms from their supervisor at their immediate work area. The technician will complete the request form and return it to the said supervisor for signature. The technician shall forward the signed request to the appropriate supply source and follow up on the action. Should the technician not receive the requested uniform within 45 days of submitting it to the supply source, the technician's supervisor shall be notified. Upon said notification, the supervisor will request assistance through the technician chain of command to HRO to assist in obtaining the aforesaid uniform. HRO will coordinate directly with the Director of Logistics (DOL) (Army), or the Logistics Officer (Air), to obtain action on issuance of the uniform. If the uniform is not issued thereafter within 45 days, the Assistant Adjutant General for Army or the Assistant Adjutant General for Air, as appropriate, will be notified who will take appropriate action to obtain compliance with supply procedures. The technician will be kept fully apprised of all action being taken on his behalf during this process. TAG shall issue a policy letter emphasizing the importance of prompt action on supply request in regard to replacement uniforms. Replacement uniforms will be clean and presentable for the performance of day to day duties. A technician's supervisor will be the final authority of the acceptability of replacement uniforms. If a supervisor determines a replacement uniform is unacceptable, another uniform will be issued within the time parameters, without extension, as provided in this sub-paragraph. [ v55 p431 ]
c. If a technician requests replacement uniforms in the manner prescribed above, and the uniforms are not obtained within the time parameters, no disciplinary/adverse action will be initiated against him for reporting to work in a soiled or torn uniform.
d. Uniforms will be worn as issued by the Employer to the technician. To the extent allowed by law and regulation, the Employer will allow its resources to be utilized to affix uniform accouterments to the extent those resources are otherwise available and not being used. In cases where resources are not available and practical, technicians are responsible to affix their own accouterments.
e. Within 30 days of the execution of this Agreement by TAG, the parties shall meet for the purpose of negotiating a MOU which will allow for the issuance of four coveralls and for the implementation of a test program for utilization of disposable coveralls.
f. Paragraphs 26.1 a through c, above, do not apply to any officer technician for any period of employment for which the officer is paid a uniform allowance under 37 USC, Sections 415 or 416.
g. Uniforms, accouterments, and other allowances referred to in paragraph 26.1 (a) through (c), above, shall not be paid under Title 10, USC, Section 1593, or Title 5, USC, Section 5901, to any enlisted technician for any period of employment for which a uniform allowance is paid to the technician under Title 37, USC, Sections 415 or 416.
h. An enlisted technician not entitled to receive uniform allowances under Title 10, USC, Section 1593, or Title 5, USC, Section 5901, for a particular period of employment shall, for that period, receive the uniforms, accouterments, or allowances referenced in paragraphs 26.1(a) through (c), above, under Title 37, USC Section 418.
Footnote # 1 for 55 FLRA No. 70
The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (December 2, 1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.
Footnote # 2 for 55 FLRA No. 70
Section 418(c) of the Authorization Act of 1996 prohibited duplicative payment to enlisted members of the armed forces if payments were already provided under section 415 or 416. These sections regulate uniform allowances for officers. Thus, if read literally, the provision was meaningless. Enactment of a technical amendment to correct this problem was anticipated by the Agency in its statement of position, which was not the subject of objection by the Union in its response to the Agency's statement of position. The Agency filed a supplemental statement notifying the Union and the Authority of the subsequent enactment of the amendment. The amended section 418(c) made clear that duplicative payments may not be paid to enlisted members if payments were already provided under "this section," referring to section 418 which pertains to enlisted members.
Footnote # 3 for 55 FLRA No. 70
Pertinent provisions of section 1038, the section that comprises the amendments, are reproduced in Appendix A attached to this decision, including the changes to 37 U.S.C. §§ 417 and 418. The appendix also includes sections 415 and 416, which were not changed.
Footnote # 4 for 55 FLRA No. 70
The text of 10 U.S.C. § 1593 and 5 U.S.C. § 5901 are reproduced in Appendix B.