National Treasury Employees Union and U.S. Customs Service (Authority decision, March 2, 1990)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Customs Service required uniformed employees to buy and attach bicentennial patches to their uniforms. NTEU proposed that the agency provide patches without charging employees and reimburse the cost of attaching them. The Authority found that the proposals concerned working conditions and did not conflict with management rights. Congress had exempted Customs from the usual annual uniform allowance cap for the fiscal years at issue. The Authority held all three proposals negotiable and ordered the agency to bargain on request.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E); uniform costs under § 5901(a).
• Outcome: All three patch-cost proposals found negotiable; agency ordered to bargain on request.
• Key point: The agency could negotiate over patch and attachment costs within the applicable uniform allowance law.

Full text (FLRA public release)

[ v35 p3 ]
35:0003(1)NG

The decision of the Authority follows:

35 FLRA No. 1

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES
UNION

(Union)

and

U.S CUSTOMS SERVICE

(Agency)

0-NG-1626

DECISION AND ORDER

March 2, 1990

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of three proposals.(1)

The proposals relate to an Agency requirement that all uniformed employees purchase and affix "bicentennial" patches on their uniforms. Supplemental Submission at 2. Proposals 1 and 2 would "require the Agency to supply an unlimited number of patches at no cost to employees." Id. Proposal 3 would require the Agency to bear the cost of affixing the patches to existing uniforms. For the reasons set forth below, we find the proposals to be within the duty to bargain.

II. Proposals

Proposal 1

There will be no set limit on the number of
[bicentennial] patches which can be purchased separately from the uniform contractor.

Proposal 2

No charge will be assessed for the purchase of
patches.

Proposal 3

Customs will reimburse all employees for [the] cost of affixing patches to existing uniforms.

III. Positions of the Parties

A. The Union

The Union argues that the proposals constitute
appropriate arrangements under section 7106(b)(3) of the Statute. The Union asserts that the proposals are intended to ameliorate the adverse effects of the Agency's decision to require uniformed employees to affix bicentennial patches to their uniforms. Supplemental Submission at 1.

The Union asserts that the Agency requires employees to affix a patch to the right shoulder of each shirt and jacket. Because each patch costs $2.50 and employees own numerous shirts and jackets, the Union argues that the Agency's decision to require employees to wear patches is costly. The Union asserts that in many instances the employees are required to spend personal funds for patches. According to the Union, "[t]he annual uniform allowance of $250.00 is inadequate to replace worn or damaged garments and to supplement an employee'[s] wardrobe with required clothing." Id. at 3. The Union adds that employees could be subject to disciplinary action if they do not have patches on their uniforms. Id.

Additionally, the Union asserts that bicentennial patches are for the benefit of the Government and provide no benefit to the employee. The patches are part of the prescribed uniform. Therefore, the Union argues that public funds can be used to purchase and affix the patches to the uniforms. Id. at 4.

B. The Agency

The Agency did not respond to the Union's request for an allegation of nonnegotiability. Petition for Review at 1. In addition, the Agency did not submit a statement of position.

IV. Analysis and Conclusions

The issue in this case is whether the Agency is obligated to bargain on proposals which would require the Agency to pay for bicentennial patches and the cost of putting the patches on employees' uniforms. We find that the proposals are within the duty to bargain.

Under the Statute, an agency is obligated to bargain over proposals concerning conditions of employment provided that the proposals do not violate law, Government-wide regulation, or an agency regulation for which there is a compelling need. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6, 10 (1986), affirmed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988). Here, the Agency does not allege that the proposals do not concern conditions of employment or that they are outside the duty to bargain. Moreover, we find no basis on which to conclude that the proposals are nonnegotiable. We note that the Agency has not alleged, and we do not find, that the proposals interfere with the exercise of any management rights. Therefore, we find the proposals to be within the Agency's duty to bargain.(2)

We note that 5 U.S.C. § 5901(a) limits the amount of money that Government agencies, whose employees are required by law or regulation to wear a prescribed uniform, can spend for uniforms. 5 U.S.C.
§ 5901(a) authorizes agencies to furnish employees with uniforms at a cost not to exceed $125.00 a year or to pay each employee an allowance for uniforms not to exceed $125.00 annually. However, some agencies are exempt from the
$125.00 limit. See United States Department of Justice, Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 31 FLRA 1123, 1134 (1988) (finding the Immigration and Naturalization Service was exempt from the $125.00 limit in section 5901 for Fiscal Year 1988).

The U.S. Customs Service is an agency which Congress exempted from the $125.00 limit on uniform allowances in section 5901 for Fiscal Years 1989 and 1990. See 1989 Treasury, Postal Service and General Government Appropriations Act, Pub. L. No. 100-440, 1988 U.S. Code Cong. & Admin. News (102 Stat.) 1721, 1723; and 1990 Treasury, Postal Service and General Government Appropriations Act, Pub. L. No. 101-136, 1989 U.S. Code Cong. & Admin. News (103 Stat.) 783, 786. Thus, the Agency's discretion to negotiate employees' uniform allowances for Fiscal Years 1989 and 1990 is not restricted by the statutory limit in section 5901.

V. Order

The Agency must, upon request, or as otherwise agreed to by the parties, negotiate over the proposals.(3)

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

1. The Union requested
   permission, under section 2424.8 of the Authority's Rules and Regulations, to file a supplemental submission. The Agency did not object to our consideration of the supplemental submission. We grant the Union's request and have considered the supplemental submission in this decision.

2. In view of our finding that the proposals do not
   interfere with management's rights, it is unnecessary to consider the Union's arguments that these proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute.

3. In finding these proposals to be negotiable, we make no
   judgment as to their merits.