Decision
This document re-examines a previous ruling concerning the use of funds for National Guard Uniform purchases. Specifically, it addresses whether the Louisiana National Guard Bureau could utilize fiscal year 1992, 1993, or 1994 Operation and Maintenance funds to cover uniform expenses for military technicians in fiscal year 1995 and subsequent years. Our initial decision restricted this usage. However, upon reconsideration, and in light of updated facts and a 1996 amendment to relevant law, we have modified our stance. This revised decision clarifies that the Louisiana National Guard Board can indeed use fiscal year 1993 and 1994 funds to provide uniform allowances to technicians, provided these allowances address uniform requirements that originated during those fiscal years.
Background
As previously established, U.S. Code Title 10, Section 1593(a) empowers the Secretary of Defense to grant a uniform allowance or furnish a uniform to Department of Defense civilian employees legally mandated to wear a uniform while on duty. The statute caps the annual allowance or uniform cost at $400 per employee (10 U.S.C. Sec. 1593(b)). Funds allocated to the Department of Defense for civilian employee salaries are authorized for uniform purchases or allowances (10 U.S.C. Sec. 1593(d)). During fiscal years 1992, 1993, and 1994, National Guard military technicians, as civilian employees, were obligated to wear uniforms for their official duties. Therefore, the Department was authorized to provide uniforms or allowances under 10 U.S.C. Sec. 1593.
A dispute arose between the Louisiana National Guard and the National Federation of Federal Employees (NFFE) union, representing the military technicians, during collective bargaining negotiations. The disagreement centered on the provision of uniforms or uniform allowances. This impasse was brought before the Federal Service Impasses Panel. On May 13, 1992, the Panel mandated the inclusion of the following clause in their collective bargaining agreement:
“(1) Employees required to wear a prescribed uniform not provided by the Employer will receive an annual $400 allowance for initial purchase, upkeep, and replacement; (2) Employees required to wear a prescribed uniform furnished by the Employer shall receive uniforms valued at $400 annually.”
However, on June 9, 1992, the National Guard’s Chief, Labor and Employee Services Division, rejected the Panel’s order. The rejection cited a lack of statutory authority to provide uniforms or allowances to military technicians. Subsequently, on June 16, 1992, the union filed an unfair labor practices charge with the Federal Labor Relations Authority (FLRA), alleging violations of 5 U.S.C. Secs. 7116(a)(1) and (6).
On July 15, 1993, the FLRA sided with the union. It refuted the National Guard’s claim of lacking authority, referencing a prior case involving the Illinois National Guard which had established this authority. The FLRA ordered the National Guard to cease and desist from:
“Failing to comply with the Federal Service Impasses Panel’s Decision and Order…regarding uniform allowances and the allocation of uniforms.”
The FLRA further mandated the National Guard to:
“Comply with the Decision and Order of the Federal Service Impasses Panel…regarding uniform allowances and the allocation of uniforms.”
This FLRA order did not explicitly state retroactive application to the Panel order date.
In September 1993, the National Guard reversed its disapproval. On October 26, 1993, the collective bargaining agreement was amended to incorporate the Panel’s mandated language, effective retroactively to June 9, 1992.
Despite this agreement, immediate implementation of the uniform provision did not occur. On August 19, 1994, the Adjutant General of Louisiana announced compliance would be through providing $400 worth of uniforms annually, rather than a uniform allowance. In fiscal year 1995, the National Guard sought legal clarification regarding appropriate funding sources for this contractual uniform obligation, leading to the initial request for guidance from this office.
Discussion
In our initial decision, we noted:
“The National Guard’s obligation to provide uniforms or allowances to military technicians dates back to fiscal year 1993, potentially 1992. However, no uniforms or allowances were provided in fiscal years 1992, 1993, or 1994. Furthermore, the National Guard opted to fulfill its obligation by furnishing uniforms, not providing monetary allowances.”
We had previously assumed that the uniforms provided annually were for the current year’s obligation, not past obligations. Therefore, we concluded that the financial need arose in the year of uniform acquisition, necessitating the obligation of current funds. This led to the decision that fiscal year 1992, 1993, and 1994 funds could not be used for uniforms acquired in fiscal year 1995 or later for obligations in those later years.
The Chief Counsel argues for reconsideration based on two key points. First, the enactment of the National Defense Authorization Act for Fiscal Year 1996, specifically Section 1038, significantly altered the status of National Guard technicians and their uniform provision. This amendment to 32 U.S.C. Sec. 709(b) established technicians as National Guard members in specific military grades, mandated to wear the appropriate uniform. Concurrently, amendments to 37 U.S.C. Secs. 417 and 418 shifted uniform provision (or allowances) for technicians to fall under Title 37 authority, eliminating the applicability of 10 U.S.C. Sec. 1593. The Chief Counsel explains:
“Due to these legal changes, the authority to use Operation & Maintenance (O&M) funds under 10 U.S.C Sec. 1593 for dual-status National Guard technician uniforms or allowances…no longer exists. Current and future uniform needs for technicians, arising from both military and technician duties, must now be met from military personnel funds…”
Secondly, the Chief Counsel clarifies that, contrary to our initial assumption, the National Guard intends to utilize O&M funds specifically to address uniform obligations from prior fiscal years. He states:
“The National Guard plans to use O&M funds to purchase technician uniforms in the current fiscal year solely to satisfy obligations that arose and remained unmet under collective bargaining agreements predating the statutory amendments…”
Further information from the Chief Counsel’s office confirms that the United States Property and Fiscal Officer (USPFO) for Louisiana has agreed to provide uniform allowances, not uniforms, for fiscal years 1992, 1993, and 1994.
These clarifications necessitate a reconsideration of our June 1997 decision. The legal amendments and the National Guard’s stated intentions indicate that uniform purchases are not for current collective bargaining agreement requirements. Instead, uniform allowances are intended to fulfill obligations solely from pre-amendment years. Therefore, the central question becomes whether fiscal year 1992, 1993, and 1994 funds remain available for these uniform allowances.
Army and Air National Guard Operation and Maintenance appropriations are designated as the funding source for these uniform provisions. These are annual appropriations, available for new obligations only within the fiscal year enacted. However, balances remain available for an additional five years for “recording, adjusting, and liquidating obligations properly chargeable to that account” (31 U.S.C. Sec. 1553(a)). Thus, if uniform allowance obligations were incurred in fiscal years 1993 and 1994, the corresponding Operation and Maintenance appropriations are still available for payment.
A legal obligation arises when a definite commitment creates a legal liability for the U.S. Government to expend appropriated funds for goods or services (B-116795, June 18, 1954). In this context, the duty to provide uniforms or allowances arose when the National Guard became legally obligated to do so. To determine when this obligation occurred, we must examine the authority and effect of the Federal Service Impasses Panel’s order.
The Federal Service Impasses Panel, within the FLRA, mediates negotiation impasses between agencies and unions (5 U.S.C. Sec. 7119(c)(1)). Parties can request Panel involvement when voluntary resolution fails (5 U.S.C. Sec. 7119(b)). The Panel can employ methods and procedures deemed appropriate to resolve impasses (5 U.S.C. Sec. 7119 (c)(5)(A)(ii)). If agreement remains elusive, the Panel is empowered to:
“(i) hold hearings; (ii) administer oaths, take testimony or depositions, and issue subpoenas…; and (iii) take necessary action consistent with 5 U.S.C. Chapter 71 to resolve the impasse.” (5 U.S.C. Sec. 7119(c)(5)(B)).
Panel decisions are binding during the collective bargaining agreement term, unless parties agree otherwise (5 U.S.C. Sec. 7119(c)(5)(C)).
Implementing regulations further specify that if Panel assistance fails to achieve settlement, “the Panel may take necessary action…including directing acceptance of factfinder recommendations, ordering binding arbitration, and rendering a binding decision” (5 C.F.R. Sec. 2471.11(a)). The binding nature of the Panel’s final action is reiterated, subject to mutual agreement otherwise.
U.S.C. Title 5, Section 7114(c) mandates agency head approval for agreements between agencies and unions. Approval is required within 30 days of agreement execution if consistent with 5 U.S.C. Chapter 71 and other applicable laws and regulations (5 U.S.C. Sec. 7114(c)(2)). Failure to approve or disapprove within 30 days renders the agreement effective and binding. The FLRA has determined that when a Panel decision resolves all issues, the Panel order date is considered the agreement execution date for agency head review under 5 U.S.C. Sec. 7114(c) (See: American Federation of Government Employees and Department of Veterans Affairs, 40 FLRA 195 (1991); …). In this case, the Panel viewed its order as final and subject to agency head review upon issuance.
The Panel’s order was issued May 13, 1992, during fiscal year 1992. Had the National Guard approved or remained inactive for 30 days, the order would have become binding by June 13, 1992. In such a scenario, National Guard appropriations would be considered obligated for uniform allowances from June 13, 1992, regardless of the formal agreement amendment date. However, on June 9, 1992, within the 30-day review period, the National Guard disapproved the order.
Agency head disapproval under 5 U.S.C. Sec. 7114(c)(2) is permissible only if an agreement, including Panel-ordered provisions, is inconsistent with law. The National Guard’s disapproval cited a lack of statutory authority to provide uniform allowances. However, the FLRA, in its unfair labor practice ruling, referenced prior precedent establishing the National Guard’s authority to implement near-identical uniform provisions. Thus, the FLRA effectively determined the agency head’s disapproval lacked legitimate legal basis under 5 U.S.C. Sec. 7114(c)(2).
As the disapproval was deemed beyond the agency head’s authority under 5 U.S.C. Sec. 7114(c), it was legally ineffective. Therefore, the Panel’s order became final on June 13, 1992, under 5 U.S.C. Sec. 7114(c)(3). Consequently, the National Guard’s fiscal year 1992 Operation and Maintenance appropriations were obligated for the cost of uniform allowances mandated for technicians in that year. This obligation extended to fiscal years 1993 and 1994, corresponding to the continued uniform requirement under the collective bargaining agreement.
The National Guard must adjust its financial records under 31 U.S.C. Sec. 1553 to reflect these previously unrecorded obligations. It is important to note that the fiscal year 1992 appropriation accounts closed on September 30, 1997, under 31 U.S.C. Sec. 1552(a), and are no longer available for any expenditure.
The Chief Counsel also requested clarification on other issues initially raised by the USPFO for Louisiana regarding the propriety of National Guard compliance with collective bargaining agreements and the Panel order. As previously communicated to the USPFO on October 25, 1996, the “exclusivity” provision of the Civil Service Reform Act, 5 U.S.C. Sec. 7121(a), limits our jurisdiction in matters properly under the purview of the FLRA or other administrative bodies. Therefore, we are precluded from addressing questions concerning the appropriateness of implementing the Panel order or the amended collective bargaining agreement.
Comptroller General of the United States
Footnotes:
- Fiscal year 1992 appropriation account closed September 30, 1997 (31 U.S.C. Sec. 1552(a)).
- Clarified by section 654 of the National Defense Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, 110 Stat. 2422, 2583.
- Fiscal year availability for obligations:
| Fiscal Year | Incurring new obligations | Recording, adjusting, and liquidating existing obligations |
|---|---|---|
| 1992 | September 30, 1992 | Account Closed September 30, 1997 (31 U.S.C. Sec. 1552(a)) |
| 1993 | September 30, 1993 | September 30, 1998 |
| 1994 | September 30, 1994 | September 30, 1999 |
