BNUMBER:  B-265901 
DATE:  October 14, 1997
TITLE: National Guard--Fiscal Year to be Charged for Mandated, B-
265901, October 14, 1997
**********************************************************************

Matter of:National Guard--Fiscal Year to be Charged for Mandated 
          Uniform Purchases (Reconsideration)

File:     B-265901

Date:October 14, 1997

DIGEST

The National Guard Bureau, Louisiana, may use its fiscal year 1993 and 
1994 Operation and Maintenance appropriations to pay uniform 
allowances to National Guard military technicians.  Under 31 U.S.C.  sec.  
1553(a), balances in annual appropriations accounts remain available 
for five years after they expire for recording, adjusting or 
liquidating obligations properly made during their period of 
availability.  The order of the Federal Service Impasses Panel, dated 
May 13, 1992, requiring the National Guard and the National Federation 
of Federal Employees to include a provision in their yearly collective 
bargaining agreement entitling military technicians to receive either 
a uniform or a uniform allowance each year, obligated fiscal year 1993 
and 1994 funds to the extent of payments of uniform allowance for 
those years.

DECISION

The Chief Counsel, National Guard Bureau, Departments of the Army and 
the Air Force requests that we reconsider our decision, National 
Guard--Fiscal Year to be Charged for Mandated Uniform Purchases, 
B-265901, June 30, 1997.  In that decision we decided that the 
Louisiana National Guard Bureau could not use its fiscal year 1992, 
1993 or 1994 Operation and Maintenance funds to pay for uniforms 
provided to military technicians in fiscal years 1995 or later.  The 
Chief Counsel asks that we modify our decision based on his 
restatement of the facts and a 1996 amendment to the law applicable to 
this matter.  For the reasons indicated below, we conclude that the 
Louisiana National Guard Board may use fiscal year 1993 and 1994 funds 
to pay uniform allowances to technicians so long as those allowances 
are paid to fulfill requirements that arose in those years.[1]

Background

As we indicated in our earlier decision, under 10 U.S.C.  sec.  1593(a) the 
Secretary of Defense is authorized to pay an allowance, or to provide 
a uniform, to each civilian employee of the Department of Defense who 
is required by law to wear a uniform while performing official duties.  
The amount of allowance paid and the cost of the uniforms provided to 
each employee "may not exceed $400 per year."  10 U.S.C.  sec.  1593(b).  
Amounts appropriated to the Department of Defense for the pay of 
civilian employees are available to purchase uniforms or to provide a 
uniform allowance.  10 U.S.C.  sec.  1593(d).  During fiscal years 1992, 
1993 and 1994, National Guard military technicians were civilian 
employees required to wear uniforms in performing their official 
duties.  Therefore, the Department could provide them a uniform 
allowance or uniforms under 10 U.S.C.  sec.  1593.

A Louisiana local of the National Federation of Federal Employees 
(union) is the collective bargaining unit representing military 
technicians working for the National Guard in Louisiana.  In 
negotiating a collective bargaining agreement, the National Guard and 
the union reached an impasse over the amount, if any, that should be 
spent providing uniforms or uniform allowances to technicians.  The 
parties submitted their dispute to the Federal Service Impasses Panel 
for resolution.  After considering arguments of the parties, the Panel 
issued its decision on May 13, 1992.  The Panel ordered the parties to 
include the following provision in their collective bargaining 
agreement:

     "(1) For those employees who are required to wear a prescribed 
     uniform not furnished by the Employer, an annual allowance of 
     $400 shall be provided for the initial purchase, upkeep, and 
     replacement of such uniforms; (2) for those employees who are 
     required to wear a prescribed uniform which is furnished by the 
     Employer, it shall provide each year uniforms worth $400."

Department of Defense, National Guard Bureau, Louisiana Army and Air 
Force National Guard, Jackson Barracks, New Orleans, Louisiana and 
Council of Louisiana National Guard Locals, National Federation of 
Federal Employees, Case No. 92 FSIP 85 (Federal Service Impasses 
Panel, 1992).

On June 9, 1992, the Chief, Labor and Employee Services Division for 
the National Guard, acting on behalf of the agency head, issued a 
letter disapproving and  refusing to adopt and implement the Panel's 
order.  The stated reason for disapproving the order was that the 
National Guard had no statutory authority to provide uniforms or 
uniform allowances to military technicians.  On June 16, 1992, the 
union filed an unfair labor practices charge with the Federal Labor 
Relations Authority (FLRA), arguing that the National Guard violated 5 
U.S.C.  sec.  7116(a)(1) and (6) by refusing to adopt and implement the 
Panel's decision.  

The FLRA, on July 15, 1993, issued its decision and order agreeing 
with the union that the National Guard's refusal to implement the 
Panel's decision constituted an unfair labor practice.  The FLRA 
rejected the National Guard argument that it had no authority to 
comply with the order, indicating that this issue had previously been 
resolved in favor of the union in a case involving the Illinois 
National Guard.  The FLRA ordered the National Guard to cease and 
desist from 

     "Failing and refusing to comply with the Decision and Order of 
     the Federal Service Impasses Panel in Case No. 92 FSIP 85 by 
     failing and refusing to adopt the language ordered by the Panel 
     regarding the payment of uniform allowances and the allocation of 
     uniforms."

The FLRA further ordered the National Guard to

     "Comply with the Decision and Order of the Federal Service 
     Impasses Panel in Case No. 92 FSIP 85 by adopting the language 
     ordered by the Panel regarding the payment of uniform allowances 
     and the allocation of uniforms."

National Guard Bureau and National Federation of Federal Employees, 47 
FLRA 109 at p. 1177 (July 15, 1993).  The FLRA order did not specify 
that it was retroactive to the date of the Panel order.

In September 1993, the National Guard withdrew its disapproval of the 
Panel order.  On October 26, 1993, the parties amended their 
collective bargaining agreement to include the language contained in 
the Panel order.  The amendment stated that it was effective June 9, 
1992 (the date that the National Guard had originally refused to adopt 
the Panel order).

The uniform provision in the collective bargaining agreement was not 
immediately implemented.  On August 19, 1994, the Adjutant General of 
Louisiana issued a memorandum indicating that the National Guard would 
comply with the uniform requirement by providing $400 worth of 
uniforms, rather than a uniform allowance, each year.  In fiscal year 
1995, the National Guard sought legal guidance from its counsel on the 
proper funds to use to fulfill the contractual uniform requirement.  
Counsel recommended that guidance be sought from this office 
concerning the funding of the uniform provision arising by virtue of 
the order of the Federal Service Impasses Panel.

Discussion

In our earlier decision, we stated:

     "The National Guard's responsibility to provide uniforms or 
     uniform allowances to military technicians dates back to fiscal 
     year 1993 and possibly to 1992.  However, it did not provide 
     uniforms or uniform allowances to technicians in fiscal year 
     1992, 1993 or 1994.  Further, the National Guard has decided it 
     will fulfill its responsibility only by furnishing uniforms to 
     technicians; it will not provide them with monetary uniform 
     allowances."

Further, we assumed that the uniforms that the National Guard would be 
providing to technicians each year would be in fulfillment of its 
collective bargaining obligation for that year, not its obligation for 
earlier years.  We therefore concluded that the National Guard's bona 
fide need to provide uniforms to its technicians under the collective 
bargaining agreement arises in the year it acquires those uniforms, 
and that it must obligate the funds current at that time for the cost 
of the uniforms.  It followed that the National Guard could not use 
its fiscal year 1992, 1993 or 1994 funds to pay for uniforms it 
acquired in fiscal year 1995 or later to fulfill its responsibility 
under the collective bargaining agreement for those later years.

The Chief Counsel argues that we should amend our earlier decision for 
two reasons.  First, he points out that in 1996 the Congress enacted 
legislation that changed the status of National Guard technicians and 
the manner in which they are to receive uniforms.  Section 1038 of the 
National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 
104-106, 110 Stat. 186, 432 (1996), is titled "Wearing of Uniforms by 
National Guard Technicians."[2]  It amended 32 U.S.C.  sec.  709(b) to 
provide that technicians are (1) members of the National Guard, (2) 
holding the specified military grade for that position, and (3) must 
wear the uniform appropriate for that grade.  It also amended 37 
U.S.C.  sec.  417 and 418 to provide that technicians would receive 
uniforms (or allowances) under the authority of title 37 and could no 
longer be paid uniform allowances or receive uniforms under     10 
U.S.C.  sec.  1593.  The Chief Counsel then states:

     "Based on the aforementioned changes in law, the authority to use 
     O&M funds to provide dual-status National Guard technicians with 
     uniforms or a uniform allowance under 10 U.S.C  sec.  1593 . . . no 
     longer exists.  The only uniform authorities that now apply to 
     technicians are those that apply to military members in general, 
     and therefore, the uniform needs of technicians in the current 
     fiscal year and future fiscal years arising from their duties 
     both as military members and as National Guard technicians can 
     only be satisfied from military personnel funds . . . ."

Second, the Chief Counsel points out that contrary to the assumption 
in our earlier decision, the National Guard is planning to use O&M 
funds to provide uniforms to technicians in fulfillment of its 
requirements to do so in earlier fiscal years.  He states:

     "The only reason the National Guard is planning to use O&M funds 
     to purchase uniforms for technicians in the current fiscal year 
     is to satisfy the obligations that arose, but were not satisfied, 
     under collective bargaining agreements applicable to the fiscal 
     years prior to the [statutory] amendments discussed above . . . 
     ."

Further, subsequent to our receiving the Chief Counsel's letter, 
representatives of his office informed us that the United States 
Property and Fiscal Officer (USPFO) for Louisiana has now agreed to 
pay uniform allowances, rather than providing uniforms, for fiscal 
years 1992, 1993 and 1994.

Based on the Chief Counsel's letter, we must reconsider our June 1997 
decision.  The amendments to the law, as well as the Chief Counsel's 
statement of the National Guard's intentions, indicate that contrary 
to our assumptions in our earlier decision the Guard will not be 
purchasing uniforms to fulfill its current requirements under the 
collective bargaining agreement.  Rather, the Guard will be paying 
uniform allowances to fulfill the obligations arising under the 
collective bargaining agreements only for the years prior to the 
amendment of the law.  We, therefore, must determine whether fiscal 
year 1992, 1993 and 1994 funds are still available to pay for uniform 
allowances to National Guard technicians.

According to the original National Guard submission, the uniforms 
provided or uniform allowances paid each year to military technicians 
under the modified terms of the collective bargaining agreement are 
chargeable to the Operation and Maintenance appropriations of the Army 
and Air National Guards.  The Operation and Maintenance appropriations 
are annual appropriations.  They are available to incur new 
obligations only during the fiscal year for which they are enacted.  
After the expiration of that one-year period of availability, the 
balances in the annual appropriation accounts remain available for an 
additional period of five years "for recording, adjusting, and 
liquidating obligations properly chargeable to that account."  31 
U.S.C.  sec.  1553 (a).[3]  Therefore, if obligations for the cost of 
paying uniform allowances to union members were incurred in fiscal 
years 1993 and 1994, the Operation and Maintenance appropriations for 
those years may still be used to pay for those uniforms.

We have said that an obligation exists when there is a definite 
commitment which creates a legal liability on behalf of the United 
States to pay appropriated funds for goods or services.  B-116795, 
June 18, 1954.  In the context of this case, the duty to either 
provide uniforms or pay a uniform allowance arose when the National 
Guard was legally required to provide those uniforms or pay 
allowances.  To answer the issue now before us, namely, when an 
obligation arose to pay an allowance, we must determine the authority 
of the Panel and the effect of its order.

The Federal Service Impasses Panel is an entity within the FLRA, the 
function of which is to help resolve negotiating impasses between 
agencies and unions.          5 U.S.C.  sec.  7119(c)(1).  Either or both 
parties may request the involvement of the Panel when other voluntary 
arrangements have failed to resolve an impasse.         5 U.S.C.  sec.  
7119(b).  The Panel is authorized to assist the parties in resolving 
the impasse "through whatever methods and procedures . . . it may 
consider appropriate . . ."  5 U.S.C.  sec.  7119 (c)(5)(A)(ii).  If the 
parties do not reach agreement after assistance by the Panel, the 
Panel is authorized to:

     "(i) hold hearings;
     "(ii) administer oaths, take the testimony or deposition of any 
     person under oath, and issue subpoenas . . . ; and
     "(iii) take whatever action is necessary and not inconsistent 
     with this chapter [5 U.S.C. Chapter 71--Labor-Management 
     Relations] to resolve the impasse."

5 U.S.C.  sec.  7119(c)(5)(B).  Final action taken by the Panel "shall be 
binding on such parties during the term of the [collective bargaining] 
agreement, unless the parties agree otherwise."  5 U.S.C.  sec.  
7119(c)(5)(C).

The regulations implementing the Panel's authorities provide that if 
the parties do not reach a settlement as a result of assistance 
provided by the Panel, 

     "the Panel may take whatever action is necessary and not 
     inconsistent with 5 U.S.C. chapter 71 to resolve the impasse, 
     including but not limited to, methods and procedures which the 
     Panel considers appropriate, such as directing the parties to 
     accept a factfinder's recommendations, ordering binding 
     arbitration conducted according to whatever procedure the Panel 
     deems suitable, and rendering a binding decision."

5 C.F.R.  sec.  2471.11(a).  The regulation repeats the statutory 
pronouncement that the Panel's final action shall be binding on the 
parties during the term of the collective bargaining agreement, unless 
they agree otherwise.

Section 7114(c) of Title 5 provides that an agreement between an 
agency and a union shall be subject to approval by the head of the 
agency.  The agency must approve the agreement within 30 days "from 
the date the agreement is executed" if it is consistent with 5 U.S.C. 
chapter 71 and all other applicable laws, rules and regulations.  5 
U.S.C.  sec.  7114(c)(2).  If the head of the agency does not approve or 
disapprove the agreement within 30 days from its execution, the 
agreement shall take effect and be binding on the government and the 
union.  The FLRA has determined that in instances in which a final 
decision of the Panel resolves all issues between the parties and 
there is nothing left for them to negotiate, the date of the Panel 
order shall be considered the date on which the parties' agreement was 
executed for the purpose of 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); American 
Federation of Government Employees and Department of Veterans Affairs, 
39 FLRA 1055 (1991); National Treasury Employees Union and Federal 
Deposit Insurance Corporation, 39 FLRA 848 (1991); International 
Organization of Masters, Mates and Pilots and Panama Canal Commission, 
36 FLRA 555 (1990).  In its decision in this case, the Panel indicated 
its view that under the FLRA precedents its order would be final and 
subject to agency head review as of the date of its issuance.

The Panel's order was issued May 13, 1992, during fiscal year 1992.  
Had the National Guard approved the Panel's order, or had 30 days 
elapsed without it taking any action, the order would have been 
binding on both the National Guard and the union.  In such instance we 
would consider the National Guard's appropriations to be obligated for 
the costs of paying uniform allowances no later than June 13, 1992, 
the thirty-first day after the Panel's order, regardless of when the 
parties actually modified their collective bargaining agreement 
consistent with the Panel's order.  However, on June 9, 1992, within 
the 30-day statutory review period, the National Guard disapproved and 
refused to implement the Panel's order.

Under 5 U.S.C.  sec.  7114(c)(2) an agency head can refuse to approve a 
collective bargaining agreement, including provisions included in an 
agreement under an order of the Panel, only if it is inconsistent with 
law.  In disapproving the Panel's order in this case the National 
Guard asserted that it had no statutory authority to provide uniform 
allowances to military technicians and thus could not comply with the 
order.  However, in determining that the National Guard's refusal to 
approve the order constituted an unfair labor practice, the FLRA 
indicated that it had already been determined in a previous case that 
the National Guard did have statutory authority to implement a uniform 
provision nearly identical to the one ordered by the Panel here.  
Therefore, the FLRA determined, in effect, that the National Guard 
agency head did not have a legitimate basis for disapproving the Panel 
order under 5 U.S.C.  sec.  7114(c)(2).

Since the disapproval of the Panel order was beyond the agency head's 
authority under 5 U.S.C.  sec.  7114(c), it had no legal effect.  
Therefore, the Panel's order became final on June 13, 1992, under 5 
U.S.C.  sec.  7114(c)(3).  It follows that the National Guard fiscal year 
1992 Operation and Maintenance appropriations were obligated, in an 
amount equal to the cost of paying the uniform allowances required to 
be paid to technicians during that year under the provision mandated 
by the Panel.  Further, since the uniform requirement continued in 
effect under the collective bargaining agreement for fiscal years 1993 
and 1994, the Operation and Maintenance appropriations were obligated 
for those years, in the amounts equal to the costs of paying 
allowances during those years.

The National Guard should adjust its books under 31 U.S.C.  sec.  1553 to 
reflect these previously unrecorded obligations.  We note that the 
fiscal year 1992 appropriation accounts closed on September 30, 1997, 
under 31 U.S.C.  sec.  1552(a), and may no longer be used for any purpose.

In his letter, the Chief Counsel also asks that we address other 
issues presented in the original submission by the USPFO for Louisiana 
relating to the propriety of the National Guard complying with the 
collective bargaining agreements and the order of the Panel.  As we 
indicated in a letter to the USPFO, dated October 25, 1996, the 
"exclusivity" provision of the Civil Service Reform Act, 5 U.S.C.  sec.  
7121(a), deprived the General Accounting Office of jurisdiction to 
consider any matter that is properly within the jurisdiction of the 
FLRA or other administrative body.  We are therefore precluded from 
answering any questions regarding the propriety of implementing the 
Panel order or the amended collective bargaining agreement.

Comptroller General 
of the United States

1. Under 31 U.S.C.  sec.  1552(a), the fiscal year 1992 appropriation 
account was closed September 30, 1997, and is therefore no longer 
available for any purpose.

2. As clarified by section 654 of the National Defense Authorization 
Act for Fiscal Year 1997, Pub. L. No. 104-201, 110 Stat. 2422, 2583.

3. For the three fiscal years mentioned in the submission, the final 
dates of availability for incurring new obligations and for recording, 
adjusting, and liquidating existing obligations are set forth in the 
following table:
               
       Fiscal YearIncurring  new obligationsRecording, adjusting, and 
                                        liquidating existing 
                                        obligations
                                        
       1992    September 30, 1992       Account Closed September 30, 
                                        1997 under 31 U.S.C.  sec.  1552(a)

       1993    September 30, 1993       September 30, 1998

       1994    September 30, 1994       September 30, 1999