[ v08 p740 ]
08:0740(126)CA
The decision of the Authority follows:
8 FLRA No. 126
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 916, AFL-CIO
Charging Party
Case No. 6-CA-725
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT, AND
RECOMMENDING THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTION. THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE
JUDGE'S DECISION.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD IN THIS CASE, THE AUTHORITY
HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS, AS
MODIFIED HEREIN.
THE AMENDED COMPLAINT ALLEGED THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (5) OF THE STATUTE /1/ BY UNILATERALLY CHANGING EXISTING
CONDITIONS OF EMPLOYMENT REGARDING A POLICY ON FACIAL HAIR AND
RESPIRATOR USE WITHOUT GIVING THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 919, AFL-CIO (THE UNION) NOTICE OF AND AN OPPORTUNITY
TO BARGAIN ON SUCH CHANGES OR ON THE IMPACT AND IMPLEMENTATION THEREOF,
AND BY BREACHING THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.
THE JUDGE FOUND (1) THAT, PRIOR TO APRIL 17, 1980, THE RESPONDENT HAD
A WRITTEN POLICY, ESTABLISHED WITH THE UNION'S AGREEMENT, OF PERMITTING
EMPLOYEES WHO ARE REQUIRED TO USE RESPIRATORS IN THEIR WORK TO HAVE
FACIAL HAIR AS LONG AS IT WAS TRIMMED SO AS NOT TO INTERFERE WITH THE
RESPIRATOR SEALING SURFACE AS DETERMINED BY THE RESPONDENT DURING THE
RESPIRATOR FIT TEST; (2) THAT THE RESPONDENT UNILATERALLY CHANGED THE
FOREGOING POLICY BY THEREAFTER INSISTING THAT EMPLOYEES USING THE
RESPIRATOR BE CLEAN SHAVEN AND BY DISCONTINUING THE RESPIRATOR FIT TEST
FOR ANY EMPLOYEES WITH FACIAL HAIR; AND (3) THAT SUCH CHANGES IN THE
ESTABLISHED FACIAL HAIR. THE JUDGE CONCLUDED, BASED ON THE FOREGOING,
THAT THE RESPONDENT'S UNILATERAL CHANGE IN THE FACIAL HAIR AND
RESPIRATOR USE POLICY WITHOUT NOTICE TO OR BARGAINING WITH THE UNION
REGARDING THE IMPACT AND IMPLEMENTATION OF SUCH DECISION TO CHANGE THE
POLICY CONSTITUTED A VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE
STATUTE. HE FURTHER CONCLUDED THAT THE RESPONDENT'S CONDUCT IN
COMPLETELY DISREGARDING THE EXCLUSIVE REPRESENTATIVE AND IMPLEMENTING
CHANGES IN WORKING CONDITIONS WAS A CLEAR AND PATENT BREACH OF A CLAUSE
IN THE PARTIES' COLLECTIVE BARGAINING AGREEMENT THAT PROVIDED THAT
EMPLOYEES COULD MAINTAIN FACIAL HAIR IF PROPERLY TRIMMED, AND THEREFORE
VIOLATED SECTION 7116(A)(1) AND (5). IN SO CONCLUDING, HE REJECTED THE
RESPONDENT'S CONTENTION THAT THERE WAS NO REQUIREMENT TO BARGAIN SINCE
THE USE OF THE RESPIRATOR INVOLVES THE "TECHNOLOGY, METHODS, AND MEANS
OF PERFORMING WORK" WITHIN THE MEANING OF SECTION 7106(B)(1) OF THE
STATUTE, /2/ NOTING THAT THE ISSUE WAS NOT ABOUT RESPIRATOR USE PER SE
BUT RATHER THE EFFECT OF A CHANGE IN FACIAL HAIR POLICY ON UNIT
EMPLOYEES WHO ARE REQUIRED TO USE THE RESPIRATOR.
THE AUTHORITY AGREES WITH THE JUDGE'S CONCLUSION THAT THE RESPONDENT
VIOLATED SECTION 7116(A)(1) AND (5) OF THE STATUTE. THUS, AS FOUND BY
THE JUDGE, THE MATTER AT ISSUE HEREIN DOES NOT ESSENTIALLY INVOLVE
WHETHER, HOW OR WHEN THE RESPIRATOR WILL BE USED BY EMPLOYEES IN
PERFORMING THEIR WORK. ACCORDINGLY, CONTRARY TO THE RESPONDENT'S
CONTENTION, THIS CASE DOES NOT INVOLVE "THE TECHNOLOGY, METHODS, AND
MEANS OF PERFORMING WORK." /3/ RATHER, THIS CASE CONCERNS THE
RESPONDENT'S UNILATERAL CHANGE IN THE ESTABLISHED CONDITION OF
EMPLOYMENT /4/ THAT EMPLOYEES COULD WEAR TRIMMED FACIAL HAIR WHILE USING
THE RESPIRATOR AS LONG AS THE FACIAL HAIR DID NOT PREVENT A PROPER FIT.
INASMUCH AS THE RESPONDENT IMPLEMENTED SUCH CHANGE IN A MATTER AFFECTING
THE WORKING CONDITIONS OF BARGAINING UNIT EMPLOYEES WITHOUT NOTIFYING
THE UNION OF THE INTENDED CHANGE AND WITHOUT BARGAINING IN GOOD FAITH
CONCERNING BOTH THE DECISION TO DO SO AND THE IMPACT AND IMPLEMENTATION
OF SUCH DECISION, AS REQUIRED BY THE STATUTE, THE AUTHORITY CONCLUDES
THAT THE RESPONDENT THEREBY VIOLATED SECTION 7116(A)(1) AND (5) AS
ALLEGED. SEE DEPARTMENT OF THE AIR FORCE, SCOTT AIR FORCE BASE,
ILLINOIS, 5 FLRA NO. 2(1981). /5/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE AIR FORCE, OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER
AIR FORCE BASE, OKLAHOMA, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY INSTITUTING A CHANGE IN THE POLICY ON FACIAL HAIR
APPLICABLE TO EMPLOYEES REQUIRED TO USE A RESPIRATOR IN THEIR WORK
WITHOUT AFFORDING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
916, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
NOTICE OF AND AN OPPORTUNITY TO BARGAIN OVER THE CHANGE AND ITS IMPACT
AND IMPLEMENTATION.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) RESCIND THE APRIL 17, 1980 POLICY ON FACIAL HAIR APPLICABLE TO
EMPLOYEES REQUIRED TO USE A RESPIRATOR IN THEIR WORK, NOTIFY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916, AFL-CIO, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, OF ANY INTENDED CHANGE WITH
RESPECT TO SUCH FACIAL HAIR POLICY, AND, UPON REQUEST, BARGAIN IN GOOD
FAITH ON THE SUBSTANCE AND THE IMPACT AND IMPLEMENTATION OF SAID CHANGE.
(B) POST AT ITS TINKER AIR FORCE BASE, OKLAHOMA FACILITY, COPIES OF
THE ATTACHED NOTICE, ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR
RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY
THE COMMANDING OFFICER AND SHALL BE POSTED AND MAINTAINED FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. RESPONDENT SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION VI OF THE FEDERAL LABOR
RELATIONS AUTHORITY IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., MAY 26, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7116(A)(1) AND (5) PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
* * * *
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THE CHAPTER(.)
/2/ SECTION 7106(B)(1) PROVIDES IN PERTINENT PART:
SEC. 7106. MANAGEMENT RIGHTS.
* * * *
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, . . . ON THE TECHNOLOGY, METHODS,
AND MEANS OF
PERFORMING WORK(.)
/3/ SEE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL
EMPLOYEES, AFL-CIO, LOCAL 2477 AND LIBRARY OF CONGRESS, WASHINGTON, D.C.
7 FLRA NO. 89(1982), WHEREIN THE AUTHORITY DETERMINED THAT "THE
TECHNOLOGY . . . OF PERFORMING WORK" UNDER SECTION 7106(B)(1) "MEANS THE
AUTHORITY OF THE AGENCY TO DETERMINE THE TECHNICAL METHOD THAT WILL BE
USED IN ACCOMPLISHING OR FURTHERING THE PERFORMANCE OF THE AGENCY'S
WORK."
/4/ SECTION 7103(A)(14) OF THE STATUTE DEFINES "CONDITIONS OF
EMPLOYMENT" AS "PERSONNEL POLICIES, PRACTICES, AND MATTERS, WHETHER
ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
CONDITIONS . . . ." SEE UTAH ARMY NATIONAL GUARD, 7 FLRA NO. 125(1982),
WHEREIN THE AUTHORITY HELD THAT, SINCE NATIONAL GUARD TECHNICIANS ARE
COVERED BY THE PROVISIONS OF THE STATUTE RELATING TO "CONDITIONS OF
EMPLOYMENT" WHILE PERFORMING TECHNICIAN DUTIES IN THEIR FEDERAL CIVILIAN
EMPLOYEE CAPACITY, MANAGEMENT IMPROPERLY CHANGED A PAST PRACTICE OF
PERMITTING SUCH TECHNICIANS TO GROW BEARDS DURING THE DEER HUNTING
SEASON.
/5/ IN VIEW OF THE FOREGOING CONCLUSION, IT IS UNNECESSARY TO REACH
OR PASS UPON THE JUDGE'S FINDING THAT THE RESPONDENT'S CONDUCT ALSO
CONSTITUTED A CLEAR AND PATENT BREACH OF THE PARTIE'S AGREEMENT IN
VIOLATION OF SECTION 7116(A)(1) AND (5). BUT SEE FEDERAL AVIATION
ADMINISTRATION, ALASKAN REGIONAL OFFICE, 7 FLRA NO. 23(1981), ISSUED
SUBSEQUENT TO THE JUDGE'S DECISION HEREIN.
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY CHANGE THE POLICY ON FACIAL HAIR APPLICABLE
TO EMPLOYEES REQUIRED TO USE A RESPIRATOR IN THEIR WORK WITHOUT
AFFORDING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916,
AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES, NOTICE
AND AN OPPORTUNITY TO BARGAIN OVER THE CHANGE AND ITS IMPACT AND
IMPLEMENTATION.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND THE APRIL 17, 1980 POLICY ON FACIAL HAIR APPLICABLE
TO EMPLOYEES REQUIRED TO USE A RESPIRATOR IN THEIR WORK, NOTIFY THE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916, AFL-CIO, OR ANY
OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES OF ANY INTENDED CHANGE
WITH RESPECT TO SUCH FACIAL HAIR POLICY, AND, UPON REQUEST, BARGAIN IN
GOOD FAITH ON THE SUBSTANCE AND THE IMPACT AND IMPLEMENTATION OF ANY
CHANGE IN THAT POLICY.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, REGION VI, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE
ADDRESS IS: BRYAN & ERVAY STREET, ROOM 450, P.O. BOX 2640, DALLAS,
TEXAS 75221 AND WHOSE TELEPHONE NUMBER IS: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES DEPARTMENT OF DEFENSE
DEPARTMENT OF THE AIR FORCE
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
RESPONDENT
AND
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 916, AFL-CIO
CHARGING PARTY
CASE NO. 6-CA-725
ELIZABETH MARTINEZ
SUAN JELEN, ESQS.
FOR THE GENERAL COUNSEL
MAJOR JERRY M. BRASEL, ESQ.
MR. NEAL HAMBLETON
AND MR. RICHARD SCHAMAHORN
FOR THE RESPONDENT
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C. 7101
ET SEQ. (HEREINAFTER REFERRED TO AS THE STATUTE) AND THE RULES AND
REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY, 5 C.F.R. CHAPTER
XIV, 2411 ET SEQ.
ON NOVEMBER 28, 1980, THE REGIONAL DIRECTOR FOR REGION 6 OF THE
FEDERAL LABOR RELATIONS AUTHORITY (HEREIN CALLED THE AUTHORITY) PURSUANT
TO A CHARGE ORIGINALLY FILED BY THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916 (HEREINAFTER CALLED THE UNION) ON
SEPTEMBER 10, 1980, AGAINST UNITED STATES DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE AIR FORCE, OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER
AIR FORCE BASE, OKLAHOMA (HEREIN CALLED THE RESPONDENT) HAD ENGAGED IN
AN UNFAIR LABOR PRACTICE IN VIOLATION OF SECTION 7116(A)(1) AND (5) OF
THE STATUTE. AN AMENDED COMPLAINT AND NOTICE OF HEARING ISSUED ON
DECEMBER 17, 1980, ALLEGING THAT RESPONDENT HAD UNILATERALLY CHANGED
EXISTING CONDITIONS OF EMPLOYMENT BY IMPLEMENTING A POLICY ON FACIAL
HAIR AND RESPIRATOR USE WITHOUT FURNISHING THE UNION AN OPPORTUNITY TO
BARGAIN ON SUCH CHANGES OR ON THE IMPACT AND IMPLEMENTATION OF SUCH
CHANGES AND, THAT RESPONDENT HAD BREACHED THE COLLECTIVE BARGAINING
AGREEMENT BETWEEN THE PARTIES WITHOUT PRIOR NOTIFICATION TO THE UNION.
A HEARING IN THIS MATTER WAS CONDUCTED BEFORE THE UNDERSIGNED IN
OKLAHOMA CITY, OKLAHOMA. ALL PARTIES WERE REPRESENTED BY COUNSEL AND
WERE AFFORDED FULL OPPORUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE
WITNESSES, TO INTRODUCE EVIDENCE AND TO ARGUE ORALLY. ALSO ALL PARTIES
FILED TIMELY BRIEFS.
BASED UPON THE ENTIRE RECORD IN THIS MATTER, INCLUDING MY OBSERVATION
OF THE WITNESSES AND THEIR DEMEANOR, AND UPON MY EVALUATION OF THE
EVIDENCE, I MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS.
FINDINGS OF FACT
IN 1976 RESPONDENT AND THE UNION EXECUTED A LOCAL COLLECTIVE
BARGAINING AGREEMENT WHICH WAS EFFECTIVE UNTIL JULY 21, 1979. ON APRIL
3, 1979, THE AIR FORCE LOGISTICS COMMAND AND THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES EXECUTED A MASTER LABOR AGREEMENT COVERING
EMPLOYEES IN NATIONWIDE UNIT. CERTAIN ARTICLES OF THE ABOVE-MENTIONED
LOCAL AGREEMENT WHICH WERE NOT COVERED BY THE MASTER AGREEMENT HAVE
REMAINED IN EFFECT PENDING THE RENEGOTIATION OF A LOCAL AGREEMENT.
ARTICLE XLI OF THE LOCAL AGREEMENT HAS BEEN IN EFFECT AT ALL TIMES
MATERIAL HEREIN. /1/
BY LETTER DATED DECEMBER 21, 1978, THE COMMAND SURGEON OF
HEADQUARTERS AIR LOGISTICS COMMAND SET FORTH THE AIR FORCE LOGISTICS
COMMAND POLICY CONCERNING FACIAL HAIR AND RESPIRATOR USE. THE LETTER
STATED, IN PERTINENT PART:
A SIGNIFICANT CONCERN IN THIS PROGRAM IS THAT PERSONS WITH EXCESSIVE
FACIAL HAIR, SUCH AS
FACIAL STUBBLE, BEARDS, AND WIDE SIDEBURNS, DO NOT GET AN ADEQUATE
SEAL . . . THE FOLLOWING
POLICY IS ESTABLISHED FOR WORK POSITIONS REQUIRING WEAR OF
RESPIRATORS: WORKER'S FACE WILL BE
SHAVEN SO THAT FACIAL HAIR WILL NOT INTERFERE WITH RESPIRATOR SEALING
SURFACE . . . .
WITH THESE ARTICLES IN MIND THE UNION TOOK THE POSITION THAT AN
EMPLOYEE SHOULD BE GIVEN THE OPPORTUNITY TO TRIM HIS BEARD CLOSE ENOUGH
TO OBTAIN A PROPER SEAL AND SHOULD NOT BE REQUIRED TO BE CLEAN SHAVEN.
UNION STEWARD BILL PIATT, WHO WAS DESIGNATED TO HANDLE THE MATTER AS
UNION REPRESENTATIVE, TESTIFIED THAT HE MET WITH EMPLOYEE RELATIONS
REPRESENTATIVE EARNESTINE MILES ON SEVERAL OCCASIONS, AT WHICH TIMES, HE
INFORMED HER OF THE UNION'S POSITION ON THE MATTER AND PROPOSED THAT THE
WORDS "TRIMMED OR" BE INSERTED BEFORE THE WORD "SHAVEN" IN PARAGRAPH TWO
OF THE DRAFT LETTER. SINCE MILES AND PIATT COULD NOT REACH AGREEMENT
OVER THE MATTER, PIATT THEN DISCUSSED THE UNION'S POSITION WITH EMPLOYEE
RELATIONS REPRESENTATIVE NEAL HAMBELTON. BY LETTER DATED JULY 31, 1979,
PIATT INFORMED HAMBELTON OF THE UNION'S POSITION AND FINAL PROPOSAL
CONCERNING THE FACIAL HAIR AND RESPIRATOR USE POLICY. ACCORDING TO THE
UNION'S PROPOSAL, THE LETTER SHOULD READ AS FOLLOWS:
ALSO, PER AFLC 156 LETTER, 21 DECEMBER, 1978, (ATCH 1), A WORKER'S
FACE WILL BE TRIMMED OR
SHAVEN SO THAT FACIAL HAIR DOES NOT INTERFERE WITH THE RESPIRATOR
SEALING SURFACE . . . .
MILES TESTIFIED THAT UPON DISCUSSING THIS PROPOSAL WITH HAMBELTON, HE
STATED THAT "TRIMMED" WOULD NOT MAKE THAT MUCH DIFFERENCE AS LONG AS THE
EMPLOYEE COULD OBTAIN A PROPER SEAL. ACCORDING TO MILES, HAMBELTON
SAID, "IT IS ALL RIGHT. CHECK WITH TRIMBERGER AND SEE WHAT HE SAYS."
THEREAFTER, MAJOR DAVID J. TRIMBERGER, CHIEF OF BIOENVIRONMENTAL
SERVICES DIVISION WAS CONTACTED BY MILES CONCERNING THE UNION'S
PROPOSAL. MAJOR TRIMBERGER'S DIVISION WAS RESPONSIBLE FOR CONDUCTING
RESPIRATOR FIT TESTS FOR EMPLOYEES WHO WERE REQUIRED TO WEAR
RESPIRATORS. TRIMBERGER AGREED TO THE INSERTION OF THE PROPOSED
LANGUAGE INTO THE LETTER AND NOTED THIS APPROVAL ON THE DRAFT LETTER,
WHICH MILES THEN HAD PREPARED IN ITS FINAL FORM. THEREAFTER, HAMBELTON
AND PIATT, AS WELL AS OTHERS IN THE CHAIN OF COMMAND SIGNED THE LETTER.
A COPY OF THE FINAL LETTER WHICH WAS ISSUED ON AUGUST 3, 1979, WAS SENT
TO THE UNION. THAT LETTER CONTAINED THE UNION'S PROPOSED LANGUAGE
"TRIMMED OR."
SOON AFTER THE AUGUST 3, 1979, LETTER ISSUED, DAVID REID, BRANCH
STEWARD FOR THE AIR CRAFT DIVISION, APPROACHED PIATT CONCERNING THE
FACIAL HAIR AND RESPIRATOR USE POLICY. REID TESTIFIED THAT EMPLOYEES IN
HIS BRANCH WERE CONCERNED THAT THEY MIGHT HAVE TO SHAVE THEIR BEARDS
AND, THEREFORE, HE WENT TO PIATT FOR CLARIFICATION OF THIS MATTER.
ACCORDING TO REID, PIATT STATED THAT IF EMPLOYEES WHO WORE BEARDS PASSED
THE RESPIRATOR FIT TEST THEY WOULD NOT BE REQUIRED TO SHAVE. REID
RELAYED THIS INFORMATION TO THE EMPLOYEES IN HIS BRANCH. IN ADDITION,
PIATT VISITED AREAS WHERE RESPIRATORS WERE IN USE SUCH AS THE WASH RACK
IN AREA B AND THE PAINT HANGAR IN AREA C, AND OBSERVED EMPLOYEES WEARING
BEARDS. HE INFORMED THESE EMPLOYEES THAT IF THEY KEPT THEIR BEARDS
TRIMMED CLOSE ENOUGH SO AS TO GET A GOOD SEAL, THEY WOULD NOT BE
REQUIRED TO SHAVE.
LARRY SHAFFER, AN AIRCRAFT PAINTER WORKING IN THE PAINT HANGAR SINCE
NOVEMBER OF 1978, TESTIFIED THAT HE HAD WORN A BEARD AT THE TIME HE
PASSED THE RESPIRATOR FIT TEST IN MAY 1979. SHAFFER ALSO TESTIFIED THAT
HE WORE A BEARD WHILE USING THE RESPIRATOR IN HIS WORK UNTIL APRIL 1980.
ON APRIL 17, 1980, COLONEL KILE, RESPONDENT'S BASE COMMANDER ISSUED A
SECOND POLICY LETTER REGARDING "FACIAL HAIR AND RESPIRATOR USE" WHICH
PROVIDED THE FOLLOWING:
2. . . . ALSO, PER OC-AFLC/SG LETTER 3 AUGUST 1979 (ATCH 1), A
WORKER'S FACE WILL SHAVEN
OR TRIMMED SO THAT FACIAL HAIR DOES NOT INTERFERE WITH THE RESPIRATOR
SEALING SURFACE . . .
3. IN ORDER TO CLARIFY ANY MISUNDERSTANDING AND TO EMPHASIZE OC-ALC
POSITION ON FACIAL
HAIR AND RESPIRATOR USE, THE POLICY IS RE-STATED: TO INSURE THE
MAXIMUM POSSIBLE PROTECTION
FOR EACH EMPLOYEE, INDIVIDUALS MUST BE CLEAN SHAVEN IN THE AREA
RESPIRATOR FACE PIECE MEETS
THE FACE.
SHAFFER TESTIFIED THAT IN APRIL 1980, HIS IMMEDIATE SUPERVISOR
PRESENTED THE ABOVE-REFERENCED LETTER TO THE EMPLOYEES IN HIS SECTION ON
A THURSDAY OR FRIDAY AND STATED, "HERE IS THE LETTER. READ IT AND
COMPLY WITH IT. BY MONDAY YOU MUST BE IN COMPLIANCE." WHEN SHAFFER
RETURNED TO WORK ON MONDAY HE WORE A GOATEE. SHAFFER STATED THAT HE
CONSIDERED HIMSELF TO BE IN COMPLIANCE WITH THE MANDATE OF THE POLICY
LETTER SINCE HE HAD SHAVED THE FACIAL HAIR IN THE AREA WHERE THE
RESPIRATOR FACE PIECE MET HIS FACE. HOWEVER, HE WAS TAKEN BY HIS
IMMEDIATE SUPERVISOR TO THE SECTION CHIEF, BILLY HAMILTON, WHO STATED
THAT THE GOATEE WOULD NOT SUFFICE. ACCORDING TO SHAFFER, HAMILTON'S
CONTENTION WAS THAT EVEN THOUGH THE EDGES OF THE RESPIRATOR DID NOT
TOUCH FACIAL HAIR, THE INSIDE OF THE RESPIRATOR DID COME INTO CONTACT
WITH HAIR, AND, THEREFORE, SHAFFER WOULD HAVE TO SHAVE. SHAFFER
TESTIFIED THAT IN ESSENCE HIS SUPERVISOR AND HAMILTON WERE TELLING HIM
THAT THEY WERE GOING TO REQUIRE THAT THE EMPLOYEES' CHINS BE COMPLETELY
CLEAN SHAVEN BECAUSE THEY WERE NOT GOING TO CHECK EVERYONE DAILY TO SEE
THAT THE HAIR HAD NOT GROWN OUT IN THE AREA WHERE THE FACE PIECE MEETS
THE FACE. SHAFFER ALLEGES THAT HE KNEW AT LEAST THREE OTHER EMPLOYEES
ON THE SWING AND GRAVEYARD SHIFTS IN HIS SECTION WHO WERE REQUIRED TO
SHAVE. SHAFFER ALSO TESTIFIED THAT PRIOR TO APRIL 1980, THE PAST
PRACTICE HAD BEEN TO ALLOW EMPLOYEES WHO USED RESPIRATORS TO HAVE FACIAL
HAIR AND THAT SUCH EMPLOYEES WERE NOT REQUIRED TO BE CLEAN SHAVEN IN THE
AREA WHERE THE FACE PIECE MEETS THE FACE. FURTHER, SHAFFER STATED THAT
HE KNEW OF FIRST LINE SUPERVISORS WHO HAD BEARDS AND WHO ALSO USED
RESPIRATORS UP UNTIL APRIL 1980.
AFTER SHAFFER SHAVED HIS BEARD HE WAS NEVER RETESTED FOR A
RESPIRATOR. SHORTLY THEREAFTER, SHAFFER BECAME AWARE THAT THE
INDIVIDUALS PERFORMING THE FIT TESTS WOULD NOT EVEN TEST A PERSON WHO
WORE A BEARD. ON ONE OCCASION SHAFFER STATES HE OBSERVED AN EMPLOYEE
WITH A GOATEE WHO CAME TO BE TESTED AT THE FIT TEST BOOTH LOCATED IN THE
BREAK AREA AT THE PAINT HANGAR. ACCORDING TO SHAFFER HE TOLD THE
INDIVIDUAL, THAT HE WOULD NOT BE TESTED WITH A BEARD. SHORTLY
AFTERWARDS THE PERSON ADMINISTERING THE RESPIRATOR TEST ALSO INFORMED
THE EMPLOYEE THAT HE WOULD NOT BE TESTED BECAUSE HE HAD A BEARD.
MAJOR TRIMBERGER TESTIFIED THAT THE PRACTICE OF TESTING EMPLOYEES
WITH BEARDS HAD INDEED CHANGED. TRIMBERGER NOTED THAT TESTS WERE
CONDUCTED ON INDIVIDUALS WITH BEARDS UNTIL LATE 1979, BUT THAT THE
POLICY HAD BEEN CHANGED. HE FURTHER EXPLAINED THAT, SOMETIME IN THE
LATER PART OF 1979 HE INSTRUCTED TECHNICIANS WHO ADMINISTERED THE TESTS
TO INFORM SUPERVISORS WHO SCHEDULED EMPLOYEES FOR TESTING THAT THOSE
EMPLOYEES WITH BEARDS WOULD NOT BE TESTED. FURTHER, TRIMBERGER
TESTIFIED THAT THE POLICY STATED IN THE 1978 AND 1979 LETTERS WAS THAT
EMPLOYEES MUST BE CLEAN SHAVEN IN THE AREA WHERE THE RESPIRATOR MEETS
THE FACE, BUT HE LATER EMPHASIZED THAT IT WAS A VERY CLEAR CUT
REQUIREMENT FROM A HEALTH STANDPOINT THAT BEARDS NOT BE ALLOWED.
TRIMBERGER'S TESTIMONY MAKES IT CLEAR THAT RESPONDENT INTENDED TO
EMPHASIZE A VERY RIGID STANDARD OF PROHIBITING BEARDS IN RESPIRATOR
AREAS.
THE UNION BECAME AWARE OF THE WRITTEN CHANGE IN POLICY OF THE APRIL
17, 1980 LETTER ONLY WHEN EMPLOYEE GERALD CRAIG REQUESTED ASSISTANCE
FROM THE UNION CONCERNING RESPONDENT'S INITIATION OF DISCIPLINARY ACTION
FOR REFUSING TO SHAVE HIS BEARD. CRAIG WAS TERMINATED FOR REFUSING TO
OBEY A DIRECT ORDER TO SHAVE. STEWART REID ALSO TESTIFIED THAT SEVERAL
EMPLOYEES CAME TO THE UNION FOR HELP CONCERNING THE FACIAL HAIR POLICY
AND POSSIBLE DISCIPLINARY ACTION. THE UNION FILED GRIEVANCES ON BEHALF
OF A FEW EMPLOYEES ALLEGING THAT THESE INDIVIDUALS SHOULD NOT HAVE BEEN
PLACED ON FORCED LEAVE DUE TO THE FACT THAT THESE INDIVIDUALS HAVE
REFUSED TO OBEY AN ORDER WHICH WAS IMPROPER.
DISCUSSION AND CONCLUSIONS
THE GENERAL COUNSEL CONTENDS THAT RESPONDENT VIOLATED SECTION
7116(A)(1) AND (5) BY UNILATERALLY CHANGING THE POLICY CONCERNING FACIAL
HAIR FOLLOWED IN ACTUAL PRACTICE UP UNTIL THE CHANGE IN THAT POLICY IN
APRIL 1980. RESPONDENT ARGUES THAT THE APRIL 1980 LETTER DID NOT CHANGE
THE AIR FORCE LOGISTICS COMMAND POLICY CONCERNING FACIAL HAIR AND
RESPIRATOR USE SET FORTH IN THE AUGUST 3, 1979, LETTER AND THAT THE
POLICY ON FACIAL HAIR AND RESPIRATOR USE IS A PERMISSIVE TOPIC OF
BARGAINING. ALSO, RESPONDENT CONTENDS THAT THE DISAGREEMENT HEREIN
CONCERNING THE APRIL 1980 LETTER AMOUNTS TO A DISAGREEMENT OVER THE
INTERPRETATION AND APPLICATION OF A CONTRACT WHICH SHOULD BE SETTLED BY
ARBITRATION. /2/
THE GENERAL COUNSEL ASSERTS THAT THE PARTIES IN DRAFTING THE POLICY
LETTER OF AUGUST 1979 CLEARLY INTENDED TO AFFORD EMPLOYEES WHO USED
RESPIRATORS THE CHOICE OF EITHER SHAVING OR TRIMMING THEIR BEARDS,
ASSUMING, THAT THEY COULD PASS THE RESPIRATOR FIT TEST AND OBTAIN A
PROPER SEAL. RESPONDENT CONTENDS THAT IT HAD NO OBLIGATION OR AUTHORITY
TO BARGAIN OVER THE SUBSTANCE OF THE AIR FORCE LOGISTICS COMMAND POLICY
ISSUED IN DECEMBER 1978, ALTHOUGH THE RECORD REVEALS THAT EFFECTIVE
BARGAINING DID TAKE PLACE AND RESULTED IN A MODIFICATION OF THE COMMAND
POLICY BY INSERTING THE WORDS "TRIMMED OR" INTO THE AUGUST 3, 1979
LETTER ISSUED AT THE LOCAL LEVEL BY RESPONDENT. RESPONDENT ALSO
MAINTAINS THAT UNDER SECTION 7106(B)(1) THERE IS NO MANDATORY OBLIGATION
TO BARGAIN OVER THE USE OF THE RESPIRATOR SINCE ITS USE FALLS WITHIN THE
CATEGORY OF "TECHNOLOGY, METHODS, AND MEANS OF PERFORMING WORK." WITH
RESPECT TO THE LATTER ARGUMENT RESPONDENT IS WIDE OF THE MARK. THE
ISSUE HERE IS NOT ABOUT RESPIRATOR USE PER SE, BUT CONCERNS WHAT IMPACT
THE FACIAL HAIR POLICY IN CONJUNCTION WITH RESPIRATOR USE WOULD HAVE ON
AFFECTED EMPLOYEES. AN ISSUE WHICH HAD PREVIOUSLY BEEN NEGOTIATED AT
THE LOCAL LEVEL. IN MY OPINION, RESPONDENT BELATEDLY RAISES THIS
DEFENSE. FURTHERMORE, AN OBLIGATION TO BARGAIN CONCERNING THE IMPACT OF
THE CHANGE IN FACIAL HAIR POLICY REMAINS AND THE RECORD REVEALS THAT
RESPONDENT IMPLEMENTED THE INSTANT CHANGE WITHOUT NOTIFICATION TO OR
BARGAINING WITH THE EMPLOYEE'S EXCLUSIVE REPRESENTATIVE. REGARDING THE
ISSUE OF AUTHORITY, THE PARTIES INDEED NEGOTIATED A CHANGE IN THE 1978
POLICY IN 1979, AND RESPONDENT CANNOT NOW CHANGE THAT POLICY CLAIMING IT
LACKED ANY AUTHORITY.
THE RECORD DEMONSTRATES THAT PRIOR TO AND FOLLOWING THE NEGOTIATIONS
OF AUGUST 1979 EMPLOYEES WERE PERMITTED TO USE RESPIRATORS WHILE WEARING
BEARDS. THERE IS ALSO RECORD EVIDENCE FROM BOTH SIDES THAT EMPLOYEES
CONTINUED TO WEAR BEARDS AND TO BE GIVEN THE RESPIRATOR TESTS FROM THE
TIME OF THE SIGNING OF THE AUGUST 1979 POLICY LETTER UNTIL MID-APRIL
1980. THEREFORE, IT IS FOUND THAT IN ADDITION TO THE 1979 POLICY LETTER
A PAST PRACTICE OF ALLOWING SUCH TESTS WHILE EMPLOYEES WERE WEARING
BEARDS WAS ESTABLISHED AT THE ACTIVITY.
THE UNION BECAME AWARE OF THE CHANGE IN THE FACIAL HAIR POLICY ONLY
THROUGH COMPLAINTS RECEIVED FROM EMPLOYEES WHO HAD BEEN SUBJECTED TO
DISCIPLINARY ACTIONS BECAUSE OF THEIR REFUSAL TO SHAVE OFF BEARDS AND
FACIAL HAIR. IT IS UNCONTESTED THAT RESPONDENT GAVE NO NOTICE OR
OPPORTUNITY TO BARGAIN CONCERNING THIS CHANGE IN POLICY AND RESPONDENT
ADMITS THAT A CONSCIOUS DECISION WAS MADE NOT TO NOTIFY THE UNION OF ITS
DECISION SINCE THE APRIL 1980 LETTER DID NOT CHANGE THE ALREADY EXISTING
POLICY. HOWEVER, THERE IS NO EVIDENCE OF RECORD THAT THERE WAS ANY
DISAGREEMENT BETWEEN RESPONDENT AND THE EXCLUSIVE REPRESENTATIVE
CONCERNING THE FACIAL HAIR POLICY AS ESTABLISHED. WHILE RESPONDENT
STATES THAT IT INTENDED TO ENFORCE A RIGID STANDARD PROHIBITING BEARDS
IN RESPIRATOR AREAS, THIS INTENTION WAS NEVER COMMUNICATED TO THE UNION.
IN FACT, THE ONLY EFFORTS TO CLARIFY WHAT RESPONDENT ALLEGES WAS A
"DISAGREEMENT OVER THE INTERPRETATION" CONCERNING THE AUGUST 1979 LETTER
WAS THROUGH DISCIPLINARY ACTION TAKEN AGAINST INDIVIDUAL EMPLOYEES WHO
REFUSED TO COMPLETELY SHAVE OFF BEARDS AND NOT WITH THE EXCLUSIVE
REPRESENTATIVE. RESPONDENT'S ARGUMENT THAT THIS CASE INVOLVES A
QUESTION OF CONTRACT INTERPRETATION IS REJECTED.
AS ALREADY NOTED, RESPONDENT'S ACTION WAS UNILATERAL AND TAKEN
WITHOUT NOTIFICATION TO OR BARGAINING WITH THE COLLECTIVE BARGAINING
REPRESENTATIVE. ALTHOUGH MAJOR TRIMBERGER TESTIFIED THE RESPONDENT IN
THE LATTER PART OF 1979, FIRST BEGAN TO ENFORCE A POLICY OF NOT TESTING
EMPLOYEES WITH BEARDS THE RECORD SUGGESTS OTHERWISE. BOTH EMPLOYEES AND
SUPERVISORS IN RESPIRATOR AREAS WERE OBSERVED WEARING BEARDS. FURTHER,
EMPLOYEE SHAFFER WORE A BEARD UNTIL THE APRIL 1980 LETTER WAS
CIRCULATED. FURTHERMORE, DISCIPLINARY ACTION AGAINST EMPLOYEES WHO
REFUSED TO COMPLETELY SHAVE OFF BEARDS WAS NOT TAKEN UNTIL APRIL 1980.
THE RECORD THUS DEMONSTRATES THAT PRIOR TO APRIL 1980 A PAST PRACTICE OF
ALLOWING EMPLOYEES TO WEAR BEARDS WHILE USING RESPIRATORS AND TO TAKE
RESPIRATOR FIT TESTS WHILE WEARING FACIAL HAIR OR BEARDS.
IN THIS MATTER RESPONDENT NEGOTIATED WITH THE UNION CONCERNING THE
FACIAL HAIR AND RESPIRATOR USE POLICY, ACCEPTED ITS PROPOSALS, THEN
UNILATERALLY CHANGED THAT POLICY, BUT CLAIMED THAT THE POLICY REMAINED
UNCHANGED. ALTHOUGH THE POLICY OF 1980 STATED THAT EMPLOYEES MUST BE
CLEAN SHAVEN IN THE AREA WITH THE RESPIRATOR MEETS THE FACE, EMPLOYEES,
IN FACT, WERE REQUIRED TO BE ENTIRELY CLEAN SHAVEN. WITHOUT QUESTION
EMPLOYEES WERE NEITHER REQUIRED TO BE CLEAN SHAVEN NOR DENIED
RESPIRATION TESTS PRIOR TO APRIL 1980. SUCH A CHANGE, IS WITHOUT
ARGUMENT, A CHANGE IN WORKING CONDITIONS. FURTHER, RESPONDENT
UNILATERALLY DECIDED TO CEASE PERFORMING THE REQUIRED FIT TESTS ON
EMPLOYEES WITH BEARDS WITHOUT ANY NOTIFICATION TO THE UNION OR ANY
OPPORTUNITY FOR IT TO BARGAIN AND DECIDED TO TAKE DISCIPLINARY ACTION
AGAINST EMPLOYEES WHO HAVE REFUSED TO SHAVE. NONE OF THESE ACTIONS WERE
TAKEN PRIOR TO THE APRIL 1980 CHANGE IN POLICY AND HAD A SIGNIFICANT
IMPACT ON BARGAINING UNIT EMPLOYEES.
ACCORDINGLY, IT IS FOUND THAT RESPONDENT'S UNILATERAL CHANGE
REGARDING THE FACIAL HAIR AND RESPIRATOR USE POLICY WITHOUT NOTIFICATION
TO OR BARGAINING CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH
DECISION IS VIOLATIVE OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
THE GENERAL COUNSEL ALSO CONTENDS THAT RESPONDENT'S ACTIONS HEREIN
CONSTITUTED A BREACH OF CONTRACT TANTAMOUNT TO AN UNFAIR LABOR PRACTICE.
IN THIS REGARD THE GENERAL COUNSEL ARGUES THAT RESPONDENT'S CONDUCT WAS
"SUFFICIENTLY FLAGRANT SO . . . AS TO CAST DOUBT ON THE SINCERITY OF THE
RESPONDENT'S POSITION." RESPONDENT, ON THE OTHER HAND, ARGUES THAT THERE
IS MERELY A DISAGREEMENT BETWEEN THE PARTIES OVER THE MEANING OF THE
APRIL 1980 LETTER CONCERNING FACIAL HAIR AND RESPIRATOR USE AND THAT
THIS DISAGREEMENT SHOULD BE SETTLED THROUGH THE MACHINERY ESTABLISHED IN
THE COLLECTIVE BARGAINING AGREEMENT, ARBITRATION. I DISAGREE WITH
RESPONDENT. FIRST, AS PREVIOUSLY STATED, IT IS ABUNDANTLY CLEAR THAT
THE PARTIES ENGAGED IN LOCAL BARGAINING WITH RESPECT TO THE AUGUST 1979
LETTER AND THAT A LOCAL POLICY WHICH STATED THAT EMPLOYEES BEARDS "WILL
BE TRIMMED OR SHAVEN" WAS ESTABLISHED THROUGH NEGOTIATIONS BETWEEN THE
PARTIES. THEREAFTER RESPONDENT UNILATERALLY MADE THE DECISION TO
INTERPRET THE POLICY THAT EMPLOYEES SHOULD BE CLEAN SHAVEN AND NOT
ALLOWED TO WEAR ANY FACIAL HAIR AND REFUSED TO PERFORM FURTHER
RESPIRATOR TESTS, AS ALREADY NOTED, ALL WITHOUT NOTIFICATION TO OR
BARGAINING WITH THE EXCLUSIVE REPRESENTATIVE. FURTHERMORE, THERE IS NO
INDICATION THAT RESPONDENT INTENDED NOR DID IT NOTIFY THE UNION WITH
RESPECT TO HOW IT INTERPRETED THE POLICY LETTER, BUT IMPLEMENTED CHANGES
WITHOUT CONSIDERATION AS TO WHETHER THE UNION WAS ENTITLED TO BARGAIN.
BASED ON THE ABOVE, I FIND THAT THE RESPONDENT'S CONDUCT IN COMPLETELY
DISREGARDING THE EXCLUSIVE REPRESENTATIVE AND IMPLEMENTING CHANGES IN
WORKING CONDITIONS BECAUSE IT FELT THERE WAS NO CHANGE IS A CLEAR AND
FLAGRANT BREACH OF THE AUGUST 3, 1979 AGREEMENT AND CONSTITUTES A
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE STATUTE.
HAVING FOUND THAT RESPONDENT VIOLATED SECTION 7116(A)(1) AND (5) OF
THE STATUTE, I RECOMMEND THAT THE AUTHORITY ADOPT THE FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
AUTHORITY AND 5 U.S.C. 7135, THE AUTHORITY HEREBY ORDERS THAT UNITED
STATES DEPARTMENT OF DEFENSE, DEPARTMENT OF THE AIR FORCE, OKLAHOMA CITY
AIR LOGISTICS CENTER, TINKER AIR FORCE BASE, OKLAHOMA, SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY INSTITUTING A CHANGE IN THE POLICY ON FACIAL HAIR
AND RESPIRATOR USE
WITHOUT AFFORDING THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 916, AFL-CIO AN
OPPORTUNITY TO BARGAIN OVER THE IMPACT AND IMPLEMENTATION OF SAID
CHANGE.
(B) BREACHING THE COLLECTIVE BARGAINING AGREEMENT BETWEEN RESPONDENT
AND THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916, AFL-CIO.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING OR
COERCING EMPLOYEES IN
THE EXERCISE OF RIGHTS GUARANTEED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) RESCIND OR REVOKE THE APRIL 17, 1980 POLICY LETTER CONCERNING
FACIAL HAIR AND
RESPIRATOR USE. (B) NOTIFY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 916, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF
ANY FUTURE CHANGE IN POLICY WITH RESPECT TO FACIAL HAIR AND RESPIRATOR
USE POLICY AND, UPON REQUEST, BARGAIN IN GOOD FAITH ON THE IMPACT AND
IMPLEMENTATION OF SAID CHANGES.
(C) POST AT ITS TINKER AIR FORCE BASE, OKLAHOMA FACILITY COPIES OF
THE ATTACHED MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL
LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE
SIGNED BY THE COMMANDING OFFICER AND SHALL POSTED AND MAINTAINED FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACED WHERE NOTICES TO ALL EMPLOYEES ARE
CUSTOMARILY POSTED. RESPONDENT SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(D) NOTIFY THE REGIONAL DIRECTOR OF REGION 6 OF THE FEDERAL LABOR
RELATIONS AUTHORITY IN WRITING WITHIN 30 DAYS FROM THE DATED OF THIS
ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: SEPTEMBER 11, 1981
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ ARTICLE XLI, SECTION (A) READS AS FOLLOWS:
THE EMPLOYER AND THE UNION, THROUGH APPROPRIATE REPRESENTATIVES,
SHALL MEET AT REASONABLE TIMES AND PLACES AND CONFER IN GOOD FAITH WITH
RESPECT TO PERSONNEL POLICIES AND PRACTICES, AND MATTERS AFFECTING
WORKING CONDITIONS THAT ARE NOT COVERED BY THIS AGREEMENT, SO FAR AS MAY
BE APPROPRIATE UNDER APPLICABLE LAWS AND REGULATIONS, INCLUDING THE
FOLLOWING: POLICIES SET FORTH IN THE FEDERAL PERSONNEL MANUAL,
PUBLISHED AGENCY POLICIES AND REGULATIONS FOR WHICH A COMPELLING NEED
EXISTS ESTABLISHED BY THE FEDERAL LABOR RELATIONS COUNCIL AND WHICH ARE
ISSUED AT THE DEPARTMENT OF THE DEFENSE LEVEL OR THE HEADQUARTERS AIR
FORCE LEVEL, A NATIONAL OR OTHER CONTROLLING AGREEMENT AT A HIGHER LEVEL
IN THE AGENCY, AND EXECUTIVE ORDER 11941, AS AMENDED. THE PARTIES MAY
NEGOTIATE AN AGREEMENT, OR ANY QUESTION ARISE THEREUNDER; DETERMINE
APPROPRIATE TECHNIQUES, CONSISTENT WITH SECTION 17 OF THE ORDER, TO
ASSIST IN SUCH NEGOTIATIONS; AND EXECUTED WRITTEN AGREEMENT OR
MEMORANDUM OF UNDERSTANDING.
/2/ AT THE HEARING RESPONDENT CONTENDED THAT THE INSTANT CASE SHOULD
BE SUMMARILY DISMISSED ON THE BASIS THAT THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES AFL-CIO FILED AN UNFAIR LABOR PRACTICE CONCERNING
THE ISSUANCE OF THE 1978 LETTER FROM AIR FORCE LOGISTICS COMMAND AND
SUBSEQUENTLY WITHDREW THAT CHARGE AFTER IT WAS REMANDED TO GENERAL
COUNSEL TO REGION 5 FOR FURTHER INVESTIGATION. A REVIEW OF THE RECORD
EVIDENCE REGARDING THIS CONTENTION CLEARLY ESTABLISHED THAT THE CHANGE
TO WHICH RESPONDENT REFERS INVOLVED DIFFERENT ISSUES THAN THE
ALLEGATIONS IN THE INSTANT CASE. SPECIFICALLY, THE CHARGE FILED BY THE
UNION IN THAT MATTER WAS CONFINED TO CONDUCT THAT OCCURRED AT THE AIR
FORCE LOGISTICS COMMAND LEVEL AND DID NOT REACH ANY ACTION OF RESPONDENT
AFTER IT HAD IMPLEMENTED THE POLICY LETTER AT THE LOCAL LEVEL.
RESPONDENT'S CONTENTION IS, THEREFORE, REJECTED.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT UNILATERALLY CHANGE THE POLICY WITH RESPECT TO FACIAL
HAIR AND RESPIRATOR USE WITHOUT AFFORDING AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 916, AFL-CIO OR ANY OTHER EXCLUSIVE
REPRESENTATIVE, ADEQUATE NOTICE AND A REASONABLE OPPORTUNITY TO BARGAIN
OVER IMPLEMENTATION OF SAID DECISION AND THE IMPACT ON ADVERSELY
AFFECTED EMPLOYEES.
WE WILL NOT BREACH THE TERMS OF COLLECTIVE BARGAINING AGREEMENT WITH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916, AFL-CIO OR ANY
OTHER EXCLUSIVE REPRESENTATIVE, WITHOUT GIVING ADEQUATE NOTICE AND A
REASONABLE OPPORTUNITY TO BARGAIN OVER THE IMPLEMENTATION OF SAID
DECISION AND THE IMPACT ON ADVERSELY AFFECTED EMPLOYEES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF RIGHTS GUARANTEED BY THE FEDERAL
SERVICES LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL RESCIND OR REVOKE THE APRIL 17, 1980 POLICY LETTER CONCERNING
FACIAL HAIR AND RESPIRATOR USE.
WE WILL NOTIFY AND, UPON REQUEST, BARGAIN IN GOOD FAITH WITH AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916, AFL-CIO, TO THE EXTENT
CONSONANT WITH THE LAW AND REGULATION, CONCERNING THE IMPACT ON
EMPLOYEES OF THE CHANGE IN THE POLICY CONCERNING FACIAL HAIR AND
RESPIRATOR USE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 50 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF ANY EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY
WITH THE REGIONAL DIRECTOR, REGION 6, FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: P.O. BOX 2640, DALLAS, TX 75221, AND WHOSE TELEPHONE
NUMBER IS: (214)767-4996.