[ v21 p62 ]
21:0062(13)NG
The decision of the Authority follows:
21 FLRA No. 13
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 217
Union
and
VETERANS ADMINISTRATION MEDICAL
CENTER, AUGUSTA, GEORGIA
Agency
Case No. 0-NG-635
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes before the Authority
pursuant to section 7185(a) (2) (E) of the Federal Service Labor
Relations Statute (the Statute). The petition raises issues concerning
the negotiability of three Union proposals made in response to the
Agency's announcement that it intended to require wage grade employees
assigned to the Supply Service warehouse to wear uniforms. The Union
proposals are as follows:
A. That the employees of Supply Service warehouse be given the
option as to whether or not they wear such uniforms. B. The
uniforms will consist of Spring and Summer shirts, short sleeve
and pants; Fall and Winter shirts, long sleeve, and pants,
including jackets and overcoats. C. That employees be provided
with safety shoes and galoshes and rain gear for inclement
weather.
II. Positions of the Parties
The Agency contends that all of the proposals are nonnegotiable.
First, it argues that the proposals conflict with an agency regulation,
Agency Manual M-1, Part VII, Chapter 7, which, pursuant to language in
the parties' collective bargaining agreement, is binding on the Union
and, thus, effectively limits the scope of bargaining. The Agency
asserts that the uniform requirement has been an established agency-wide
(i.e., Veterans Administration) policy since 1971 but that it has not
been "strictly enforced" by the local supply service. /1/ Second, it
argues that the proposals conflict with the Agency's right under section
7106(a) (1) of the Statute to determine its internal security practices.
Third, it alleges that the proposals conflict with its right under
section 7106(b) (1) to determine the technology, methods and means of
performing work. With respect to Proposals B and C, the Agency further
argues that they regard matters which are not relevant to the impact and
implementation of the management decision to require uniforms.
The Union contends that its proposals relate to a
management-initiated change in an established past practice relating to
conditions of employment and are, therefore, negotiable. It takes issue
with the Agency's assertion that the proposals are barred by the
above-cited agency regulation, arguing among other things that the
regulation does not mandate that warehouse personnel wear uniforms. As
to Proposals B and C, it asserts, in essence, that they are intended to
assure that necessary and appropriate attire is available to employees
and, hence, they relate to the impact and implementation of the Agency's
requirement that a uniform be worn.
III. Analysis
A. Effect of Agency Regulation and Collective Bargaining Agreement
It is well established that during the term of a collective
bargaining agreement the exclusive representative is entitled under the
Statute to notice and an opportunity to negotiate over proposed changes
in established conditions of employment unless it has clearly and
unmistakably waived its bargaining rights. Department of the Air Force,
Scott Air Force Base, Illinois, 5 FLRA 9 (19801. The Agency tacitly
concedes that the Union was entitled to notice and an opportunity to
bargain regarding management's decision to require certain employees to
wear a uniform. It contends in effect, however, that the Union agreed
in the parties' collective bargaining agreement to limit the scope of
bargaining to matters consistent with agency regulations and thereby
effectively waived its right to bargain matters, such as the proposals
at issue, which the Agency contends conflict with such regulations.
The Authority notes that the contract involved was negotiated
originally in 1976 under Executive Order 11491, as amended, and that the
requirements of the contract characterized by the Agency as having been
agreed upon by the Union actually were mandated by the Executive Order
to be expressly stated in collective bargaining agreements. /2/ We hold
that language placed in a contract pursuant to an Executive Order
requirement does not constitute a voluntary and conscious yielding by
the Union of its right to negotiate to the full extent of the scope of
bargaining allowed under a subsequently enacted statute. See
Immigration and Naturalization Service, 10 FLRA 202 (1952), reversed as
to other matters sub nom. Immigration and Naturalization Service v.
Federal Labor Relations Authority, No. 82-2398 (D.C. Cir. Feb. 29,
1984). Thus, we find that the cited contract provisions do not limit
the Agency's bargaining obligation to proposals which are consistent
with the terms of the agency's regulations. Absent a waiver, otherwise
negotiable proposals which conflict with an agency rule or regulation
are within the obligation to bargain unless a compelling need exists for
the rule or regulation. American Federation of Government Employees,
AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development
Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). The Agency in this
case makes no snowing whatsoever that a compelling need exists for the
regulation with which it claims the proposals conflict. Hence, there is
no basis for concluding that the proposals are barred from negotiation
by such rule or regulation.
B. Effect on Agency's Right to Determine Its Security Practices
The record establishes that the requirement for wage grade employees
assigned to the Supply Service warehouse to wear distinctive clothing is
directly related to the Agency's need to be able to readily identify
such employees in order to, among other things, protect its property.
Inasmuch as Proposal A would make wearing the uniform optional on the
part of employees, it effectively would negate the Agency's decision to
require uniforms for the purpose of achieving ready identification of
employees and, hence, directly interferes with the Agency's exercise of
the right under section 7186(a) (1) to determine internal security
practices. See American Federation of Government Employees, AFL-CIO,
Local 15 and Department of the Treasury, Internal Revenue Service, North
Atlantic Region, 2 FLRA 875 (1980). Thus, we find that Proposal A is
not negotiable.
Turning to Proposals B and C, as explained by the Union, they would
assure that the clothing worn by the Supply Service warehouse employees
is appropriate to the weather and work place conditions. As such, the
Union contends that these proposals seek to negotiate over the impact
and implementation of an Agency action which adversely affects
employees. Thus, the Union's essential contention is that Proposals B
and C constitute appropriate arrangements for employees adversely
affected by the agency's action. The Authority finds, contrary to the
Agency' s contentions, first, that these two proposals relate to the
Agency's decision to require the employees to wear a specific type of
clothing, i.e., a uniform; and, second, that they do not interfere with
the Agency's right to determine its internal security practices. These
proposals would not present a interference with the Agency's decision
that Supply Service warehouse employees wear distinctive uniform
clothing for internal security purposes. Since they do not in any way
defeat the purpose for which the concept of distinctive uniform clothing
was adopted, i.e., the ability to readily identify Supply Service
warehouse employees as such and distinguish them from other individuals,
they are not outside the duty to bargain. /3/ Rather, they provide only
that the prescribed uniform clothing will be suitable for the conditions
under which the employees must work. As such, they constitute
appropriate arrangements for employees adversely affected by the
Agency's decision to require that uniforms be worn and therefore are
within the duty to bargain under section 7106(b) (3). Because Proposals
B and C do not interfere at all with the Agency's right under section
7106 to determine its internal security, it is not necessary to apply
any test for determining "excessive interference" with the relevant
management right under section 7106(b) (3). National Association of
Government Employees, Local R14-87 and Kansas Army National Guard, 21
FLRA No. 4 (19861 (Provision 2).
C. Effect on Agency's Right to Determine the Technology, Methods and
Means of Performing Work
The Agency contends that all of the proposals involve the methods and
means of performing work and are therefore negotiable only at the
discrimination of the agency under section 7106(b) (1). With regard to
Proposal A, we agree. The record establishes that there is a direct
relationship between the uniform requirement and the Agency's need to be
able to readily identify its employees in order to protect its property
and to accomplish its mission. Thus, we find that Proposal A relates to
the methods and means of performing work and is nonnegotiable for that
reason as well as the reasoning set forth in Section B of this Order.
The Agency, however, has not shown, nor is it otherwise apparent from
the record, that Proposals B and C involve the technology, methods and
means of performing the Agency' s work. In this regard, as previously
stated, the proposals are limited attempting to assure that the uniforms
are suitable for the conditions in which employees work. They would not
interfere with an instrumentality, including an agent, tool, device,
measure, plan or policy used by the Agency for the accomplishing or the
furthering of the performance of its work. See U.S. Department of
Justice, Immigration and naturalization Service and National Border
Patrol Council, Local 1613, American Federation of Government Employees,
18 FLRA No. 3 (1985). Thus, we find that Proposals B and C are within
the duty to bargain.
IV. Conclusions
The Authority finds that the proposals relate to the change proposed
by the Agency, i.e., that the employees wear specified clothing. The
Authority further finds that negotiation over the proposals is not
barred in this instance by the existence of contract language which
purportedly binds the parties to follow existing and future provisions
of the right to determine the technology, methods and means of
performing its work. Rather, those proposals constitute appropriate
arrangements for employees adversely affected by the Agency' s decision
to require that uniforms be worn and, therefore, are within the duty to
bargain. /4/
V. Order
Accordingly, pursuant to section 2424.10 of the Authority' s Rules
and Regulations, IT IS ORDERED that the Union's petition for review
insofar as it relates to Proposal A be, and it hereby is, dismissed. IT
IS FURTHER ORDERED that the Agency shall upon request, or as otherwise
agreed to by the parties, bargain concerning Proposals B and C.
Issued, Washington, D.C., March 14, 1986
(s)---
Jerry L. Calhoun, Chairman
(s)---
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The contract language cited follows:
General Stipulation
Section 1. In the administration of all matters covered by the
agreement, officials and employees are governed by existing or
future laws and the regulations of appropriate authorities,
including policies set forth in the Federal Personnel Manual; by
published agency policies and regulations in existence at the time
the agreement was approved; and by subsequently published agency
policies and regulations required by law or by the regulations of
appropriate authorities, or authorized by the terms of a
controlling agreement at a higher agency level.
/2/ Section 12 of E.O. 11491, as amended, provided:
Sec. 12. Basic provisions of agreements. Each agreement between an
agency and a labor organization is subject to the following
requirements--
(a) in the administration of all matters covered by the
agreement, officials and employees are governed by existing or
future laws and the regulations of appropriate authorities,
including policies set forth in the Federal Personnel Manual; by
published agency policies and regulations in existence at the time
the agreement was approved; and by subsequently published agency
policies and regulations required by law or by the regulations of
appropriate authorities, or authorized by the terms of a
controlling agreement at a higher agency level;
The requirements of this section shall be expressly, stated in the
initial or basic agreement and apply to all supplemental, implementing,
subsidiary, or informal agreements between the agency and the
organization.
/3/ Of American Federation of Government Employees, AFL-CIO, National
Immigration and Naturalization Service Council and U.S. Department of
Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982)
(Union Proposal 2), reversed as to other matters sub nom. U.S.
Department of Justice, Immigration and Naturalization Service v. Federal
Labor Relations Authority, 709 F.2d 724 (0.C. Cir. 1953) (wherein the
Authority found that because a proposal did not defeat the purpose for
which a particular "means of performing the work of the Agency" was
adopted, the proposal did not interfere with the Agency's right under
section 7106(b) (1) in that regard).
/4/ In finding these proposals within the duty to bargain the
Authority makes no judgment as to their merits.