[ v25 p1028 ]
25:1028(85)NG
The decision of the Authority follows:
25 FLRA No. 85
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1625
Union
and
DEPARTMENT OF THE NAVY
NAVAL AIR STATION
OCEANA, VIRGINIA
Agency
Case No. 0-NG-1290
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed by the Union under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents an issue
concerning the following proposal:
It is agreed that during the summer tee shirts and ball caps
with appropriate patches may be worn by the duty section within
the confines of the fire station and at field crew positions.
For the reasons which follow, we conclude that the proposal is within
the duty to bargain.
II. Positions of the Parties
The Agency, in its Statement of Position, contends that the Union's
petition for review must be dismissed because there were no negotiations
out of which the negotiability dispute could have arisen. The Agency
claims in this connection that no negotiations involving this issue, or
any similar issue, had taken place since March 19, 1986, and therefore
the Union's request for the Agency's position as to the negotiability of
the proposal in question, dated May 22, 1986, involved no specific
negotiations. /1/
With respect to the merits of the proposal, the Agency argues that
the proposal conflicts with the exercise of the Agency's section
7106(a)(1) right to determine internal security practices because the
prescribed uniform is essential to the identification of firefighters in
the performance of their duties. The Agency also contends that the
proposal is contrary to section 7106(b)(1) of the Statute because the
prescribed uniform involves the means of performing work and the Agency
has not elected to negotiate over this matter. It claims in this regard
that the proposal would require replacement of prescribed uniform
components and thereby would affect the recognizability of firefighters.
Finally, the Agency contends that if the Union argues that its proposal
is intended as an "appropriate arrangement" under section 7106(b)(3), it
should be granted an opportunity to file a supplemental statement of
position.
The Union contends that its proposal was filed timely. Regarding the
merits, the Union notes that its proposal is not intended to preclude
the Agency from determining the insignia or designated color of the
apparel. Rather, it contends that its proposal merely modifies the
prescribed uniform for the comfort of the firefighters and only in
limited circumstances -- inside the fire station and at field crew
positions. Consequently, the Union argues that the Agency has not shown
that the proposal interferes either with the Agency's right to determine
internal security under section 7106(a)(1) or with its right to
determine the means of performing work under section 7106(b)(1) of the
Statute. The Union also contends that its proposal is an appropriate
arrangement that would not excessively interfere with the Agency's
statutory rights. /2/
III. Analysis and Conclusion
The record fails to substantiate the Agency's assertion that the
Union's request for a negotiability determination did not arise out of a
negotiability dispute. The Union's request was made prior to the
execution of the negotiated agreement. The dispute in this case had its
origin in the negotiation of that agreement. Moreover, to the extent
that the Agency's contentions raise factual issues in dispute between
the parties concerning the duty to bargain, these issues may be raised
in other appropriate proceedings. See American Federation of Government
Employees, AFL-CIO, Local 2736 and Department of the Air Force,
Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base,
Michigan, 14 FLRA 302 (1984).
Based on the record, we construe the Union's proposal to seek a
limited modification to the prescribed firefighter uniform, namely, tee
shirts and ball caps, which will be permitted in limited circumstances
not including those situations when the firefighters meet the public.
Moreover, the proposal permits the Agency to determine the color of the
uniform and the insignia which will be on the uniform. Thus, the Agency
will be able to ensure that under the proposal, the modifications to the
uniforms will identify the individual wearing the uniform as a
firefighter. Viewing the proposal in this manner, we conclude that it
is not significantly different from Proposals B and C found to be
negotiable in American Federation of Government Employees, Local 217 and
Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13
(1986). There were three proposals in that case. Proposal A would have
permitted certain employees the option whether or not to wear a
prescribed uniform. The Authority determined that this proposal was (1)
inconsistent with the right to determine internal security practices
because it effectively would negate the agency's decision to require
uniforms for the purpose of achieving ready identification of employees
and (2) inconsistent with the right to determine methods and means of
performing work because the record established 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. Proposals B and C, however, sought to determine
the type of uniform to be worn on a seasonal basis and to provide
modifications for safety and inclement weather. The Authority found
that these proposals were within the duty to bargain because they did
not directly interfere with the agency's right to determine its internal
security practices or the methods, means and technology of performing
the agency's work. The Authority concluded that the proposals did not
defeat the agency's purpose of requiring distinctive uniform clothing so
as to provide for ready identification of employees.
Similarly, in this case, the modification sought by the Union would
not interfere with the Agency's stated purpose of ready identification.
As noted above, the proposal is limited to those circumstances in which
the firefighters do not deal with the public. Based on the clear
wording of the proposal, in those situations noted by the Agency where
firefighters would deal directly with the public (for example,
inspecting fire hazards or testing fire alarms), firefighters would be
required to wear any uniform prescribed by the Agency. Moreover, as the
Union acknowledges, the proposal reserves to the Agency the right to
designate the color of and appropriate insignia for the apparel. This
aspect of the proposal provides for ready identification in those
limited circumstances noted above where the modified uniform would be
worn. Therefore, we conclude that the proposal does not conflict with
the Agency's stated purpose in prescribing a uniform for firefighters
and, for that reason, it does not interfere with management's right to
determine its internal security practices.
For similar reasons we find that this proposal, like proposals B and
C in Veterans Administration Medical Center, Augusta, Georgia, does not
directly interfere with management's determination of the means of
carrying out its operations. In this respect the Authority has
consistently held that a proposal does not violate management's right
under section 7106(b)(1) to determine the methods and means of
performing the agency's work if it does not interfere with the
mission-related purpose for which the Agency established the method or
means. See, for example, Long Beach Naval Shipyard, Long Beach,
California and Federal Employees Metal Trades Council, AFL-CIO, 17 FLRA
511 (1985). As we found above, the proposed modifications to the
prescribed uniform would not conflict with the purpose of ready
identification for which the Agency requires employees to wear a
uniform. We conclude, therefore, that the proposal would not directly
interfere with management's right to determine the methods and means of
performing the Agency's work under section 7106(b)(1) and that the
proposal is within the duty to bargain under the Statute. See Veterans
Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13, at 6 of
slip opinion. Compare Division of Military and Naval Affairs, State
Association of Civilian Technicians, 15 FLRA 288 (1984), affirmed sub
nom. New York Council, Association of Civilian Technicians v. FLRA, 757
F.2d 502 (2d Cir. 1985), cert. denied, 106 S.Ct. 137 (1985) (where the
Authority found that a requirement that National Guard technician
employees wear a military uniform was an exercise of the right to
determine methods and means of performing work under section 7106(b)(1)
of the Statute because of the particular circumstances of technician
employment).
Because the proposal does not interfere with management's rights
under section 7106(a)(1) or (b)(1), it is unnecessary to determine
whether there is "excessive interference" with those rights. Thus, we
do not reach the issue of whether the proposal is an appropriate
arrangement under section 7106(b)(3).
IV. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain on the Union's proposal. /3/
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In its Statement of Position the Agency restated its contention
that the Union's petition for review was untimely. The Agency excepted
to the conclusion, in a letter dated October 2, 1986 from the
Authority's Director of Case Management, that the Union's petition for
review was timely. The Agency claims that its allegation that the
proposal in question was negotiable only at its election under section
7106(b)(1) of the Statute was made in writing to the Union on March 18,
1986. The Agency was requested to furnish a copy of this letter by the
Director of Case Management on September 22, 1986. In view of the fact
that the letter was not submitted as requested nor was it submitted with
the Agency Statement of Position, we reject the Agency's contention.
(2) The Union requested permission to file an additional submission,
which was limited to listing the Federal activities referenced but not
named in a prior subm sion to the Authority. Under section 2424.8 of
our Regulations, we grant the Union's request.
(3) In finding this proposal to be negotiable, we make no finding as
to its merit.