08:0740(126)CA - DOD, Air Force, Oklahoma City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 -- 1982 FLRAdec CA



[ 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 ALT