21:0062(13)NG - AFGE, Local 217 and VA Medical Center, Augusta, Ga. -- 1986 FLRAdec NG



[ 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