22:0338(32)CA - Norfolk Naval Station, Navy and Local 13, Federal Firefighters Association -- 1986 FLRAdec CA
[ v22 p338 ]
The decision of the Authority follows:
22 FLRA No. 32 NORFOLK NAVAL STATION DEPARTMENT OF THE NAVY Respondent and LOCAL 13, FEDERAL FIREFIGHTERS ASSOCIATION Charging Party Case NO. 34-CA-50303 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The complaint alleged that the Respondent: (1) violated section 7116(a)(1) of the Federal Service Labor-Management Relations Statute (the Statute) by directing the Union's President, Jeffrey Allen, to wear his firefighter dress uniform to a collective bargaining meeting; (2) violated section 7116(a)(1) and (2) by suspending him for three days for his refusal to do so; and (3) violated section 7116(a)(1) and (5) by requiring, at all times since that incident, all employee/union negotiators who would otherwise be in a duty status to wear the firefighter dress uniform to collective bargaining meetings, as a condition for being allowed official time to participate in such meetings. II. Background Facts Department of the Navy Regulations make the wearing of a prescribed or standard blue uniform (without a tie) mandatory during the normal work period. The addition of a tie makes the uniform a "dress" uniform. The standard firefighter's uniform must ordinarily be worn when they are on official business outside the station that brings them into contact with base officials or the public. Building N-26 is specified as one in which the dress uniform must always be worn. The matter at issue (that is, whether uniforms should be required at collective bargaining meetings) is not specifically addressed in the Regulations. Allen was scheduled to go to a collective bargaining meeting in Building N-26. He was directed by his supervisor, District Chief Washburn, to attend the meeting in his dress uniform and to ride with Washburn to the meeting in a government vehicle. Allen replied that he was attending the meeting as a representative of a labor orgainization, not as a firefighter, and felt it improper to be so directed. Washburn also told Allen that if he disobeyed the order, he would be leaving the station unauthorized. Allen left in civilian clothes and refused the transportation. Upon arriving at the meeting place, Allen was told that he was on unauthorized absence and out of uniform and should return to his duty station. He did not return directly, but took time to discuss the incident with the Director of the Respondent's Labor and Employee Relations Department. Subsequently, Allen was suspended for three days for disobeying a direct order of the District Chief. Since the day of the incident, firefighters have been required to wear their dress uniforms to collective bargaining meetings. III. Positions of the Parties The General Counsel contends that the Respondent has no right to dictate the manner in which employee/Union negotiators must be dressed, and therefore disciplining Allen for refusing to wear the proper uniform must also be unlawful. The General Counsel also argues that the requirement for such negotiators to wear the dress uniform to negotiations clearly has a negative psychological impact on the employees, particularly in view of the significantly more impressive uniforms denoting higher rank worn by some of management's negotiators. The Respondent pointed out in its brief to the Administrative Law Judge, which is part of the record in this case, that, although excused from duty in order to negotiate, Allen here was on call, and if he had to respond to an alarm he must be in uniform for purposes of being identified by the public and other civic firefighters for safety and other purposes. The Respondent also pointed out that the Union's other negotiator in this case, who was also an employee/firefighter but on his own time, was allowed to wear civilian clothes to the negotiations. Finally, the Respondent argued that the uniform-wearing requirement was strictly for internal security/safety reasons, and had nothing to do with union activity. IV. The Judge's Findings The Judge recommended that the complaint be dismissed in its entirety. He found that the Respondent had a legitimate and substantial justification for its requirement and that the requirement at worst had only a slight psychological impact on the protected rights of employees. Further, he found that the discipline against Allen was strictly because of his refusal to follow direct orders, and was not in retaliation for union activity. V. Analysis The Authority agrees with the Judge in all respects. Thus, we find that the Respondent here had a legitimate reason for its requirement, and note particularly that this requirement only pertained to employee/negotiators who were on call during negotiations. We cannot conclude in the circumstances of this case that the uniform-wearing requirement for on-call firefighters was for reasons other than management's expressed concern for safety. For the same reason, we do not find a violation of the Statute in the Respondent's continuing imposition of the requirement. Additionally, noting that Allen had been specifically and clearly informed of the consequences of his intended action, we find that the suspension action was not in retaliation for his union activity as alleged, but rather for his refusal to obey a direct order. The General Counsel questions the fact that the Judge did not cite to and follow his recommended decision in a case referred to by the General Counsel has since been issued by the Authority. See 162nd Tactical Fighter Group, Arizona Air National Guard, Tucson, Arizona, 21 FLRA NO 90 (1986), in which we found a violation of the Statute because the National Guard required an employee, ubpena d by the Authority, to wear the military uniform while appearing as a witness for the Authority in order to be granted official time. We find these cases distinguishable. In 162nd Tactical Fighter Group, the employee involved was obeying an order of the Authority's General Counsel, which carried with it entitlements under section 7131(c) of the Statute; the employee was not on call; and there was no reason shown for the agency to require the uniform to be worn. In this case, by contrast, the employee involved was not under subpena by the Authority; the employee was in an on-call status; and the Respondent had a legitimate reason for its uniform-wearing requirement. VI. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority has reviewed the rulings of the Judge made at the hearing, finds that no prejudicial error was committed, and thus affirms those rulings. The Authority has considered the Judge's Decision, the exceptions to that decision, the positions of the parties and the entire record, and adopts the Judge's findings, conclusions and recommended Order. We therefore conclude that the Respondent did not violate section 7116(a)(1), (2) or (5) of the Statute as alleged in the complaint. ORDER IT IS ORDERED that the complaint in Case NO. 34-CA-50303 be, and it hereby is, dismissed. Issued, Washington, D.C., June 30, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case NO.: 34-CA-50303 NORFOLK NAVAL STATION, DEPARTMENT OF THE NAVY Respondent and LOCAL 13, FEDERAL FIREFIGHTERS ASSOCIATION Charging Party Ms. Delores T. Griffin For the Respondent Mr. Jeffrey W. Allen For the Charging Party Ira Sandron, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C. against the Norfolk Naval Station, Department of the Navy (Respondent), based on charges filed by Local 13, Federal Firefighters Association (Charging Party or Union). The complaint alleged, in substance, that Respondent violated section 7116(a)(1), (2), and (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by directing the Union's president, Jeffrey W. Allen, to wear his firefighter uniform to a collective bargaining session November 20, 1984; suspending him for three days for his refusal to do so; and, at all times material since then, by requiring all employee-Union negotiators to wear firefighter uniforms to collective bargaining meetings, as a condition for such meetings, during the time employee-Union negotiators otherwise would be in a duty status. Respondent's answer admitted the jurisdictional allegations as to the Respondent, the Union, and the charge, but denied all other allegations. A hearing was held in Norfolk, Virginia. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, /1/ including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact 1. Department of the Navy (DON) regulations set forth in CPI 594-B and Naval Station (NAVSTA) Norfolk Instruction 12272.1 prescribe the uniform to be worn by Navy firefighters and set forth the circumstances, variations and exceptions to the wearing of it. Firefighters are paid an initial uniform allowance of $125.00 with quarterly replacement of $31.25. Receipt of the uniform allowance carries with it a concomitant obligation to obtain and wear the uniform as prescribed. The prescribed standard firefighter uniform consists of navy blue long or short-sleeved shirts, and trousers, tie, cap and belt. Firefighters also wear silver colored devices or patches. The uniform is intended for both work and dress, the distinction being that the tie is not required for work. Wearing of the prescribed uniform is mandatory during the normal work period with one or two exceptions in the NAVSTA instruction. Specifically, navy blue coveralls and navy blue T-shirts with the Naval Base emblem may be worn in lieu of the standard uniform when working within or around the fire station or on the fire-servicing station grounds and while testing or servicing fire hydrants and sprinkler systems. Firefighters are also permitted to wear clothes other than their dress uniform outside the fire station when they are engaged in physical fitness programs. However, when responding to an alarm, they must wear turn-out gear, or protective firefighting gear, consisting of pants, coat, boots and helmet when they leave the station, except for drivers who for safety do not put on pants and boots until the truck arrives at the scene. Firefighters are responsible for assuring that this gear is always readily accessible, either on the truck located inside or immediately outside the fire station or in the station living quarters. They must even take the gear with them to the shower. It makes no difference what, if anything, is on underneath. The protective gear can be worn over athletic clothing, the standard uniform, coveralls, civilian attire, if the alarm sounds shortly before the end of the shift, or put on straight from the shower at the moment the alarm sounds. This gear not only protects the firefighter, but readily identifies him as a firefighter. Other than the above exceptions, the standard firefighter uniform must be worn by firefighters when they are outside the fire station. The dress mode, i.e., with tie, is always required when fire department personnel are on official business outside the station that brings them into contact with base or public officials or with the general public. The dress uniform is always worn when going to Building N-26. There are no exceptions to the uniform requirement, either by regulation or local policy, for the purpose of negotiations. The matter has not been specifically addressed in the regulations. 2. On November 20, 1984 a collective bargaining session was scheduled for 10:30 a.m. between the Fire Chief, Naval Station, Alvah L. Cuthriell, and Jeffrey W. Allen, President, Local 13, Federal Firefighters Association to negotiate proposed ground rules for a collective bargaining agreement and to discuss other matters. The meeting was scheduled for the Fire Chief's office in Building N-26, which is the Headquarters of the Commander, Naval base. 3. Jeffrey W. Allen is a Lieutenant assigned to the ladder rescue truck in Fire Station No. 1. He reported at 7:00 a.m. on November 20, 1984 for a 24-hour shift. As the driver/operator of the ladder truck, he is subject to responding to all emergency alarms coming to any of the four stations on the base at any time during his 24-hour shift. 4. Prior to departing the station for the collective bargaining session, Allen was ordered by District Chief Robert Washburn to attend the meeting in the standard dress uniform and to go with Washburn in a government vehicle. Allen replied that he was attending the session as a representative of a labor organization and not as a firefighter, and he did not feel it was proper to wear a uniform at such a meeting. Allen told Washburn that he intended to be on official time, to wear his normal civilian attire, and to go with Union vice president Overby in a private vehicle. Washburn informed Allen that if he disobeyed, he would be leaving the station unauthorized. Allen left the station in civilian attire in Overby's private vehicle. 5. Upon arriving at Building N-26 out of uniform, Allen was informed by Assistant Chief B. R. Grimes that the Chief would not meet with him because he was on unauthorized absence and out of uniform. He was ordered to return to his duty station and told that another meeting would be set up. Allen did not return to the station immediately. Instead, he went to the Personnel Office to see Fletcher F. Bell, Director of the Labor and Employer Relations Department. /2/ 6. Following a notice of proposed suspension and Mr. Allen's reply thereto, Fire Chief Cuthriell made the determination on January 23, 1985 to suspend Allen without pay for three days for his refusal to obey the direct order of Chief Washburn to wear the prescribed uniform to the meeting. Allen was suspended from duty without pay on January 25, 27 and 29, 1985. 7. Since November 20, 1984, Respondent has required all firefighters to wear their dress uniforms to negotiations during the time the employees otherwise would be in a duty status and has required them to do so as a condition to engaging in negotiations. In contrast to the firefighters' dress uniform worn by unit employees, the normal dress uniforms of Chief Cuthriell and Deputy Chief Butler worn to these sessions includes black pants, white shirt, gold badge, gold collar devices, name plate, and gold sleeve patches or stripes. A third management negotiator, Lynda Holder, has worn civilian attire. She is not a firefighter. 8. Firefighters representing the Union in negotiations are subject to responding to a fire or emergency alarm that may occur during negotiation sessions falling within their 24-hour duty shift. In case of a second alarm or a serious enough first alarm, the Fire Chief, Deputy Fire Chief, and all hands would be required to respond. In effect, negotiations would be recessed until the emergency is resolved. 9. While other employees would be substituting for Allen and other negotiators in their primary duties (such as serving on the ladder truck), in an emergency serious enough to interrupt negotiations, Allen and other firefighters would be directed to respond to perform other legitimate firefighter duties. A firefighter could be assigned to such matters as working at the command post, filling and carrying cascade bottles to the fire scene, serving as a guide to the base for cooperating City of Norfolk firemen, and assisting in medical emergencies. 10. The uniform serves to readily identify the individual as a trained firefighter. Otherwise, Navy dispensary personnel or Norfolk City emergency personnel, who respond on a reciprocal basis, would have no way of knowing whether an individual giving first aid in civilian clothing is a well-meaning, but possibly incompetent, bystander, or a firefighter trained in emergency case. The uniform also instills confidence in an accident or heart attack patient that he is in the hands of a qualified, competent professional. The uniform also enables firefighters to have access to security areas. In addition, it provides a symbol of authority to the public in the event cars or persons have to be controlled or moved out of the way. The Fire Chief and other supervisory personnel have their own responsibilities at a fire or emergency scene. To require that they identify or accompany firefighters in civilian clothes as the occasion would require would not be effective or efficient. /3/ 11. None of the negotiation sessions conducted since November 20, 1984 has been interrupted by any kind of emergency. 12. Respondent has previously disciplined employees for insubordination and refusal to comply with uniform requirements. The employees were not involved in any protected activity at the time. Discussion, Conclusions, and Recommendations There is no dispute that Respondent's requirement that firemen wear the uniform while "on duty" constitutes management's choice of a "method and means of performing work" within the meaning of section 7106(b)(1) of the Statute. The dispute centers around whether firefighter Union negotiators bargaining on official time during their 24-hour duty shift are "on duty" so as to be subject to the requirement. The duty status of employees representing an exclusive representative in negotiations has been addressed by the Statute in relation to their entitlement to official time. Section 7131(a) of the Statute provides, in part, as follows: "(a) Any employee representing an exclusive representative in the negotiation of a collective bargaining agreement under this chapter shall be authorized official time for such purposes, including attendance at impasse proceeding, during the time the employee otherwise would be in a duty status." The qualifying language "during the time the employee otherwise would be in a duty status" strongly suggests that an employee representing an exclusive representative in the negotiation of a collective bargaining agreement during the time he would otherwise be scheduled to work is not considered in a duty status. Nor is the conclusion warranted that an employee so serving is acting in his "official capacity," "on the job," or on "official business" of the government. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S. Ct. 439 (1983). Counsel for the General Counsel contends that Respondent's requirement that Union negotiators wear their firefighters dress uniforms to negotiations when they otherwise would be in a duty status clearly has a negative psychological impact on such negotiators, particularly in view of the different uniforms denoting higher rank worn by two of the management negotiators and the civilian attire worn by the third management negotiator. He contends that this is a clear signal that management is in control, and it has an intimidating effect on Union negotiators and seriously undermines the collective-bargaining process in violation of section 7116(a)(1) and (5) of the Statute. Although a firefighter is not in a duty status during negotiations, he is subject to being recalled to full duty status at a moment's notice. As noted, firefighter-negotiators are subject to responding to emergency alarms at any time during their 24-hour shift in which case negotiations would be postponed or interrupted. The response of firefighters must be instantaneous, and full readiness to respond in an appropriate uniform is critical to the efficient accomplishment of essential duties without undue delay. The General Counsel argues that the easiest and most obvious solution would be for Allen and other firefighters to take their protective gear with them to the negotiations. In this event, they could wear civilian clothing while negotiating, and, if an emergency arose, could don their protective gear over their civilian clothing and be prepared for the full range of firefighting duties. While this may be a less intrusive alternative, the choice of clothing in these circumstances is within management's discretion. Based on the record, there is a rational basis for requiring the dress uniform. The dress uniform would facilitate the performance of some essential emergency duties should the need arise. It is also consistent with existing practice and regulation pursuant to which the dress uniform is always worn by firefighters when leaving the fire station during a duty period for purposes other than dirty work, athletics, or fire suppression activities. The General Counsel and the Charging Party would have Union negotiators wear civilian clothing to negotiations in order to demonstrate the equal status of the parties and a clear division between a firefighter's responsibilities when representing an exclusive representative in the negotiation of a collective bargaining agreement and that called for by his regular responsibilities, duties, and deference to his employer during normal duty hours. However, that clear division is simply not possible in matters of dress because of the unique status of firemen as compared to other Federal employees. Section 7101(b) requires that the provisions of the Statute "be interpreted in a manner consistent with the requirement of an effective and efficient Government." Respondent has a legitimate and substantial justification for its action, and its action has only a comparatively slight "psychological" impact on protected rights. No demonstrable impact was shown. In view of the foregoing, it is concluded that a preponderance of the evidence does not establish that Respondent violated section 7116(a)(1) and (5) of the Statute, as alleged, by directing the Union's president, Jeffrey W. Allen, to wear his dress firefighter uniform to a collective bargaining session on November 20, 1984, or by requiring all employee-Union negotiators to wear their dress firefighter uniforms to collective bargaining meetings during the time the employee-Union negotiators otherwise would be in a duty status. It is also concluded that a preponderance of the evidence does not establish that Respondent violated section 7116(a)(1) and (2) of the Statute, as alleged, by suspending Allen for three days for his refusal to wear his dress firefighter uniform to the collective bargaining session. The discipline of Allen was not motivated by the Union activity in which he was scheduled to participate. Rather, it was taken because he deliberately violated the requirement that all firefighters must be in dress uniform when they leave the fire station premises during a duty period. The disciplinary action was entirely consistent with the discipline given other employees for similar offenses. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order: ORDER It is hereby Ordered that the Complaint in Case NO 34-CA-533 be, and it hereby is, DISMISSED. /s/ GARVIN LEE OLIVER Administrative Law Judge Dated: November 26, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) The General Counsel's unopposed motion to correct the transcript is granted; the transcript is hereby corrected as set forth therein. (2) Allen testified that, during the visit of Union vice president Jack Overby and himself to Bell's office, they were discussing the fact that Allen had been required to come in his dress uniform, and "Mr. Bell stated that the Union, as far as he was concerned, would never be an equal party to these negotiations." Overby testified that "Mr. Bell told him (Allen) that as far as he was concerned, as long as he worked there, the Union would never be on the same footing with management." Bell testified that in discussing the mode of dress, he did not state the Union and management would never be equal at the bargaining table, but did "tell Mr. Allen that it didn't make any difference what he wore or what the Chief wore, the fact still remians that the Fire Chief is the Fire Chief and Mr. Allen and Mr. Overby were firefighters." Based on the entire record, I credit Bell's version. (3) In making Findings 8-10 I have credited the explanation of Respondent's witnesses in this regard after considering and rejecting the General Counsel's arguments, including that as to the speculative and conjectural nature of the potential problems and the credibility of Respondent's witnesses.