22:0502(53)CA - Air Force, HQs Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1986 FLRAdec CA

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22:0502(53)CA
The decision of the Authority follows:


 22 FLRA No. 53
 
 DEPARTMENT OF THE AIR FORCE, HEADQUARTERS 
 AIR FORCE LOGISTICS COMMAND
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, COUNCIL 214, AFL-CIO
 Changing Party
 
                                            Case No. 5-CA-30334
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 of the attached Administrative Law Judges's Decision filed by the
 Respondent and by the General Counsel.  The complaint alleged that the
 Respondent, Department of the Air Force, Headquarters, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio (the Respondent
 or AFLC), violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute) by unilaterally
 implementing a new policy prohibiting those employees required to wear
 respirators from having facial hair while negotiations concerning the
 policy were being held and before impasse was reached in the
 negotiations.
 
                                II.  Facts
 
    The facts are not in dispute.  The Respondent requested and
 interpretation of the Occupational Safety and Health Administration
 (OSHA) standard on respirator use and safety (29 C.F.R.
 1910.134(e)(5)(1)) from the Dallas Regional Office of OSHA.  The
 question was whether employees who are required to wear respirators in
 their work may have facial hair at the sealing surface.  The OSHA
 Regional Office advised the Respondent that facial hair at the sealing
 surface of the respirator would constitute a violation of its standard.
 The Respondent then notified the American Federation of Government
 Employees, Council 214, AFL-CIO (Union) by letter dated April 25, 1983,
 that the following policy would apply throughtout the Agency.
 
          Any observable facial hair in the facepiece-to-face sealing
       surface will cause a fit-test failure and the employee can be
       directed to shave in the sealing area.  When the employee has
       shaven, he will be re-fit-tested to determine when a safe seal is
       achieved.
 
    The old policy permitted employees who were required to use
 respirators in their work to have facial hair as long as it would not
 interfere with the respirator sealing surface as determined by the
 Respondent during a respirator fit test.  The letter stated that the
 change was necessary because the Respondent was anticipating a change in
 an Air Force Regulation, AFOSH Std. 161-1, Respiratory Protection
 Program, and because of OSHA's interpretation of 29 CFR 1910.134.  The
 letter announced the Respondent's intention to implement the policy as
 of May 27, 1983, and invited the Union to negotiate concerning the
 "impact/implementation" of this policy.
 
    The Union submitted proposals regarding the change on May 10, 1983.
 (The proposals are set forth in the attached Appendix).  On May 26, the
 Respondent sent the Union a letter which said, "We regret that you have
 chosen to submit proposals that are, taken as a whole, beyond the realm
 of reasonableness." It went on to say that due to the over-riding
 exigency of a safe and healthful workplace, the policy would be
 implemented throughout AFLC on May 27, 1983.
 
    Despite the May 26 letter, the parties met on May 27 to negotiate.
 After that date the parties did not meet again, and on July 8, 1983, the
 Respondent informed the Union that the Union's proposals submitted on
 May 10 were nonnegotiable because they were not "valid impact and
 implementation proposals," and that they either directly conflicted with
 the Respondent's new policy or did not relate to it.  It is uncontested
 that the Respondent ordered implementation of the new facial hair policy
 at seven bases within AFLC on May 27, 1983.  Time and method of
 implementation varied among the bases.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge found that the Respondent was not obliged to negotiate over
 the substance of the change in the facial hair policy because the Union
 had waived its rights by agreeing in the parties' June 28, 1982 Master
 Labor Agreement (MLA) to language which required the Respondent to
 comply with Executive Order 12196 as implemented by the Department of
 Defense (DOD), which required agencies to follow OSHA standards unless
 the agency secured approval from the Secretary of Labor for the use of
 an alternative standard.  In the instant situation, no alternative
 standard was sought or approved.
 
    The Judge found further that the Respondent, even where privileged to
 make a change in working conditions, is still obliged to negotiate
 concerning the impact and procedures for implementing such change.  He
 concluded that the Respondent here did not fulfill this obligation,
 finding that certain of the Union's proposals dealt with the impact on
 employees and the procedures for implementing the change.  The Judge
 therefore concluded that the Respondent violated section 7116(a)(1) and
 (5) of the Statute and recommended that it be ordered to cease and
 desist from such conduct and to take certain affirmative action.  The
 Judge did not order a status quo ante remedy as requested by the General
 Counsel.
 
                       IV.  Positions of the Parties
 
    The Respondent excepted to the Judge's finding of a violation,
 asserting that its change in the established facial hair policy did not
 constitute a unilateral change in conditions of employment because the
 Union already had negotiated concerning this matter and because the
 Respondent was merely complying with the collective bargaining
 agreement.  The Respondent contended that, by agreeing to the language
 in the MLA, the Union had agreed to the application of OSHA standards
 which included the imposition of the new standard.  Further, the
 Respondent contended that the Union's proposals sought to make
 implementation of the new policy voluntary or otherwise constituted
 proposals unrelated to the impact and implementation of the change.
 
    The General Counsel excepted to the Judge's conclusion that the Union
 had waived its right to bargain concerning the substance of the change
 in policy, and also excepted to the Judge's denial of a status quo ante
 remedy for the impact and implementation violation.
 
                               V.  Analysis
 
    In agreement with the Judge, the Authority finds that the Respondent
 did not violate section 7116(a)(1) and (5) of the Statute by instituting
 the new facial hair policy without bargaining over the substance of the
 change.  Thus, as the Judge found, the Union clearly and unmistakably
 waived its right to do so by agreeing to the terms of the MLA.  the
 Authority further finds, however, that there was no clear and
 unmistakable waiver of the Union's right to bargain over the procedures
 which the Respondent would observe in exercising its authority with
 regard to the change in its facial hair policy for employees required to
 wear respirators in their work and concerning appropriate arrangements
 for employees adversely affected by such change.  See U.S. Department of
 Labor, Occupational Safety and Health Administration, Chicago, Illinois,
 19 FLRA No. 60 (1985).  In this regard, the Authority finds that certain
 proposals submitted by the Union concerned the procedures which the
 Respondent would observe in exercising its authority with regard to
 changing its facial hair policy, and concerning appropriate arrangements
 for employees adversely affected by such change.  Thus, we conclude that
 the Respondent violated the Statute when it implemented the change in
 its facial hair policy without negotiating with the Union concerning
 such procedures and appropriate arrangements.
 
    Turning to the specific Union proposals, the Authority finds that
 proposals 9 and 13 are negotiable.  Proposal 9 would merely require the
 Respondent to inform new employees hired into positions requiring the
 use of a respirator that they should not grow facial hair in the
 facepiece-to-face sealing surface area.  The Respondent admitted that
 this is not in conflict with the MLA which already obligates it to train
 and advise new employees on the proper use of respirators.  Proposal 13
 states that "supervisors will not harass employees in any way in
 connection with facial hair in the facepiece-to-face sealing surface."
 The proposal does not infringe on management's right to direct or
 require employees to comply with the new facial hair policy.  Nor does
 it prevent management from acting to enforce such policy.  The proposal
 simply provides that management will not go beyond what it can legally
 do to require compliance, that is, the proposal simply provides that
 management cannot "harass" employees.
 
    The Authority finds that Union proposal 1, which would delay the
 Respondent's implementation of the new facial hair policy until higher
 level management (the Air Force) revised its regulations, is not
 negotiable.  On its face, such proposal appears to be a negotiable
 procedure.  However, when it agreed to the language in the MLA regarding
 compliance with OSHA standards, the Union waived its right in this
 respect.  Specifically, the MLA requires compliance with Executive Order
 12196 which directs agencies to assure prompt abatement of unsafe or
 unhealthy working conditions under the OSHA standards.  Compliance in
 this regard is not preconditioned upon the promulgation of internal
 regulations by the Air Force.  Accordingly, there was no duty to bargain
 over this proposal.
 
    The Authority finds Union proposal 2 which seeks a National OSHA
 interpretation of 29 CFR 1910.134(e)(5)(i) and Union proposal 18 which
 states that the MLA would prevail if any conflict arose between this
 agreement and the MLA, are nonnegotiable because the intent of these
 proposals, as they relate to the change, is not evident on their face.
 Standing alone, they do not relate to the impact or procedures for
 implementing the change.  The Authority finds also that Union proposals
 3, 4, 5 and 6 dealing with the elimination of toxic chemicals, the use
 of other controls for a safe work environment and a limitation on the
 use of respirators, are nonnegotiable as they go beyond the impact or
 procedures for implementing the change in the facial hair policy.
 
    The Authority finds that Union proposals 7 and 8 also are
 nonnegotiable.  Union proposals 7 and 8 provide:
 
          7.  AFLC agrees to provide employees with facial hair an
       appropriate respirator which allows them to maintain facial hair
       of their preference.
 
          8.  AFLC agrees that if an employee with facial hair of his
       preference cannot be test-fitted with an appropriate respirator
       (including full mask, helmet, etc.), he will be reassigned to
       another suitable position of like pay, grade, and benefits so as
       not to discriminate against employees who elect to have facial
       hair.
 
    It is concluded that they are nonnegotiable because they set up a
 test which would leave to the employee's discretion rather than
 management's whether an employee could maintain facial hair.  If the
 employee decides to keep his facial hair, these proposals would require
 management to find an appropriate respirator so the employee could
 continue to work on his assigned job, or if an appropriate respirator
 cannot be found, the employee would be reassigned to another suitable
 position without the loss of any benefits or pay.  Taken together, these
 proposals would infringe on management's right to direct employees,
 assign work and determine the technology of performing work, that is,
 the particular type of respirator which will be used, and are otherwise
 inconsistent with the mandatory nature of the new policy that employees
 be clean shaven in the facepiece-to-face sealing area.  See National
 Federation of Federal Employees, Local 1624 and Air Force Contract
 Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980) and
 National Federation of Federal Employees, Local 943 and Department of
 the Air Force, Headquarters Keesler Technical Training Center, Keesler
 Air Force Base, Mississippi, 19 FLRA No. 113 (1985) (Union Proposal 2).
 
    Union proposal 15 would reserve to the Union the right to make
 additional proposals as more information became available regarding the
 use and safety of respirators.  The Respondent argued that the proposal
 conflicts with the MLA as to when proposals can be submitted with regard
 to proposed management changes.  The Union did not submit a position as
 to whether the Respondent's stated position was correct.  Therefore, the
 Authority will find this proposal is nonnegotiable because it conflicts
 with the parties' MLA as interpreted by the Respondent without
 contradiction.
 
    As to the remaining Union proposals, 10 through 12, 14, 16 and 17,
 The Authority finds these proposals, the collective intent of which
 clearly was to make the implementation of the new facial hair policy
 voluntary, are nonnegotiable as they are directed toward changing the
 policy.  The Authority finds that these proposals go to the substance of
 the policy and, as previously noted, are not negotiable as the Union
 waived its right in this respect.
 
                                VI.  Remedy
 
    The Judge did not grant a status quo ante remedy as requested by the
 General Counsel.  In agreement with the Judge, the Authority finds that
 such a remedy is not warranted.  Thus, balancing the nature and
 circumstances of the bargaining violation against the degree of
 disruption in the efficiency and effectiveness of the Respondent's
 operations that would be caused by such a remedy, and taking into
 consideration the various factors set forth in Federal Correctional
 Institution, 8 FLRA 604 (1982), the Authority concludes that such a
 remedy would not effectuate the purposes and policies of the Statute.
 Thus, the Authority notes that the Respondent gave the Union prior
 notice of its intent to implement the new facial hair policy and invited
 the Union to bargain concerning its impact and implementation;  that the
 parties met to discuss the Union's proposals;  that the Respondent's
 conduct does not appear willful;  and that the General Counsel has not
 demonstrated the nature and extent of the impact of the new policy on
 unit employees.  Also, it appears that a return to the old policy would
 be disruptive to the efficiency and effectiveness of the Respondent's
 operation, as the Respondent implemented the new policy to conform with
 OSHA standards relating to the protection, safety and health of
 employees required to use respirators in their work.  Under these
 circumstances, and where the Respondent acted to abate what it perceived
 as an unsafe and unhealthy situation for employees, the Authority finds
 that a return to the pre-existing policy would not promote an efficient
 and effective government.
 
                             VII.  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 prejudical error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision, the positions of the parties and the entire
 record, and adopts the Judge's findings, conclusions, and recommended
 Order as modified by this decision.
 
    Therefore, having found Union proposals 9 and 13 negotiable, the
 Authority concludes that the Respondent violated section 7116(a)(1) and
 (5) of the Statute by implementing its new facial hair policy while
 failing and refusing to negotiage over such proposals with Union.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 Department of the Air Force, Headquarters, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to meet and negotiate with the
       American Federation of Government Employees, Council 214, AFL-CIO,
       the employees' exclusive representative, over negotiable proposals
       with respect to the procedures which it will observe in exercising
       its authority with regard to changes in its facial hair policy for
       employees required to wear respirators in their work and
       concerning appropriate arrangements for employees adversely
       affected by such change.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purpose and policies of the Statute:
 
          (a) Upon request, meet and negotiate with the American
       Federation of Government Employees, Council 214, AFL-CIO, the
       employees' exclusive representative, concerning any proposal found
       negotiable herein, submitted in connection with the Respondent's
       change in its facial hair policy for employees required to wear
       respirators in their work.
 
          (b) Post at all of its facilities where bargaining unit
       employees are located 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, or a
       designee, 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.  Reasonable steps shall be taken to ensure that such
       Notices are not altered, defaced, or covered by any other
       material.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region V, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       this Order, as to what steps have been taken to comply with the
       Order.
 
    IT IS FURTHER ORDERED that the allegation of the complaint in Case
 No. 5-CA-30334 relating to the Respondent's refusal to negotiate over
 those proposals found nonnegotiable be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., July 10, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                                 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 fail and refuse to meet and negotiate with the American
 Federation of Government Employees, Council 214, AFL-CIO, our employees'
 exclusive representative, over negotiable proposals with respect to the
 procedures which we will observe in exercising our authority with regard
 to changes in our facial hair policy for employees required to wear
 respirators in their work and concerning appropriate arrangements for
 employees adversely affected by such change.
 
    WE WILL NOT in any like or related manner interfer with, restrain, or
 coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon request, meet and negotiate with the American
 Federation of Government Employees, Council 214, AFL-CIO, our employees'
 exclusive representative, concerning any proposal found negotiable
 herein, submitted in connection with our change in the facial hair
 policy for employees required to wear respirators in their work.
 
    (Activity) . . .
 
    Dated:  . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or by any other material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region V, Federal Labor Relations Authority, whose address is:
  175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL 60604, and whose
 telephone number is:  (312) 353-6306.
 
 
 
 
 
                                 APPENDIX
 
 Memorandum of Agreement on Facial Hair in the Facepiece-to-Face Sealing
 Surface
 
    1.  AFLC agrees to delay its proposal of 25 April 1983 concerning the
 above until after HQ USAF, AFMSC/SGPA has changed AFOSH Std 161-1
 Respiratory Protection Program in accordance with the Statute.
 
    2.  AFLC agrees to jointly request with AFGE Council 214 the National
 OSHA position in regard to their interpretation of Title 29, Section
 1910.134(e)(5)(i).
 
    3.  AFLC agrees to provide AFGE Council 214 a target date when it
 expects to eliminate, exhaust or enclose all toxic chemicals;  thereby
 eliminating the need or requirement for respirators.
 
    4.  AFLC agrees that respirators will be used only when engineering,
 work practice, or administrative controls are not feasible and as a
 temporary control for the time it takes to put any other control(s) into
 use.
 
    5.  AFLC agrees to provide AFGE Council 214 with a copy of the
 report(s) derived from item 4 above as required under Section 1910.1000,
 Subsection e, page 632 of Title 29.
 
    6.  AFLC agrees that respirators will be used only for Respiratory
 Hazard Task/Area(s), and their use will be in accordance with
 appropriate directives.
 
    7.  AFLC agrees to provide employees with facial hair an appropriate
 respirator which allows them to maintain facial hair of their
 preference.
 
    8.  AFLC agrees that if an employee with facial hair of his
 preference cannot be test-fitted with an appropriate respirator
 (including full mask, helmet, etc.), he will be reassigned to another
 suitable position of like pay, grade, and benefits so as not to
 discriminate against employees who elect to have facial hair.
 
    9.  AFLC agrees that new employees hired into a position requiring
 the use of a respirator will be informed that if they decide to grow
 facial hair, it should not be in the facepiece-to-face sealing surface.
 
    10.  AFLC agrees that no employee will be directed to shave any
 observable facial hair in the facepiece-to-face sealing surface.
 
    11.  AFLC agrees that employees with observable facial hair in the
 facepiece-to-face sealing surface and voluntarily agree to shave will be
 allowed to do so on official time.
 
    12.  AFLC agrees to provide employees razor blades, shaving kits,
 soaps, water, etc. of their choice so they may voluntarily shave any
 observable facial hair in the facepiece-to-face sealing surface on
 official time.
 
    13.  AFLC agrees that supervisors will not harass employees in any
 way in connection with facial hair in the facepiece-to-face sealing
 surface.
 
    14.  AFLC agrees to provide adequate training and guidance to all
 employees required to wear respirators with observable facial hair in
 the facepiece-to-face sealing surface including the hazards of a
 fit-test failure.
 
    15.  AFGE Council 214 reserves the right to make additional proposals
 as more information becomes available and deemed appropriate.
 
    16.  AFLC agrees that in th