23:0204(27)NG - AFSCME Local 2477 and Library of Congress -- 1986 FLRAdec NG
[ v23 p204 ]
The decision of the Authority follows:
23 FLRA No. 27 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, LOCAL 2477, AFL-CIO Union and LIBRARY OF CONGRESS Agency Case No. 0-NG-1195 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E ) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of three proposals. The Union made the proposals in response to an Agency decision to require warehouse personnel to wear uniforms. We hold that Union Proposals 1 and 2 are within the duty to bargain /1/ and that Union Proposal 3 is nonnegotiable. Union Proposal 1 Each employee will receive 5 complete sets of clothing including long and short sleeve shirts. Union Proposal 2 Each employee will receive a jacket. Union Proposal 3 Staff will be allowed 10 minutes after the start and before the end of each workday to change clothes. II. Positions of the Parties The Agency asserts that it imposed the uniform requirement to promote quick identification of warehouse personnel for security purposes. It contends that it has no obligation to bargain over Union Proposals 1 and 2 because of a "zipper clause" in the parties' contract. It contends that it has no obligation to bargain over Union Proposal 3 because it interferes with the Agency's right under section 7106(a)(2)(B) to assign work. The Union argues that the contract language relied upon by the Agency does not foreclose bargaining on Union Proposals 1 and 2. It also argues that Union Proposals 1, 2 and 3 are appropriate arrangements for employees adversely affected by the Agency's requirement that they wear uniforms. III. Analysis A. Effect of Question Concerning Interpretation of Contract Language on the Negotiability of Proposals 1 and 2 The Agency raises a question as to its duty to bargain over Proposals 1 and 2 in light of contract language which it maintains amounts to a zipper clause which forecloses further bargaining on the subject of requiring employees to wear uniforms. This is the only ground raised by the Agency in support of its allegation that these two proposals are nonnegotiable. In a negotiability appeal the Authority decides only the negotiability issues presented under section 7105(a)(2)(D) or (E) of the Statute -- that is: Does a proposal concern conditions of employment of bargaining unit employees; does it conflict with law or Government-wide rule or regulation; or does it conflict with an agency regulation for which a compelling need exists? The parties may resolve questions of duty to bargain which are based on factual issues in other appropriate proceedings, such as grievance and arbitration procedures. See, for example, American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 at 306, n.6 (1984). Negotiability of Union Proposals 1 and 2 under Section 7105(a)(2)(E) of the Statute The Union's contention that Union Proposals 1 and 2 are appropriate arrangements for employees adversely affected by the Agency's decision to require them to wear uniforms is persuasive. The Agency makes no contention and it does not otherwise appear that these proposals would interfere with the purpose for which the uniform requirement was adopted -- identification of warehouse personnel. The Union's assertion that the proposals are for the purpose of assuring that the Agency provide employees with an adequate type and quantity of uniform is convincing and uncontroverted. These proposals are, therefore, to the same effect as Proposals B and C in American Federation of Government Employees, Local 217 and Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13 (1986), which we found negotiable under section 7106(b)(3) of the Statute. We see no basis for a different conclusion here. Because Proposals 1 and 2 do not interfere at all with the purpose for which the Agency had adopted the uniform requirement, it is not necessary to apply any test for determining whether there is "excessive interference" with any management right /2/ under section 7106(b)(3). National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). C. Negotiability of Union Proposal 3 Union Proposal 3 directly interferes with the Agency's right under section 7106(a)(2)(B) to assign work. It is materially identical to Union Proposal 1 in American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 19 FLRA No. 120 (1985). Based on the reasoning set forth in that case, we arrive at the above conclusion in this case. The issue, then, is whether the proposal here which is intended as an appropriate arrangement interferes to an excessive degree with the exercise of the right to assign work. /3/ The Union states that the purpose of Union Proposal 3 is to facilitate employees' ability to wear their own clothes, as opposed to the uniform, to and from work. It asserts that this would reduce the adverse effects on employees of the uniform requirement but offers no explanation of the assertion. We accept for purposes of this decision, without deciding, that this uniform requirement has an adverse effect on employees. We believe that the pivotal questions we must address in deciding whether there is an excessive interference with management's right are: 1) Whether and how the proposal would address or compensate for the adverse effects; and 2) whether the negative impact of the proposal on management's rights is disproportionate to the benefits to be derived. In addressing the first question, it is significant to note that the Agency does not prohibit employees from wearing their uniforms to and from work. It appears that the decision whether to change clothing at work is purely a matter of individual employee preference. Given this, we conclude that the thrust of the proposal is to eliminate the need for those employees who prefer changing at work to use their own, nonwork time. In addressing the second question, we note that the proposal would result in a loss to the Agency of twenty minutes each work day during which it could not assign work of its choosing to those employees. This would have a significant negative impact on its right to assign work. We believe that this negative impact outweighs the benefit to employees in not having to use their own time to exercise their option to change clothes at work. We conclude that the proposal is not an appropriate arrangement within the meaning of section 7106(b)(3) because it would excessively interfere with the Agency's right under section 7106(a)(2)(B) to assign work. IV. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposals 1 and 2. IT IS FURTHER ORDERED that the Union's petition for review as to Union Proposal 3 be, and it hereby is, dismissed. Issued, Washington, D.C., Ajgust 15, 1986. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In finding these proposals negotiable, we make no judgments as to their merits. (2) We have found that under some circumstances a requirement that employees wear uniforms was an exercise of the right to determine internal security under section 7106(a)(1), and that a proposal that employees have an option not to wear the uniform was nonnegotiable. Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13. We have found under other circumstances that a requirement that employees wear a uniform was an exercise of the right to determine methods and means of performing work under section 7106(b)(1). Division of Military and Naval Affairs, State of New York, Albany, New York and New York Council, Association of Civilian Technicians, 15 FLRA 288 (1984), affirmed sub nom. New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied, 1065 S.Ct. 137 (1985). (3) See Kansas Army National Guard, 21 FLRA No. 4 for a discussion of this standard.