25:1028(85)NG - AFGE Local 1625 and Navy, Naval Air Station, Oceana, Virginia -- 1987 FLRAdec NG
[ v25 p1028 ]
The decision of the Authority follows:
25 FLRA No. 85 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1625 Union and DEPARTMENT OF THE NAVY NAVAL AIR STATION OCEANA, VIRGINIA Agency Case No. 0-NG-1290 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents an issue concerning the following proposal: It is agreed that during the summer tee shirts and ball caps with appropriate patches may be worn by the duty section within the confines of the fire station and at field crew positions. For the reasons which follow, we conclude that the proposal is within the duty to bargain. II. Positions of the Parties The Agency, in its Statement of Position, contends that the Union's petition for review must be dismissed because there were no negotiations out of which the negotiability dispute could have arisen. The Agency claims in this connection that no negotiations involving this issue, or any similar issue, had taken place since March 19, 1986, and therefore the Union's request for the Agency's position as to the negotiability of the proposal in question, dated May 22, 1986, involved no specific negotiations. /1/ With respect to the merits of the proposal, the Agency argues that the proposal conflicts with the exercise of the Agency's section 7106(a)(1) right to determine internal security practices because the prescribed uniform is essential to the identification of firefighters in the performance of their duties. The Agency also contends that the proposal is contrary to section 7106(b)(1) of the Statute because the prescribed uniform involves the means of performing work and the Agency has not elected to negotiate over this matter. It claims in this regard that the proposal would require replacement of prescribed uniform components and thereby would affect the recognizability of firefighters. Finally, the Agency contends that if the Union argues that its proposal is intended as an "appropriate arrangement" under section 7106(b)(3), it should be granted an opportunity to file a supplemental statement of position. The Union contends that its proposal was filed timely. Regarding the merits, the Union notes that its proposal is not intended to preclude the Agency from determining the insignia or designated color of the apparel. Rather, it contends that its proposal merely modifies the prescribed uniform for the comfort of the firefighters and only in limited circumstances -- inside the fire station and at field crew positions. Consequently, the Union argues that the Agency has not shown that the proposal interferes either with the Agency's right to determine internal security under section 7106(a)(1) or with its right to determine the means of performing work under section 7106(b)(1) of the Statute. The Union also contends that its proposal is an appropriate arrangement that would not excessively interfere with the Agency's statutory rights. /2/ III. Analysis and Conclusion The record fails to substantiate the Agency's assertion that the Union's request for a negotiability determination did not arise out of a negotiability dispute. The Union's request was made prior to the execution of the negotiated agreement. The dispute in this case had its origin in the negotiation of that agreement. Moreover, to the extent that the Agency's contentions raise factual issues in dispute between the parties concerning the duty to bargain, these issues may be raised in other appropriate proceedings. See 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 (1984). Based on the record, we construe the Union's proposal to seek a limited modification to the prescribed firefighter uniform, namely, tee shirts and ball caps, which will be permitted in limited circumstances not including those situations when the firefighters meet the public. Moreover, the proposal permits the Agency to determine the color of the uniform and the insignia which will be on the uniform. Thus, the Agency will be able to ensure that under the proposal, the modifications to the uniforms will identify the individual wearing the uniform as a firefighter. Viewing the proposal in this manner, we conclude that it is not significantly different from Proposals B and C found to be negotiable in American Federation of Government Employees, Local 217 and Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13 (1986). There were three proposals in that case. Proposal A would have permitted certain employees the option whether or not to wear a prescribed uniform. The Authority determined that this proposal was (1) inconsistent with the right to determine internal security practices because it effectively would negate the agency's decision to require uniforms for the purpose of achieving ready identification of employees and (2) inconsistent with the right to determine methods and means of performing work because the record established 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. Proposals B and C, however, sought to determine the type of uniform to be worn on a seasonal basis and to provide modifications for safety and inclement weather. The Authority found that these proposals were within the duty to bargain because they did not directly interfere with the agency's right to determine its internal security practices or the methods, means and technology of performing the agency's work. The Authority concluded that the proposals did not defeat the agency's purpose of requiring distinctive uniform clothing so as to provide for ready identification of employees. Similarly, in this case, the modification sought by the Union would not interfere with the Agency's stated purpose of ready identification. As noted above, the proposal is limited to those circumstances in which the firefighters do not deal with the public. Based on the clear wording of the proposal, in those situations noted by the Agency where firefighters would deal directly with the public (for example, inspecting fire hazards or testing fire alarms), firefighters would be required to wear any uniform prescribed by the Agency. Moreover, as the Union acknowledges, the proposal reserves to the Agency the right to designate the color of and appropriate insignia for the apparel. This aspect of the proposal provides for ready identification in those limited circumstances noted above where the modified uniform would be worn. Therefore, we conclude that the proposal does not conflict with the Agency's stated purpose in prescribing a uniform for firefighters and, for that reason, it does not interfere with management's right to determine its internal security practices. For similar reasons we find that this proposal, like proposals B and C in Veterans Administration Medical Center, Augusta, Georgia, does not directly interfere with management's determination of the means of carrying out its operations. In this respect the Authority has consistently held that a proposal does not violate management's right under section 7106(b)(1) to determine the methods and means of performing the agency's work if it does not interfere with the mission-related purpose for which the Agency established the method or means. See, for example, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, AFL-CIO, 17 FLRA 511 (1985). As we found above, the proposed modifications to the prescribed uniform would not conflict with the purpose of ready identification for which the Agency requires employees to wear a uniform. We conclude, therefore, that the proposal would not directly interfere with management's right to determine the methods and means of performing the Agency's work under section 7106(b)(1) and that the proposal is within the duty to bargain under the Statute. See Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13, at 6 of slip opinion. Compare Division of Military and Naval Affairs, State 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, 106 S.Ct. 137 (1985) (where the Authority found that a requirement that National Guard technician employees wear a military uniform was an exercise of the right to determine methods and means of performing work under section 7106(b)(1) of the Statute because of the particular circumstances of technician employment). Because the proposal does not interfere with management's rights under section 7106(a)(1) or (b)(1), it is unnecessary to determine whether there is "excessive interference" with those rights. Thus, we do not reach the issue of whether the proposal is an appropriate arrangement under section 7106(b)(3). IV. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain on the Union's proposal. /3/ Issued, Washington, D.C., February 27, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In its Statement of Position the Agency restated its contention that the Union's petition for review was untimely. The Agency excepted to the conclusion, in a letter dated October 2, 1986 from the Authority's Director of Case Management, that the Union's petition for review was timely. The Agency claims that its allegation that the proposal in question was negotiable only at its election under section 7106(b)(1) of the Statute was made in writing to the Union on March 18, 1986. The Agency was requested to furnish a copy of this letter by the Director of Case Management on September 22, 1986. In view of the fact that the letter was not submitted as requested nor was it submitted with the Agency Statement of Position, we reject the Agency's contention. (2) The Union requested permission to file an additional submission, which was limited to listing the Federal activities referenced but not named in a prior subm sion to the Authority. Under section 2424.8 of our Regulations, we grant the Union's request. (3) In finding this proposal to be negotiable, we make no finding as to its merit.