26:0704(87)CA AFGE, COUNCIL 240 VS MARINE CORPS -- 1987 FLRAdec CA



[ v26 p704 ]
26:0704(87)CA
The decision of the Authority follows:


26 FLRA NO. 87

DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS

                   Respondent

            and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 240, AFL-CIO

                   Charging Party

Case No. 3-CA-60156

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent had committed the unfair labor practices alleged in the complaint, and recommending that the Respondent be ordered to take appropriate remedial action. The Respondent filed exceptions to the Judge's decision.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's decision and the entire record, we find that the decision is consistent with the decisions of the Authority the Judge relied on and with our subsequent decision in Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, AFL - CIO, Local 1760, 24 FLRA No. 42 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 1760 v. FLRA, No. 86-1702 (D.C. Cir. Dec. 17, 1986). We therefore adopt the Judge's decision and his recommended remedial order. 

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Department of the Navy, United States Marine Corps, shall:

1. Cease and desist from:

(a) Unilaterally instituting a requirement that all motorcycle operators wear reflective vests without first providing timely appropriate notice to, and upon request bargaining with, the American Federation of Government Employees, Council 240, AFL - CIO, the exclusive representative of a unit of its employees, concerning the procedures to be observed in implementing the change and appropriate arrangements for bargaining unit employees who might be adversely affected by the change.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Post at the various installations where unit employees are employed 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 a senior official of the United States Marine Corps and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and all other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have taken to comply with the Order.

Issued, Washington, D.C., April 28, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

                   NOTICE TO ALL EMPLOYEES
                        PURSUANT TO
                 A DECISION AND ORDER OF THE
             FEDERAL LABOR RELATIONS AUTHORITY
             AND TO EFFECTUATE THE POLICIES OF
                CHAPTER 71 OF TITLE 5 OF THE
                     UNITED STATES CODE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
            WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally institute a requirement that all motorcycle operators wear reflective vests without first providing timely appropriate notice to, and upon request bargaining with, the American Federation of Government Employees, Council 240, AFL - CIO, the exclusive representative of a unit of our employees, concerning the procedures to be observed in implementing such change and appropriate arrangements for bargaining unit employees who might be adversely affected by the change.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

                               ______________________________
                                           (Agency)

Dated:______________________By:______________________________
                                       (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered 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, of the Federal Labor Relations Authority, Region III, whose address is: 1111 18th Street, NW, Room 700, P.O. Box 33758, Washington, DC 20033-0758, and whose telephone number is: (202) 653-8500. 

DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
COUNCIL 240, AFL-CIO

              Charging Party

Case No. 3-CA-60156

Patricia Eanet Dratch, Esquire
Bruce D. Rosenstein, Esquire
         For the General Counsel

Lt. Col. Lawrence B. Hagel, Esquire
         For the Respondent

Before: BURTON S. STERNBURG
        Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101 et. seq., and the Rules and Regulations issued thereunder.

Pursuant to a charge filed on February 20, 1986, by the American Federation of Government Employees, Council 240, AFL - CIO, (hereinafter called the Union or AFGE), a Complaint and Notice of Hearing was issued on May 19, 1986, by the Regional Director for Region III, Federal Labor Relations Authority, Washington, D.C. The Complaint alleges that the Department of the Navy, United States Marine Corps, (hereinafter called the Respondent), violated Sections 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute, (hereinafter called the Statute), by failing and refusing to bargain with the Union over the impact and manner of implementation of its newly instituted policy of requiring all employees to wear safety vests while operating motorcycles on the base.

A hearing was held in the captioned matter on July 8, 1986, in Washington, D.C. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post hearing briefs on August 7 and 8, 1986, respectively, which have been duly considered.

Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

The American Federation of Government Employees is the certified exclusive representative of a consolidated unit of professional and non-professional employees working in some nineteen U.S. Marine Corps installations. Council 240 is authorized to "act for and negotiate agreements covering all employees" in the consolidated bargaining unit. 1

By letter dated December 11, 1985, the Labor Relations Branch of Headquarters United States Marine Corps notified the Union that the existing Marine Corps Order 5100.19C dealing with traffic safety aboard Marine Corps installations was to be amended to provide, among other things, that every person operating or riding on a motorcycle aboard Marine Corps property "shall wear . . . . a reflective vest." The letter went on to inform the Union that the Marine Corps intended "to implement this change for employees in the consolidated bargaining unit on or after January 13, 1986. 2

By letter dated December 31, 1985, the Union requested the "opportunity to negotiate the impact of implementation" of the proposed change and informed the Respondent that Mr. James Tanner was authorized to represent the Union with respect to the change.

By letter dated January 6, 1986, the union reiterated its request to negotiate the reflective vest requirement and submitted the following proposals:

1. Safety equipment shall be provided at no cost to employees.

2. Storage for same shall be provided at the point of entering or leaving marine Corps property.

3. If the equipment is lost or stolen through no negligence of the user the burden of proof is the responsibility of management.

By letter dated January 22, 1986, Respondent's Labor Relations Branch replied to the Union's January 6, 1986 letter, in pertinent part, as follows:

After giving the contents of your letter careful consideration, the Marine Corps believes that the requirement for all persons (regardless of their employment status) to wear a reflective vest while riding or operating a motorcycle on Marine Corps property is not a working condition as that term is defined by Chapter 71 of Title 5 of the U.S. Code. Consequently, the Marine Corps takes the position that it has no duty to negotiate with the Union regarding the decision to establish this requirement nor its impact and implementation.By letter dated January 22, 1986, Mr. Tanner took issue with the Respondent's position that it was under no obligation and/or duty to negotiate over the new policy concerning reflective vests and reiterated its proposals.

On January 23, 1986, Respondent notified the "commands with employees in the consolidated bargaining unit" that they could begin implementing the new policy of requiring all motorcycle riders to wear reflective vests.

Subsequently, by letter dated February 10, 1986, the Respondent replied to the Union's January 22, 1986 letter as follows:

As I stated in my letter of January 22, 1986, it is the Marine Corps position that it has no duty to negotiate with the union on this matter in that the wearing of these vests does not pertain to a working condition as that term is defined by the Federal Labor - Management Relations Statute.

The 160,000 combined military and civilian work force, along with family members, military retirees, visitors, etc., generate at least 187,000 vehicle entries and exits on Marine Corps installations each day. These vehicles use the 1,280 miles of improved roads which traverse the 886,250 acres of Marine Corps property comprising the 19 commands in the consolidated bargaining units.

After February 1, 1986 at Marine Corps Logistics Base (MCLB), Albany, Georgia, and March 1, 1986 at Marine Corps Air Station (MCAS), El Toro, California and MCAS Helicopter), Tustin California), all persons desiring to operate or ride a motorcycle on Marine Corps property were required to wear a reflective vest. Although the newsletter indicates that vests were to be provided to unit employees at El Toro and Tustin, California, other evidence in the record establishes that free vests were not made available at all the nineteen Marine Corps installations which employed unit employees. Although the reflective vest requirement was published in the civilian personnel newsletter prior to its actual implementation, there is no evidence that all employees were aware of the requirement.

Subsequently, problems with implementation of the vest requirement arose at MCAS, El Toro. Thus, on March 18, 1986 when employee Mr. Richard Coffelt arrived at the Air Station on his motorcycle he was denied entry because he was not wearing a reflective vest. After telephoning Union President, Tanner, Mr. Coffelt borrowed a vest from the stock maintained for this purpose by the Military Police at the gate. After entering the Air Station, Mr. Coffelt went to the union office where Mr. Tanner took the vest from him stating it was unsafe. Due to the difficulty in securing entry to the base, Mr. Coffelt arrived at his work station late and was "docked" 30 minutes pay.

On March 20, 1986 Mr. Coffelt again drew a vest from the Military Police prior to entering the Air Station, and again surrendered the vest to Mr. Tanner. Later, in the day as Mr. Coffelt was leaving the Air Station after work, he was observed by a Military Policeman riding his motorcycle on the Air Station without a vest. He was given a traffic citation for this act. Also on March 20, 1986, Mr. John Meyer and Mr. Robert Shaw were "docked" 45 minutes and 30 minutes pay, respectively, when they arrived at work late after being denied entry to the Air Station and taking time to check out a vest from the Military Police. On March 21, 1986 Mr. Meyer was "docked" 20 minutes pay under similar circumstances.

Also on March 21, 1986, Mr. Coffelt again drew a vest from the Military Police and, as had occurred on March 18th and 20th, went to the union office and surrendered the vest to Mr. Tanner. Mr. Coffelt was subsequently observed riding his motorcycle without the vest prior to exiting the Air Station after work. He was stopped by a Military Policeman and charged with his second offense of failing to wear a reflective vest in as many days. He was taken to the military police station and given a second traffic citation. 3

The reflective vest requirement was imposed as a result of a study which indicated that the ability to see motorcyclists was a key factor in preventing motorcycle accidents. 4 

Discussion and Conclusions

The General Counsel takes the position that a change in the manner in which employees operate motorcycles to and from work "is directly related to the work situation and the employment relationship, and is therefore, a matter affecting working conditions within the meaning of the Statute." Further, according to the General Counsel, even if the substance of the change in working conditions might be non-negotiable, Respondent on request, is still required to bargain over the impact and the manner of implementation of the change when the change has more than a de minimis impact on unit employees.

Since the Respondent has refused and failed to bargain over the impact and manner of implementation of the newly instituted reflective vest requirement, the impact of which is more than de minimis according to the General Counsel, the General Counsel would find that the Respondent has violated Sections 7116(a)(1) and (5) of the Statute.

The Respondent, on the other hand, acknowledges that the law requires an agency to bargain over a change in working conditions. However, it takes the position that the change herein, i.e. requiring all motorcyclists to wear reflective vests, is not a change in working conditions within the meaning of the Statute since the evidence establishes that none of the unit employees utilize motorcycles in performance of their work. In such circumstances it is Respondent's position that it is not required to bargain with the Union over any aspect of the newly instituted requirement. Alternatively, if a different conclusion is reached, Respondent takes the position that inasmuch as the impact on unit employees is de minimis, it was within its rights in refusing to bargain with the Union over the impact and manner of implementation. In support of this latter position, Respondent relies on a past Authority decision wherein the Authority reached a similar conclusion where the percentage of unit employees affected was greater than the percentage of affected unit employees herein.

Contrary to the contention of the Respondent, I find that a nexus exists between the reflective vest requirement and the unit employees ability to get to and from work. In such circumstances the reflective vest requirement constitutes a condition of employment within the meaning of the Statute. A similar conclusion was reached in Federal Employees Metal Trades Council, AFL - CIO and Department of the Navy, Mare Island Naval Shipyard, 23 FLRA No. 18, wherein the Authority found that requiring motorcycle training as a prerequisite to riding a motorcycle to and from work constituted a change in a condition of employment within the meaning of the Statute. However, inasmuch as the change in working conditions herein was a preventive safety measure designed to guard against harm to Respondent's property and personnel, such change falls within the definition of "internal security practices," the substance of which Respondent is under no obligation to bargain over. Defense Logistics Council of the AFGE Locals and Defense Logistics Agency. 20 FLRA No. 19; Federal Employees Metal Trades Council, supra. The Respondent is, however, obligated to bargain over the impact and manner of implementation of such internal security practices on unit personnel. Philadelphia Naval Shipyard, Department of the Navy, 15 FLRA No. 7.

In view of the above conclusions, the sole issue remaining for consideration is Respondent's contention that the impact of the change on unit personnel is de minimis, and, accordingly it was under no obligation to bargain with the Union over the change.

Contrary to the contention of Respondent, I find that the reflective vest requirement had more than a de minimis impact on the unit employees. Thus, unlike U.S. Department of Housing and Urban Development, 20 FLRA No. 38, wherein the Authority found a de minimis impact when the change only affected approximately 5% of the unit employees, the change herein was not temporary but permanent. Further, due to the lack of publicity as well as the unsafe character of the reflective vests issued on a temporary basis by Respondent, a number of unit employees were delayed in reaching their work stations when they appeared at the gate without reflective vests and/or were subsequently arrested when they voluntarily surrendered to the Union the unsafe vests distributed by Respondent. The fact that Respondent might have had in effect other regulations concerning other types of safety equipment for motorcycle riders, such as helmets, does not alter the above conclusion concerning the impact of the new reflective vest requirement.

Accordingly, having concluded that the change in working conditions had more than de minimis impact on unit employees, and since the record establishes that Respondent had refused to bargain with the Union concerning the impact and manner of implementation of the newly instituted requirement that all motorcycle riders wear reflective vests, it is further concluded that by the latter action the Respondent violated Sections 7116(a)(1) and (5) of the Statute.

Having found that Respondent violated Sections 7116(a)(1) and (5) of the Statute by virtue of its actions in refusing to bargain with the Union over the impact and manner of implementation of its newly instituted requirement that all motorcycle operators wear reflective vests, it is hereby recommended that the Authority issue the following order designed to effectuate the purposes and policies of the Statute. 5

ORDER

Pursuant to Section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Federal Service Labor - Management Statute, the Authority hereby orders that the Department of the Navy, United States Marine Corps, shall:

1. Cease and desist from:

(a) Unilaterally instituting a requirement that all motorcycles operators wear reflective vests without first providing timely appropriate notice to, and upon request bargaining with, the American Federation of Government Employees, Council 240, AFL - CIO, the exclusive representative of a unit of its employees, with respect to the procedures to be observed in instituting such changes and the impact on adversely affected employees.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Upon request, bargain with the American Federation of Government Employees, Council 240, AFL - CIO, concerning the procedures to be observed in instituting the requirement that all motorcycle operators wear reflective vests and the impact on adversely affected unit employees.

(b) Post at the various installations where unit employees are employed copies of the attached Notice marked Appendix, on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by an appropriate official, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and all other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that said 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 of Region 3, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

BURTON S. STERNBURG
Administrative Law Judge

Dated: November 7, 1986
       Washington, D.C.

 

                          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 STATUTE
           WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally institute a requirement that all motorcycle operators wear reflective vests without first providing timely appropriate notice to, and upon request bargaining with, the American Federation of Government Employees, Council 240, AFL - CIO, the exclusive representative of a unit of our employees, with respect to the procedures to be observed in instituting such changes and the impact on adversely affected employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

                               _____________________________
                                   (Agency or Activity)

Dated:______________________By:_____________________________
                                      (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 3, whose address is: 1111 -18th Street, NW., Room 700, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500. 

FOOTNOTES

Footnote 1 The record establishes that there are 11,500 employees in the nineteen base consolidated unit.

Footnote 2 There are 6100 motorcycles registered at the nineteen bases wherein the employees within the consolidated unit are employed. However, of the 6100 motorcycles, only 186 are registered in the names of unit employees. The record further establishes that the reflective vest requirement was applicable to all marines and civilian employees working on the nineteen bases, some 161,000 in number.

Footnote 3 The vests were declared unsafe by Mr. Tanner because they had velcro fastenings which could come apart and allow the vest to fly in the face of the operator.

Footnote 4 During 1974, 72 percent of all deaths of Marines resulted from accidents involving privately owned motor vehicles. In 26 percent of these deaths the Marine was either a passenger or driver of a motorcycle.

Footnote 5 Contrary to General Counsel, I do not believe that a status quo ante remedy is in order in the subject case. Thus, it is noted that the change was a safety measure which affected some 19 Marine Corps installations wherein motorcycles were utilized by many individuals other than unit employees and that a status quo ante remedy would prevent uniform traffic enforcement since the military police would have no w