29:1471(121)CA - Justice, Kennedy Center, Federal Correctional Institution, Bureau of Prisons and AFGE Local 2441 -- 1987 FLRAdec CA



[ v29 p1471 ]
29:1471(121)CA
The decision of the Authority follows:


29 FLRA No. 121

U.S. DEPARTMENT OF JUSTICE
KENNEDY CENTER, FEDERAL CORRECTIONAL
INSTITUTION, BUREAU OF PRISONS
    Respondent

and

LOCAL 2441, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
 Charging Party

Case No. 3-CA-60150

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint. The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to negotiate with the Charging Party concerning the substance of the Respondent's changes in local uniform requirements for Correctional Officers and by unilaterally implementing the requirements. The General Counsel filed exceptions to the Judge's Decision.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of 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 hereby affirmed. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order dismissing the complaint.

Issued, Washington, D.C.,November 6, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Separate Opinion of Member McKee
Concurring in Part and Dissenting in Part

For the following reasons I disagree with my colleagues' decision to adopt the Administrative Law Judge's findings, conclusions and recommended Order dismissing the complaint in this case.

As noted by the Judge, it is well established that in order to constitute a "means" of performing work within the meaning of section 7106(b)(1) of the Statute, there must be a direct and integral relationship between the particular instrumentality an agency chooses to use and the performance of the agency's work. American Federation of Government Employees, AFL - CIO, Local 3525 and United State Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982); American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, 618-19 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982); National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979).

Thus, in disputes involving proposals related to management's choice of a particular methods and means, the Authority has held that unless the proposal directly interferes with the job-related purpose for which the agency established the particular methods or means it will not be found violative of management's right under section 7106(b)(1).

In this respect, the Authority held, in U.S. Customs Service, Region VIII, that a proposal permitting uniformed Customs officers to use other than their actual full names on nameplates did not prevent management from requiring that officers wear nameplates and did not interfere with management's stated purpose for the nameplates which was to personalize the Customs Service and facilitate the public's dealings with the officers. Consequently, the Authority found that proposal did not interfere with management's right to determine the methods and means of performing work.

Similarly in American Federation of Government Employees, AFL - CIO, National Immigration & Naturalization Council and U.S. Department of Justice, Immigration & Naturalization Service, 8 FLRA 347, 349-51 (1982) the Authority found that Proposal 2 in that case which provided that numbers or some combination of letters and numbers rather than names be [ v29 p2 ] used on identification plates to be worn by uniformed employees did not interfere with management's stated purpose for the plates, which was to provide for identification of the officers and facilitate the work of supervisory personnel. Thus, the Authority held that Proposal 2 did not interfere with management's right under section 7106(b)(1) to determine the methods and means of performing work. The Authority also determined that Proposal 3 in that case which provided for grooming standards varying from the agency's grooming standards did not directly interfere with management's right to determine the methods and means of performing work. Although Proposal 3 provided for grooming standards different from the agency's grooming standards it included the express qualification that personal appearance and grooming will not impede the general public's ready identification of the employee as a representative of the Immigration and Naturalization Service. Thus, the Authority found that Proposal 3 did not interfere with management's purpose for the grooming standards which was to ensure that officers were readily recognized as representatives of the agency in their dealings with the public.

Another example occured in U.S. Department of Justice, Immigration and Naturalization Service, 18 FLRA 29 (1985) where the Authority found that an arbitrator's award directing the Border Patrol to continue to permit agents to wear Levis-style trousers as part of their uniform did not conflict with management's right to determine its methods and means under section 7106(b) (1) because the Levis-style trousers were essentially identical to the uniform trousers in appearance and thus did not conflict with the agency's stated purpose that a uniform be worn to readily identify the wearer as a representative of Governmental authority.

Finally, in American Federation of Government Employees, AFL - CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 25 FLRA 1028 (1987) a proposal which modified the prescribed uniform for firefighters to permit tee shirts and ball caps to be worn in circumstances where the firefighters performed duties which did not deal with the public was found not to directly interfere with management's right to determine its methods and means because in these circumstances the proposal did not interfere with management's stated purpose that a uniform be worn to readily identify firefighters.

In each of these cases it was clear that the Agency's choice of the particular methods and means of performing work was to facilitate the ability of employees to carry out their assigned duties in furtherance of the agency's mission. In [ v29 p3 ] each of the previously mentioned cases the Authority found that while the particular proposal may have been inconsistent with the uniform wearing requirements established by the agency, the proposal was nevertheless negotiable because it did not directly interfere with the agency's ability to accomplish its work which was the basis for the uniform wearing requirement in the first place.

Other examples of proposals involving uniforms which were found to be negotiable because they did not interfere with the stated purpose for the uniform are set forth in an appendix to my opinion.

In this case, the purpose of the prescribed uniform is to enhance the image of Correctional Officers in order to obtain the cooperation of the inmates and the public. Although not specifically stated, it is clear that such cooperation is necessary for Correctional Officers to effectively carry out their assigned tasks. The Union, however, was not seeking to negotiate the requirement that Correctional Officers wear a uniform. Rather, the Union sought to negotiate concerning Respondent's changes in local requirements designating the periods for wearing summer and winter uniforms and directing the wearing of particular items, that is, blazers and neckties, in certain conditions and circumstances. Specifically, the Union opposed the Respondent's use of the summer/winter concept, the mandatory use of neckties, the mandatory use of neckties with long sleeved shirts and the mandatory use of blazers and neckties at certain posts involving daily contact with the public.

In my view, the decision to require Correctional Officers to wear a uniform is directly related to its stated purpose of enhancing the image of Correctional Officers in order to obtain the cooperation of the inmates and the public. Thus, this decision to require wearing uniforms constitutes a "means" of performing work within the meaning of section 7106(b)(1) of the Statute. Further, the decision to require the wearing of the blazer and necktie in circumstances where Correctional Officers have daily contact with the public also constitutes a "means" of performing work because it directly and integrally relates to the performance of the Agency's work.

Thus, to the extent that the Union in this case proposed to continue the practice of permitting Correctional Officers who have daily contact with the public to choose to not wear blazers and neckties, the proposal directly interferes with management's stated purpose of enhancing the image of Correctional Officers in order to facilitate [ v29 p4 ] cooperation of the inmates and the public and is nonnegotiable. See National Treasury Employees Union and U.S. customs service, Washington, D.C., 8 FLRA 3 (1982) (Portion of a proposal excluding uniformed personnel performing vehicle inspections from an agency requirement for wearing uniform hats found to interfere with management's purpose of readily identifying the wearer as a representative of the Government and thus, found to interfere with management's right under section 7106(b)(1) to determine the "means" of performing work); U.S. Customs service, Region VIII (Proposal permitting uniformed customs officers the option of not wearing nameplates directly interfered with the agency's stated purpose for requiring the wearing of nameplates which was to personalize the Customs Service and facilitate the public's dealings with the officers and thus interfered with management's right under section 7106(b)(1) to determine the "means" of performing work).

However, I find that as to Correctional Officers who do not deal directly with the public, the proposal to not change the long-standing local practice to permit officers the option to wear or not wear specific items of the uniform does not directly interfere with management's stated purpose in this case.

I particularly note that the Respondent's own regulation continues to permit the optional use of blazers and neckties for Correctional Officers who do not deal directly with the public. See Decision of the Administrative Law Judge at n.3. In these circumstances, since the Respondent's own policy contemplates that nonuse of a blazer and necktie will not adversely affect the ability of Correctional Officers to obtain cooperation of the inmates, the requirement to wear blazers and neckties appears arbitrary and not directly related to the stated purpose for the uniform. Thus, the Union's proposal to maintain the long-standing local practice of permitting Correctional Officers the option to wear or not wear blazers and neckties in these circumstances does not in my view interfere with the Agency's right under section 7106(b)(1) to determine the "means" of performing work.

For the foregoing reasons, I would find that negotiation on the uniform changes implemented by the Respondent as they related to Correctional Officers who do not directly deal with the public would not have interfered with the Respondent's right under section 7106(b)(1) of the Statute to determine the methods and means of performing its work. Thus, I would conclude, contrary to the Administrative [ v29 p5 ] Law Judge that the Respondent violated section 7116(a) and (5) of the Statute by refusing to bargain with the Union on the substance of the changes in local uniform requirements for Correctional Officers who are assigned to areas other than where they deal directly with the public and by unilaterally implementing those changes.

Issued, Washington, D.C. November 6, 1987.

Jean McKee, Member

 [ v29 p6 ]

APPENDIX

Long Beach Naval Shipyard, Long Beach California and Federal Employees Metal Trades Council, AFL - CIO, 17 FLRA 511 (1985) (Where the Authority held that the respondent Activity failed to show that bargaining concerning the type of protective clothing to be worn by employees would interfere with management's right to require that safety clothing be worn).

American Federation of Government Employees, Local 217 and Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA 62 (1986) (Where the Authority found that two proposals concerning the content of a uniform did not conflict with management's right to determine its methods and means because the proposal did not interfere with the agency's stated purpose of protecting its property in a supply warehouse by requiring all employees in the supply warehouse to wear a uniform).

Veterans Administration, West Los Angeles Medical Center, Los Angeles, California and American Federation of Government Employees, Local 1061, AFL - CIO, 23 FLRA 278 (1986) (Where the Authority adopted an Administration Law Judge's decision that the Respondent agency violated the Statute by, among other things, unilaterally eliminating a past practice of employees wearing sweaters and jackets over their uniforms because there was no direct relationship between the extra apparel and the employees' duties). [ v29 p7 ]

_______________________________________________________________________

U.S. DEPARTMENT OF JUSTICE,
KENNEDY CENTER, FEDERAL
CORRECTIONAL INSTITUTION,
BUREAU OF PRISONS

               Respondent

    and

LOCAL 2441, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO

               Charging Party

Case No. 3-CA-60150

Yvonne Hinkson, Esquire
          For the Respondent

Mr. James G.  Dodson
          For the Charging Party

Phillip Boyer, 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 U.S. Department of Justice, Kennedy Center, Federal Correctional Institution, Bureau of Prisons (Respondent or FCI, Morgantown), based on a charge filed by Local 2441, American Federation of Government Employees, AFL - CIO (Charging Party, Local 2441, or Union). The complaint alleged, in substance, that Respondent violated sections  7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq (the Statute), by refusing to negotiate concerning the substance of Institution Supplement No. MRG 4400.1, CH 14503, dated October 30, 1985, "Official Uniform Clothing Regulations," which changed uniform regulations; by refusing to bargain with the union over proposals it submitted on December 11, 1985; and by unilaterally implementing the Institution Supplement on February 2, 1986.

Respondent's answer admitted the jurisdictional allegations concerning the Union, Respondent, and the charge; that the Institution Supplement changed official uniform clothing regulations; and that it unilaterally implemented the Institution Supplement on February 2, 1986. Respondent denied any violation of the Statute.

A hearing was held in Morgantown, West 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 briefs, and the proposed findings have been adopted where found supported by the record as a whole. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

At all times material herein, the American Federation of Government Employees, Council of Prison Locals, has been, and remains, the exclusive representative of a nationwide unit of employees of the Federal Prison System, including employees of FCI Morgantown.

At all times material herein, the Union has been, and is now, the agent of the American Federation of Government Employees, Council of Prison Locals, acting upon its behalf in representing the bargaining unit employees who are employed at FCI Morgantown.

The FCI, Morgantown is a low security penal institution. As such it is responsible for the care and custody of from 350-400 non-violent persons convicted of Federal crimes and sentenced by the courts to serve a period of time incarcerated in a Federal penal institution. Inmates who become violent are transferred to other institutions. [ v29 p2 ]

The Bureau of Prisons dress uniform for male Correctional Officers prescribed by FPS 4400.1, CH 14505, of February 8, 1982, is composed of a navy blue blazer, charcoal gray trousers, blue, white, or yellow shirt, black shoes and socks, black belt, and black or maroon necktie. This is sometimes referred to as the fall or winter uniform. Traditionally the summer service uniform is an abbreviated version that allows for leaving the blazer and tie off and wearing a short-sleeved shirt. Correctional Officers receive a uniform allowance pursuant to 5 U.S.C. 5901 to purchase the prescribed uniform.

Correctional Officers are responsible for security and inmate accountability. Their duties and the degree of their contact with the public varies depending on the post to which they are assigned.

Correctional Officers assigned to the visiting room and the front gatehouse have constant daily contact with the public. Officers assigned to the control room communications center have some contact with the public on the day shift, none on other shifts. Correctional Officers assigned to the mail room who take mail to the post office have some contact with the public as do officers assigned to provide guard service at the hospital. Officers assigned to transport prisoners have some contact with service station attendants along the way. Their meals are provided by box lunches. Officers assigned to the administrative systems supervisor have some contact with personnel of other law enforcement agencies.

Correctional Officers in the units each deal with 70 to 90 inmates. They maintain inmate accountability, run chore details, and perform some manual labor by searching living quarters and property and performing room inspections. They must sometimes search rooms on their hands and knees and move property around. They perform a variety of other duties. They do not have daily contact with the public.

Prior to October 19, 1985, Correctional Officers at FCI, Morgantown customarily wore parts of the prescribed Bureau of Prisons uniform consisting of charcoal pants, white or blue shirts (either short or long-sleeved), black shoes, black socks, and a black belt. Most Correctional Officers did not customarily wear the navy blue blazer and black or maroon necktie while on duty, nor was there a local requirement that the blazer and necktie be worn. The wearing of the blazer and necktie was optional. If the blazer were worn, then a necktie would be worn with it. A majority of the Correctional Officers wore the slacks and an [ v29 p3 ] open collar shirt during the months from April until November. From November to April some of them wore the blazer and necktie. They could also wear the long-sleeved shirt with an open collar during the winter months.

The uncontradicted testimony of two Union witnesses established that the lack of a blazer and tie while on duty was not a hindrance to the performance of the Correctional Officers' job duties, never created any adverse publicity, and caused no difficulties in distinguishing between officers and inmates.

Between 1981 and October 1985 at FCI Morgantown there were no separate clothing requirements for winter and summer seasons, no scheduling of changes between winter and summer seasons, nor any requirement that officers at certain posts wear blazers and neckties at all times. Correctional Officers could wear the uniform while stopping at a business establishment for personal reasons on the way to work (except perhaps a bar).

On or about October 30, 1985 Respondent issued a draft Institutional Supplement Number MRG 4400.1, CH 14503, which proposed changes in the clothing requirements for correctional Officers by, inter alia, designating winter and summer seasons for clothing, requiring that neckties be worn during the winter season or when long-sleeved shirts are worn, requiring that blazers and neckties be worn at certain posts, and prohibiting the wearing of the uniform in public except while on duty, official business, or to and from work.

By memorandum dated November 27, 1985 the Union requested to negotiate the Institution Supplement. FCI Morgantown replied by letter dated December 3, 1985 stating that the Supplement was subject to impact and implementation bargaining and requesting submission of such proposals by December 13, 1985. The Union responded by letter dated December 11, 1985 contending, inter alia, that the Union was not limited to bargaining over he impact and implementation of the Supplement and submitting initial proposals. 1 The [ v29 p4 ] Union's proposals, with regard the changes in issue, opposed the summer/winter concept, the mandatory use of neckties, the mandatory use of neckties with long-sleeved shirts, and the mandatory use of blazers and neckties at certain posts.

By letter dated December 12, 1985, FCI Morgantown informed the Union that it considered the Union's proposals to be substantive and non-negotiable, but had determined that several of the Union's suggested changes were appropriate and had revised the proposed supplement accordingly. 2 Subsequently, the Warden spoke to the Union by telephone and reiterated that he was willing to bargain over the impact and implementation of the draft Institution Supplement, but that he would not bargain over the substance of the proposed changes. The only reason given by the Warden for not bargaining over substance was that the proposed changes were derived from Respondent's program statement. The Warden never indicated that he did not have the authority to negotiate over the proposed changes if he so desired. Subsequent to this discussion, the Union and the Warden did not have any negotiations or substantive discussions on the issue prior to the issuance of the revised Institution Supplement on February 2, 1986.

On or about February 2, 1986, FCI, Morgantown, issued the revised Institution Supplement on uniform clothing regulations and provided a copy to the Union. The policy of the Institution Supplement was stated to be: "to set and maintain high standards of personal appearance for all staff members and to establish a positive image in their role as uniformed personnel." The revised Institution Supplement directed certain changes in the required clothing for Correctional Officers at FCI, Morgantown, including: (a) the requirement of a winter and summer season for clothing; (b) the requirement that a necktie must be worn during the winter season, and any time a long-sleeved shirt is worn by a Correctional Officer; and (c) the requirement that at certain posts Correctional Officers must wear a blazer and tie at all times. 3 Prior to the issuance of the February 2 Institution Supplement, [ v29 p5 ] Respondent at no time notified the Council of Prison Locals, at the national level (as distinct from notifying the Union local at FCI, Morgantown) of the proposed changes, nor did the Respondent discuss or negotiate the proposed changes at FCI Morgantown with the National Council of Prisons Locals at any time. [ v29 p6 ]

Since the changes have been made, some correctional Officers have expressed concern that the necktie, although it is a clip-on and would break away if pulled on, could be used as a choke weapon due to its length. They have also expressed concern that the blazer could be flipped over the head to put the officer at a disadvantage in a crisis situation, and some have complained that the necktie and/or blazers make the work more uncomfortable.

The Bureau of Prisons considers the uniform to be an integral part of the duties of Correctional Officers. The non-militaristic, non-police type uniform presents a professional image to the inmates and elicits their cooperation while making the officers separately identifiable from the inmates in emergent conditions. The uniform also serves to present a professional, polished identifiable image to the public, including other federal employees, local law enforcement officers, attorneys, and family members of the inmates.

Relevant Directives and Agreements

On February 8, 1982 the Bureau of Prisons formulated at the national level PS 4400.1, Procurement and Warehousing Management Manual (Program Statement). (Res. Ex. 2). Under its provisions, a clothing committee, on which the Union is represented, is established which "is responsible for prescribing the required uniforms." Curiously, the Director retains "all authority for prescribing what the mandatory uniform will be." The Program Statement provides that employees are to wear "the approved uniform while performing their official duties" and it establishes a male and female dress uniform and a male and female work uniform. The male dress uniform has been described above.

When a change is issued on a Program Statement the Union at the national level is sent a copy of the proposed changes and given the opportunity to bargain only the impact and implementation of the changes. The Union at the national level is not permitted to bargain substantively over the changes as the Agency does not consider the prescribing of the uniform to be a negotiable issue. The Union at the national level did not request impact and implementation bargaining over the February 8, 1982 Policy Statement.

At the local level the institution enacts implementing instructions through the use of an Institution Supplement. Accordingly to Article 9, section e and f of the Master Agreement, Institution Supplements "which derive from a [ v29 p7 ] Bureau Program Statement" are "subject to negotiation with the local Union, subsequent to the issuance and implementation of the policy and where required by 5 U.S.C., Sections 7106, 7114, 7117." Any other local issuances are subject to local negotiation prior to implementation. (Joint Ex. 1).

Under Article 9, Section (b) of the Master Agreement dated September 15, 1981 through September 14, 1983, local supplemental agreements could not deal with permissive matters. However, Article 9, Section c, provided that notwithstanding this limitation, certain matters, including the optional use of short-sleeved shirts, blazers and neckties and the scheduling of changes between summer and winter uniforms, could be negotiated locally. (Joint Ex. 2, p. 8). Under the Master Agreement now in effect, this specific provision no longer appears. However, Article 9, Section b continues to provide that permissive matters, or those matters negotiated at the national level, may not be negotiated at the local level. Article 9, Section c provides that, notwithstanding section b, "the parties may negotiate locally and include in any supplemental agreement any matter which does not specifically conflict with the provisions of the Master Agreement." (Joint Ex. 1, P. 10).

Discussion, Conclusion and Recommendations

There is no dispute that FCI Morgantown changed established conditions of employment by designating winter and summer seasons for the wearing of the winter and summer uniforms, requiring that neckties be worn during the winter season or when long-sleeved shirts are worn, and requiring that blazers and neckties be worn at certain posts. Respondent offered the Union the opportunity to bargain concerning the impact and implementation of such changes. The Union requested to bargain concerning the substance of the changes, and its initial proposals concerning the changes in issue were simply that the changes not be made. The effect of the Union's proposals would be that Correctional Officers would continue to be permitted the option of wearing a necktie and blazer at all posts and no seasons would be designated for wearing the winter and summer uniform. Respondent refused to bargain concerning its decision to effectuate the changes.

The central issue in this case, as succinctly stated by Counsel for the General Counsel, is whether these changes in the uniform implemented by FCI Morgantown were substantively negotiable and, if so, whether FCI Morgantown unlawfully [ v29 p8 ] refused to bargain over the decision to make such changes. The General Counsel asserts that the changes implemented by FCI Morgantown were substantively negotiable as there is no relationship between the changes in clothing implemented by Respondent and the performance of the Correctional Officers' job duties. The General Counsel points out that the absence of blazers and ties had not been a hindrance to the employees' job performance, and the requirement that they be worn made job performance more difficult and dangerous. The General Counsel also argues that the changes were not necessary to present a proper image to the public as the unrebutted evidence of the Union witnesses shows that the absence of blazers and ties never created any unfavorable publicity, and the majority of the employees in question have little or no dealings with the general public.

Respondent defends on the basis that decision making regarding uniform clothing constitutes a method and means of performing work and is only negotiable at its election under section 7106(b)(1). Respondent also claims that matters covered by Bureau of Prisons Program Statements are not substantively negotiable at the local level, and any disputes regarding Respondent's disposition of the Union's proposals should have been processed under the parties' grievance and arbitration procedure.

The Authority has held that, in the context of section 7106(b)(1), "means" refers to any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishing or the furthering of the performance of its work. National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 254 (1979). In American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, 2 FLRA 603 (1980), at 618-619, the Authority reviewed the legislative history of this section and concluded from certain Congressional examples that the phrase "performing work" referred to agency activities "directly and integrally related to the accomplishment of the mission of the agency, i.e., those particular objectives which the agency was established to accomplish." Accordingly, the Authority has held that in order to constitute matters which may be negotiated only at the election of the agency pursuant to section 7106(b)(1) the matter must be principally or directly related to the performance of the agency's work rather than merely incidental to the performance of the agency's work. American Federation of Government Employees, AFL - CIO, Local 35, and U.S. Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982). [ v29 p9 ]

The Authority has recognized that where the mission of an agency involves contact with the public, an agency may, pursuant to section 7106(b)(1), choose the "means" which will accomplish this aspect of its work. For example, the Authority has agreed that the requirement for Customs officers to wear nameplates encouraged employee courtesy and facilitated the cooperation of the public with whom such employees must work daily. Therefore such nameplates were held to constitute a "means" of performing the work of the agency. National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 254 (1979). Similarly, in National Treasury Employees Union and U.S. Customs Service, Washington, D.C., 8 FLRA 3 (1982), the Authority held that the wearing of a uniform hat by Customs law enforcement officers enabled the public to readily identify the officer, enhanced law enforcement, and a proposal to exclude the use of such a hat was outside the duty to bargain as a "means of performing work." Likewise, in American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982), reversed as to other matters sub nom. Department of Justice v. FLRA, 727 F.2d 481 (5th Cir., 1984), the Authority noted that the determination of an agency that its uniformed officers adhere to grooming standards to ensure that such officers are readily recognized by the public constituted a decision regarding the "means" of performing the agency's work under section 7106(b)(1) of the Statute. However, the agency had to bargain on a proposal providing appropriate arrangements for employees adversely affected by such a decision pursuant to section 7106(b)(3).

The record reflects that the mission of FCI, Morgantown is to provide for the care and custody of Federal inmates. The work of its Correctional Officers in carrying out this mission involves daily contact with inmates and, in some cases, the public, including personnel of other law enforcement agencies. The changes made here were designed to improve the image of Correctional Officers with the inmates and public and facilitate their cooperation. Therefore, I agree that the determinations of the agency in issue here with regard to uniform clothing constituted decisions regarding the "means" of performing the agency's work under section 7106(b)(1) of the Statute. There is a direct relationship between the uniform requirements and the Agency's need to obtain the cooperation of inmates and the [ v29 p10 ] public. Since the agency could elect not to bargain, its failure to do so did not violate section 7116(a)(1) and (5) of the Statute, as alleged. 4

The fact that no adverse consequences have been identified in the past as ensuing from the Correctional Officers being allowed to choose whether or not to wear a prescribed blazer and tie does not mean that management is precluded from changing its methods and means of performing work and exercising its right under section 7106(b)(1) to require all, or part of, the prescribed uniform to be worn. The Union's proposal, that no change be made, that is, that employees continue to be able to elect to wear the blazer and tie in all circumstances, would totally abrogate the Agency's right to determine the methods and means of performing this aspect of its work. NTEU and Customs Service, supra, 2 FLRA at 255-260.

The cases cited by the General Counsel are distinguishable. In U.S. Department of Justice, Immigration and Naturalization Service, 18 FLRA 29 (1985) the Authority found that an arbitrator's award directing the Border Patrol to continue to permit agents to wear Levis-style trousers as part of their uniform did not conflict with management's rights under section 7106(b)(1). The stated purpose for its uniform trousers was to provide ready identification of the wearer. The Authority noted that the Levis-style trousers did not interfere with this purpose as they were essentially identical to the uniform trousers in appearance and had been permitted or condoned for an extensive period of time. The Authority reached a similar conclusion in Long Beach Naval Shipyard, 17 FLRA 511 (1985) in which it held that an agency's decision to change the type of coveralls worn by employees was negotiable as negotiation would not interfere with management's right under section 7106(b)(1) to require safety clothing to be worn. In this case the agency is seeking to enhance its image and, thereby, the cooperation of inmates and the public by requiring that additional items of the prescribed uniform be worn at certain times. As noted, the Union's proposals that no changes be made would continue the practice of making the wearing of such items voluntary and interfere with the agency's right to choose this "means, to accomplish this aspect of its work. [ v29 p11 ]

In Veterans Administration, 23 FLRA 278 (1986), also cited by the General Counsel, the Authority adopted Judge Nash's conclusion, to which no exceptions were filed, that the agency violated the Statute by unilaterally implementing certain changes in a dress code for employees, including eliminating a past practice of employees wearing private sweaters and jackets over their uniforms. Judge Nash found that employees wore the sweaters and jackets over their lightweight uniforms as protection from the cold and in the absence of other appropriate items being provided. He held that the proposed dress code did not specifically prohibit such items, there was no direct relation between the extra apparel and the employees' duties, and the agency was, therefore, obligated to notify the Union and bargain on proposals to the extent negotiable and its impact and implementation.

In that case personal items were worn in addition to the prescribed uniform for reasons of comfort and health. Here employees already have, as part of their prescribed uniform for which they receive a uniform allowance, the items of clothing management is now requiring to be worn during separate winter and summer seasons and at certain posts in order to enhance their image and, thereby, facilitate cooperation with inmates and the public. As such, the uniform, worn during separate winter and summer seasons and altered depending on contact with the public, constitutes a "means" to accomplish this aspect of the work of a Corrections Officer.

The Authority has recognized that proposed exceptions to the uniform requirement need not be found non-negotiable in all circumstances. See AFGE, Local 1625, and Department of the Navy, 25 FLRA No. 85, 25 FLRA 1028 (1987), in which the Authority found that a proposal which modified the prescribed uniform for firefighters to permit tee shirts and ball caps in limited circumstances not including meetings with the public would not interfere with the identification of firemen, the mission-related purpose for which the agency established the methods and means. Here the Agency also afforded the Union the opportunity to bargain on the impact and implementation of its decision. Thus, impact and implementation proposals attempting to assure that the uniform requirements were suitable for the various conditions in which employees work would have been negotiable provided they did not directly interfere with the purpose for which the agency has required a uniform to be worn. See AFGE, Local 217 and VA medical Center, Augusta, Georgia, 21 FLRA [ v29 p12 ] No. 13, 21 FLRA 62 (1986). For example, it is noted that the Union did not propose alternative dates for the winter/ summer seasons or that Correctional Officers who did not meet the public on certain shifts of the selected posts not be required to wear the blazer and tie.

It is concluded that a preponderance of the evidence received does not demonstrate that Respondent engaged in an unfair labor practice as alleged in the complaint. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:

Order

The complaint in Case No. 3-CA-60150 is dismissed.

GARVIN LEE OLIVER
Administrative Law Judge

Dated: May 29, 1987
Washington, D.C.

FOOTNOTES

Footnote 1 The Union commented on each paragraph of the Institution Change and offered various proposals, e.g. that emblems be affixed to blazers without cost to employees and concerning the type of utility cap, not dealing directly with the changes in issue. The General Counsel has not specifically contended, or provided specific support to demonstrate, that the failure to bargain on these proposals violated the Statute. See 5 C.F.R. 2423.18 and 2424.4. Consequently, no determination is made concerning each of them.

Footnote 2 Among other things, the Union had pointed out that the list of uniform requirements in the Supplement differed from that in the Federal Prisons Systems Manual; that, according to the Manual, female officers were not required to wear neckties; and the Union proposed a clarification concerning the wearing of the uniform to and from work.

Footnote 3 Institution Supplement provided, in pertinent part, as follows: E. Uniform clothing regulations will be addressed by seasons as follows: Winter Season - October 1 through April 30 Summer Season - May 1 through September 30 Winter Uniform - long sleeve shirt and necktie. Blazers are optional except as prescribed in sections 4, G and H of this supplement. Summer Uniform - short or long sleeve shirt. Neckties and blazers are optional except as prescribed in sections 4, F and H of this supplement. F. Female uniformed employees are not required to wear neckties. Uniform personnel may opt to wear a necktie during summer season, unless assigned to a post requiring a necktie. However, if uniformed personnel wear a blazer, a necktie must also be worn. Uniformed personnel may choose whether to wear a short or long sleeve shirt during the summer season. When a long sleeve shirt is worn,