33:0770(90)CA - - Navy, Naval Weapons Station Concord, Concord, CA and AFGE Local 1931 - - 1988 FLRAdec CA - - v33 p770

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33:0770(90)CA
The decision of the Authority follows:


33 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY

NAVAL WEAPONS STATION CONCORD

CONCORD, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1931

AFL-CIO

(Charging Party)

9-CA-60349

9-CA-60351

DECISION AND ORDER

October 31, 1988

Before Chairman Calhoun and Member McKee.

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent had violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) and recommending that the Respondent cease and desist from the alleged unfair labor practices and take appropriate remedial action. He found that the Respondent unilaterally changed established conditions of employment concerning: (1) mustache grooming standards, (2) the attire of firefighters in the day room during standby time, and (3) the color of tee shirts worn by firefighters without first notifying the Charging Party and affording it the opportunity to negotiate on the decision to change such conditions of employment. He also found that the Respondent unilaterally changed the length of the established lunch period without first notifying the Charging Party and affording it the opportunity to bargain on the impact and implementation of such change.

The Charging Party filed exceptions to the Judge's Decision. The exceptions solely concern the Judge's failure to order the reinstatement of an employee who was allegedly terminated as a result of the unilateral implementation of the change in mustache grooming standards. No opposition to the exceptions was filed.

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 and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's Decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

In adopting the Judge's findings and conclusions, we differ with the Judge's analysis in two respects. First, the Judge found that the past practices in dispute had "become" conditions of employment. ALJ Decision at 31. A matter does not become a condition of employment through past practice or the parties' agreement. Rather, an independent analysis of whether a matter is a condition of employment at the time a dispute arises is necessary. Department of the Treasury, Internal Revenue Service (Washington, D.C.), 27 FLRA 322, 324 (1987). In this case, we find that (1) the mustache grooming standards, (2) the attire of firefighters in the day room during standby time, (3) the color of tee shirts worn by firefighters, and (4) the length of the lunch period were conditions of employment at the time of the change. These conditions of employment had become established for bargaining unit employees through past practice.

Second, the Judge found that the Respondent's termination of Mr. Gilmour was proper because he was terminated for insubordination during his probationary period. ALJ Decision at 30. In United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983), the United States Court of Appeals for the District of Columbia Circuit held that in the Civil Service Reform Act of 1978, Congress expressly preserved an agency's discretion to remove summarily a probationary employee. Accordingly, the Respondent had the right to remove Mr. Gilmour summarily during his probationary period. The Judge's finding that Mr. Gilmour was insubordinate was not required to establish that the Respondent had legally terminated him.

The Charging Party contends that the Judge's conclusion that the Respondent did not illegally terminate Mr. Gilmour is erroneous and not in accordance with law. The Charging Party citing Gerald P. Gragg v. United States Air Force, 13 M.S.P.R. 296 (1982), argues that termination was not an appropriate remedy and that the Judge erred by not considering reinstatement as a possible remedy. The Charging Party's reliance on this case is misplaced. Gragg did not involve a probationary employee. There is no statutory authorization for an appeal by probationary employees to the Merit Systems Protection Board (MSPB) except in limited circumstances, such as where it is alleged that the agency action resulted from discrimination based upon marital status or partisan political reasons. See 5 C.F.R. § 315.806. See also Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1155 (Fed. Cir. 1983).

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Navy, Naval Weapons Station Concord; Concord, California, shall:

1. Cease and desist from:

(a) Unilaterally changing established conditions of employment of firefighters concerning: (1) the mustache grooming standards, (2) the attire of firefighters in the day room during standby time, and (3) the color of tee shirts worn by firefighters without first notifying the American Federation of Government Employees, Local 1931, AFL-CIO, the exclusive bargaining representative of its employees, and affording it the opportunity to negotiate on any decision to change such conditions of employment.

(b) Unilaterally changing the length of the established lunch period for firefighters without first notifying the American Federation of Government Employees, Local 1931, AFL-CIO, the exclusive bargaining representative of its employees, and affording it the opportunity to negotiate on the impact and implementation of such change.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them 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) Rescind the mustache grooming policy for firefighters implemented on or about July 16, 1986, by Chief Carlsen and, on or about July 22, 1986, by Chief Carlsen through his fire captains, and revert solely to the standard set forth in the Red Book (SECDEPTINST 11320.1, October 3, 1974).

(b) Rescind the policy implemented on or about July 22, 1986, with respect to (1) the attire of firefighters in the day room during standby time, and (2) the color of tee shirts firefighters are permitted to wear and revert to the practice which pertained to each prior to July 22, 1986.

(c) Notify the American Federation of Government Employees, Local 1931, AFL-CIO, the exclusive bargaining representative of its employees, of any intention to change (1) the mustache grooming policy for firefighters, (2) the attire of firefighters during standby time, or (3) the color of tee shirts firefighters are permitted to wear and, upon request, negotiate with the exclusive bargaining representative on any decision to change such conditions of employment.

(d) Upon request of the American Federation of Government Employees, Local 1931, AFL-CIO, the exclusive bargaining representative of its employees, negotiate concerning the impact and/or implementation of the decision--implemented on or about July 22, 1986,--to reduce the length of the lunch period.

(e) Post at the Naval Weapons Station Concord facility located at Concord, California, 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 of the Naval Weapons Station Concord facility and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

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

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change established conditions of employment of firefighters concerning (1) the mustache grooming standards, (2) the attire of firefighters in the day room during standby time, and (3) the color of tee shirts worn by firefighters without first notifying the American Federation of Government Employees, Local 1931, AFL-CIO, the exclusive bargaining representative of our employees, and affording it the opportunity to negotiate on any decision to change such conditions of employment.

WE WILL NOT unilaterally change the length of the established lunch period for firefighters without first notifying the American Federation of Government Employees, Local 1931, AFL-CIO, the exclusive bargaining representative of our employees, and affording it the opportunity to negotiate on the impact and implementation of such change.

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

WE WILL rescind the mustache grooming policy for firefighters implemented on or about July 16, 1986, by Chief Carlsen and, on or about July 22, 1986, by Chief Carlsen through his fire captains, and revert solely to the standard set forth in the Red Book (SECDEPTINST 11320.1, October 3, 1974).

WE WILL rescind the policy implemented on or about July 22, 1986, with respect to (1) the attire of firefighters in the day room during standby time, and (2) the color of tee shirts firefighters are permitted to wear and revert to the practice which pertained to each prior to July 22, 1986.

WE WILL notify the American Federation of Government Employees, Local 1931, AFL-CIO, the exclusive bargaining representative of our employees, of any intention to change

(1) the mustache grooming policy for firefighters, (2) the attire of firefighters during standby time, or (3) the color of tee shirts firefighters are permitted to wear and, upon request, negotiate with the exclusive bargaining representative on any decision to change such conditions of employment.

WE WILL, upon request of the American Federation of Government Employees, Local 1931, AFL-CIO, the exclusive bargaining representative of our employees, negotiate concerning the impact and/or implementation of the decision--implemented on or about July 22, 1986,--to reduce the length of the lunch period.

______________________
(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 covered by any other material.

If employees have any questions concerning this Notice o