35:0068(10)CA - - DOD, Warner Robins Air Force Logistics Center, Robins AFB, GA and AFGE Local 987 - - 1990 FLRAdec CA - - v35 p68
[ v35 p68 ]
The decision of the Authority follows:
35 FLRA No. 10
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF DEFENSE
WARNER ROBINS AIR FORCE
ROBINS AIR FORCE BASE, GEORGIA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
March 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
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) by its failure to provide the Charging Party with notice and opportunity to bargain about the decision to change the color and style of protective coveralls to be used by certain bargaining unit employees. The Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the Respondent's exceptions.
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. We affirm the rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.
We agree with the Judge's finding that the Respondent committed an unfair labor practice by changing the style of protective coveralls provided to employees without notifying the Union and giving it an opportunity to bargain over the change and its impact and implementation. As set forth by the Judge, the new style of coveralls differed in several significant respects from the old style and the changes affected, among other things, the employees' safety. Accordingly, we reject the Respondent's contention that "the most significant difference" in the two kinds of coveralls is the color and that "[t]he circumstance here is simply that the color of coveralls changed." Respondent's Exceptions at 5.
Insofar as the Respondent asserts that it had no duty to bargain over the change in the style of protective clothing because the change involved its choice of the methods and means of performing work, that defense is without merit. The Authority uses a two-part test for determining whether requiring an agency to bargain under particular circumstances would violate its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. An agency must show that there is (1) a direct and integral relationship between the particular method or means chosen by the agency and the agency's mission, and (2) a direct interference by a proposal with the mission-related purpose for which the agency chose such method or means. For example, American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 1000 (1987), petition for review filed as to other matters sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Conn. v. FLRA, No. 87-1762 (D.C. Cir. Dec. 14, 1987).
We will assume that part one of the Authority's test is met because the Agency's choice to use protective coveralls as a method or means is directly and integrally related to the Agency's mission. As to the second part, however, the Respondent has not shown, or even alleged, that bargaining over the change in the style of the protective coveralls would directly interfere with the mission-related purpose of protecting employees for which the Agency chose to use coveralls. Therefore, we reject the Respondent's "methods and means" defense.
We note that, after the Administrative Law Judge's decision in this case, the U.S. Court of Appeals for the District of Columbia Circuit stated its approval of the Authority's two-part test. See Department of Health and Human Services, Indian Health Service, Oklahoma City v. FLRA, 885 F.2d 911 (D.C. Cir. 1989). See also American Federation of Government Employees, Local 2441 v. FLRA, 864 F.2d 178 (D.C. Cir. 1988). The U.S. Court of Appeals for the Ninth Circuit also issued a decision involving a "methods and means" assertion under section 7106(b)(1) of the Statute after the Administrative Law Judge issued his decision in the instant case. See Department of Justice, Immigration and Naturalization Service v. FLRA, 881 F.2d 636 (9th Cir. 1989), relying on Immigration and Naturalization Service v. FLRA, 855 F.2d 1454 (9th Cir. 1988). In that decision, the Ninth Circuit did not address the Authority's two-part test for "methods and means" assertions.
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 Defense, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia shall:
1. Cease and desist from:
(a) Unilaterally instituting any changes in policy regarding the color and style of protective coveralls to be used by employees in the Civil Engineering Waste Treatment Division without first notifying the American Federation of Government Employees, Local 987, AFL-CIO, the agent of the exclusive representative of its employees, and providing it with an opportunity to negotiate concerning the above changes.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of 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 Statute:
(a) Rescind the change in policy effectuated on or about February 1, 1987 regarding the color and style of protective coveralls to be used by unit employees and restore the previously existing policy which involved the use of white coveralls.
(b) Notify and, upon request, negotiate with the American Federation of Government Employees, Local