36:0312(40)CA - - The Adjutant General, Massachusetts NG, Boston, MA and NAGE - - 1990 FLRAdec CA - - v36 p312

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[ v36 p312 ]
36:0312(40)CA
The decision of the Authority follows:


36 FLRA No. 40

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

THE ADJUTANT GENERAL

MASSACHUSETTS NATIONAL GUARD

BOSTON, MASSACHUSETTS

(Respondent/Agency)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

(Charging Party/Union)

1-CA-80328

DECISION AND ORDER

July 18, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge (the Judge). The Respondent did not file cross exceptions or an opposition to the General Counsel's exceptions. The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) in that it: (1) unilaterally changed the conditions of employment of bargaining unit employees by prohibiting the wearing of Class X clothing; and (2) unlawfully refused to bargain on three impact and implementation proposals submitted by the Union.

We conclude, in agreement with the Judge, that the complaint should be dismissed.

II. Background

From 1984 until March 1988, the Respondent authorized bargaining unit employees to wear Class X uniforms in their immediate work areas when they were engaged in work requiring the handling or using of materials that could cause permanent stains to work clothes. The Class X uniform consists of a uniform shirt and pants which had been turned in for replacement and on which the phrase "Class X" had been stenciled. Military insignia, name tags, and grade insignia were not worn on the Class X uniform. During this period, the Respondent prohibited employees from wearing the military Battle Dress Uniform (BDU) when they were performing work that could permanently soil or damage the BDU uniform with, among other things, grease, oil, paint or solvents.

On March 22, 1988, the Respondent gave the Union president a draft bulletin which stated that the wearing of Class X clothing would no longer be authorized. The bulletin also stated that military technicians involved in dirty, greasy work were to wear coveralls to protect the BDU from being permanently stained.

The Union sought to negotiate over the termination of the authorization to wear Class X clothing. The Respondent refused to bargain about its decision to prohibit the wearing of Class X clothing on the ground that its determination of a prescribed uniform constitutes a determination of the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute.

On April 22, 1988, at the invitation of the Respondent, the Union submitted several impact and implementation proposals. Among them was the following proposal, identified as Proposal 6:(*)

Employees who opt to wear the agency supplied coverall will not be required to wear a uniform beneath the coveralls.

The Respondent replied on May 9, 1988, stating that proposals "substantially similar" to Proposal 6 had been ruled on by the Authority in National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515 (1987) (National Guard Bureau) and Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682 (1987) (Wisconsin Army National Guard). Joint Exhibit 9. The Respondent did not identify which proposals it was referring to in those cases.

In response to the Union's request for additional clarification of its position, the Respondent replied on May 23, 1988, and stated that:

Wear of the military uniform constitutes management's choice of the 'methods and means of performing work' within the meaning of Section 7106(b)(1) of the Statute and is negotiable only at the election of the agency. There are many different military uniforms which are prescribed to be worn depending upon the nature of the work to be performed. Management's choice of which uniform will be worn, therefore, also constitutes the 'methods and means of performing work' within the meaning of 5 USC 7106(b)(1) and is also negotiable only at the election of the agency.

We feel that we have bargained over the impact and the implementation of our decision to discontinue the wear of Class X clothing by accepting your proposals and by adequately responding to them.

Should you feel that further clarification . . . is still necessary, please feel free to contact me.

Joint Exhibit 11.

The parties had no further contact on this matter and the ban on Class X clothing was implemented on June 1, 1988.

At the hearing on this complaint, the Agency raised a compelling need for Agency regulations as a defense for its refusal to bargain over the proposals. The General Counsel objected to the introduction of compelling need arguments at the hearing. The General Counsel noted that the U.S. Supreme Court had held that a negotiability appeal under section 7117(b) is the sole means of determining a compelling need question under the Statute. FLRA v. Aberdeen Proving Ground, Department of the Army, 108 S. Ct. 1261, 1262 (1988) (Aberdeen Proving Ground). The General Counsel argued that if a compelling need argument were to be made in the case, the Judge should dismiss the unfair labor practice complaint and refer the parties to the Authority's negotiability procedures. The Judge permitted the compelling need arguments and Agency regulations to be entered into the record. However, the Judge did not rely on any compelling need claim in his decision, and he recommended that the complaint be dismissed on other grounds.

III. Judge's Decision

The Judge stated that, under Authority precedent, the requirement that civilian technicians wear the prescribed military uniform constituted the Respondent's determination of the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. Accordingly, the Judge found that, under section 7106(b)(1), the Respondent had the right to discontinue its authorization of the wearing of Class X clothing. The Judge also found that the Respondent was obligated to bargain with the Union over the impact and implementation of its decision to prohibit technicians from wearing the Class X uniform and that the Respondent recognized the Union's right to bargain on these matters. The Judge then considered the negotiability of Proposal 6.

In explaining the intent of Proposal 6, the Union contended before the Judge that the coveralls offered only partial protection to the military uniform because when technicians are working with liquids, the liquids can soak through the coveralls and stain the uniform. The Union also claimed that wearing coveralls over the military uniform is cumbersome and, in hot weather, can become unbearable. The Union was concerned about the economic impact of the prohibition of Class X clothing, because the Respondent had previously discontinued the practice of replacing the BDU if it was permanently stained and, instead, required technicians to bear the cost of replacing a stained uniform.

As to Proposal 6, the Judge found that National Guard Bureau was not relevant but that proposals 4 and 8 of Wisconsin Army National Guard were applicable. Proposals 4 and 8 of Wisconsin Army National Guard would have eliminated the requirement to wear military hats or caps in the workplace and substituted a proposed name tag for the name tag prescribed for the military uniform. The Authority found that those proposals were negotiable only at the election of the agency because they were inconsistent with management's right under section 7106(b)(1) of the Statute to determine the methods and means of performing work. Wisconsin Army National Guard, 26 FLRA at 686-87.

The Judge also noted the Respondent's reliance on section 7-6 of National Guard Technician Program Regulation TPR 300-302.7, which states in part that "[a]ll military technicians will wear the military uniform appropriate for the service branch . . . of employment and federally recognized grade. Regulations pertaining to grooming standards and wearing of the military uniform . . . will be complied with." Judge's Decision at 13 n.9, quoting Respondent's Exhibit 3.

The Judge set forth the General Counsel's contention that, although Proposal 6 admittedly exempted employees from wearing the BDU, it was a limited exemption and the proposal should be found to be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Judge stated that although he agreed with the General Counsel that there is "little or no reason to require that the BDU be worn under coveralls, the cases have made it clear that the agency's right to determine the methods and means of performing work, pursuant to [section 7106(b)(1)] of the Statute, includes the right to determine 'the prescribed military uniform.'" Judge's Decision at 14. Accordingly, the Judge concluded that he was "constrained to conclude that the Respondent had the right to determine that the prescribed military uniform is the BDU under coveralls and, therefore, Union Proposal 6 was negotiable only at the election of the Respondent." Id. at 14-15.

The Judge recommended that the complaint be dismissed in its entirety.

IV. Positions of the Parties

As noted above, the General Counsel does not except to the Judge's conclusions regarding Proposals 1 and 4. The General Counsel excepts to: (1) the Judge's statements concerning the Respondent's compelling need defense; and (2) the Judge's determination that Proposal 6 is nonnegotiable.

As to its first exception, the General Counsel claims that the Respondent did not rely on any of its internal regulations to defend its refusal to bargain over proposals 1, 4, and 6 until the hearing in this case. The General Counsel contends that, over counsel's objections at the hearing, the Judge permitted the Respondent's regulations and compelling need arguments to be entered into the record.

The General Counsel contends that the Judge's holding presents a significant question involving the application of precedent regarding the appropriate forum for resolving compelling need claims. Relying on Aberdeen Proving Ground and Federal Emergency Management Agency, 32 FLRA 502 (1988), the General Counsel argues that "the necessary implication of the Judge's conclusion that a compelling need defense can be raised at any time is that the complaint in this proceeding must be dismissed because a compelling need determination cannot be made in an unfair labor practice proceeding." Exceptions at 2.

As to Proposal 6, the General Counsel contends that the proposal does not interfere with the Respondent's right to determine the methods and means of performing work and, in the alternative, that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3).

The General Counsel argues that the Judge's reliance on Authority precedent regarding the prescribed military uniform is misplaced. The General Counsel contends that the precedent relied on by the Judge involved the external appearance of the National Guard technicians, while the proposal in this case does not affect the appearance of the technicians. Rather, Proposal 6 affords bargaining unit employees the option of not wearing the military uniform under the coveralls. The General Counsel argues that "it is difficult to understand" how wearing the military uniform under coveralls can constitute a means of performing work. Exceptions at 8.

The General Counsel also contends that "it would strain credulity to conclude that requiring employees to wear a military uniform under coveralls 'foster[s] military discipline, promote[s] uniformity, encourage[s] esprit de corp, increase[s] the readiness of the military forces for early deployment, and enhance[s] identification of the National Guard as a military organization[.]'" Id., quoting Wisconsin Army National Guard, 26 FLRA at 686 (emphasis in exceptions).

The General Counsel argues, in the alternative, that even if the Authority finds that Proposal 6 interferes with management's right to determine the methods and means of performing work, Proposal 6 is nevertheless negotiable as an appropriate arrangement. The General Counsel notes that there are changing rooms in close proximity to the workplace which could be used by employees. The General Counsel concludes, therefore, that the effect on management's right of permitting employees to wear only the coveralls is minimal and is outweighed by the benefit to employees of not having to choose between "suffering from the summer heat or soiling the prescribed military uniform." Exceptions at 9.

V. Analysis and Conclusion

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 affirmed. For the following reasons, we agree with the Judge's conclusion that the Respondent did not violate the Statute.

A. Compelling Need

We find that we do not need to address the General Counsel's exception challenging the Judge's decision to permit the Respondent to argue that a compelling need exists for its internal regulations. The Judge did not rely on the Respondent's compelling need arguments in concluding that the Respondent had not refused to bargain over the Union's proposals in violation of the Statute. Rather, the Judge based that conclusion on grounds wholly unrelated to compelling need.

We note that the Judge discussed the compelling need question in his decision regarding Proposal 1. Judge's Decision at 9. As we indicated earlier, Proposal 6 is the only proposal that is before us; exceptions were not taken to the Judge's conclusions that the Respondent did not have a duty to bargain as to Proposals 1 and 4. Moreover, the Judge decided the issues before him without reaching a compelling need determination. Therefore, there is no inconsistency between the Judge's decision and the U.S. Supreme Court's holding in Aberdeen Proving Ground that the Authority's negotiability procedure is the sole means of determining whether a compelling need exists for an agency's regulation.

The General Counsel acknowledges that the Judge's statements concerning the Respondent's right to raise a compelling need defense for the first time at the hearing are dicta. Exceptions at 2. We agree and conclude that it would be more appropriate to consider the arguments of the General Counsel in a case where the question is squarely presented as to whether a compelling need defense was barred because it was not raised until the hearing. See Professional Airways Systems Specialists, MEBA, AFL-CIO and Department of Transportation, Federal Aviation Administration, 32 FLRA 517, 519 (1988) (because there were proposals before the judge which did not involve compelling need issues, the unfair labor practice complaint could be resolved without resolution of those issues).

B. Management Rights

We agree with the Judge that the Respondent's decision to prohibit the wearing of Class X uniforms, and its decision to establish coveralls over the required uniform as the appropriate uniform for dirty work, constitutes an exercise of management's right to determine the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute.

As the Authority has previously noted, the National Guard is a military organization with dual state and Federal military missions. Within this military organization, National Guard technicians function in three capacities: they perform full-time civilian work; they perform military training and duty; and they are continuously available to enter active state or Federal military duty whenever mobilized. The technicians were granted status as Federal civilian employees by the National Guard Technicians Act of 1968 (32 U.S.C. § 709).

The Authority has found that the requirement that civilian technicians must wear the prescribed military uniform is a methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. American Federation of Government Employees, AFL-CIO, Local 3006 and The Adjutant General, State of Idaho, Boise, Idaho, 34 FLRA 816, 821 (1990) (Adjutant General, State of Idaho) citing Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984) (Division of Military and Naval Affairs, State of New York), aff'd sub nom., New York Council, Association of Civilian Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied, 474 U.S. 846 (1985). That requirement may be bargained about at the election of the agency. Division of Military and Naval Affairs, State of New York, 15 FLRA at 294. The Respondent, however, has chosen not to bargain over its decision that technicians wear the military uniform. The Judge found and the General Counsel acknowledged that Proposal 6 "exempts employees from wearing the BDU [military uniform]." Judge's Decision at 14, quoting from the General Counsel's Brief to the Judge at 12.

Proposals that allow employees to deviate from the prescribed military uniform directly interfere with management's right under section 7106(b)(1) to determine the methods and means of performing work and do not constitute negotiable procedures under section 7106(b)(2) of the Statute. American Federation of Government Employees, AFL-CIO, Local 3006 and Idaho Army and Air National Guard, 32 FLRA 539, 541 (1988) (Idaho Army and Air National Guard); Wisconsin Army National Guard, 26 FLRA at 686-87. We agree with the Judge's conclusion that, because Proposal 6 would exempt employees from the requirement to wear the military uniform, the proposal directly interferes with management's right under section 7106(b)(1) to determine the methods and means of performing work.

Moreover, although we agree with the General Counsel that the Judge erred by failing to address its contention that Proposal 6 was an appropriate arrangement, we are constrained by the record before us to conclude that we cannot sustain that contention on the merits. As acknowledged by the General Counsel, Proposal 6 would exempt employees from the requirement to wear the military uniform. By precluding the Agency from determining that National Guard employees will remain in uniform while performing tasks requiring the wearing of coveralls, the proposal limits management's ability to have a work force that is always in uniform. The National Guard Bureau uses the requirement for civilian technicians to wear military uniforms to foster military discipline, promote uniformity, encourage esprit de corps, increase the readiness of the military forces for early deployment and enhance identification of the National Guard as a military organization. See Adjutant General, State of Idaho; Division of Military and Naval Affairs, State of New York, 15 FLRA at 293.

This restriction on the Agency's ability to retain a work force that is always uniformed provides some benefit to the employees. If the employees did not have to wear the BDU under their coveralls, the employees might be more comfortable especially during very warm weather or under other difficult working conditions. Additionally, liquids or solvents could not soak through the coverall and stain the BDU for which the employees are responsible. These benefits for employees are obtained by the employees being out of uniform, at the risk of being unable to respond promptly to a mobilization order or other urgent assignment requiring the employees to be in uniform.

The General Counsel asserts that changing areas are located conveniently nearby where employees could change from the coveralls to the BDU. The record is insufficient, however, to determine whether changing facilities are available at all of the locations where the affected employees are assigned, whether there is a sufficient number of changing facilities, and how quickly the employees could change into their uniforms from the coveralls if the changing facilities were used. See Hearing Transcript at 28, 29.

Although we can understand the concerns of employees over the requirement that they wear a BDU under the coveralls during hot weather or under other difficult conditions, in view of the insufficient record we are not able to determine that the proposal constitutes an appropriate arrangement. Accordingly, we conclude that, in light of the purposes served by the Agency's requirement that a military uniform be worn, the limitations on the Agency's determination to require that the BDU be worn under the coveralls outweigh the benefits to employees and, therefore, the proposal excessively interferes with management's right under section 7106(b)(1) to determine the methods and means of performing work. Consequently, we conclude that Proposal 6 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 35-36 (1990); American Federation of Government Employees, AFL-CIO, Local 683 and Department of Justice, Federal Correctional Institution, Sandstone, Minnesota, 30 FLRA 497, 500-01 (1987). In so concluding, we note that the Authority has consistently emphasized that the military status of National Guard civilian technicians distinguishes the requirement that technicians wear the military uniform from cases involving the requirement by agencies that non-military employees wear a prescribed uniform. Compare Wisconsin Army National Guard, 26 FLRA at 686 with Department of Defense, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 68, 69-70 (1990) (and cases cited therein).

Because we conclude that Proposal 6 is nonnegotiable, we find, in agreement with the conclusion of the Judge, that the Respondent did not violate section 7116(a)(1) and (5) by refusing to bargain with the Union over that proposal. Consequently, we will dismiss the complaint in this case. However, our decision should not be construed to hold that, in cases involving bargaining proposals concerning National Guard uniforms, no proposals will be found to be "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. Rather, the record in this case is insufficient to find that the proposal constituted an appropriate arrangement.

We also note that, consistent with section 7106(b)(1), the Agency may elect to negotiate over proposals that would address the Union's concerns regarding the requirement that employees wear the BDU under coveralls during uncomfortable weather or under other arduous conditions. Further, the Agency may profit from consultation with representatives of the employees who will actually carry out the work of the Agency while wearing the BDUs under the coveralls. Affected employees could very well have ideas that could add to the effectiveness and resultant efficiencies of decisions in these areas. Nothing in this decision should be construed to prevent the Agency from participating in such discussions. See Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352, 355 (1987). In many instances, better communications between the parties on issues such as this could eliminate the necessity for bringing cases to the Authority.

VI. Order

The complaint is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ Proposal 6 is the only proposal that is relevant to the issues before us. Proposals 2, 3, 5 and 7 were not at issue before the Jud