38:0295(33)NG - - NAGE Locals R12-122, R12-222 and DOD, Washington NG, Tacoma, WA - - 1990 FLRAdec NG - - v38 p295



[ v38 p295 ]
38:0295(33)NG
The decision of the Authority follows:


38 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCALS R12-122, R12-222

(Union)

and

U.S. DEPARTMENT OF DEFENSE

WASHINGTON NATIONAL GUARD

TACOMA, WASHINGTON

(Agency)

0-NG-1778

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 26, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case involves the negotiability of four proposals.

Proposal 1 provides for cleanup time for all technician employees at the end of a shift and before lunch. Proposal 2 provides for a physical fitness program available to all technicians for up to 3 hours of duty time per week. Proposal 3 concerns the wearing of the military uniform by civilian technicians in various circumstances. Proposal 4 addresses the continuation of the parties' negotiated collective bargaining agreement after its expiration date.

For the following reasons, we find that Proposals 1 and 2 are nonnegotiable because they excessively interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. We find that Proposal 3 is negotiable, in part. We find that Proposal 4 is nonnegotiable because it constitutes a waiver of the Agency's right to terminate unilaterally provisions covering permissive subjects of bargaining in the parties' expired agreement.

II. Proposal 1

Section 1. A reasonable clean-up time at the end of each shift and before lunch will be allowed. The exact amount of time for each area shall be determined by the supervisor of each department and the designated steward of the Union assigned the area. Necessary personal clean-up time will be authorized for those employees working with toxic substances in accordance with OSHA standards.

[Only the underlined portion of the proposal is in dispute.]

A. Positions of the Parties

The Agency contends that the disputed sentences in Proposal 1 are nonnegotiable based on the Authority's decision in International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347 (1988) (U.S. Army Engineer District), where, according to the Agency, the Authority concluded that "union proposals for clean-up are non-negotiable since they preclude assignment of other types of work during the specified period." Statement of Position at 1. The Agency withdrew its allegation of nonnegotiability concerning the last sentence of Proposal 1.

The Union asserts that U.S. Engineer District does not compel a conclusion that Proposal 1 is nonnegotiable. According to the Union, Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of a management right because the employees "work in positions in which they have contact with a variety of substances." Reply Brief at 3. The Union contends that Proposal 1 does not excessively interfere with management rights because, as the proposal calls for the "supervisor and the designated steward for that department [to] determine the appropriate amount of clean-up time for [their] area[,] . . . the amount of time given [will be] appropriate to the particular department." Id. at 3-4.

B. Analysis and Conclusions

In National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740, 748-50 (1990) (Illinois Air National Guard), the Authority held that a proposal also requiring the agency to provide employees cleanup time during their hours of duty was identical in effect to the proposal found nonnegotiable in U.S. Army Engineer District. We concluded that the proposal directly interfered with the agency's right to assign work under section 7106(a)(2)(B) of the Statute because it would preclude the agency from assigning work during the period set aside for personal cleanup.

Proposal 1 has the same effect as the disputed proposals in Illinois National Guard and U.S. Army Engineer District. Accordingly, consistent with those decisions, we conclude that the disputed portion of Proposal 1 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B).

In Illinois Air National Guard, we also rejected the Union's claim that the proposal was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. As relevant here, we held that the union had failed to show that the benefits provided employees under the proposal outweighed the negative effects of the proposal on the agency's rights. We distinguished the Authority's decision in The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250 (1988) (Engraving and Printing), noting that in Engraving and Printing, the agency agreed that personal cleanup after contact with toxic substances at the work site was necessary for the employees' health and safety and was an activity which was a legitimate part of the workday.

As noted in Illinois Air National Guard, in determining whether a proposal constitutes an appropriate arrangement it is necessary, as a threshold matter, to determine whether the proposal is an arrangement for employees adversely affected by the exercise of management's rights. This determination is made by examining "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (Kansas Army National Guard). Proposals addressing "'purely speculative or hypothetical concerns, or which are otherwise unrelated to management's exercise of its reserved rights,'" will be excluded from consideration as appropriate arrangements. West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1012 (1990) (quoting American Federation of State, County and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453, 458 (1986) (Chairman Calhoun dissenting)).

Initially, we find that the first two sentences of Proposal 1 constitute an arrangement for adversely affected employees under section 7106(b)(3). The Union asserts that the technicians "come in contact with chemicals and substances due to [their] work assignment[s] . . . ." Reply Brief at 3. The Agency does not dispute this assertion. The proposal would ameliorate the adverse effects of working with unclean materials by providing employees with cleanup periods, on duty time, before lunch and at the end of their shifts.

Having found that the first two sentences of Proposal 1 constitute an arrangement, it is necessary to determine whether the arrangement is "appropriate," within the meaning of section 7106(b)(3). To do so, we determine whether the proposal excessively interferes with management's right: whether the negative impact on management's right to assign work is disproportionate to the benefits conferred by the provision on employees. See Kansas Army National Guard, 21 FLRA at 33. See also National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 841 (1990).

Proposal 1 restricts management's ability to assign work by requiring the Agency to provide "reasonable" cleanup periods at the end of each shift and before lunch. During these periods, the Agency would be unable to assign technicians to their normal work duties and would, thereby, lose the work of these employees for the duration of the cleanup periods. We note, in this regard, that consistent with the second disputed sentence, the duration of the cleanup periods would be determined by area stewards and supervisors. As such, the parties presumably could "tailor" the duration of the cleanup periods to circumstances involved in each work area. As written, however, the first two sentences of Proposal 1 would require the Agency to provide cleanup periods, of durations yet-to-be-determined, to all employees.

Clearly, the proposal would provide benefits to those employees whose work requires them to handle, or be exposed to, dirty substances. In particular, the proposal would minimize the intrusion into employees' nonwork times during lunch or at the end of shifts resulting from employees needing to clean up before eating or going home. The Union has not, however, provided information concerning the extent or nature of employees' exposure to dirty substances or the number of affected employees. Moreover, the third sentence of Proposal 1, which is not in dispute, provides cleanup time for "employees working with toxic substances in accordance with OSHA standards." We conclude, therefore, that the employees who would benefit from the cleanup time provided by the first two sentences in Proposal 1 are not exposed to toxic substances.

It is clear that Proposal 1 both benefits employees and, in our view, significantly affects the Agency's right to assign work. In our view, noting specifically that employees who work with toxic substances are provided with appropriate cleanup periods, the negative effects on the Agency's right resulting from the proposal's blanket requirement that all employees be given cleanup periods at the end of their shifts and before lunch outweigh the benefits to employees. Accordingly, we conclude that the proposal excessively interferes with the management right to assign work and is nonnegotiable. In view of our conclusion, we do not address whether the cleanup periods required by the first two sentences could be considered hours of work within the meaning of 5 U.S.C. § 6101. Compare Illinois National Guard, 35 FLRA at 749-750.

III. Proposal 2

Section 8. Full-Time Washington National Guard Technician Physical Fitness Program

1. While physical fitness is a personal responsibility, it is a recognized fact that physically fit employees are healthier, happier, and more productive. This program will be voluntary and will authorize the use of official time for physical fitness exercise for technicians.

2. Supervisors and program participants alike, are expected to maintain both continuity of work and control of the program. Participants are reminded that their participation will be managed around the work load. Mission accomplishments will be of prime importance.

3. The use of official time for physical fitness is a privilege. Abusers of the program will have the privilege revoked.

4. The following guidelines could be established for the use of official time for physical fitness exercise for all full-time technicians.

a. Jogging, running, vigorous walking, workout equipment, swimming and aerobics or bicycling at no additional expense to the employer. Requests for participation in a physical fitness program other than these types must be approved by the SPMO.

b. No more than three (3) hours of official time per week may be used for this program. Supervisors need not record any particular status on T&A reports other than normal duty for pay purposes.

c. Official time may be used in 1/2 to 1 hour increments with only one increment per day allowed. Break periods may not be combined to provide longer periods, but the lunch period may be expanded up to a maximum of 1-1/2 hours. Time for physical fitness exercise must be coordinated with the immediate supervisor to insure minimum interference with assigned work duties and consideration for disturbance of employees not participating in the program. If weather precludes outside activity on a given day, time may be rescheduled for a different day of the week, but the maximum of one hour per day and three hours per week rules apply.

d. Time for changing clothes, showers, or clean up will be included as part of the official time allowed for exercise. Additional time will not be allowed for these activities.

e. Programs such as basketball, volleyball and other team sports will not be permitted because of higher incidence of injury related to these activities.

f. Technicians are encouraged to participate in the program but must obtain the approval of their immediate supervisor. Participants must also complete a Statement of Understanding and Liability prior to starting this program. The completed statement will be kept on file by the immediate supervisor with a copy provided to the SPMO. A sign in/sign out form must be maintained at the work place, and employees must sign out at the beginning and sign back in at the end of each exercise period. This includes exercise periods at the beginning and end of the work day. This requirement, although burdensome, is necessary to insure accountability for Worker's Compensation Programs. Both forms may be locally reproduced. Requests for some other method of time accounting must be submitted to and approved by the SPMO.

A. Positions of the Parties

The Agency contends that the proposal "excessively interferes with management's legal right to assign work." Statement of Position at 1-2. The Agency asserts that "[u]nder the proposal, management would be effectively prevented from assigning duties to employees once they were engaged in physical fitness." Id. at 2. The Agency concludes that the proposal "cannot constitute an appropriate arrangement[]" because "the [U]nion fails to state any adverse effects the proposal alleviates." Id.

The Union asserts that the proposal constitutes an appropriate arrangement. The Union contends that "being physically fit" is a condition of employment because: (1) technicians must maintain their military status to retain their civilian employment; and (2) in "order to maintain [their] military status," they "must meet certain fitness requirements." Reply Brief at 5. The Union asserts that the proposal would "have little effect on the exercise of management's right to assign work[]" because "participation in the program will be managed around the workload." Id.

B. Analysis and Conclusions

This proposal would establish a physical fitness program for employees on duty time. Although more detailed, this proposal is similar, in substance, to a proposal the Authority found to excessively interfere with management's right to assign work in National Association of Government Employees, Local R12-105 and U.S. Department of Defense, National Guard Bureau, The Adjutant General, California National Guard, 37 FLRA 462 (1990) (California National Guard).

In California National Guard, the disputed proposal provided 3 hours of duty time per week "for physical fitness on a sign out program . . . ." 37 FLRA at 462. In California National Guard, as here, the union conceded that the proposal directly interfered with the agency's right to assign work but maintained that the proposal constituted an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by management's exercise of its right to determine the physical fitness requirements applicable to technicians. Consistent with the Union's position here, and the decision in California National Guard, we find that the proposal directly interferes with the Agency's right to assign work.

In California National Guard, we found that although the agency's establishment of physical fitness requirements did not automatically result in an adverse effect on employees, it was reasonably foreseeable that some employees would be adversely affected by the establishment of physical fitness requirements. Accordingly, we concluded that the proposal constituted an arrangement within the meaning of section 7106(b)(3). We concluded, however, that the burden on the agency's right to assign work was not outweighed by the benefit to employees of having duty time to engage in physical fitness activities. Consequently, we determined that the proposal excessively interfered with management's right to assign work and, therefore, was nonnegotiable.

The proposal in this case is to the same effect as the disputed proposal in California National Guard. Although the proposal in this case is more detailed and provides management with more flexibility in determining when an employee will participate in physical fitness activities, the result is the same: for up to 3 hours each week the Agency would be precluded from assigning work to any technician who participated in the program.

We note that section f of the proposal provides that technicians must "obtain the approval of their immediate supervisor." This sentence could be read as enabling the Agency to deny permission to technicians to participate in the program. Read in the context of the proposal as a whole, however, it appears that this sentence, as well as the one stating that "[m]ission accomplishments will be of prime importance[,]" are intended to allow supervisors to control the scheduling of the official time, not to deny it. Reply Brief at 5.

We conclude, therefore, for the reasons stated more fully in California National Guard, that although Proposal 2 constitutes an arrangement for employees who would be adversely affected by the Agency's physical fitness requirements, the proposal's benefits to employees do not outweigh the significant limitations on management's ability to assign work. Therefore, Proposal 2 is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

IV. Proposal 3 (1)

Section 1. Employees shall have the option of wearing Class A, Class B, BDU or coverall, unless other appropriate arrangements are made between the Union and supervisor. Employees who opt to wear the coverall will not be required to wear a uniform beneath. A sufficient number of uniforms will be furnished ready to wear, by the employer.

A. The employer will maintain uniforms ready to wear on a weekly basis.

B. The employer will furnish a storage area for uniforms.

[The underscored sentence is not in dispute.]

A. Positions of the Parties

The Agency contends that the first two sentences of Proposal 3 "would permit military technicians to wear any one of the authorized military uniforms." Statement of Position at 2 (emphasis in original). The Agency asserts that it is "well established that the wear [sic] of the military uniform is a methods and means of performing work under 5 U.S.C. 7106(b)(1)." Id.

The Union contends that it is "unclear . . . how allowing technicians to wear uniforms appropriate to their job position interferes with . . . mission-related purposes" of the uniforms. Reply Brief at 7. The Union asserts that under the proposal, technicians will wear uniforms and "will be readily identified as part of the National Guard . . . ." Id. The Union contends that agencies are required to bargain over "proposals that affect an agency policy without defeating its purpose[,]" and that the "person who performs the function . . . best understands what uniform needs exist." Id.

B. Analysis and Conclusions

1. Sentences 1 and 2

The requirement that technicians wear a prescribed uniform while performing work constitutes the Agency's determination of the methods and means of performing work under section 7106(b)(1) of the Statute. See Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984), 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). The right to prescribe the specific uniform "is critical to achieving the purposes for which the [a]gency has adopted the uniform requirement." Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 686 (1987) (Wisconsin Guard).

Proposals allowing employees to deviate from the prescribed uniform directly interfere with management's right to determine the methods and means of performing work. In Illinois Air National Guard, 35 FLRA at 744-45, we held that:

The decision as to which class of uniform will be required during designated periods of the workday or for specific occasions and purposes is integrally related to the Agency's purpose of maintaining a highly developed sense of esprit de corps and military discipline among civilian technicians. Consequently, determinations concerning the particular class of uniform to be worn during specified periods of the workday or on specified occasions is a matter relating to the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute.

(Citations omitted.)

We find, consistent with our decision in Illinois National Guard, that the first two sentences of Proposal 3, which would give technicians the option of wearing any one of the uniforms assigned to them when in a work status, directly interfere with the Agency's right to determine the methods and means of performing work. The Agency may elect to bargain over the exercise of this right, but has not so elected in this case. The Union does not assert that Proposal 3 constitutes an appropriate arrangement. Therefore, as the first two sentences of Proposal 3 directly interfere with the Agency's right, they are nonnegotiable.

2. Part A

Part A of Proposal 3 requires the Agency to "maintain uniforms ready to wear on a weekly basis." The Agency asserts that as it already furnishes technicians, free of charge, with sufficient quantities of uniforms, it cannot be required also to maintain the uniforms.

In Wisconsin Guard, 26 FLRA at 683-84, the disputed proposal required the agency, among other things, to furnish technicians with "[l]aundering services of all required military items of clothing required to be worn in the performance of civilian technician duties." It was undisputed in Wisconsin Guard that the agency furnished uniforms to affected technicians.

The Authority reviewed the legislative history of chapter 59, subchapter I of title 5 of the United States Code, particularly 5 U.S.C. § 5901, and determined that the legislation "deals comprehensively with the payment of a uniform allowance by an agency for the maintenance of the uniform which the agency requires employees to wear." Id. at 684. The Authority determined also that the legislative scheme encompassed both the purchase and upkeep of the uniforms. See also Federal Employees Uniform Allowance Act of 1954, Pub. L. No. 83-763, 68 Stat. 1114 (1954) and S. Rep. No. 1992, 83rd Cong., 2d Sess., reprinted in 1954 U.S. Code Cong. and Admin. News, 3816, 3826. The Authority concluded that the proposal was not negotiable because it concerned a matter specifically provided for by statute and was, therefore, excepted from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute.

As in Wisconsin Guard, the Union does not dispute the Agency's assertion that the Agency furnishes technicians with uniforms. Further, the effect of part A of Proposal 3 is the same as the disputed proposal in Wisconsin Guard: it would require the Agency to maintain the required uniforms. We conclude, therefore, consistent with the decision in Wisconsin Guard, that part A of Proposal 3 is not within the duty to bargain because it concerns a matter which is specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute. See also National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 525-26 (1987); and American Federation of Government Employees Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1035 (1988) (Proposal 2k) (AFLC), aff'd sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (D.C. Cir. 1988).

3. Part B

Part B of Proposal 3 would require the Agency to furnish a storage area where employees could leave their uniforms when they we