45:0506(43)CA - - NG Bureau, Alexandria, Virginia and ACT, MT Chapter No. 29 - - 1992 FLRAdec CA - - v45 p506
[ v45 p506 ]
The decision of the Authority follows:
45 FLRA No. 43
Before Chairman McKee and Members Talkin and Armendariz.1/
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel, the Charging Party and the Respondent each filed a brief with the Authority, and the Activity, Montana Air National Guard, filed an amicus brief. The General Counsel filed motions to strike portions of both the Respondent's and the Activity's briefs. The Activity filed a response to the General Counsel's motion to strike portions of its brief.
The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it disapproved a portion of a collective bargaining agreement, and violated section 7116(a)(1) and (5) when it directed the Activity to repudiate that portion of the agreement.2/ For the following reasons, we shall dismiss the complaint.
The Charging Party, Association of Civilian Technicians, Montana Chapter No. 29 (the Union), is the exclusive representative of a unit of employees of the Activity. On or about April 4, 1985, the Union and the Activity executed a collective bargaining agreement covering unit employees. Included in that agreement was Article 23, "Dress and Appearance Standards," which authorized unit employees to have the daily option of wearing either the military uniform or an agreed-upon standard civilian attire, which was described elsewhere in Article 23.3/
On or about the same day that the Union and the Activity executed the agreement containing Article 23, the Activity forwarded the agreement to the Respondent Agency for approval pursuant to section 7114(c) of the Statute.4/
On or about May 2, 1985, the Respondent disapproved Article 23 and directed the Activity to repudiate that section of the agreement. The stated reason for the disapproval was that Article 23 "violates the National Guard Bureau policy stated in the 13 August 1984 All-States Letter . . . subject: Wear of the Military Uniform. Additionally, the article violates the 5 U.S.C., Section 7106(a)(1) right of management to determine its internal security practices." Stipulation Exh. 18 at 3.
III. Positions of the Parties
A. The General Counsel
The General Counsel argues that the matter of civilian attire is a permissive subject of bargaining, that the Agency does not have a compelling need for its regulation, and therefore that the Respondent exceeded its authority under section 7114(c) of the Statute when it disapproved Article 23 and directed the Activity to repudiate that section of the negotiated agreement. In addition, the General Counsel takes issue with the Respondent's argument that Article 23 of the negotiated agreement interferes with its management right under section 7106(a)(1) to determine its internal security practices.
In support of its contention that the disapproval was improper, the General Counsel argues that the scope of an agency head's authority under section 7114(c) to invalidate an agreement reached at the level of exclusive recognition is limited, and that approval is required "if the agreement is in accordance with the [Statute] and any other applicable law, rule, or regulation[.]" General Counsel's brief at 5, quoting National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56 (1986) (NAGE Local R4-75) and AFGE v. FLRA, 778 F.2d 850, 859 n.15 (D.C. Cir. 1985). In NAGE Local R4-75, the Authority concluded that "agreement provisions may not be disapproved by an agency head under section 7114(c) simply because they relate to section 7106(b)(1) matters." 24 FLRA at 62. The General Counsel also quotes American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 167 (1987), which states that "section 7114(c) requires that the agreement be approved [by the agency head] if it is in accordance with the Statute and any other applicable law, rule, or regulation." General Counsel's Brief at 6.
The General Counsel cites several cases to support its position that there is no compelling need for the Agency's general regulatory requirement that military uniforms be worn. The General Counsel argues that although the Statute does not define what is meant by "regulation" in section 7114(c)(2), which requires agency approval if an agreement is in accordance "with the provisions of [the Statute] and any other applicable law, rule or regulation," section 7117(a)(1) and (2), governing the duty to bargain, requires bargaining unless the proposal is inconsistent with "Federal law or any Government-wide rule or regulation." It follows, the General Counsel argues, that "a policy letter from a primary national subdivision of the Department of Defense, as here, without more evidence of its nature or extent, cannot be aggrandized or transformed into a regulation of the type contemplated by the Statute which would bar negotiations." Id. at 6. Further, the General Counsel asserts that "[i]t definitely is not a 'Government-wide rule or regulation' in any case, since it related only internally within the National Guard." Id. Accordingly, the General Counsel argues that disapproval based on the 1984 National Guard Bureau policy letter is without merit. Finally in this regard, the General Counsel notes that "at no time has [the] Respondent even raised the 'compelling need' defense in these proceedings." Id. at 7 n.5.
The General Counsel asserts that the attire issue is a permissive subject of bargaining over which the agency at the exclusive level of recognition can elect to bargain, based on Authority precedent finding this matter to involve management's choice of the methods and means of performing work under section 7106(b)(1) of the Statute. For this proposition, the General Counsel cites The Adjutant General, Massachusetts National Guard, Boston, Massachusetts, 36 FLRA 312 (1990), and argues that when the Activity negotiated to agreement the entire issue of civilian attire, it elected to bargain over this permissive subject and, therefore, it cannot legally disapprove Article 23.
The General Counsel notes that although disapprovals under section 7114(c) "are generally challenged only through negotiability procedures," General Counsel's brief at 8, the Authority and the courts recognize that once an issue has been determined to be negotiable, as the General Counsel contends has occurred with attire, the Authority will find a violation of the Statute where an agency disapproves an agreement based on the inclusion of that subject.
The General Counsel also disputes the Respondent's argument that the civilian attire article of the negotiated agreement interferes with its right to determine its internal security practices. According to the General Counsel, "[t]his specific issue does not seem to have ever been decided by the Authority." Id. at 9-10. The General Counsel notes that although an administrative law judge found that a requirement that employees wear military uniforms constituted an exercise of management's right to determine its internal security practices, the Authority did not reach that issue in its decision in that case. Adjutant General, State of Ohio, Ohio Air National Guard, Worthington, Ohio, 21 FLRA 1062 (1986). The General Counsel contends that, in any event, a determination as to whether a matter involves an internal security issue must be based on a factual finding, and argues that the Respondent in this case has presented no evidence to support such a finding other than "to parrot the Administrative Law Judge's finding in Adjutant General, State of Ohio." General Counsel's brief at 10.
In analyzing the cases where a requirement of a certain form of attire has been equated to an internal security practice, the General Counsel asserts that it was established that the clothing or name tags that came within the aegis of internal security were "part of the Agency's plan to secure or safeguard its physical property against internal or external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of the Agency's activities or operations." Id. at 11-12, quoting American Federation of Government Employees, AFL-CIO, National Archives and Record Administration Council of AFGE Locals (Council 1260) and National Archives and Record Administration, 31 FLRA 878, 889 (1988) (National Archives). In this case, the General Counsel argues, the clause at issue
does not intrinsically infringe upon the purposes behind Respondent's possible reasons for wearing a uniform. For example, using Respondent's only assertions in the record as to the reasons why uniforms are important one finds that they are for:
The protection of its facilities, equipment, personnel and ability to react in its primary role[,] is a clear responsibility of management. When wearing military uniforms, personnel are easily identifiable, more quickly mobilized for security purposes and are more readily obeyed by nonemployee civilians.
General Counsel's brief at 12, citing Stipulation Exh. 2 at 2. The General Counsel argues that Article 23 does not interfere with the Respondent's internal security goals because the wearing of a clearly identifiable uniform is what is important, and the "standard civilian attire" referenced in Article 23 would serve that purpose. The General Counsel states that
even if one were to concede that the requirement that employees wear a uniform is reasonably connected to the performance of Respondent's mission, [the Respondent] has not proven or otherwise asserted that the civilian uniform agreed to by [the Activity] does not fulfill this same goal. Wyoming Air National Guard, supra; Association of Civilian Technicians and Wisconsin Army National Guard, 26 FLRA 682, 685 (1987).
Id. at 12-13 (emphasis in original).
In view of the foregoing, the General Counsel concludes that the Respondent violated the Statute by directing the Activity to repudiate Article 23 of the agreement. It is undisputed that the Activity acted at the direction of the Respondent. Thus, the General Counsel alleges that the Respondent interfered with the bargaining relationship at the level of exclusive recognition.
In addition to arguing that the Respondent has failed to meet its burden of establishing that there is an internal security basis for its disapproval, as noted above, the General Counsel also asserts that the Respondent should be precluded by the doctrine of equitable estoppel from asserting an internal security defense. The basis of the General Counsel's assertion is that the entire proceeding until this point involved the negotiability of the civilian attire issue based on management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.
As a remedy, the General Counsel requests, in addition to the usual posting of a notice signed by the chief military officer of the Respondent, that the unit employees be allowed to elect to wear the negotiated civilian attire for a period equal to that from March 31, 1986, when military attire was required, until a date to be determined during the compliance stage of this proceeding, citing Wyoming Air National Guard, Cheyenne, Wyoming, 27 FLRA 759 (1987).
B. The Charging Party
The Charging Party agrees with the position of the General Counsel that the issue of civilian attire concerns the methods and means of performing work within the meaning of 7106(b)(1) of the Statute, and argues that as the Activity elected to negotiate over that issue, the Agency head could not then revoke or disallow the results of the negotiation under the section 7114(c) agency head review procedure. It asserts further that "[t]he agreement, however, did not violate °7106(a). Rather, it accorded with °7106(b)(1), which is an exception to °7106(a)." Charging Party's brief at 1.
C. The Respondent
The Respondent acknowledges that the Authority has determined that the day-to-day wearing of a "civilian uniform" in lieu of the appropriate military uniform involves the methods and means of performing work and therefore is a permissive subject of bargaining. Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA 288 (1984) (Division of Military and Naval Affairs). Nonetheless, the Respondent argues that the disapproval did not violate the Statute because: (1) the issue involved the internal security of the Agency; (2) Article 23 violated an Agency rule for which there was a compelling need; and (3) even if the above defenses are without merit, a remedial order that unit employees be allowed to regularly wear civilian attire would not effectuate the purposes of the Statute.
1. Internal Security
In response to the General Counsel's position that the Respondent has made no showing that internal security is involved, the Respondent argues that it has asserted this basis for its action since its response to the original charge filed in 1985.
In addition to referring to the strategic location of the Activity and the mission situation it faced in 1985, the Respondent points to the difficulty of maintaining the security of its facilities, aircraft and weapons, and the large number of bargaining unit members, absent a requirement that technicians wear uniforms. The Respondent notes that when civilian personnel wear military uniforms they are easily identifiable and more quickly mobilized for security purposes, while those not wearing the uniform are more quickly and easily identified as being in the wrong place. Therefore, the Respondent argues that allowing technicians to wear civilian attire
directly limited management's ability to conduct any sort of overall visual "screening" to see if there were unauthorized persons on the facility. As such, it not only directly violates the right to determine internal security practices, but totally abrogates the ability of management to exercise the right as well.
Respondent's brief at 3.
In its answer to the complaint, the Respondent also asserted that nonemployees are more likely to obey directions from technicians who are wearing the military uniform.
2. Compelling Need
The Respondent concedes that the Authority previously found that no compelling need existed for regulations requiring that technicians wear the appropriate military uniform. However, the Respondent asserts that the Authority's decision in Division of Military and Naval Affairs provides a basis for such a finding. Because that decision stated that "the wearing of the military uniform becomes indispensable as a constant reminder to technicians that they are members of an organization which is essentially military and subject to mobilization at a moment's notice[,]" the Respondent argues that a compelling need exists for regulations requiring that technicians wear the military uniform. Respondent's brief at 5, quoting 15 FLRA at 294 (emphasis added by the Respondent).
The Respondent asserts that it issued a rule in its August 13, 1984, memorandum based in part on the language in Division of Military and Naval Affairs, which it submits established a compelling need for its uniform policy. The Respondent states further that it "then presented the memorandum to the local parties as a rule in our May 2, 1985 disapproval . . . of Article 23 of the agreement." Id. at 6. The Respondent concedes that it did not specifically state in the disapproval memorandum that the memorandum constituted a rule for which it claimed a compelling need existed. However, "as the Authority has found, we did not have to [do so]." Id. Citing National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491 (1987), the Respondent states that the Authority has held that "the only requirement that an agency support its allegations of nonnegotiability with specificity and rationale occurs after the agency has been served with a petition for review[.]" Id. at 1513.
3. The Remedy
Even if it were found that the Respondent committed an unfair labor practice as alleged, the Respondent urges that the Activity not be ordered to allow technicians to wear the civilian uniform once again. The Respondent argues that such a result would be punitive as to the Activity, "which was not directly involved, and had absolutely no control over any aspect of the case." Respondent's brief at 8.
D. The Activity
In its amicus brief, the Activity notes that there is no allegation that it in any way violated the Statute, and that if a violation is found against the Respondent Agency, any remedy must be "directed toward the party whose conduct gave rise to the ULP and further takes into consideration the unique case facts." Activity's amicus brief at 4.
In arguing against a remedy that would restore the option of wearing civilian uniforms, the Activity states that technicians have been wearing the military uniform for more than six years, and that "[d]uring that time the wearing of a military uniform has become the norm and the [Activity] has been able to foster military discipline, promote uniformity, and further develop esprit de corps." Id. The Activity further argues that permitting the wearing of civilian attire now would undermine the positive effects of wearing the military uniform during the previous six years.
E. General Counsel's Motions to Strike Portions of the Respondent's and the Activity's Briefs
In its brief, the Respondent alluded to its mission in 1985 relative to the dangers of the Cold War at that time. The General Counsel's motion seeks to strike those references as attempts to "prop up Respondent's failure to adequately support its case in the agreed upon Stipulation of Facts[.]" Motion at 2. The General Counsel asserts that the brief presents information that is beyond what a decision maker "can legitimately take judicial notice of . . . ." Id.
The General Counsel also moves to strike the Respondent's "addition of the 'compelling need' defense in this case; this element, as shown by the arduous semantical slight-of-hand [sic] used by [the] Respondent in an attempt to justify consideration of the defense, never [was] brought up in the over six year chronology of this case." Id. The General Counsel notes that the Respondent did not even raise this issue in its answer to the complaint.
The General Counsel also moves to strike statements contained in the Activity's amicus brief describing the positive effects of the technicians' wearing of the military uniform for more than six years. The basis of the objection is that the "purported 'facts'" are used to support defenses that have no foundation in the stipulation of facts.
F. Activity Response to Motion to Strike Portions of Its Amicus Brief
The Activity refers to portions of the record in this case as well as decisions by the Authority and the Federal Service Impasses Panel (Panel), which it asserts should be judicially noticed. From these, it contends, "one must conclude that, for the past five (5) years the wearing of a military uniform by a[n Activity] technician: has promoted esprit de corps; is a part of national, thus local security; and, is a part of the plan to provide for quick deployment through technicians being 'instantaneously convertible to military status.'" Response at 2.
The Activity notes that the parties stipulated that on February 18, 1986, the Activity's Adjutant General stated that "'effective March 31, 1986, all unit employees would be required to wear the appropriate military [uniform].'" The Activity states in its response to the motion that technicians have exclusively worn the military uniform for the past five years. Id. at 1.
The Activity also refers to Division of Military and Naval Affairs, 15 FLRA at 294, which determined that the decision to require the wearing of the military uniform constituted management's choice of a method and means of performing work within the meaning of section 7106(b) of the Statute. The referenced portion of the decision addresses the essential role technicians play in achieving rapid mobilization and the need to possess a highly developed sense of esprit de corps and military discipline. The portion concludes with the statement that "the wearing of the military uniform becomes indispensable . . . ." Id.
Finally, the Activity states that "since 1978, the record has been established that the [Activity] considered wearing of the uniform to be a security matter." Id. at 2. In support, reference is made to a decision of the Panel, stating that the "employer . . . argues, in substance, that the wearing of the military uniform is essential to national security." Id., citing In the Matter of Montana National Guard and Montana Air/Army Chapters Association of Civilian Technicians, Inc., 77 FSIP 22 (1978).
IV. Analysis and Conclusions
A. Preliminary Matters
The General Counsel has moved to strike references in the Respondent's brief to its mission in 1985 as an attempt to add to the agreed-upon stipulation of facts. It asserts that these statements should be stricken because they are "beyond 'facts' that a decision-maker can legitimately take judicial notice of[.]" General Counsel's motion at 2. We have not relied on these references in reaching our conclusion in this case. Therefore, we find it unnecessary to rule on the General Counsel's motion. Similarly, we find it unnecessary to pass on the General Counsel's motion to strike portions of the Activity's brief.
B. Article 23 Directly Interferes with Management's Right to Determine its Internal Security Practices
The Respondent's primary argument in defense of its disapproval of Article 23 and its order that the Activity repudiate its agreement to that provision is that the Article interferes with its right under section 7106(a)(1) to determine its internal security practices. We find, in agreement with the Respondent, that Article 23 directly interferes with that management right.5/
An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine policies that are part of a plan to secure or safeguard personnel and physical property. See, for example, Department of the Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania and American Federation of Government Employees, Local 1156, 44 FLRA 728, 730 (1992). Generally, the Authority will not examine the relative merits of various options that an agency may select to achieve internal security, because the Statute has vested management with the authority to make such choices. National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA 233, 235 (1986) (Army Corps of Engineers), review denied sub nom. National Federation of Federal Employees, Local 29 v. FLRA, 812 F.2d 746 (D.C. Cir. 1987). More specifically, "the Authority will not inquire into the extent of the measures employed to achieve the objective as long as they reasonably relate to the purpose for which the particular plan or practice was adopted." National Treasury Employees Union, Chapter 82 and U.S. Department of the Treasury, Internal Revenue Service, Martinsburg Computing Center, Martinsburg, West Virginia, 45 FLRA No. 22 (1992), slip op. at 7. See also National Archives, 31 FLRA at 880-81; Voice of America, 41 FLRA 1068 (1991).
The Respondent's rejection of the civilian uniform clause in the agreement is based on its determination that its internal security needs require the technicians to wear the military uniform so that it can readily identify its own employees and distinguish them from individuals who might be on the site improperly. The Respondent refers to its proximity to the civilian airport for the city of Great Falls and notes that anyone with a copy of the clause detailing the civilian uniform "could easily have deliberately outfitted himself for initial access to the facility." Respondent's brief at 2. Further, it argues that "anyone in similar clothes could have accidentally wandered onto the facility from the neighboring civilian facility." Id.
The Respondent has established to our satisfaction that the wearing of a military uniform has a reasonable relation to its stated internal security needs of protecting the base and the aircraft, weapons systems and ancillary equipment on that facility. With over 200 bargaining unit members authorized to enter the facility, it cannot be assumed that security guards or other technicians would recognize all the authorized unit employees. Clearly, when wearing a military uniform, an employee is more easily identifiable and more quickly mobilized, while those not in that uniform are also more readily identified as being in the wrong place. Moreover, the General Counsel does not dispute the Agency's argument that nonemployees are more likely to obey directions from a technician in a military uniform. For these reasons, we conclude that the Agency's decision to require the military uniform is reasonably related to its internal security requirements of easy and quick identification of its personnel. In sum, under its current practice, the Activity is able to mobilize all of its employees when necessary and distinguish them from unauthorized individuals who may seek to enter the site, and can more easily control the activities of any nonemployees who are on the base. See 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, 1028 (D.C. Cir. 1988), petition for review denied sub nom. American Federation of Government Employees Council 214 v. FLRA, 865 F.2d 1329 (1988), where the Authority rejected arguments that a uniform is not necessary to achieve goals similar to those stated here.
Having agreed that there is a nexus between the requirement that all employees wear a uniform and the Agency's right to maintain its internal security, we will not determine whether there are other options that would achieve the same objective. Army Corps of Engineers, 21 FLRA at 235. Accordingly, we will not examine the argument of the General Counsel that the Respondent's internal security needs would also be met by the civilian uniform option that is contained in Article 23 of the negotiated agreement. In our view, the General Counsel's position does not take into account the Authority's established policy that the extent of measures chosen to accomplish internal security goals will not be held up to scrutiny so long as management's selection of such measures is reasonably related to its internal security goals. In contrast to our concurring colleague, we see no reason to modify our precedent in light of our continued recognition that only management can fully understand and determine the measures that it must take to safeguard its personnel and property.6/
Therefore, in the circumstances of this case, we conclude that the provision permitting employees to wear standard civilian attire directly interferes with the management right to determine the means to achieve its internal security goals.7/
C. The Activity's Election to Bargain Did Not Preclude Agency Head Disapproval
Although the parties took different views of whether the issue of wearing a civilian uniform by technicians in lieu of the military uniform constitutes an internal security matter, there is no dispute that a requirement to wear the military uniform constitutes management's choice of a "methods and means of performing work" within the meaning of section 7106(b)(1) of the Statute. See Division of Military and Naval Affairs, 15 FLRA 288; Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 38 FLRA 1005, 1012 (1990), petition for review filed sub nom. U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island v. FLRA, No. 91-1090 (D.C. Cir. Feb. 19, 1991). Thus, while not within the duty to bargain, the matter may be bargained at the election of an agency, as was done in this case.
However, although provisions concerning the wearing of uniforms in work situations such as this involve the methods and means of performing work under section 7106(b)(1) of the Statute, we find nothing in our precedent that precluded the Agency head from disapproving Article 23 based on the Agency's right to determine its internal security practices. Accordingly, we reject the Charging Party's suggestion in its brief, which is unsupported by case law or any other explanation, that section 7106(b)(1) "is an exception to °7106(a)." Charging Party's brief at 1.
In view of the foregoing, we find that the Respondent did not violate the Statute as alleged.
The complaint is dismissed.
Member Talkin, concurring.
I concur in my colleagues' decision to dismiss the unfair labor practice complaint because, upon examination of the record, I have determined that the civilian uniform provided for in Article 23 would not allow the Agency to achieve its internal security goals. In reaching that conclusion, I rely on the wide variety of civilian attire provided for in Article 23 as optional components of the civilian "uniform." Thus, in the circumstances of this case, I am persuaded that the variations of color and style contained in the four basic "combinations" described in Section III of Article 23, as well as the many choices of outerwear and cold weather gear permitted by the provision, would not sufficiently permit the Activity to distinguish the technicians from unauthorized visitors to the base. In an emergency situation, when there is a need to act quickly and without error, the inability to identify the technicians could have untoward consequences, both in mobilizing the employees and in isolating others. Thus, the "standard civilian attire" appears to be less "uniform" than what is required to accomplish the Agency's stated internal security goals.
Although in this case I do not believe that the record supports a finding that an alternative uniform would be as effective as the military uniform preferred by the Agency, I would, in the appropriate case, find a proposal to be negotiable if it provided an option that would achieve management's stated internal security objectives. For example, there may well be a standard civilian attire that would permit management easily to distinguish its personnel, whether clothed in military or civilian garb, from nonemployees, with the attendant benefits of quick mobilization and the ability of those in the civilian "uniform" to command respect from other civilians.
I have concluded that in such a case bargaining would not interfere with management's right to determine its internal security practices. Accordingly, I cannot agree with the longstanding Authority precedent that the Authority will never examine the relative merits of various options an agency may select to accomplish stated internal security goals.
(If blank, the decision does not have footnotes.)
1/ Member Talkin's concurring opinion is set forth after the majority opinion.
2/ Initially, t