[ v21 p62 ]
The decision of the Authority follows:
21 FLRA No. 13 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 217 Union and VETERANS ADMINISTRATION MEDICAL CENTER, AUGUSTA, GEORGIA Agency Case No. 0-NG-635 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case The petition for review in this case comes before the Authority pursuant to section 7185(a) (2) (E) of the Federal Service Labor Relations Statute (the Statute). The petition raises issues concerning the negotiability of three Union proposals made in response to the Agency's announcement that it intended to require wage grade employees assigned to the Supply Service warehouse to wear uniforms. The Union proposals are as follows: A. That the employees of Supply Service warehouse be given the option as to whether or not they wear such uniforms. B. The uniforms will consist of Spring and Summer shirts, short sleeve and pants; Fall and Winter shirts, long sleeve, and pants, including jackets and overcoats. C. That employees be provided with safety shoes and galoshes and rain gear for inclement weather. II. Positions of the Parties The Agency contends that all of the proposals are nonnegotiable. First, it argues that the proposals conflict with an agency regulation, Agency Manual M-1, Part VII, Chapter 7, which, pursuant to language in the parties' collective bargaining agreement, is binding on the Union and, thus, effectively limits the scope of bargaining. The Agency asserts that the uniform requirement has been an established agency-wide (i.e., Veterans Administration) policy since 1971 but that it has not been "strictly enforced" by the local supply service. /1/ Second, it argues that the proposals conflict with the Agency's right under section 7106(a) (1) of the Statute to determine its internal security practices. Third, it alleges that the proposals conflict with its right under section 7106(b) (1) to determine the technology, methods and means of performing work. With respect to Proposals B and C, the Agency further argues that they regard matters which are not relevant to the impact and implementation of the management decision to require uniforms. The Union contends that its proposals relate to a management-initiated change in an established past practice relating to conditions of employment and are, therefore, negotiable. It takes issue with the Agency's assertion that the proposals are barred by the above-cited agency regulation, arguing among other things that the regulation does not mandate that warehouse personnel wear uniforms. As to Proposals B and C, it asserts, in essence, that they are intended to assure that necessary and appropriate attire is available to employees and, hence, they relate to the impact and implementation of the Agency's requirement that a uniform be worn. III. Analysis A. Effect of Agency Regulation and Collective Bargaining Agreement It is well established that during the term of a collective bargaining agreement the exclusive representative is entitled under the Statute to notice and an opportunity to negotiate over proposed changes in established conditions of employment unless it has clearly and unmistakably waived its bargaining rights. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (19801. The Agency tacitly concedes that the Union was entitled to notice and an opportunity to bargain regarding management's decision to require certain employees to wear a uniform. It contends in effect, however, that the Union agreed in the parties' collective bargaining agreement to limit the scope of bargaining to matters consistent with agency regulations and thereby effectively waived its right to bargain matters, such as the proposals at issue, which the Agency contends conflict with such regulations. The Authority notes that the contract involved was negotiated originally in 1976 under Executive Order 11491, as amended, and that the requirements of the contract characterized by the Agency as having been agreed upon by the Union actually were mandated by the Executive Order to be expressly stated in collective bargaining agreements. /2/ We hold that language placed in a contract pursuant to an Executive Order requirement does not constitute a voluntary and conscious yielding by the Union of its right to negotiate to the full extent of the scope of bargaining allowed under a subsequently enacted statute. See Immigration and Naturalization Service, 10 FLRA 202 (1952), reversed as to other matters sub nom. Immigration and Naturalization Service v. Federal Labor Relations Authority, No. 82-2398 (D.C. Cir. Feb. 29, 1984). Thus, we find that the cited contract provisions do not limit the Agency's bargaining obligation to proposals which are consistent with the terms of the agency's regulations. Absent a waiver, otherwise negotiable proposals which conflict with an agency rule or regulation are within the obligation to bargain unless a compelling need exists for the rule or regulation. American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). The Agency in this case makes no snowing whatsoever that a compelling need exists for the regulation with which it claims the proposals conflict. Hence, there is no basis for concluding that the proposals are barred from negotiation by such rule or regulation. B. Effect on Agency's Right to Determine Its Security Practices The record establishes that the requirement for wage grade employees assigned to the Supply Service warehouse to wear distinctive clothing is directly related to the Agency's need to be able to readily identify such employees in order to, among other things, protect its property. Inasmuch as Proposal A would make wearing the uniform optional on the part of employees, it effectively would negate the Agency's decision to require uniforms for the purpose of achieving ready identification of employees and, hence, directly interferes with the Agency's exercise of the right under section 7186(a) (1) to determine internal security practices. See American Federation of Government Employees, AFL-CIO, Local 15 and Department of the Treasury, Internal Revenue Service, North Atlantic Region, 2 FLRA 875 (1980). Thus, we find that Proposal A is not negotiable. Turning to Proposals B and C, as explained by the Union, they would assure that the clothing worn by the Supply Service warehouse employees is appropriate to the weather and work place conditions. As such, the Union contends that these proposals seek to negotiate over the impact and implementation of an Agency action which adversely affects employees. Thus, the Union's essential contention is that Proposals B and C constitute appropriate arrangements for employees adversely affected by the agency's action. The Authority finds, contrary to the Agency' s contentions, first, that these two proposals relate to the Agency's decision to require the employees to wear a specific type of clothing, i.e., a uniform; and, second, that they do not interfere with the Agency's right to determine its internal security practices. These proposals would not present a interference with the Agency's decision that Supply Service warehouse employees wear distinctive uniform clothing for internal security purposes. Since they do not in any way defeat the purpose for which the concept of distinctive uniform clothing was adopted, i.e., the ability to readily identify Supply Service warehouse employees as such and distinguish them from other individuals, they are not outside the duty to bargain. /3/ Rather, they provide only that the prescribed uniform clothing will be suitable for the conditions under which the employees must work. As such, they constitute appropriate arrangements for employees adversely affected by the Agency's decision to require that uniforms be worn and therefore are within the duty to bargain under section 7106(b) (3). Because Proposals B and C do not interfere at all with the Agency's right under section 7106 to determine its internal security, it is not necessary to apply any test for determining "excessive interference" with the relevant management right under section 7106(b) (3). National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (19861 (Provision 2). C. Effect on Agency's Right to Determine the Technology, Methods and Means of Performing Work The Agency contends that all of the proposals involve the methods and means of performing work and are therefore negotiable only at the discrimination of the agency under section 7106(b) (1). With regard to Proposal A, we agree. The record establishes that there is a direct relationship between the uniform requirement and the Agency's need to be able to readily identify its employees in order to protect its property and to accomplish its mission. Thus, we find that Proposal A relates to the methods and means of performing work and is nonnegotiable for that reason as well as the reasoning set forth in Section B of this Order. The Agency, however, has not shown, nor is it otherwise apparent from the record, that Proposals B and C involve the technology, methods and means of performing the Agency' s work. In this regard, as previously stated, the proposals are limited attempting to assure that the uniforms are suitable for the conditions in which employees work. They would not interfere with an instrumentality, including an agent, tool, device, measure, plan or policy used by the Agency for the accomplishing or the furthering of the performance of its work. See U.S. Department of Justice, Immigration and naturalization Service and National Border Patrol Council, Local 1613, American Federation of Government Employees, 18 FLRA No. 3 (1985). Thus, we find that Proposals B and C are within the duty to bargain. IV. Conclusions The Authority finds that the proposals relate to the change proposed by the Agency, i.e., that the employees wear specified clothing. The Authority further finds that negotiation over the proposals is not barred in this instance by the existence of contract language which purportedly binds the parties to follow existing and future provisions of the right to determine the technology, methods and means of performing its work. Rather, those proposals constitute appropriate arrangements for employees adversely affected by the Agency' s decision to require that uniforms be worn and, therefore, are within the duty to bargain. /4/ V. Order Accordingly, pursuant to section 2424.10 of the Authority' s Rules and Regulations, IT IS ORDERED that the Union's petition for review insofar as it relates to Proposal A be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the Agency shall upon request, or as otherwise agreed to by the parties, bargain concerning Proposals B and C. Issued, Washington, D.C., March 14, 1986 (s)--- Jerry L. Calhoun, Chairman (s)--- Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The contract language cited follows: General Stipulation Section 1. In the administration of all matters covered by the agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the agreement was approved; and by subsequently published agency policies and regulations required by law or by the regulations of appropriate authorities, or authorized by the terms of a controlling agreement at a higher agency level. /2/ Section 12 of E.O. 11491, as amended, provided: Sec. 12. Basic provisions of agreements. Each agreement between an agency and a labor organization is subject to the following requirements-- (a) in the administration of all matters covered by the agreement, officials and employees are governed by existing or future laws and the regulations of appropriate authorities, including policies set forth in the Federal Personnel Manual; by published agency policies and regulations in existence at the time the agreement was approved; and by subsequently published agency policies and regulations required by law or by the regulations of appropriate authorities, or authorized by the terms of a controlling agreement at a higher agency level; The requirements of this section shall be expressly, stated in the initial or basic agreement and apply to all supplemental, implementing, subsidiary, or informal agreements between the agency and the organization. /3/ Of American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982) (Union Proposal 2), reversed as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, 709 F.2d 724 (0.C. Cir. 1953) (wherein the Authority found that because a proposal did not defeat the purpose for which a particular "means of performing the work of the Agency" was adopted, the proposal did not interfere with the Agency's right under section 7106(b) (1) in that regard). /4/ In finding these proposals within the duty to bargain the Authority makes no judgment as to their merits.