22:0338(32)CA - Norfolk Naval Station, Navy and Local 13, Federal Firefighters Association -- 1986 FLRAdec CA

[ v22 p338 ]
The decision of the Authority follows:

 22 FLRA No. 32
 Charging Party
                                            Case NO. 34-CA-50303
                            DECISION AND ORDER
                         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 complaint alleged that the Respondent:
 (1) violated section 7116(a)(1) of the Federal Service Labor-Management
 Relations Statute (the Statute) by directing the Union's President,
 Jeffrey Allen, to wear his firefighter dress uniform to a collective
 bargaining meeting;  (2) violated section 7116(a)(1) and (2) by
 suspending him for three days for his refusal to do so;  and (3)
 violated section 7116(a)(1) and (5) by requiring, at all times since
 that incident, all employee/union negotiators who would otherwise be in
 a duty status to wear the firefighter dress uniform to collective
 bargaining meetings, as a condition for being allowed official time to
 participate in such meetings.
                           II.  Background Facts
    Department of the Navy Regulations make the wearing of a prescribed
 or standard blue uniform (without a tie) mandatory during the normal
 work period.  The addition of a tie makes the uniform a "dress" uniform.
  The standard firefighter's uniform must ordinarily be worn when they
 are on official business outside the station that brings them into
 contact with base officials or the public.  Building N-26 is specified
 as one in which the dress uniform must always be worn.  The matter at
 issue (that is, whether uniforms should be required at collective
 bargaining meetings) is not specifically addressed in the Regulations.
    Allen was scheduled to go to a collective bargaining meeting in
 Building N-26.  He was directed by his supervisor, District Chief
 Washburn, to attend the meeting in his dress uniform and to ride with
 Washburn to the meeting in a government vehicle.  Allen replied that he
 was attending the meeting as a representative of a labor orgainization,
 not as a firefighter, and felt it improper to be so directed.  Washburn
 also told Allen that if he disobeyed the order, he would be leaving the
 station unauthorized.  Allen left in civilian clothes and refused the
 transportation.  Upon arriving at the meeting place, Allen was told that
 he was on unauthorized absence and out of uniform and should return to
 his duty station.  He did not return directly, but took time to discuss
 the incident with the Director of the Respondent's Labor and Employee
 Relations Department.  Subsequently, Allen was suspended for three days
 for disobeying a direct order of the District Chief.  Since the day of
 the incident, firefighters have been required to wear their dress
 uniforms to collective bargaining meetings.
                      III.  Positions of the Parties
    The General Counsel contends that the Respondent has no right to
 dictate the manner in which employee/Union negotiators must be dressed,
 and therefore disciplining Allen for refusing to wear the proper uniform
 must also be unlawful.  The General Counsel also argues that the
 requirement for such negotiators to wear the dress uniform to
 negotiations clearly has a negative psychological impact on the
 employees, particularly in view of the significantly more impressive
 uniforms denoting higher rank worn by some of management's negotiators.
    The Respondent pointed out in its brief to the Administrative Law
 Judge, which is part of the record in this case, that, although excused
 from duty in order to negotiate, Allen here was on call, and if he had
 to respond to an alarm he must be in uniform for purposes of being
 identified by the public and other civic firefighters for safety and
 other purposes.  The Respondent also pointed out that the Union's other
 negotiator in this case, who was also an employee/firefighter but on his
 own time, was allowed to wear civilian clothes to the negotiations.
 Finally, the Respondent argued that the uniform-wearing requirement was
 strictly for internal security/safety reasons, and had nothing to do
 with union activity.
                         IV.  The Judge's Findings
    The Judge recommended that the complaint be dismissed in its
 entirety.  He found that the Respondent had a legitimate and substantial
 justification for its requirement and that the requirement at worst had
 only a slight psychological impact on the protected rights of employees.
  Further, he found that the discipline against Allen was strictly
 because of his refusal to follow direct orders, and was not in
 retaliation for union activity.
                               V.  Analysis
    The Authority agrees with the Judge in all respects.  Thus, we find
 that the Respondent here had a legitimate reason for its requirement,
 and note particularly that this requirement only pertained to
 employee/negotiators who were on call during negotiations.  We cannot
 conclude in the circumstances of this case that the uniform-wearing
 requirement for on-call firefighters was for reasons other than
 management's expressed concern for safety.  For the same reason, we do
 not find a violation of the Statute in the Respondent's continuing
 imposition of the requirement.  Additionally, noting that Allen had been
 specifically and clearly informed of the consequences of his intended
 action, we find that the suspension action was not in retaliation for
 his union activity as alleged, but rather for his refusal to obey a
 direct order.
    The General Counsel questions the fact that the Judge did not cite to
 and follow his recommended decision in a case referred to by the General
 Counsel has since been issued by the Authority.  See 162nd Tactical
 Fighter Group, Arizona Air National Guard, Tucson, Arizona, 21 FLRA NO
 90 (1986), in which we found a violation of the Statute because the
 National Guard required an employee, ubpena d by the Authority, to wear
 the military uniform while appearing as a witness for the Authority in
 order to be granted official time.  We find these cases distinguishable.
  In 162nd Tactical Fighter Group, the employee involved was obeying an
 order of the Authority's General Counsel, which carried with it
 entitlements under section 7131(c) of the Statute;  the employee was not
 on call;  and there was no reason shown for the agency to require the
 uniform to be worn.  In this case, by contrast, the employee involved
 was not under subpena by the Authority;  the employee was in an on-call
 status;  and the Respondent had a legitimate reason for its
 uniform-wearing requirement.
                              VI.  Conclusion
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision, the exceptions to that decision, the positions of
 the parties and the entire record, and adopts the Judge's findings,
 conclusions and recommended Order.  We therefore conclude that the
 Respondent did not violate section 7116(a)(1), (2) or (5) of the Statute
 as alleged in the complaint.
    IT IS ORDERED that the complaint in Case NO. 34-CA-50303 be, and it
 hereby is, dismissed.
    Issued, Washington, D.C., June 30, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Case NO.: 34-CA-50303
    Charging Party
    Ms. Delores T. Griffin For the Respondent
    Mr. Jeffrey W. Allen For the Charging Party
    Ira Sandron, Esquire For the General Counsel, FLRA
    Before:  GARVIN LEE OLIVER Administrative Law Judge
                           Statement of the Case
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region III, Federal Labor Relations Authority,
 Washington, D.C. against the Norfolk Naval Station, Department of the
 Navy (Respondent), based on charges filed by Local 13, Federal
 Firefighters Association (Charging Party or Union).  The complaint
 alleged, in substance, that Respondent violated section 7116(a)(1), (2),
 and (5) of the Federal Service Labor-Management Relations Statute, 5
 U.S.C. Section 7101 et seq. (the Statute), by directing the Union's
 president, Jeffrey W. Allen, to wear his firefighter uniform to a
 collective bargaining session November 20, 1984;  suspending him for
 three days for his refusal to do so;  and, at all times material since
 then, by requiring all employee-Union negotiators to wear firefighter
 uniforms to collective bargaining meetings, as a condition for such
 meetings, during the time employee-Union negotiators otherwise would be
 in a duty status.
    Respondent's answer admitted the jurisdictional allegations as to the
 Respondent, the Union, and the charge, but denied all other allegations.
    A hearing was held in Norfolk, Virginia.  The Respondent, Charging
 Party, and the General Counsel were represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  The Respondent
 and General Counsel filed helpful briefs.  Based on the entire record,
 /1/ including my observation of the witnesses and their demeanor, I make
 the following findings of fact, conclusions of law, and recommendations.
                             Findings of Fact
    1.  Department of the Navy (DON) regulations set forth in CPI 594-B
 and Naval Station (NAVSTA) Norfolk Instruction 12272.1 prescribe the
 uniform to be worn by Navy firefighters and set forth the circumstances,
 variations and exceptions to the wearing of it.  Firefighters are paid
 an initial uniform allowance of $125.00 with quarterly replacement of
 $31.25.  Receipt of the uniform allowance carries with it a concomitant
 obligation to obtain and wear the uniform as prescribed.  The prescribed
 standard firefighter uniform consists of navy blue long or short-sleeved
 shirts, and trousers, tie, cap and belt.  Firefighters also wear silver
 colored devices or patches.  The uniform is intended for both work and
 dress, the distinction being that the tie is not required for work.
 Wearing of the prescribed uniform is mandatory during the normal work
 period with one or two exceptions in the NAVSTA instruction.
 Specifically, navy blue coveralls and navy blue T-shirts with the Naval
 Base emblem may be worn in lieu of the standard uniform when working
 within or around the fire station or on the fire-servicing station
 grounds and while testing or servicing fire hydrants and sprinkler
 systems.  Firefighters are also permitted to wear clothes other than
 their dress uniform outside the fire station when they are engaged in
 physical fitness programs.
    However, when responding to an alarm, they must wear turn-out gear,
 or protective firefighting gear, consisting of pants, coat, boots and
 helmet when they leave the station, except for drivers who for safety do
 not put on pants and boots until the truck arrives at the scene.
 Firefighters are responsible for assuring that this gear is always
 readily accessible, either on the truck located inside or immediately
 outside the fire station or in the station living quarters.  They must
 even take the gear with them to the shower.  It makes no difference
 what, if anything, is on underneath.  The protective gear can be worn
 over athletic clothing, the standard uniform, coveralls, civilian
 attire, if the alarm sounds shortly before the end of the shift, or put
 on straight from the shower at the moment the alarm sounds.  This gear
 not only protects the firefighter, but readily identifies him as a
    Other than the above exceptions, the standard firefighter uniform
 must be worn by firefighters when they are outside the fire station.
 The dress mode, i.e., with tie, is always required when fire department
 personnel are on official business outside the station that brings them
 into contact with base or public officials or with the general public.
 The dress uniform is always worn when going to Building N-26.  There are
 no exceptions to the uniform requirement, either by regulation or local
 policy, for the purpose of negotiations.  The matter has not been
 specifically addressed in the regulations.
    2.  On November 20, 1984 a collective bargaining session was
 scheduled for 10:30 a.m. between the Fire Chief, Naval Station, Alvah L.
 Cuthriell, and Jeffrey W. Allen, President, Local 13, Federal
 Firefighters Association to negotiate proposed ground rules for a
 collective bargaining agreement and to discuss other matters.  The
 meeting was scheduled for the Fire Chief's office in Building N-26,
 which is the Headquarters of the Commander, Naval base.
    3.  Jeffrey W. Allen is a Lieutenant assigned to the ladder rescue
 truck in Fire Station No. 1.  He reported at 7:00 a.m. on November 20,
 1984 for a 24-hour shift.  As the driver/operator of the ladder truck,
 he is subject to responding to all emergency alarms coming to any of the
 four stations on the base at any time during his 24-hour shift.
    4.  Prior to departing the station for the collective bargaining
 session, Allen was ordered by District Chief Robert Washburn to attend
 the meeting in the standard dress uniform and to go with Washburn in a
 government vehicle.  Allen replied that he was attending the session as
 a representative of a labor organization and not as a firefighter, and
 he did not feel it was proper to wear a uniform at such a meeting.
 Allen told Washburn that he intended to be on official time, to wear his
 normal civilian attire, and to go with Union vice president Overby in a
 private vehicle.  Washburn informed Allen that if he disobeyed, he would
 be leaving the station unauthorized.  Allen left the station in civilian
 attire in Overby's private vehicle.
    5.  Upon arriving at Building N-26 out of uniform, Allen was informed
 by Assistant Chief B. R. Grimes that the Chief would not meet with him
 because he was on unauthorized absence and out of uniform.  He was
 ordered to return to his duty station and told that another meeting
 would be set up.  Allen did not return to the station immediately.
 Instead, he went to the Personnel Office to see Fletcher F. Bell,
 Director of the Labor and Employer Relations Department.  /2/
    6.  Following a notice of proposed suspension and Mr. Allen's reply
 thereto, Fire Chief Cuthriell made the determination on January 23, 1985
 to suspend Allen without pay for three days for his refusal to obey the
 direct order of Chief Washburn to wear the prescribed uniform to the
 meeting.  Allen was suspended from duty without pay on January 25, 27
 and 29, 1985.
    7.  Since November 20, 1984, Respondent has required all firefighters
 to wear their dress uniforms to negotiations during the time the
 employees otherwise would be in a duty status and has required them to
 do so as a condition to engaging in negotiations.  In contrast to the
 firefighters' dress uniform worn by unit employees, the normal dress
 uniforms of Chief Cuthriell and Deputy Chief Butler worn to these
 sessions includes black pants, white shirt, gold badge, gold collar
 devices, name plate, and gold sleeve patches or stripes.  A third
 management negotiator, Lynda Holder, has worn civilian attire.  She is
 not a firefighter.
    8.  Firefighters representing the Union in negotiations are subject
 to responding to a fire or emergency alarm that may occur during
 negotiation sessions falling within their 24-hour duty shift.  In case
 of a second alarm or a serious enough first alarm, the Fire Chief,
 Deputy Fire Chief, and all hands would be required to respond.  In
 effect, negotiations would be recessed until the emergency is resolved.
    9.  While other employees would be substituting for Allen and other
 negotiators in their primary duties (such as serving on the ladder
 truck), in an emergency serious enough to interrupt negotiations, Allen
 and other firefighters would be directed to respond to perform other
 legitimate firefighter duties.  A firefighter could be assigned to such
 matters as working at the command post, filling and carrying cascade
 bottles to the fire scene, serving as a guide to the base for
 cooperating City of Norfolk firemen, and assisting in medical
    10.  The uniform serves to readily identify the individual as a
 trained firefighter.  Otherwise, Navy dispensary personnel or Norfolk
 City emergency personnel, who respond on a reciprocal basis, would have
 no way of knowing whether an individual giving first aid in civilian
 clothing is a well-meaning, but possibly incompetent, bystander, or a
 firefighter trained in emergency case.  The uniform also instills
 confidence in an accident or heart attack patient that he is in the
 hands of a qualified, competent professional.  The uniform also enables
 firefighters to have access to security areas.  In addition, it provides
 a symbol of authority to the public in the event cars or persons have to
 be controlled or moved out of the way.  The Fire Chief and other
 supervisory personnel have their own responsibilities at a fire or
 emergency scene.  To require that they identify or accompany
 firefighters in civilian clothes as the occasion would require would not
 be effective or efficient.  /3/
    11.  None of the negotiation sessions conducted since November 20,
 1984 has been interrupted by any kind of emergency.
    12.  Respondent has previously disciplined employees for
 insubordination and refusal to comply with uniform requirements.  The
 employees were not involved in any protected activity at the time.
               Discussion, Conclusions, and Recommendations
    There is no dispute that Respondent's requirement that firemen wear
 the uniform while "on duty" constitutes management's choice of a "method
 and means of performing work" within the meaning of section 7106(b)(1)
 of the Statute.  The dispute centers around whether firefighter Union
 negotiators bargaining on official time during their 24-hour duty shift
 are "on duty" so as to be subject to the requirement.
    The duty status of employees representing an exclusive representative
 in negotiations has been addressed by the Statute in relation to their
 entitlement to official time.  Section 7131(a) of the Statute provides,
 in part, as follows:
          "(a) Any employee representing an exclusive representative in
       the negotiation of a collective bargaining agreement under this
       chapter shall be authorized official time for such purposes,
       including attendance at impasse proceeding, during the time the
       employee otherwise would be in a duty status."
 The qualifying language "during the time the employee otherwise would be
 in a duty status" strongly suggests that an employee representing an
 exclusive representative in the negotiation of a collective bargaining
 agreement during the time he would otherwise be scheduled to work is not
 considered in a duty status.  Nor is the conclusion warranted that an
 employee so serving is acting in his "official capacity," "on the job,"
 or on "official business" of the government.  See Bureau of Alcohol,
 Tobacco and Firearms v. FLRA, 104 S. Ct. 439 (1983).
    Counsel for the General Counsel contends that Respondent's
 requirement that Union negotiators wear their firefighters dress
 uniforms to negotiations when they otherwise would be in a duty status
 clearly has a negative psychological impact on such negotiators,
 particularly in view of the different uniforms denoting higher rank worn
 by two of the management negotiators and the civilian attire worn by the
 third management negotiator.  He contends that this is a clear signal
 that management is in control, and it has an intimidating effect on
 Union negotiators and seriously undermines the collective-bargaining
 process in violation of section 7116(a)(1) and (5) of the Statute.
    Although a firefighter is not in a duty status during negotiations,
 he is subject to being recalled to full duty status at a moment's
 notice.  As noted, firefighter-negotiators are subject to responding to
 emergency alarms at any time during their 24-hour shift in which case
 negotiations would be postponed or interrupted.  The response of
 firefighters must be instantaneous, and full readiness to respond in an
 appropriate uniform is critical to the efficient accomplishment of
 essential duties without undue delay.  The General Counsel argues that
 the easiest and most obvious solution would be for Allen and other
 firefighters to take their protective gear with them to the
 negotiations.  In this event, they could wear civilian clothing while
 negotiating, and, if an emergency arose, could don their protective gear
 over their civilian clothing and be prepared for the full range of
 firefighting duties.  While this may be a less intrusive alternative,
 the choice of clothing in these circumstances is within management's
 discretion.  Based on the record, there is a rational basis for
 requiring the dress uniform.  The dress uniform would facilitate the
 performance of some essential emergency duties should the need arise.
 It is also consistent with existing practice and regulation pursuant to
 which the dress uniform is always worn by firefighters when leaving the
 fire station during a duty period for purposes other than dirty work,
 athletics, or fire suppression activities.
    The General Counsel and the Charging Party would have Union
 negotiators wear civilian clothing to negotiations in order to
 demonstrate the equal status of the parties and a clear division between
 a firefighter's responsibilities when representing an exclusive
 representative in the negotiation of a collective bargaining agreement
 and that called for by his regular responsibilities, duties, and
 deference to his employer during normal duty hours.  However, that clear
 division is simply not possible in matters of dress because of the
 unique status of firemen as compared to other Federal employees.
 Section 7101(b) requires that the provisions of the Statute "be
 interpreted in a manner consistent with the requirement of an effective
 and efficient Government." Respondent has a legitimate and substantial
 justification for its action, and its action has only a comparatively
 slight "psychological" impact on protected rights.  No demonstrable
 impact was shown.
    In view of the foregoing, it is concluded that a preponderance of the
 evidence does not establish that Respondent violated section 7116(a)(1)
 and (5) of the Statute, as alleged, by directing the Unio