23:0204(27)NG - AFSCME Local 2477 and Library of Congress -- 1986 FLRAdec NG

[ v23 p204 ]
The decision of the Authority follows:

 23 FLRA No. 27
                                            Case No. 0-NG-1195
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E ) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of three proposals.  The Union made the proposals in
 response to an Agency decision to require warehouse personnel to wear
 uniforms.  We hold that Union Proposals 1 and 2 are within the duty to
 bargain /1/ and that Union Proposal 3 is nonnegotiable.
                             Union Proposal 1
          Each employee will receive 5 complete sets of clothing
       including long and short sleeve shirts.
                             Union Proposal 2
          Each employee will receive a jacket.
                             Union Proposal 3
          Staff will be allowed 10 minutes after the start and before the
       end of each workday to change clothes.
                       II.  Positions of the Parties
    The Agency asserts that it imposed the uniform requirement to promote
 quick identification of warehouse personnel for security purposes.  It
 contends that it has no obligation to bargain over Union Proposals 1 and
 2 because of a "zipper clause" in the parties' contract.  It contends
 that it has no obligation to bargain over Union Proposal 3 because it
 interferes with the Agency's right under section 7106(a)(2)(B) to assign
    The Union argues that the contract language relied upon by the Agency
 does not foreclose bargaining on Union Proposals 1 and 2.  It also
 argues that Union Proposals 1, 2 and 3 are appropriate arrangements for
 employees adversely affected by the Agency's requirement that they wear
                              III.  Analysis
            A.  Effect of Question Concerning Interpretation of
                Contract Language on the Negotiability of Proposals 1
                and 2
    The Agency raises a question as to its duty to bargain over Proposals
 1 and 2 in light of contract language which it maintains amounts to a
 zipper clause which forecloses further bargaining on the subject of
 requiring employees to wear uniforms.  This is the only ground raised by
 the Agency in support of its allegation that these two proposals are
 nonnegotiable.  In a negotiability appeal the Authority decides only the
 negotiability issues presented under section 7105(a)(2)(D) or (E) of the
 Statute -- that is:  Does a proposal concern conditions of employment of
 bargaining unit employees;  does it conflict with law or Government-wide
 rule or regulation;  or does it conflict with an agency regulation for
 which a compelling need exists?  The parties may resolve questions of
 duty to bargain which are based on factual issues in other appropriate
 proceedings, such as grievance and arbitration procedures.  See, for
 example, American Federation of Government Employees, AFL-CIO, Local
 2736 and Department of the Air Force, Headquarters 379th Combat Support
 Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 at 306, n.6
  Negotiability of Union Proposals 1 and 2 under Section 7105(a)(2)(E) of
 the Statute
    The Union's contention that Union Proposals 1 and 2 are appropriate
 arrangements for employees adversely affected by the Agency's decision
 to require them to wear uniforms is persuasive.  The Agency makes no
 contention and it does not otherwise appear that these proposals would
 interfere with the purpose for which the uniform requirement was adopted
 -- identification of warehouse personnel.  The Union's assertion that
 the proposals are for the purpose of assuring that the Agency provide
 employees with an adequate type and quantity of uniform is convincing
 and uncontroverted.  These proposals are, therefore, to the same effect
 as Proposals B and C in American Federation of Government Employees,
 Local 217 and Veterans Administration Medical Center, Augusta, Georgia,
 21 FLRA No. 13 (1986), which we found negotiable under section
 7106(b)(3) of the Statute.  We see no basis for a different conclusion
 here.  Because Proposals 1 and 2 do not interfere at all with the
 purpose for which the Agency had adopted the uniform requirement, it is
 not necessary to apply any test for determining whether there is
 "excessive interference" with any management right /2/ under section
 7106(b)(3).  National Association of Government Employees, Local R14-87
 and Kansas Army National Guard, 21 FLRA No. 4 (1986).
                   C.  Negotiability of Union Proposal 3
    Union Proposal 3 directly interferes with the Agency's right under
 section 7106(a)(2)(B) to assign work.  It is materially identical to
 Union Proposal 1 in American Federation of Government Employees, Local
 2094, AFL-CIO and Veterans Administration Medical Center, New York, New
 York, 19 FLRA No. 120 (1985).  Based on the reasoning set forth in that
 case, we arrive at the above conclusion in this case.
    The issue, then, is whether the proposal here which is intended as an
 appropriate arrangement interferes to an excessive degree with the
 exercise of the right to assign work.  /3/ The Union states that the
 purpose of Union Proposal 3 is to facilitate employees' ability to wear
 their own clothes, as opposed to the uniform, to and from work.  It
 asserts that this would reduce the adverse effects on employees of the
 uniform requirement but offers no explanation of the assertion.  We
 accept for purposes of this decision, without deciding, that this
 uniform requirement has an adverse effect on employees.  We believe that
 the pivotal questions we must address in deciding whether there is an
 excessive interference with management's right are:
          1) Whether and how the proposal would address or compensate for
       the adverse effects;  and
          2) whether the negative impact of the proposal on management's
       rights is disproportionate to the benefits to be derived.
    In addressing the first question, it is significant to note that the
 Agency does not prohibit employees from wearing their uniforms to and
 from work.  It appears that the decision whether to change clothing at
 work is purely a matter of individual employee preference.  Given this,
 we conclude that the thrust of the proposal is to eliminate the need for
 those employees who prefer changing at work to use their own, nonwork
    In addressing the second question, we note that the proposal would
 result in a loss to the Agency of twenty minutes each work day during
 which it could not assign work of its choosing to those employees.  This
 would have a significant negative impact on its right to assign work.
 We believe that this negative impact outweighs the benefit to employees
 in not having to use their own time to exercise their option to change
 clothes at work.  We conclude that the proposal is not an