23:0204(27)NG - AFSCME Local 2477 and Library of Congress -- 1986 FLRAdec NG
[ v23 p204 ]
23:0204(27)NG
The decision of the Authority follows:
23 FLRA No. 27
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
LOCAL 2477, AFL-CIO
Union
and
LIBRARY OF CONGRESS
Agency
Case No. 0-NG-1195
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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
work.
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
uniforms.
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
(1984).
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
time.
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 appropriate
arrangement within the meaning of section 7106(b)(3) because it would
excessively interfere with the Agency's right under section
7106(a)(2)(B) to assign work.
IV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposals 1
and 2. IT IS FURTHER ORDERED that the Union's petition for review as to
Union Proposal 3 be, and it hereby is, dismissed.
Issued, Washington, D.C., Ajgust 15, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) In finding these proposals negotiable, we make no judgments as to
their merits.
(2) We have found that under some circumstances a requirement that
employees wear uniforms was an exercise of the right to determine
internal security under section 7106(a)(1), and that a proposal that
employees have an option not to wear the uniform was nonnegotiable.
Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No.
13. We have found under other circumstances that a requirement that
employees wear a uniform was an exercise of the right to determine
methods and means of performing work under section 7106(b)(1). Division
of Military and Naval Affairs, State of New York, Albany, New York and
New York Council, Association of Civilian Technicians, 15 FLRA 288
(1984), affirmed sub nom. New York Council, Association of Civilian
Technicians v. FLRA, 757 F.2d 502 (2d Cir. 1985), cert. denied, 1065
S.Ct. 137 (1985).
(3) See Kansas Army National Guard, 21 FLRA No. 4 for a discussion of
this standard.