23:0278(37)CA - VA, West Los Angeles Medical Center, Los Angeles, CA and AFGE Local 1061 -- 1986 FLRAdec CA
[ v23 p278 ]
The decision of the Authority follows:
23 FLRA No. 37 VETERANS ADMINISTRATION WEST LOS ANGELES MEDICAL CENTER LOS ANGELES, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1061, AFL-CIO Charging Party Case Nos. 8-CA-40223 8-CA-40224 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on limited exceptions to the attached Administrative Law Judge's Decision filed by the Veterans Administration, West Los Angeles Medical Center (Respondent). The Judge found that the Respondent violated section 7116ba)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the duty hours and dress code of certain employees without bargaining with the American Federation of Government Employees, Local 1061, AFL-CIO (Union). The Respondent's exceptions were limited to the Judge's status quo ante remedy with regard to both duty hours and dress code. II. Facts The facts, more fully set forth in the Judge's Decision, indicate that on March 1, 1984, the Respondent's Building Management Service Chief (Chief) implemented a new dress code for its housekeeping aides that eliminated a past practice of wearing, among other things, sweaters and jackets without first notifying the Union and bargaining on the matter. Also, on April 29, 1984, the Respondent's Chief implemented a change in the work hours of its housekeeping aides by changing their duty hours from a 6:00 a.m. to 2:30 p.m. shift to a 7:00 a.m. to 3:30 p.m. shift. This change was made despite the Union's request to bargain. III. Administrative Law Judge's Decision The Judge found that the Respondent changed established conditions of employment by unilaterally implementing a new dress code and unilaterally changing duty hours of unit employees without providing the Union with notice and the opportunity to bargain, thereby violating section 7116(a)(1) and (5) of the Statute. In making his finding that the change in duty hours was negotiable, the Judge found no evidence that such change was determinative of the numbers, types or grades of employees assigned to the tours of duty, so as to be negotiable solely at the election of the agency. The Judge found that a status quo ante remedy was appropriate with regard to both duty hours and the dress code and ordered the Respondent to rescind such changes, including the prohibition against wearing jackets and sweaters. He further ordered a recision of any disciplinary actions initiated as a result of the dress code, including removal of all reference to such disciplinary actions from the personnel files of the employees involved. IV. Positions of the Parties The Respondent excepts to the Judge's status quo ante remedy that would rescind disciplinary actions initiated as a result of the dress code. It argues that the MSPB decision in Roger Howard v. Veterans Administration, Dec. No. SF07528411043 (December 11, 1984), rejects the contention that disciplinary actions must be rescinded because they are based on policy later determined to be invalid. The U.S. Court of Appeals for the Federal Circuit found that despite a disagreement over the dress code, the unit employee was not free of his duty to follow his superiors' orders. /1/ To find otherwise, the Respondent argues, could unreasonably prevent agencies from carrying out their missions. The Respondent also notes that three unit employees were disciplined based in part on the employees' insubordination over their refusal to obey their supervisors' orders to comply with the dress code, and requests that the Judge's remedy to rescind disciplinary action initiated as a result of the dress code be deleted. Additionally, the Respondent excepts to the Judge's status quo ante remedy to restore duty hours, which it argues is meaningless due to substantial turnover in personnel who were affected by the change in hours. The General Counsel filed an answering brief to the Respondent's exceptions in which it agreed with the Judge's findings and recommended remedy. V. Analysis A. The Judge's Findings that the Respondent violated section 7116(a)(1) and (5) of the Statute. We have reviewed the findings and conclusions of the Judge with regard to the violations of section 7116(a)(1) and (5) of the Statute alleged in the complaint and adopt his findings, conclusions and recommendations for the reasons he stated. In so finding, we note that no exceptions were filed as to the Judge's finding of a violation. B. The Judge's Recommended Remedy With regard to Respondent's argument concerning the impact of the MSPB decision, we previously found with regard to a possible remedial conflict between actions taken by the MSPB and the Authority that "when an issue is properly raised as an unfair labor practice under section 7116, nothing therein would prevent the Authority from remedying any violation found." Department of the Air Force, Air Force Systems Command, Electronic Systems Division, 14 FLRA 390 (1984). While we are not bound by the MSPB decision, we conclude that in the circumstances of this case it is relevant to the determination of an appropriate remedy. The discipline at issue was based, in part, on insubordination. While the Respondent's unilateral implementation of the dress code was unlawful, a refusal by an agency to negotiate in good faith does not excuse an employee's insubordination in these circumstances. Procedures exist to remedy breaches of bargaining obligations, and the Union pursued them in this case. Self help -- that is, disobeying supervisory instructions -- cannot be condoned if the purposes and policies of the Statute are to be met. Accordingly, the order is modified to rescind all disciplinary actions initiated as a result of the dress code, except for those actions involving insubordination. As to that part of the remedy pertaining to the change in duty hours, we have previously found that the decision to change starting and quitting times constitutes a negotiable condition of employment. /2/ Therefore, agency management was obligated to bargain concerning the decision to change the starting and quitting times of the duty hours in question prior to making any change. The Authority has previously determined in similar cases where management made a unilateral change regarding a negotiable term and condition of employment, such as duty hours, that effectuation of the purposes and policies of the Statute requires the imposition of status quo ante remedies, absent special circumstances, in order not to render meaningless the mutual obligation under the Statute to negotiate concerning changes in conditions of employment. /3/ The Respondent excepts to this part of the remedy on the basis that only nine of the affected employees are still with the portion of the agency affected by the change, and that, therefore, a status quo ante remedy would disrupt agency operations. The Respondent does not argue, however, that the number of positions in the unit changed, but only that there was a turnover in personnel. In these circumstances we find no merit to the Respondent's argument that a status quo ante remedy is unwarranted. 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 and the entire record, and adopts the Judge's findings, conclusions and recommended Order as modified above. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Veterans Administration, West Los Angeles Medical Center, Los Angeles, California shall: 1. Cease and desist from: (a) Unilaterally instituting changes in duty hours and dress code in the Building Management Service without first notifying the American Federation of Government Employees, Local 1061, AFL-CIO, the exclusive representative of its employees, and providing it with an opportunity to negotiate concerning the above changes. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Rescind the change in duty hours implemented on April 29, 1984, and restore the previously existing duty hours of 6:00 a.m. to 2:30 p.m. (b) Rescind the dress code, including the prohibition against wearing jackets and sweaters, implemented on March 1, 1984, and rescind all disciplinary actions initiated as a result of the dress code, except those actions involving insubordination, and remove all reference to such disciplinary actions, except those involving insubordination, from the personnel files of those employees involved. (c) Notify and, upon request, negotiate with the American Federation of Government Employees, Local 1061, AFL-CIO, or any other exclusive representative of the employees in the Building Management Service, concerning any further change in duty hours and dress code. (d) Post at its facility at the Veterans Administration, West Los Angeles Medical Center, Los Angeles, California copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Veterans Administration, West Los Angeles Medical Center, or a designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material. (e) Pursuant to section 2423.30 of the Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director, Region VIII, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. Issued, Washington, D.C., August 19, 1986. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally institute changes in duty hours and dress code in the Building Management Service without first notifying the American Federation of Government Employees, Local 1061, AFL-CIO, the exclusive representative of our employees, and providing it with an opportunity to negotiate concerning the above changes. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind the change in duty hours implemented on April 29, 1984, and restore the previously existing duty hours of 6 a.m. to 2:30 p.m. WE WILL rescind the dress code, including the prohibition against the wearing of sweaters and jackets, which was implemented on March 1, 1984, and rescind all disciplinary actions initiated as a result of the dress code, except those actions involving insubordination, and remove all reference to such disciplinary actions, except those involving insubordination, from the personnel files of those employees involved. WE WILL notify and, upon request, negotiate with the American Federation of Government Employees, Local 1061, AFL-CIO, or any other exclusive representative of the employees in the Building Management Service, concerning any further change in duty hours and dress code. (Activity) Dated: . . . By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VIII, Federal Labor Relations Authority, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, CA 90071 and whose telephone number is: (818) 894-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case Nos. 8-CA-40223 8-CA-40224 VETERANS ADMINISTRATION WEST LOS ANGELES MEDICAL CENTER LOS ANGELES, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1061, AFL-CIO Charging Party Marco Gomez, Esq. and Jean Parson For the Respondent Cecile O'Conner, Esq. For the General Counsel Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case The Consolidated Complaint alleges that Respondent engaged in unfair labor practices within the meaning of Section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (herein called the Statute) by unilaterally changing the duty hours of certain day shift personnel and by unilaterally implementing changes in the employees' dress code, including a prohibition against wearing sweaters. The Consolidated Complaint also alleges that the Veterans Administration West Los Angeles Medical Center, Los Angeles, California (herein called Respondent) unilaterally instituted the above changes without first notifying the American Federation of Government Employees, Local 1061, AFL-CIO (herein called the Union) and providing it an opportunity to bargain over the changes or their impact and implementation. Respondent filed an Answer denying the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact A. Background Respondent's West Los Angeles facility, is made up of several divisions including the General Medical Hospital, also known as Wadsworth, and the Brentwood facility, also known as North of Wilshire, where neuropsychiatric patients are housed. In operating the facility, forty to fifty different services are utilized, and each service has a chief. The service involved in this matter is Building Management Service (herein called the Service). It employs, among others, male and female housekeeping aides who clean, service, and maintain the hospital. The Service employees were, at all times material herein, represented by the Union. At all times material in this matter, John F. Fitzgerald was the chief of the Service. In that position he was management's point of contact for negotiations in that particular service. Fitzgerald's newness in the position is shown by his having joined Respondent, in that capacity, only in December 1983. However, Fitzgerald served in a similar position at the Long Beach V.A. Hospital and was experienced in dealing with unions. Despite assertions to the contrary, the Union traditionally bargained directly with the various service chiefs concerning changes in working conditions and the personnel staff's attendance at those negotiations is the sole responsibility of management. Rhea Butler, Union President, Edward Farrell, Union Treasurer and Nathaniel Scott, the Union Chief Steward and the only one of these three actively employed by Respondent participated in meetings or negotiations in this matter. Butler without dispute had authority to negotiate and enter agreements on the Union's behalf. B. Uniforms Respondent supplies its female housekeeping aides with uniforms which are short sleeved, linen-type, aqua dress uniforms or aqua tops and trousers. Similarly, its male housekeeping aides are supplied with and wear lightweight uniforms which consist of light grey shirts and dark grey trousers. Inasmuch as Respondent issues only one type of lightweight fabric uniform there is no winter or wool uniform. It undisputed that for anywhere from 7 to 14 years the housekeeping aides, both male and female, have worn personal attire together with the regular uniform. Such apparel was particularly worn during the Southern California winter months, which loosely termed are November to February. This extra apparel consisted of many different styles and hues of sweaters and jackets, either over or under their uniforms. Some individuals even wore jackets on a year round basis. In addition, employees wore hats such as baseball-type caps with bills and knit caps. With regard to how the uniforms were worn, male employees uniform shirts was worn either inside or outside of the dark grey trousers. Besides caps the aides wore hairnets, headbands and sweatbands while they worked. Testimony reveals that the caps and other headgear protected the employees' skin, hair, and eyes from workplace dust, debris, powerful cleaning solutions such as strippers, and the elements in general. Likewise sweaters and jackets protected the employees from the chill of early morning and from cold winter days and an alleged inefficient hospital heating system. The housekeeping aides duties often require that they travel between buildings in order to perform their work and consequently they are exposed to weather conditions. In such circumstances, it appears sensible for aides to wear some outer garments in order to protect themselves from outside weather conditions. Respondent, however, did not issue jackets, sweaters, hats or any other outer garments for weather protection. Instead, the aides supplied their own outer garments. It is uncontroverted that this practice of supplying their own sweaters, caps and other garments to keep warm was regular, open, notorious and condoned by Respondent over a lengthy period of years. Prior to March 1, 1984, there is no evidence that employees were subject to discipline because they wore items of their own apparel such as sweaters or caps. Furthermore, the record is void of any evidence which would establish that any of this personal clothing impeded any individual's job performance. Finally, the record does not suggest that the running of the Service was interfered with or disrupted because the employees wore jackets, sweaters, hats, headbands, sweatbands, or the square tail of a males shirt was worn outside of his trousers. It suggests only that the cosmetics of Service personnel did not meet the approval of its new Chief, Mr. Fitzgerald. C. Change of Shift While the majority of the employees work a regularly scheduled 7 a.m. to 3:30 p.m. shift, the househkeeping aides at the Brentwood psychiatric patient facility worked a 6 a.m. to 2:30 p.m. schedule. The Brentwood hours had been in effect for a number of years prior to April 29, 1984. A change in the Brentwood tour of duty had been previously proposed by a prior Service Chief, Sara Hammond. Allegedly because it is easier for the housekeeping aides to clean when the full staff is not on board at 6 a.m. the Union was able to throttle that proposal and the tour remained at 6 a.m. to 2:30 p.m. when Fitzgerald arrived on the scene. D. Arrival of New Building Management Chief As already noted, in December 1983 Mr. Fitzgerald assumed the Chiefs' position and decided to initiate some changes in his service by imposing a dress code and instituting task lists. Again it is noted that while Fitzgerald was new in this position, he was an experienced Service Chief who had previously dealt with unions, including some of the Union officials involved herein. In view of this, I find much of Fitzgerald's testimony hard to believe. Consistent with his decision he distributed lists, which were minute increment breakdowns of tasks such as: mop hallway "A" - 8:10 to 8:15; empty trash in hallway "B" - 8:20 to 8:25, without prior notice to or bargaining with the Union. As the record disclosed, the lists generated controversy and complaints because of employees fears of negative evaluations and disciplinary actions based on what might be considered arbitrary time standards if the lists were enforced. Employee Patty Burr sent a copy of the task list to the Union. Butler called Fitzgerald and raised the point that disciplinary actions and poor evaluations might occur as a result of the lists. Fitzgerald allegedly insisted that the lists were only guidelines. Fitzgerald's assurance did not alleviate the Union's concerns and, as a result, Union representatives Butler, Scott and Farrell, met with him in his office on January 10, 1984. Again, Butler and Farrell asserted that the task lists were negotiable because of their potential disciplinary use. Fitzgerald insisted that he would not negotiate because the lists were only guidelines. During the meeting, the three Union officials also raised an issue concerning Fitzgerald's denying Scott leave to attend physical therapy sessions which were a course of treatment necessary to correct an on-the-job injury. Subsequent to Fitzgerald's arrival, the chief steward received, in swift succession, an admonishment, a reprimand and a proposed suspension because of his requests for leave without pay, on Friday, in order to see his doctor. Fitzgerald claimed that the physician's statement, regarding Scott's injury, was not sufficient. According to Butler and Farrell, Fitzgerald took the initiative in stating that he also wanted to change the tour of duty for the twenty-nine Brentwood facility housekeepers from 6 a.m. to 2:30 p.m. and conform it to the 7 a.m. to 3:30 p.m. dayshift. The Union informed him that it had previously negotiated the Brentwood tour with other Service Chiefs and the shift had remained at 6 a.m. 8to 2:30 p.m. Fitzgerald, therefore raised another topic by discussing the possi0ility of a dress code which would ban hats. He stated it was his idea and privilege. The Union argued that if the dress code was to become a fact, it wanted to negotiate. Fitzgerald claims that the parties did not meet in January 1984 and discuss the dress code, the tour of duty or the task list. However, he admits that he distributed the task lists in December 1983, without negotiating the impact and that the lists caused controversy and employee complaints. Since the Union filed an unfair labor practice charge regarding those lists and Fitzgerald was Chief, his testimony that the Union never met with him on the subject, or in January 1984 creates consistencies which must be resolved against him. Fitzgerald also asserts that the dress code was never discussed. However, Fitzgerald testified that shortly after his arrival he decided to implement a dress code. In fact, an original dress code memorandum was distributed to the Union which was dated December 27, 1983. In addition, Butler and Farrell testified that even prior to January 10, 1984, there were rumors that Fitzgerald was going to implement a dress code. Clearly the dress code had by early January 1984 became an issue which it would not be unreasonable to assume that the Union would raise at its first opportunity. Based on the record inconsistencies, I do not credit Fitzgerald. Shortly thereafter, on February 1, 1984, Butler received a January 30, 1984, route slip from Nina Jean Parson, Labor-Management Relations Specialist. The memorandum stated, "(a)ttached is the proposed memorandum to all Building Management Service Employees regarding adherence to the prescribed uniform. This is being forwarded in accordance with Article VI of the negotiated agreement." The memorandum was a dress code for Service employees which prohibited the wearing of headbands, hats, nets, and sweatbands, unless required. It recommended replacing tennis or other soft sole shoes with oxford shoes. The dress code also mandated that male employees wear their shirts buttoned and tucked into their trousers. The memorandum was dated December 27, 1983, and signed by Fitzgerald. There had never been a similar dress code in the Service. Neither the route slip nor the memorandum set forth an implementation date for the code. Similarly, the dress code memorandum made no mention of any prohibition on either jackets or sweaters. On February 9, 1984, the Union received a route slip dated February 7, 1984, from Labor Relations Specialist Parson which indicated that the attached proposal to change an existing tour of duty was forwarded in accordance with Article VI of the local negotiated agreement. Parson admitted however, that the notices which the Personnel office forwards to the Union do not specify Article 6 of either the Master Agreement or the Local Agreement. The notice does not indicate there is a 15 day response time. Further, there is no indication as to whom the Union should contact. Butler testified that the Master Agreement supercedes the Local Agreement. /4/ The route slip covers two attachments. The first was a January 26, 1984 memorandum, signed by Fitzgerald, which stated that Service employees on the 6 a.m. to 2:30 p.m. shift would be changed to the 7 a.m. to 3:30 p.m. shift effective February 10, 1984. The second was a roster of some of the twenty-five affected employees including Nathaniel Scott and Roger Howard who are assigned to the Brentwood facility. Upon receipt of the tour of duty change on February 9, 1984, Butler stated that she immediately contacted Fitzgerald and requested to negotiate. Both mutually agreed to a meeting on February 28, 1984, at 11 a.m. According to Butler, who I credit, she informed Fitzgerald that the appointment was to negotiate three items; the tour, the task list and the dress code. Fitzgerald testified that Butler called and asked for an appointment in order to have an "informal discussion". I credit Butler. The February 28, 1984, meeting was moved to an earlier date, February 23, 1984, and Butler, Farrell and Scott met with Fitzgerald. At the meeting, Butler requested negotiations concerning the dress code, but Fitzgerald replied that negotiation was not indicated. Fitzgerald did not inform the Union either that the dress code was to be implemented March 1, 1984, or that sweaters and jackets were prohibited. The Union team continued proposing that the headgear be retained because it served health and safety purposes. According to them, the caps protected the hair, skin, and eyes from dust, debris and cleaning solvents. Fitzgerald insisted that the employees would not be allowed to wear hats, "it was his thing," because he wanted people to be uniform. Butler replied "that the Union would buy union hats" for all the building maintenance employees who wear hats while performing their duties. Fitzgerald snickered and laughed. Butler also pointed out that the code was not in accordance with V.A. central office rules and regulations. Clearly no agreement was reached, Fitzgerald who is not credited denies that the dress code was mentioned during this meeting. During this same meeting the proposed tour of duty change was also discussed. Butler, requested to negotiate the subject again. Additionally, the Union requested time to poll the employees on the issue. Fitzgerald agreed to the poll but indicated that the results would not necessarily change his mind. Fitzgerald recalls that Farrell asked to poll employees to see how they felt about the change. The meeting ended with the parties agreeing to meet again in March 1984. Subsequent to the meeting, Scott, who is a Service employee and affected by the tour of duty change, polled the other Service employees. On March 12, 1984, the parties met again. This time the Union repeated its proposal that the tour of duty remain the same. According to Fitzgerald, he was not meeting with the Union to bargain and, indeed, he did not bargain when the Union asked him to do so. At the hearing, Fitzgerald denied that he even has authority to bargain. His colleague Parson however, testified that Fitzgerald does have such authority. Fitzgerald basically asserted that labor relations encompassed his ability, to sit down and discuss changes in working conditions with the Union knowing all the while that he does not have authority to bargain. Such a result was not, in my view intended by the Statute. When the meeting began Scott attempted to tell Fitzgerald the results of the poll but Fitzgerald waved him off and turned to Farrell. Scott, however, persisted in explaining that the employees wanted the 6:30 a.m. to 2:30 p.m. tour to remain the same because it was a safe and efficient tour. Fitzgerald replied that he didn't want to talk to him. According to Fitzgerald, he asked that Farrell release the results of the poll. He claims that Farrell refused to tell him the results. I do not credit Fitzgerald. Farrell heatedly interjected a demand that Fitzgerald negotiate concerning the tour. Fitzgerald replied that he would not negotiate. Frustrated, Farrell asked Fitzgerald if he could conceive of a situation where he would have to negotiate with the Union. Fitzgerald allegedly replied, "that's another issue." Farrell rose out of his seat; Butler told Farrell to wait a minute because there were two more issues to discuss, the task lists and dress code. Fitzgerald responded that he had already surveyed the nurses regarding the tour. He indicated at the hearing, that he wanted to bring some one from personnel or labor relations in to negotiate. None of the Union witnesses mentioned any reference to bringing in others to negotiate. Butler, broke in at this point and uttered some profanity either shit, hell or damn, regarding Fitzgerald consulting with the nurses and not the Union. At that point, Butler who is black, perceived that she was being confronted with bigotry and racism. Fitzgerald stated that he didn't have to negotiate and he wouldn't negotiate until personnel told him to. Fitzgerald then stated, he didn't want profanity in his office and he told the Union team to leave. Fitzgerald's view was that nothing was being accomplished. Butler, Farrell and Scott stormed out and either during their exit through the doorway, or poised just outside in the corridor, Butler, a wisp of a woman stated, "Fuck you." Farrell, Scott and Butler immediately proceeded to the office Chief of Personnel Jesse Raymond. It is uncontroverted that once there Butler told Raymond that Fitzgerald was impossible and that he was adamantly insisting that he did not have to negotiate concerning the tour, the dress code or the task lists. Butler's statements reveal no clue that Fitzgerald wanted to bring in personnel or labor relations help in the matter. Butler by way of apology explained that she had cursed out Fitzgerald. Butler and Farrell then requested Raymond to give them someone who knew how to negotiate, so they could resolve the issues for the good of the employees. Raymond replied that he would take care of that. Interestingly, Fitzgerald's inability or lack of authorization to negotiate for the service was never raised. Several days passed without Raymond, Fitzgerald, or any management representative contacting the Union regarding bargaining. By that time Butler and Farrell decided no one was going to do anything about "enlightening" Fitzgerald regarding the negotiability of changes in work hours so the Union filed an unfair labor practice charge on March 16, 1984. The charge alleged that Fitzgerald had refused to bargain in good faith concerning the tour of duty on March 12, 1984. /5/ Fitzgerald knew that an unfair labor practice charge had been filed because of the March 12, 1984 meeting, however, no action was taken. Instead, on April 16, 1984, the Union received a second memorandum from Fitzgerald regarding the identical shift change which they had already requested to negotiate on and proposed status quo. Fitzgerald's second memorandum referenced his January 23, 1984 correspondence wherein he had determined to transfer the remaining day shift personnel, North of Wilshire, to the 7 a.m. to 3:30 p.m. shift. In the subsequent communication Fitzgerald declared that he had met with Butler, Farrell and Scott on two occasions regarding the proposed change but, to date, the Union had failed to offer any counterproposals or meaningful discussions. Fitzgerald's missive concluded that he was proceeding with the shift change effective April 29, 1984. All this despite clear evidence that at the February 23, 1984, meeting the Union proposed that the tour of duty remain at 6 a.m. to 2:30 p.m. Further, Fitzgerald on cross-examination stated that although Farrell declared that the Union wanted the 6 a.m. to 2:30 p.m. tour, in Fitzgerald's opinion, no proposals were offered at the second meeting. His opinion was that Farrell's proposal was not a proposal at all and could not, therefore, be the subject of negotiations. I find that the Union clearly requested negotiations concerning the change in tour of duty at that meeting. Around April 19, 1984, 3 days after receiving Fitzgerald's second memorandum the Union filed the instant unfair labor practice charge alleging that Fitzgerald had again refused to negotiate concerning the shift change. Respondent's Personnel department also took no action. Thereafter, Fitzgerald implemented a negotiable change in work hours on April 29, 1984. On that date the employees were changed by 1 hour, from a 6 a.m. to 2:30 p.m. tour to 7 a.m. to 3:30 p.m. shift. In the meantime, but prior to completing bargaining on the issue, Fitzgerald implemented the proposed dress code. A few days before March 1, 1984, Fitzgerald spoke at unit meetings of Service housekeeping aides and explained the new dress code. According to him, the hats would have to come off and the code would be enforced beginning March 1, 1984. Supervisors distributed the dress code to employees and enforced it through disciplinary action beginning March 1, 1984. Supervisor Pearl Harrington "wrote up" housekeeping aide Roger Howard because he came to work with his hat on. Prior to March 1, 1984, in 17 years, Howard had never been disciplined for wearing a hat on the job. Other employees were also disciplined due to the unilateral enforcement of the dress code. It appears that terminations also were part of the discipline. Following her unit meeting, housekeeping aide Theresa Phillips spoke to her supervisor Ms. Metcalf and the Assistant Chief Alva Bonds. Phillips was wearing a long sleeved sweater under her short sleeved aqua tunic. Bond noticed the sweater and told Phillips that she could be disciplined. Phillips pointed out that first, sweaters were not included in the dress code and second, it was freezing outside. There had been no mention of any prohibition against sweaters during the unit meeting and the published dress code itself is silent in that respect. Phillips went home and cut the sleeves off of her sweaters. A few days later, Metcalf told her that she could still be written up. Discussion and Conclusions Respondent contends that the issue here is solely one of notice and chicanery on the part of the Union. It further asserts that the case involves only a refusal of the exclusive representative to deal with Respondent's designated representative and its attempts to make decisions as to whom it will deal with in management. Despite inference and rumor that Mr. Fitzgerald was intent on making certain changes earlier in his term as chief of the Service and despite the fact that Fitzgerald met with the Union well prior to any official notification of changes Respondent seeks to create an illusion that the Union was not dealing with the proper management representative and for that reason assumes that it has in this matter "attempted to deal with the Union in good faith, but due to the relative lack of labor expertise of the management 'representative' the Union had to deal with, and a consequent failure to at the time understand the reality of Labor-management relations with this Union, that good faith has not as of yet brought about the sought after results." The General Counsel does not see this as such a simple matter, but maintains that a past practice of wearing certain clothing in addition to the issued uniform existed; that notification of implementation of the dress code was defective; that there was no notification that certain items such as sweaters and jackets were prohibited by the dress code; that Respondent failed to complete substantive bargaining of the dress code; that there was no waiver of bargaining on the dress code; that Fitzgerald the Chief of Service indeed had authority to bargain over the dress code; and, as well that the change in work hours without completing bargaining constituted a violation of the Statute. It has long been established that parties may create conditions of employment by practice and such practices may not be altered without bargaining thereon. Internal Revenue Service and Brookhaven Service Center, 6 FLRA 713 (1981). Respondent supplies female housekeeping aides with an aqua dress or an aqua tunic top and pants. Similarly, the male housekeeping aides receive charcoal grey trousers and light grey shirts. It is undisputed that for over 7 years housekeeping aides have worn their own personal outerwear and apparel in addition to the issued uniforms while on duty. Also undisputed is the fact that employees wore their own sweaters, jackets, hats, caps, headbands, and sweatbands with the knowledge of and acquiescence of Service management. In addition to outer apparel the male employees wore their shirts either tucked into their trousers or on the outside of their pants. These practices were consistently exercised for an extended period of time, unchallenged, and acquiesced in by Respondent thereby ripening into conditions of employment. Accordingly, if Respondent desires to change this established condition of employment, it must give proper notification and bargain. Failure to do so violates the Statute. The law is clear that an activity must specifically notify the exclusive representative of any intended change and a passing reference to a general subject is "neither specific nor clear enough to provide adequate notice" of changes in conditions of employment as are anticipated by the Statute. Department of the Army, Harry Diamond Laboratories, Adelphi, Maryland, 9 FLRA 575 (1982); U.S. Department of Air Force, Air Force Systems Command, Electronic Systems Division, Hanscom AFB, Massachusetts, 5 FLRA 637 (1981). In January 1984, rumors were circulating in the bargaining unit that Fitzgerald was going to impose a dress code. On January 10, the Union met with Fitzgerald to discuss the task lists that he had already unilaterally implemented where he mentioned a possible dress code. At that time the Union requested to bargain even though it did not have the specifics of the plan. Approximately one month later, Butler received formal notice of the dress code, but no implementation date was indicated. Later, on February 9, 1984, Butler requested that Fitzgerald negotiate concerning the code, the tour of duty, and the task lists. In my view, the Union did all it could to perfect its right to bargain about the dress code. Although, it did not receive proper notice, pursuant to suggestions it contacted the responsible official in an attempt to start negotiations over the matter. The record is clear that Respondent never, at any time from December 1983 to March 1, 1984, notified the Union of the March 1, 1984, implementation date. Failure to adequately notify the Union and surprise implementation of a condition of employment, in my view, constitutes a failure to bargain in good faith which is violative of the Statute. While the Authority has not decided whether or not dress codes are substantively negotiable, in American Federation of Government Employees, Meat Graders' Council, AFL-CIO, and Department of Agriculture, Food Safety and Quality Service, Meat Grading Branch, Washington, D.C., 8 FLRA 118 (1982), it found a union proposal that the employer furnish protective clothing such as a cooler coat and gloves to employees was negotiable. /6/ The Authority there noted that the statutory and regulatory provisions placed the decision as to whether to provide protective clothing within the discretion of the agency. That a discretionary past practice of dress existed in this case is unquestioned. In this regard, changes in the practice should be negotiated to the full extent of that discretion. With or without a dress code, the housekeeping aides still perform their assigned cleaning and maintenance duties with their respective tools. Around February 23, 1984, the Union made oral proposals regarding the wearing of caps or hats. Whether or not such proposals were negotiable, Respondent was obligated to give the Union an opportunity to revise its proposals, pursuant to any non-negotiability argument raised by Respondent, and continue to bargain on those proposals which were negotiable as well as the remaining issues surrounding the dress code. Adjutant General's Office, Puerto Rico Air National Guard, 3 FLRA 343 (1980). Respondent did not provide such an opportunity because it failed to state an implementation date during the course of bargaining. In the instant case the Union acted with reasonable dispatch and should not be penalized because new proposals were not submitted between February 23 and March 1, 1984. Department of the Treasury, Internal Revenue Service, Midwest Regional Office, Chicago, Illinois, 16 FLRA 141 (1984). Furthermore, no overriding exigency which required a dress code was shown on this record. The record does disclose that Respondent eliminated the past practice of wearing sweaters and jackets without first notifying the Union or bargaining on the matter. The dress code did not contain a prohibition against either item and the issues were not raised prior to implementation. On March 1, 1984, Respondent imposed the prohibitions, but the Union did not discover that the change was in effect until several days later when employees began complaining to the Union. Such a change without first properly notifying an exclusive representative and affording it an opportunity to bargain is violative of the Statute. See Norfolk Naval Shipyard, Portsmouth, Virginia, 6 FLRA 74 (1981). The corroborated testimony reveals that on January 10, February 9, February 23, and March 12, 1984, the Union requested to negotiate concerning the dress code. Respondent implemented the dress code on March 1, 1984 or during the course of what should have been continued bargaining. The record shows that at the February 23 meeting, the subject of hats was discussed extensively. At that time the Union proposed that the hat practice continue or alternatively, it would buy hats. However, the parties failed to agree and did not even reach the other dress code issues such as sweatbands or whether or not shirts could be worn outside one's trousers. Sweaters and jackets while part of the new dress code were not discussed during any of these meetings. Notwithstanding no discussion Fitzgerald walked out of the February 23 meeting and implemented the dress code several days later on March 1, 1984. There is no direct relation between the extra apparel such as sweaters, jackets and caps which the employees concerned herein wore and the duties they performed. The principal reasons the outer garments were worn appears to be to protect employees from cold weather, which indeed does occur in Southern California, and against some health hazards found on the job. The evidence does not reveal any hazard presented by wearing these outer garments and hats. Furthermore, there is no showing that the outer garments and hats worn by these employees interfered with their work performance in any way. Cases such as, Division of Military and Naval Affairs, State of New York, Albany, New York, 15 FLRA No. 65 (1984), concerning uniforms are distinguishable on their facts. The uniforms of the civilian technicians in such cases constitute a method and means of performing work because the employees belong to a military organization which is theoretically subject to mobilization at any time. Because of the necessity to be prepared to act immediately the Guard uniforms are clearly a military symbol of that preparedness. They are therefore not aids to the comfort, health or safety of the guard employees. The issue here is not whether or not a uniform will be worn, but is whether an agency which has allowed certain items of dress to become permissible apparel can change that practice without negotiations with the exclusive representative. Even assuming, arguendo, that dress constitutes a "method and means" of performing cleaning work as Respondent earlier suggested, it still has failed to meet its obligation to bargain concerning the impact of the change. Respondent through Fitzgerald also makes a meretricious argument that Fitzgerald had no authority to negotiate "as I understand negotiations." First, Respondent's Labor-Relations Specialist testified that Fitzgerald did have authority to negotiate. Second, the record shows negotiations with past Services chiefs on a variety of topics. Third, there were three separate meetings held between Fitzgerald and high level union personnel without a mention of lack of authority or ability to negotiate. Following this the Union complained to the chief of personnel and still there was no mention of any lack of authority to negotiate. Thus, all of Respondent's actions appear inconsistent with its contention that Fitzgerald could not negotiate or was the wrong individual for the Union to seek out for attempted negotiations. I find, therefore, that Fitzgerald had authority to negotiate the items concerned. Moving to Respondent's assertion that it was free to implement the dress code because the Union never requested to bargain. And, if it did request to bargain, the request was untimely because of the 15 day response parameter contained in the Local Agreement. In discrediting Fitzgerald, it is found that the Union requested and met with a management official capable of negotiations covering both the dress code and the tour of duty, in a timely fashion. Butler made one request in January, two in February and a final one in March 1984. Respondent denies that the Union requested to negotiate concerning the dress code, thus, an argument that Butler's request was too late is impossible to prove. /7/ Respondent must, however, acknowledge that it never told Butler she was untimely, since in its view the request never occurred. Similarly, timeliness according to the provisions of Article 6 of the Local Agreement was not raised prior to the hearing. Further, the Union did not receive any notification that the Respondent was enforcing the 15 day provision which the Local Agreement contains. Butler maintained at the hearing, that in her view the Master Agreement superceded the Local's provision with regard to notice and bargaining. The Master Agreement's language at Article 5, Section 1, and Article 6, Section 6, supports that argument. Obviously, Respondent disagrees with Butler's construction of the Agreement and maintained at the hearing that the Local Agreement was in effect. The parties are essentially differing over the interpretation of Article 5, Section 1, in the Master Agreement and its effect on Article 6, Section 2, of the Local Agreement. The status of that provision of the Local Agreement is arguable and unclear and therefore clearly not suitable for resolution in the unfair labor practice forum. With regard to the change in starting and quitting times, the cases are legion which state that "the decision to change starting and quitting times is subject to the duty to bargain unless it can be demonstrated that such a change directly or integrally relates to the numbers, types or grades of employees or positions assigned to a work project or tour of duty so as to be determinative of such numbers, types or grades and therefore negotiable solely at the election of the agency under section 7106(b)(1) of the Statute." Department of the Treasury, U.S. Customs Service and U.S. Customs Service, Region IX, Chicago, Illinois, 17 FLRA 221 (1985); Department of the Air Force, Lowry Air Force Base, Colorado, 16 FLRA 1104 (1985); National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 16 FLRA 995 (1985); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA 674 (1985); Veterans Administration, Hines Hospital, Hines, Illinois, 16 FLRA 3 (1984). See also, Department of Transportation, Federal Aviation Administration, Washington, D.C., 16 FLRA 479 (1984); U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982); and National Treasury Employees Union, Chapter 66 and Internal Revenue Service, Kansas City Service Center, 1 FLRA 926 (1979); Department of the Treasury, United States Customs Service, Region I, Boston, Massachusetts, and St. Albans, Vermont District Office, 10 FLRA 566 (1982). There is no evidence to suggest that the instant change directly or integrally related to the numbers, types or grades of employees or positions assigned to a work project or tour of duty so as to be determinative of such numbers, types or grades and negotiable solely at the election of the agency. Establishing such elements would of course be incumbent on Respondent who admittedly was prepared only to bargain the impact of the change in starting and quitting times herein. Since the change which occurred herein only changed an existing tour of duty, and there is no evidence to indicate that the change was in any manner determinative of the numbers, types or grades of employees assigned to the tours of duty, it is found that Respondent was obligated to bargain. Its failure to do so constitutes a violation of section 7116(a)(1) and (5) of the Statute. Based on all of the foregoing, it is concluded that Respondent violated section 7116(a)(1) and (5) of the Statute by changing the dress code of its housekeeping aides and by changing the duty hours of certain of its housekeeping aides without good faith negotiations with the exclusive representative of those employees. Considering the criteria set out in Federal Correctional Institution, 8 FLRA 604 (1982) and noting that Respondent was not exercising any reserved rights under Section 7106 of the Statute, I agree with the General Counsel that a status quo ante remedy is appropriate in this matter in order to effectuate the purposes and policies of the Statute. Accordingly, it is recommended that the Authority adopt the following: ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations of section 7118 of the Statute, it is hereby ordered that the Veterans Administration, West Los Angeles Medical Center, Los Angeles, California shall: 1. Cease and desisit from: (a) Unilaterally instituting changes in duty hours and dress code in the Building Management Service without first notifying the American Federation of Government Employees, Local 1061, AFL-CIO, the exclusive representative of the employees involved herein, and providing it with an opportunity to negotiate concerning the above changes and the impact and implementation of those changes. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Rescind the change in duty hours implemented on April 29, 1984 and restore the previously existing duty hours of 6:00 a.m. to 2:30 p.m. (b) Rescind the dress code, including the prohibition against wearing jackets and sweaters implemented on March 1, 1984 and rescind any disciplinary actions initiated as a result of the dress code and remove all reference to such disciplinary actions from the personnel files of those employees involved. (c) Notify and upon request, negotiate with the American Federation of Government Employees, Local 1061, AFL-CIO, or any other exclusive representative of the employees in Building Management Service concerning the change in duty hours and dress code and the impact and implementation of such changes. (d) Post at its Veterans Administration, West Los Angeles Medical Center, Los Angeles, California the attached Notice marked "Appendix A" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Director, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The District Director shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (e) Pursuant to Section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing within 30 days from the date of this Order as to what steps have been taken to comply herewith. /s/ Eli Nash, Jr. ELI NASH, JR. Administrative Law Judge Dated: December 4, 1985 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Howard v. Veterans Administration, No. 85-2128 (Fed. Cir. Nov. 19, 1985), slip op. at 2. (2) United States Department of Transportation, Federal Aviation Administration, 19 FLRA No. 89 (1985); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA 674 (1984) and Department of Transportation, Federal Aviation Administration, Washington, D.C., and its Chicago Airways Facilities Sector, 16 FLRA 479 (1984). (3) See, for example, Long Beach Naval Shipyard, Long Beach, California, 17 FLRA 511 (1985). More generally, the Authority has wide discretion to fashion remedies under section 7105(g)(3) and section 7118(a)(7) of the Statute, including status quo ante remedies where appropriate. See also United States Department of Transportation, Federal Aviation Administration, 19 FLRA No. 89 (1985) and U.S. Immigration and Naturalization Service, 16 FLRA 1007 (1984), in which stated status quo ante remedies are generally found appropriate in circumstances where agency decisions to change conditions of employment were within the duty to bargain. (4) According to Respondent the applicable provisions are Article 6, section 6 of the Master Agreement, and Article VI, section 2 of the Local Agreement. Article 6, section 6 of the Master Agreement read as follows: Section 6 -- Notification of Changes in Conditions of Employment The Agency shall notify the appropriate union official prior to changing conditions of employment which affect bargaining unit employees. The notification will be adequate with sufficient information to provide the Union an opportunity to exercise their full rights to bargain as appropriate prior to implementation. Notification will be in writing when the changes are significant. Article VI, section 2 of the Local Agreement reads: Section 2. The Employer agrees to refer any proposed changes in personnel policies, practices or other policies, programs or procedures affecting the working conditions of unit employees to the Union at least fifteen (15) calendar days prior to anticipated implementation. The Union agrees that it will respond as soon as practicable and if it does not respond within fifteen (15) calendar days, the Employer will be free to proceed with implementation. This time limit may be extended upon request and mutual agreement of the parties. If the Union notifies the Employer within fifteen (15) calendar days that it does not concur in the proposed change(s), the parties agree to meet promptly and bargain concerning the matter. (emphasis added). Based on these articles Respondent asserts that it is the obligation of the Union to respond to management's notice if the Union desires to negotiate over the change. It sees no conflict with the Master Agreement, inasmuch as the Master Agreement is silent on the issue of the Union's obligation to respond. Thus, where the Master Agreement is silent, the Local Agreement prevails. (5) The charges was later withdrawn when the instant unfair labor practice, Case No. 8-CA-40223, was filed because the instant charge included the alleged violative conduct. (6) The establishment of minimum dress standards altering existing past practices of dress have been found by my colleague Administrative Law Judge Garvin Lee Oliver to be substantively bargainable. See, Army and Air Force Exchange Service, Fort Carson, Colorado, 7-CA-30581, 39 ALJDR (1984); United States Department of the Treasury, Internal Revenue Service, Austin Service Center, 6-CA-20356, 31 ALJDR (1983). (7) Respondent does not directly raise nor does it appear necessary to resolve in this matter the effect of conduct of Union President Butler in using profanity, during and at the conclusion of one of the bargaining sessions. APPENDIX A NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally institute changes in working conditions for bargaining unit employees by inaugurating changes in duty hours and a dress code in the Building Management Service without first notifying the American Federation of Government Employees, Local 1061, AFL-CIO, the exclusive representative of those employees or any other exclusive representative and provide it with an opportunity to negotiate concerning such changes and the impact and implementation of those changes. WE WILL NOT in any like or related manner, interefere with, restrain, or coerce any employee in the exercise of their rights guaranteed by the Federal Service Labor-Management Relations Statute. WE WILL rescind the change in duty hours which was implemented on April 29, 1984, and restore the previously existing duty hours of 6 a.m. to 2:30 p.m. WE WILL rescind the dress code, including the prohibition against the wearing of sweaters and jackets, which was implemented on March 1, 1984, and will rescind any disciplinary actions which were initiated as a result of the dress code, and will remove all reference to such disciplinary actions from personnel files. WE WILL notify the American Federation of Government Employees, Local 1061, AFL-CIO, of any intention to change the duty hours or dress code in the Building Management Service and, upon request, negotiate with the American Federation of Government Employees, Local 1061, AFL-CIO, concerning such changes and the impact and implementation of those changes. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VIII, whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071 and whose telephone number is: (213) 688-3805.