25:1028(85)NG - AFGE Local 1625 and Navy, Naval Air Station, Oceana, Virginia -- 1987 FLRAdec NG

 25 FLRA No. 85
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1625
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 NAVAL AIR STATION 
 OCEANA, VIRGINIA
 Agency
 
                                            Case No. 0-NG-1290
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed by the Union under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents an issue
 concerning the following proposal:
 
          It is agreed that during the summer tee shirts and ball caps
       with appropriate patches may be worn by the duty section within
       the confines of the fire station and at field crew positions.
 
    For the reasons which follow, we conclude that the proposal is within
 the duty to bargain.
 
                       II.  Positions of the Parties
 
    The Agency, in its Statement of Position, contends that the Union's
 petition for review must be dismissed because there were no negotiations
 out of which the negotiability dispute could have arisen.  The Agency
 claims in this connection that no negotiations involving this issue, or
 any similar issue, had taken place since March 19, 1986, and therefore
 the Union's request for the Agency's position as to the negotiability of
 the proposal in question, dated May 22, 1986, involved no specific
 negotiations.  /1/
 
    With respect to the merits of the proposal, the Agency argues that
 the proposal conflicts with the exercise of the Agency's section
 7106(a)(1) right to determine internal security practices because the
 prescribed uniform is essential to the identification of firefighters in
 the performance of their duties.  The Agency also contends that the
 proposal is contrary to section 7106(b)(1) of the Statute because the
 prescribed uniform involves the means of performing work and the Agency
 has not elected to negotiate over this matter.  It claims in this regard
 that the proposal would require replacement of prescribed uniform
 components and thereby would affect the recognizability of firefighters.
  Finally, the Agency contends that if the Union argues that its proposal
 is intended as an "appropriate arrangement" under section 7106(b)(3), it
 should be granted an opportunity to file a supplemental statement of
 position.
 
    The Union contends that its proposal was filed timely.  Regarding the
 merits, the Union notes that its proposal is not intended to preclude
 the Agency from determining the insignia or designated color of the
 apparel.  Rather, it contends that its proposal merely modifies the
 prescribed uniform for the comfort of the firefighters and only in
 limited circumstances -- inside the fire station and at field crew
 positions.  Consequently, the Union argues that the Agency has not shown
 that the proposal interferes either with the Agency's right to determine
 internal security under section 7106(a)(1) or with its right to
 determine the means of performing work under section 7106(b)(1) of the
 Statute.  The Union also contends that its proposal is an appropriate
 arrangement that would not excessively interfere with the Agency's
 statutory rights.  /2/
 
                       III.  Analysis and Conclusion
 
    The record fails to substantiate the Agency's assertion that the
 Union's request for a negotiability determination did not arise out of a
 negotiability dispute.  The Union's request was made prior to the
 execution of the negotiated agreement.  The dispute in this case had its
 origin in the negotiation of that agreement.  Moreover, to the extent
 that the Agency's contentions raise factual issues in dispute between
 the parties concerning the duty to bargain, these issues may be raised
 in other appropriate proceedings.  See 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 (1984).
 
    Based on the record, we construe the Union's proposal to seek a
 limited modification to the prescribed firefighter uniform, namely, tee
 shirts and ball caps, which will be permitted in limited circumstances
 not including those situations when the firefighters meet the public.
 Moreover, the proposal permits the Agency to determine the color of the
 uniform and the insignia which will be on the uniform.  Thus, the Agency
 will be able to ensure that under the proposal, the modifications to the
 uniforms will identify the individual wearing the uniform as a
 firefighter.  Viewing the proposal in this manner, we conclude that it
 is not significantly different from Proposals B and C found to be
 negotiable in American Federation of Government Employees, Local 217 and
 Veterans Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13
 (1986).  There were three proposals in that case.  Proposal A would have
 permitted certain employees the option whether or not to wear a
 prescribed uniform.  The Authority determined that this proposal was (1)
 inconsistent with the right to determine internal security practices
 because it effectively would negate the agency's decision to require
 uniforms for the purpose of achieving ready identification of employees
 and (2) inconsistent with the right to determine methods and means of
 performing work because the record established a direct relationship
 between the uniform requirement and the agency's need to be able to
 readily identify its employees in order to protect its property and to
 accomplish its mission.  Proposals B and C, however, sought to determine
 the type of uniform to be worn on a seasonal basis and to provide
 modifications for safety and inclement weather.  The Authority found
 that these proposals were within the duty to bargain because they did
 not directly interfere with the agency's right to determine its internal
 security practices or the methods, means and technology of performing
 the agency's work.  The Authority concluded that the proposals did not
 defeat the agency's purpose of requiring distinctive uniform clothing so
 as to provide for ready identification of employees.
 
    Similarly, in this case, the modification sought by the Union would
 not interfere with the Agency's stated purpose of ready identification.
 As noted above, the proposal is limited to those circumstances in which
 the firefighters do not deal with the public.  Based on the clear
 wording of the proposal, in those situations noted by the Agency where
 firefighters would deal directly with the public (for example,
 inspecting fire hazards or testing fire alarms), firefighters would be
 required to wear any uniform prescribed by the Agency.  Moreover, as the
 Union acknowledges, the proposal reserves to the Agency the right to
 designate the color of and appropriate insignia for the apparel.  This
 aspect of the proposal provides for ready identification in those
 limited circumstances noted above where the modified uniform would be
 worn.  Therefore, we conclude that the proposal does not conflict with
 the Agency's stated purpose in prescribing a uniform for firefighters
 and, for that reason, it does not interfere with management's right to
 determine its internal security practices.
 
    For similar reasons we find that this proposal, like proposals B and
 C in Veterans Administration Medical Center, Augusta, Georgia, does not
 directly interfere with management's determination of the means of
 carrying out its operations.  In this respect the Authority has
 consistently held that a proposal does not violate management's right
 under section 7106(b)(1) to determine the methods and means of
 performing the agency's work if it does not interfere with the
 mission-related purpose for which the Agency established the method or
 means.  See, for example, Long Beach Naval Shipyard, Long Beach,
 California and Federal Employees Metal Trades Council, AFL-CIO, 17 FLRA
 511 (1985).  As we found above, the proposed modifications to the
 prescribed uniform would not conflict with the purpose of ready
 identification for which the Agency requires employees to wear a
 uniform.  We conclude, therefore, that the proposal would not directly
 interfere with management's right to determine the methods and means of
 performing the Agency's work under section 7106(b)(1) and that the
 proposal is within the duty to bargain under the Statute.  See Veterans
 Administration Medical Center, Augusta, Georgia, 21 FLRA No. 13, at 6 of
 slip opinion.  Compare Division of Military and Naval Affairs, State
 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, 106 S.Ct. 137 (1985) (where the
 Authority found that a requirement that National Guard technician
 employees wear a military uniform was an exercise of the right to
 determine methods and means of performing work under section 7106(b)(1)
 of the Statute because of the particular circumstances of technician
 employment).
 
    Because the proposal does not interfere with management's rights
 under section 7106(a)(1) or (b)(1), it is unnecessary to determine
 whether there is "excessive interference" with those rights.  Thus, we
 do not reach the issue of whether the proposal is an appropriate
 arrangement under section 7106(b)(3).
 
                                IV.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain on the Union's proposal.  /3/
 
    Issued, Washington, D.C., February 27, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In its Statement of Position the Agency restated its contention
 that the Union's petition for review was untimely.  The Agency excepted
 to the conclusion, in a letter dated October 2, 1986 from the
 Authority's Director of Case Management, that the Union's petition for
 review was timely.  The Agency claims that its allegation that the
 proposal in question was negotiable only at its election under section
 7106(b)(1) of the Statute was made in writing to the Union on March 18,
 1986.  The Agency was requested to furnish a copy of this letter by the
 Director of Case Management on September 22, 1986.  In view of the fact
 that the letter was not submitted as requested nor was it submitted with
 the Agency Statement of Position, we reject the Agency's contention.
 
    (2) The Union requested permission to file an additional submission,
 which was limited to listing the Federal activities referenced but not
 named in a prior subm sion to the Authority.  Under section 2424.8 of
 our Regulations, we grant the Union's request.
 
    (3) In finding this proposal to be negotiable, we make no finding as
 to its merit.