[ v32 p200 ]
The decision of the Authority follows:
32 FLRA No. 34
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS
LOCAL LODGE 2424
U.S. ARMY ABERDEEN PROVING GROUND
Case No. 0-NG-1476
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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). It concerns the negotiability of a single proposal involving appropriate protective clothing to be worn in certain areas of the Agency. We find the proposal to be negotiable because it concerns a condition of employment and does not interfere with management rights under section 7106 of the Statute.
II. Procedural Issue
The Agency contends that this dispute is not properly before us. The Agency describes the Disposition Form (DF) to which the Union's proposal responds as merely an elaboration on the existing policy which previously had been the subject of bargaining. The Agency explains that it promulgated the DF only because the current policy was not being completely followed.
The Agency argues that because the DF did not cause any unilateral change in conditions of employment, the proposal is the result of the Union's effort to seek midterm bargaining. Although the Agency acknowledges that our decision in Internal Revenue Service, 29 FLRA 162 (1987), authorizes union-initiated midterm bargaining, it suggests that the holding there should be reexamined and reversed.
Even if Internal Revenue Service is not reversed, the Agency contends that negotiation over the disputed proposal is barred. The Agency equates this case with the second of the two categories of waiver described in that decision. We described that category of waiver as follows:
The second category of waiver, clear and unmistakable waiver as evidenced by bargaining history, concerns subject matters which were discussed in contract negotiations but which were not specifically covered in the resulting contract. In this category waiver may be found, based on a case-by-case analysis of the facts and circumstances of each case, where the subject matter of the proposal offered by the union during mid-term bargaining negotiations was fully discussed and explored by the parties at the bargaining table.
Id. at 176. See also U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231 (1988), and Missouri National Guard, Office of the Adjutant General, Jefferson City, Missouri, 31 FLRA 1244 (1988).
The Agency contends that the Internal Revenue Service holding compels a finding that the Union has waived its right to make the disputed proposal, since the proposal's subject matter, in its view, was fully explored in the course of prior negotiations.
Even if we were to accept the Agency's position, we are nonetheless obligated to render the negotiability determination sought by the Union. Under part 2424 of our Rules and Regulations, we consider a petition for review of negotiability issues where the parties dispute whether a matter proposed for bargaining is inconsistent with law, rule or regulation. The Agency claims that the proposal conflicts with its rights under the Statute to assign work and to determine its internal security practices. Since the conditions for review have been met, the Union is entitled to our determination despite the presence of additional factual issues concerning the obligation to bargain over the proposal. American Federation of Government Employees, Local 3884, AFL-CIO and Veterans Administration Medical and Regional Office Center, Fargo, ND, 30 FLRA 10 (1987), petition for review filed sub nom. Veterans Administration Medical and Regional Office Center, Fargo, North Dakota v. FLRA, No. 88-1010 (D.C. Cir Jan. 6, 1988).
To the extent that there are additional issues concerning the duty to bargain over the disputed proposal, they should be resolved either in an unfair labor practice or grievance proceeding. American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769 (1987).
III. Background Concerning the Agency Policy
The published Agency policy and the DF issued subsequently require, among other things, that employees wear long pants while working in industrial, range and laboratory areas. The Agency indicates that the employees involved work on weapon firing ranges and test light and heavy combat equipment such as tanks and other wheeled and tracked vehicles. Long pants, the Agency asserts, protect the workers from hazards connected with such work. The Agency particularly emphasizes that the outdoor areas where employees may have to work are high risk areas for a virulent disease transmitted by ticks. The Agency's medical staff has recommended as preventive measures that personnel in those areas cover exposed parts of the body with clothing and apply a specific type of tick repellent which should not come into direct contact with the skin. Therefore, according to the Agency, the sole purpose of the long pants requirement is to protect affected employees from hazards in their work.
Shorts are permissible in industrial, range and laboratory areas where non-hazardous material[s] are being used, so long as no detriment results to the employee and no safety or health hazards [are] involved.
A. Positions of the Parties
The Agency contends that the proposal interferes with its rights to assign work and to determine its internal security practices. Regarding the right to assign work, the Agency argues that it would be unable to assign hazardous duties to an improperly attired employee. The Agency contends that the right to determine internal security practices includes the authority to safeguard its personnel. The Agency concludes that by preventing management from requiring that protective clothing be worn, the proposal interferes with that right.
The Union contends that the Agency policy concerns a working condition and that it is not supported by a compelling need. The Union also characterizes the policy as a dress code in the guise of a safety requirement.
1. The Proposal Does Not Interfere with the Right to Assign Work
The Agency contends that the proposal is inconsistent with the right to assign work under section 7106(a)(2)(B) of the Statute because safety and health considerations would prevent the assignment of certain duties to employees who were not wearing the appropriate clothing. However, there is no express requirement in the proposal that specific assignments be made or be discontinued. Therefore, the proposal, on its face, does not interfere with the right to assign work. The proposal is distinguishable from those dealing with safety and health matters which have been found to be nonnegotiable because they required management to make particular assignments and discontinue others. See, for example, International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 143-44 (1987) (Provisions 33 and 34) (nonnegotiable provisions would have required agency to assign certain duties and refrain from assigning others to employees in a "light duty status"). Compare American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130 (1988) (Provision 3) (negotiable provision barred overtime assignments when such work would adversely affect employee's health and safety as determined by agency's own medical authorities).
The proposal permits employees to wear shorts in certain areas where non-hazardous materials are used and when no safety or health hazards would result from wearing shorts. The conditions stated in the proposal reflect the Union's view that the Agency's policy represents a dress code. The Union's objective is to ease the Agency's outright ban on wearing shorts. The conditions mentioned also reflect the Union's desire to accommodate the Agency's safety and health concerns. Thus, in our view, this proposal applies only in situations not involving the hazards which the Agency seeks to abate by its dress requirement. Consequently, we find that the proposal does not in any manner restrict the Agency's right to assign work to employees.
Moreover, the proposal does not relieve employees of their responsibility to be prepared to perform any and all duties which could be assigned. Hence, the employees would have to anticipate working in areas and circumstances not covered by the proposal's authorization to wear shorts. Any employee who could not be assigned to work in hazardous situations because he or she was wearing inappropriate attire and did not have long pants available would not, under this proposal, be insulated from the consequences, including disciplinary action, of not being ready to perform assigned work. Accordingly, the proposal does not interfere with the Agency's right to assign work under section 7106(a)(2)(B).
2. The Proposal Does Not Concern the Agency's Internal Security Practices
Internal security practices involve measures that management takes to protect its personnel and property from internal and external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of its activities or operations. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA 6, 9 (1984) (Proposal 2), enforced sub nom. FLRA v. Office of Personnel Management, 778 F.2d 844 (D.C. Cir. 1985). See also, Defense Logistics Council of American Federation of Government Employee Locals and Defense Logistics Agency, 20 FLRA 166 (1985) aff'd in relevant part sub nom. Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234 (D.C. Cir. 1987).
We find that the proposal does not interfere with the Agency's right, under section 7106(a)(1) of the Statute to determine those internal security practices. In rejecting the Agency's claim that the proposal interfered with the Agency's right to assign work, we noted that the proposal permitted employees to wear shorts only in certain areas where non-hazardous materials were used and when no safety and health hazards would result from wearing shorts. We found that the proposal applied only in situations not involving the hazards which the Agency sought to abate by its dress requirement. Thus, we concluded that the proposal did not in any manner restrict the Agency's right to assign work.
Similarly, the proposal does not interfere with the Agency's ability to protect its employees from health and safety hazards. The proposal permits unit employees to wear shorts only in areas where "non-hazardous material[s]" are used and only where "no safety or health hazards" are involved. By its terms, therefore, the proposal also does not interfere with the Agency's right to determine its internal security practices. Consequently, we find that the proposal does not in any manner conflict with the objective of the Agency to protect employees.
As we have noted, the proposal recognizes that there are situations in which wearing shorts would be inappropriate because of safety and health considerations. Any differences over the interpretation of the proposal would be resolved through the parties' negotiated grievance procedure. Any resultant arbitration award could be reviewed and evaluated by means of exceptions filed with us under section 7122(a) of the Statute and part 2425 of our Rules and Regulations. See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987). However, in view of the health and safety concerns involved here, we would expect the parties to act both responsibly and expeditiously in resolving any disputes over interpretation of the proposal.
Accordingly, based on the reasoning and cases set out above, the proposal is within the duty to bargain.
The Agency must, upon request, or as otherwise agreed to by the parties, bargain concerning the proposal.(*)
Issued, Washington, D.C.,
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
(If blank, the decision does not have footnotes.)
*/ In finding the proposal to be within the duty to bargain, we make no judgment as to its merits.