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22:0502(53)CA
The decision of the Authority follows:
22 FLRA No. 53
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO
Changing Party
Case No. 5-CA-30334
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
of the attached Administrative Law Judges's Decision filed by the
Respondent and by the General Counsel. The complaint alleged that the
Respondent, Department of the Air Force, Headquarters, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio (the Respondent
or AFLC), violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by unilaterally
implementing a new policy prohibiting those employees required to wear
respirators from having facial hair while negotiations concerning the
policy were being held and before impasse was reached in the
negotiations.
II. Facts
The facts are not in dispute. The Respondent requested and
interpretation of the Occupational Safety and Health Administration
(OSHA) standard on respirator use and safety (29 C.F.R.
1910.134(e)(5)(1)) from the Dallas Regional Office of OSHA. The
question was whether employees who are required to wear respirators in
their work may have facial hair at the sealing surface. The OSHA
Regional Office advised the Respondent that facial hair at the sealing
surface of the respirator would constitute a violation of its standard.
The Respondent then notified the American Federation of Government
Employees, Council 214, AFL-CIO (Union) by letter dated April 25, 1983,
that the following policy would apply throughtout the Agency.
Any observable facial hair in the facepiece-to-face sealing
surface will cause a fit-test failure and the employee can be
directed to shave in the sealing area. When the employee has
shaven, he will be re-fit-tested to determine when a safe seal is
achieved.
The old policy permitted employees who were required to use
respirators in their work to have facial hair as long as it would not
interfere with the respirator sealing surface as determined by the
Respondent during a respirator fit test. The letter stated that the
change was necessary because the Respondent was anticipating a change in
an Air Force Regulation, AFOSH Std. 161-1, Respiratory Protection
Program, and because of OSHA's interpretation of 29 CFR 1910.134. The
letter announced the Respondent's intention to implement the policy as
of May 27, 1983, and invited the Union to negotiate concerning the
"impact/implementation" of this policy.
The Union submitted proposals regarding the change on May 10, 1983.
(The proposals are set forth in the attached Appendix). On May 26, the
Respondent sent the Union a letter which said, "We regret that you have
chosen to submit proposals that are, taken as a whole, beyond the realm
of reasonableness." It went on to say that due to the over-riding
exigency of a safe and healthful workplace, the policy would be
implemented throughout AFLC on May 27, 1983.
Despite the May 26 letter, the parties met on May 27 to negotiate.
After that date the parties did not meet again, and on July 8, 1983, the
Respondent informed the Union that the Union's proposals submitted on
May 10 were nonnegotiable because they were not "valid impact and
implementation proposals," and that they either directly conflicted with
the Respondent's new policy or did not relate to it. It is uncontested
that the Respondent ordered implementation of the new facial hair policy
at seven bases within AFLC on May 27, 1983. Time and method of
implementation varied among the bases.
III. Administrative Law Judge's Decision
The Judge found that the Respondent was not obliged to negotiate over
the substance of the change in the facial hair policy because the Union
had waived its rights by agreeing in the parties' June 28, 1982 Master
Labor Agreement (MLA) to language which required the Respondent to
comply with Executive Order 12196 as implemented by the Department of
Defense (DOD), which required agencies to follow OSHA standards unless
the agency secured approval from the Secretary of Labor for the use of
an alternative standard. In the instant situation, no alternative
standard was sought or approved.
The Judge found further that the Respondent, even where privileged to
make a change in working conditions, is still obliged to negotiate
concerning the impact and procedures for implementing such change. He
concluded that the Respondent here did not fulfill this obligation,
finding that certain of the Union's proposals dealt with the impact on
employees and the procedures for implementing the change. The Judge
therefore concluded that the Respondent violated section 7116(a)(1) and
(5) of the Statute and recommended that it be ordered to cease and
desist from such conduct and to take certain affirmative action. The
Judge did not order a status quo ante remedy as requested by the General
Counsel.
IV. Positions of the Parties
The Respondent excepted to the Judge's finding of a violation,
asserting that its change in the established facial hair policy did not
constitute a unilateral change in conditions of employment because the
Union already had negotiated concerning this matter and because the
Respondent was merely complying with the collective bargaining
agreement. The Respondent contended that, by agreeing to the language
in the MLA, the Union had agreed to the application of OSHA standards
which included the imposition of the new standard. Further, the
Respondent contended that the Union's proposals sought to make
implementation of the new policy voluntary or otherwise constituted
proposals unrelated to the impact and implementation of the change.
The General Counsel excepted to the Judge's conclusion that the Union
had waived its right to bargain concerning the substance of the change
in policy, and also excepted to the Judge's denial of a status quo ante
remedy for the impact and implementation violation.
V. Analysis
In agreement with the Judge, the Authority finds that the Respondent
did not violate section 7116(a)(1) and (5) of the Statute by instituting
the new facial hair policy without bargaining over the substance of the
change. Thus, as the Judge found, the Union clearly and unmistakably
waived its right to do so by agreeing to the terms of the MLA. the
Authority further finds, however, that there was no clear and
unmistakable waiver of the Union's right to bargain over the procedures
which the Respondent would observe in exercising its authority with
regard to the change in its facial hair policy for employees required to
wear respirators in their work and concerning appropriate arrangements
for employees adversely affected by such change. See U.S. Department of
Labor, Occupational Safety and Health Administration, Chicago, Illinois,
19 FLRA No. 60 (1985). In this regard, the Authority finds that certain
proposals submitted by the Union concerned the procedures which the
Respondent would observe in exercising its authority with regard to
changing its facial hair policy, and concerning appropriate arrangements
for employees adversely affected by such change. Thus, we conclude that
the Respondent violated the Statute when it implemented the change in
its facial hair policy without negotiating with the Union concerning
such procedures and appropriate arrangements.
Turning to the specific Union proposals, the Authority finds that
proposals 9 and 13 are negotiable. Proposal 9 would merely require the
Respondent to inform new employees hired into positions requiring the
use of a respirator that they should not grow facial hair in the
facepiece-to-face sealing surface area. The Respondent admitted that
this is not in conflict with the MLA which already obligates it to train
and advise new employees on the proper use of respirators. Proposal 13
states that "supervisors will not harass employees in any way in
connection with facial hair in the facepiece-to-face sealing surface."
The proposal does not infringe on management's right to direct or
require employees to comply with the new facial hair policy. Nor does
it prevent management from acting to enforce such policy. The proposal
simply provides that management will not go beyond what it can legally
do to require compliance, that is, the proposal simply provides that
management cannot "harass" employees.
The Authority finds that Union proposal 1, which would delay the
Respondent's implementation of the new facial hair policy until higher
level management (the Air Force) revised its regulations, is not
negotiable. On its face, such proposal appears to be a negotiable
procedure. However, when it agreed to the language in the MLA regarding
compliance with OSHA standards, the Union waived its right in this
respect. Specifically, the MLA requires compliance with Executive Order
12196 which directs agencies to assure prompt abatement of unsafe or
unhealthy working conditions under the OSHA standards. Compliance in
this regard is not preconditioned upon the promulgation of internal
regulations by the Air Force. Accordingly, there was no duty to bargain
over this proposal.
The Authority finds Union proposal 2 which seeks a National OSHA
interpretation of 29 CFR 1910.134(e)(5)(i) and Union proposal 18 which
states that the MLA would prevail if any conflict arose between this
agreement and the MLA, are nonnegotiable because the intent of these
proposals, as they relate to the change, is not evident on their face.
Standing alone, they do not relate to the impact or procedures for
implementing the change. The Authority finds also that Union proposals
3, 4, 5 and 6 dealing with the elimination of toxic chemicals, the use
of other controls for a safe work environment and a limitation on the
use of respirators, are nonnegotiable as they go beyond the impact or
procedures for implementing the change in the facial hair policy.
The Authority finds that Union proposals 7 and 8 also are
nonnegotiable. Union proposals 7 and 8 provide:
7. AFLC agrees to provide employees with facial hair an
appropriate respirator which allows them to maintain facial hair
of their preference.
8. AFLC agrees that if an employee with facial hair of his
preference cannot be test-fitted with an appropriate respirator
(including full mask, helmet, etc.), he will be reassigned to
another suitable position of like pay, grade, and benefits so as
not to discriminate against employees who elect to have facial
hair.
It is concluded that they are nonnegotiable because they set up a
test which would leave to the employee's discretion rather than
management's whether an employee could maintain facial hair. If the
employee decides to keep his facial hair, these proposals would require
management to find an appropriate respirator so the employee could
continue to work on his assigned job, or if an appropriate respirator
cannot be found, the employee would be reassigned to another suitable
position without the loss of any benefits or pay. Taken together, these
proposals would infringe on management's right to direct employees,
assign work and determine the technology of performing work, that is,
the particular type of respirator which will be used, and are otherwise
inconsistent with the mandatory nature of the new policy that employees
be clean shaven in the facepiece-to-face sealing area. See National
Federation of Federal Employees, Local 1624 and Air Force Contract
Management Division, Hagerstown, Maryland, 3 FLRA 142 (1980) and
National Federation of Federal Employees, Local 943 and Department of
the Air Force, Headquarters Keesler Technical Training Center, Keesler
Air Force Base, Mississippi, 19 FLRA No. 113 (1985) (Union Proposal 2).
Union proposal 15 would reserve to the Union the right to make
additional proposals as more information became available regarding the
use and safety of respirators. The Respondent argued that the proposal
conflicts with the MLA as to when proposals can be submitted with regard
to proposed management changes. The Union did not submit a position as
to whether the Respondent's stated position was correct. Therefore, the
Authority will find this proposal is nonnegotiable because it conflicts
with the parties' MLA as interpreted by the Respondent without
contradiction.
As to the remaining Union proposals, 10 through 12, 14, 16 and 17,
The Authority finds these proposals, the collective intent of which
clearly was to make the implementation of the new facial hair policy
voluntary, are nonnegotiable as they are directed toward changing the
policy. The Authority finds that these proposals go to the substance of
the policy and, as previously noted, are not negotiable as the Union
waived its right in this respect.
VI. Remedy
The Judge did not grant a status quo ante remedy as requested by the
General Counsel. In agreement with the Judge, the Authority finds that
such a remedy is not warranted. Thus, balancing the nature and
circumstances of the bargaining violation against the degree of
disruption in the efficiency and effectiveness of the Respondent's
operations that would be caused by such a remedy, and taking into
consideration the various factors set forth in Federal Correctional
Institution, 8 FLRA 604 (1982), the Authority concludes that such a
remedy would not effectuate the purposes and policies of the Statute.
Thus, the Authority notes that the Respondent gave the Union prior
notice of its intent to implement the new facial hair policy and invited
the Union to bargain concerning its impact and implementation; that the
parties met to discuss the Union's proposals; that the Respondent's
conduct does not appear willful; and that the General Counsel has not
demonstrated the nature and extent of the impact of the new policy on
unit employees. Also, it appears that a return to the old policy would
be disruptive to the efficiency and effectiveness of the Respondent's
operation, as the Respondent implemented the new policy to conform with
OSHA standards relating to the protection, safety and health of
employees required to use respirators in their work. Under these
circumstances, and where the Respondent acted to abate what it perceived
as an unsafe and unhealthy situation for employees, the Authority finds
that a return to the pre-existing policy would not promote an efficient
and effective government.
VII. 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 prejudical error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the positions of the parties and the entire
record, and adopts the Judge's findings, conclusions, and recommended
Order as modified by this decision.
Therefore, having found Union proposals 9 and 13 negotiable, the
Authority concludes that the Respondent violated section 7116(a)(1) and
(5) of the Statute by implementing its new facial hair policy while
failing and refusing to negotiage over such proposals with Union.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Department of the Air Force, Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, shall:
1. Cease and desist from:
(a) Failing and refusing to meet and negotiate with the
American Federation of Government Employees, Council 214, AFL-CIO,
the employees' exclusive representative, over negotiable proposals
with respect to the procedures which it will observe in exercising
its authority with regard to changes in its facial hair policy for
employees required to wear respirators in their work and
concerning appropriate arrangements for employees adversely
affected by such change.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Upon request, meet and negotiate with the American
Federation of Government Employees, Council 214, AFL-CIO, the
employees' exclusive representative, concerning any proposal found
negotiable herein, submitted in connection with the Respondent's
change in its facial hair policy for employees required to wear
respirators in their work.
(b) Post at all of its facilities where bargaining unit
employees are located 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 Commanding Officer, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply with the
Order.
IT IS FURTHER ORDERED that the allegation of the complaint in Case
No. 5-CA-30334 relating to the Respondent's refusal to negotiate over
those proposals found nonnegotiable be, and it hereby is, dismissed.
Issued, Washington, D.C., July 10, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
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 fail and refuse to meet and negotiate with the American
Federation of Government Employees, Council 214, AFL-CIO, our employees'
exclusive representative, over negotiable proposals with respect to the
procedures which we will observe in exercising our authority with regard
to changes in our facial hair policy for employees required to wear
respirators in their work and concerning appropriate arrangements for
employees adversely affected by such change.
WE WILL NOT in any like or related manner interfer with, restrain, or
coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL, upon request, meet and negotiate with the American
Federation of Government Employees, Council 214, AFL-CIO, our employees'
exclusive representative, concerning any proposal found negotiable
herein, submitted in connection with our change in the facial hair
policy for employees required to wear respirators in their work.
(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 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 V, Federal Labor Relations Authority, whose address is:
175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL 60604, and whose
telephone number is: (312) 353-6306.
APPENDIX
Memorandum of Agreement on Facial Hair in the Facepiece-to-Face Sealing
Surface
1. AFLC agrees to delay its proposal of 25 April 1983 concerning the
above until after HQ USAF, AFMSC/SGPA has changed AFOSH Std 161-1
Respiratory Protection Program in accordance with the Statute.
2. AFLC agrees to jointly request with AFGE Council 214 the National
OSHA position in regard to their interpretation of Title 29, Section
1910.134(e)(5)(i).
3. AFLC agrees to provide AFGE Council 214 a target date when it
expects to eliminate, exhaust or enclose all toxic chemicals; thereby
eliminating the need or requirement for respirators.
4. AFLC agrees that respirators will be used only when engineering,
work practice, or administrative controls are not feasible and as a
temporary control for the time it takes to put any other control(s) into
use.
5. AFLC agrees to provide AFGE Council 214 with a copy of the
report(s) derived from item 4 above as required under Section 1910.1000,
Subsection e, page 632 of Title 29.
6. AFLC agrees that respirators will be used only for Respiratory
Hazard Task/Area(s), and their use will be in accordance with
appropriate directives.
7. AFLC agrees to provide employees with facial hair an appropriate
respirator which allows them to maintain facial hair of their
preference.
8. AFLC agrees that if an employee with facial hair of his
preference cannot be test-fitted with an appropriate respirator
(including full mask, helmet, etc.), he will be reassigned to another
suitable position of like pay, grade, and benefits so as not to
discriminate against employees who elect to have facial hair.
9. AFLC agrees that new employees hired into a position requiring
the use of a respirator will be informed that if they decide to grow
facial hair, it should not be in the facepiece-to-face sealing surface.
10. AFLC agrees that no employee will be directed to shave any
observable facial hair in the facepiece-to-face sealing surface.
11. AFLC agrees that employees with observable facial hair in the
facepiece-to-face sealing surface and voluntarily agree to shave will be
allowed to do so on official time.
12. AFLC agrees to provide employees razor blades, shaving kits,
soaps, water, etc. of their choice so they may voluntarily shave any
observable facial hair in the facepiece-to-face sealing surface on
official time.
13. AFLC agrees that supervisors will not harass employees in any
way in connection with facial hair in the facepiece-to-face sealing
surface.
14. AFLC agrees to provide adequate training and guidance to all
employees required to wear respirators with observable facial hair in
the facepiece-to-face sealing surface including the hazards of a
fit-test failure.
15. AFGE Council 214 reserves the right to make additional proposals
as more information becomes available and deemed appropriate.
16. AFLC agrees that in those areas where the report(s), item 5
above, indicate feasibility, limiting the exposure period to safe levels
will be allowed to all employees with observable facial hair in the
facepiece-to-face sealing area.
17. AFLC agrees that in those areas where the report(s), item 5
above, indicate feasibility, facial grease or vaseline will be allowed
to all employees with observable facial hair in the facepiece-to-face
sealing area.
18. It is understood and agreed that no rights the employees, Union,
or Employer have under the Master Labor Agreement (MLA) or Statute are
waived by this agreement. If any conflicts arise between the MLA and
this agreement, the MLA will prevail and is enforceable.
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ALJ decision not available. [ ALJNOTAVAILABLE$ ]
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