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47 FLRA No. 121

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2017

(Union)

and

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, U.S. ARMY SIGNAL CENTER

AND FORT GORDON

FORT GORDON, GEORGIA

(Agency)

0-NG-2129

_____

ORDER DISMISSING PETITION FOR REVIEW

July 22, 1993

_____

The Union has filed a petition for review of a negotiability issue in this case. For the reasons set forth below, the Union's petition for review will be dismissed.

The dispute stems from negotiations over the Agency's decision to require certain employees to wear uniforms and, in certain circumstances, to require the employees to deliver and pick up uniforms at a central location during duty hours. The parties failed to reach agreement, and the Union sought the assistance of the Federal Service Impasses Panel (the Panel). While the matter was before the Panel, the Agency implemented its final offer.⁽¹⁾ The Union then filed an unfair labor practice charge with the Regional Director (RD), asserting that the Agency's action violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute.⁽²⁾ The RD declined to issue a complaint, finding that the Agency "was not obligated to bargain at all and that its implementation did not violate the Statute." Attachment to Statement of Position at 3. The Union did not appeal the RD's determination to the General Counsel.

Thereafter, the Union filed the petition for review in this case, seeking a negotiability determination on the following proposal:

Employees may elect to have management clean their uniforms. If the employee elects to have management clean their uniforms, the employer will deliver the clean uniforms and pick up the soiled uniforms to an area within the hospital, convenient to the employee. (The last sentence is alleged to be outside the duty to bargain.)

Reply Brief at 2 (parenthesis in original).

The Agency argues, among other things, that the Union's petition should be dismissed because, based on the RD's determination, it is not obligated to bargain over the proposal. The Union responds that the Authority should resolve the dispute because the RD does not have authority to resolve negotiability issues.

Our review of the RD's determination supports the Agency's position. In this regard, the RD clearly concluded that the substance of the Agency's decision to require the affected employees to wear uniforms was nonnegotiable based on the Agency's right under section 7106(b)(1) of the Statute to determine the methods and means of performing work. However, we do not rely here on this aspect of the RD's determination. Instead, we rely on the RD's determination that, apart from the issue of negotiability, the Agency was "not obligated to bargain at all . . . . " Attachment to Statement of Position at 3. Specifically, the RD found:

the requirement that the[] . . . employees wear [G]overnment-provided uniforms, which are made available at the worksite and delivered to and from cleaning on [G]overnment time does not create any reasonably foreseeable adverse impact. Therefore, management had no duty to bargain over this matter. Where there is no duty to bargain, management may implement at will.

Id. ⁽³⁾

"In the absence of a duty to bargain between the parties, issues as to whether a particular proposal is inconsistent with applicable law, rule or regulation are not appropriate for resolution by the Authority." National Treasury Employees Union and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 15 FLRA 266, 267 (1984) (citation omitted). In this case, the RD determined that the Agency was not obligated to bargain over the Union's proposal and the Union did not appeal the determination to the General Counsel. Accordingly, the Union's petition for review is dismissed. See id.

For the Authority.

_____________________________
Alicia N. Columna
Director, Case Control Office

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The relevant portions of the Agency's final offer are:

Employees who elect to have the employer clean and repair the . . . uniforms shall deliver the soiled uniforms to a point of contact designated by management . . . . Management will direct one of the [employees], on a rotating basis . . . to deliver the soiled uniforms . . . and to pick up the clean uniforms . . . .

Attachment to Statement of Position at 2.

2. While the unfair labor practice charge was pending before the RD, the Panel declined to assert jurisdiction over the dispute.

3. For a discussion of the criteria the Authority applies in determining whether a management-initiated change in working conditions gives rise to a bargaining obligation, see Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986) (SSA). See also Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 576-78 (1992) (Authority applied SSA criteria to find that certain change in working conditions did not have a reasonable foreseeable effect on employees' conditions of employment so as to require the agency to give the union notice and an opportunity to bargain over the impact and implementation of the change).

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