American Federation of Government Employees, AFL-CIO, Local 1928 (Union) and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania (Activity) 

 

 2 FLRA No. 62
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1928
 (Union)
 
 and
 
 DEPARTMENT OF THE NAVY
 NAVAL AIR DEVELOPMENT CENTER
 WARMINSTER, PENNSYLVANIA
 (Activity)
 
                                            Case No. 0-NG-13
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                              UNION PROPOSAL
 
    (C)IVILIAN AND OFFICER PERSONNEL WHO ARE ENGAGED IN FOOT HAZARDOUS
 OPERATIONS AND WHO ARE REQUIRED TO WEAR FOOT PROTECTION (SHALL) BE
 PROVIDED WITH SAFETY SHOES WITHOUT CHARGE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL FALLS WITHIN THE DUTY TO
 BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 (THE STATUTE), OR WHETHER, AS ALLEGED BY THE AGENCY, THE DUTY TO BARGAIN
 DOES NOT EXTEND TO THE PROPOSAL IN VIEW OF PUBLISHED AGENCY REGULATIONS,
 PURSUANT TO SECTION 7117(A)(2) OF THE STATUTE.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE AGENCY HAS FAILED TO SUPPORT ITS ALLEGATION THAT THE
 UNION'S PROPOSAL FALLS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7117(A)(2) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF
 THE AUTHORITY'S RULES AND REGULATIONS(44 FED. REG.  44740 ET
 SEQ.(1979)), THE AGENCY'S ALLEGATION IS SET ASIDE.  /2/
 
    REASONS:  THE PROPOSAL AT ISSUE ESSENTIALLY WOULD REQUIRE THE
 ACTIVITY TO PROVIDE, WITHOUT CHARGE, SAFETY SHOES FOR EMPLOYEES REQUIRED
 TO WEAR FOOT PROTECTION IN THE COURSE OF THEIR WORK.  THE DEPARTMENT OF
 DEFENSE (THE AGENCY) ALLEGES THAT NEGOTIATION OF THIS PROPOSAL IS
 BARRED, UNDER SECTION 7117(A)(2) OF THE STATUTE, BY AN AGENCY REGULATION
 (DOD INSTRUCTION 6055.2) /3/ WHICH, ACCORDING TO THE AGENCY, "REQUIRES
 THAT COMPONENTS OF THE DEPARTMENT OF DEFENSE PROVIDE ANY REQUIRED
 PERSONAL PROTECTIVE EQUIPMENT AT GOVERNMENT EXPENSE . . .  (INCLUDING)
 SAFETY SHOES FOR EMPLOYEES REQUIRED TO WEAR FOOT PROTECTION." THIS
 PARTICULAR REGULATION WAS RAISED FOR THE FIRST TIME BY THE AGENCY IN ITS
 STATEMENT OF POSITION TO THE AUTHORITY, IN RESPONSE TO THE UNION'S
 PETITION FOR REVIEW.  /4/ THE AGENCY'S SOLE ARGUMENT IN SUPPORT OF ITS
 ALLEGATION IS AS FOLLOWS:
 
    NO DETERMINATION HAS BEEN MADE BY THE AUTHORITY THAT NO COMPELLING
 NEED EXISTS FOR DOD
 
    INSTRUCTION 6055.2;  NO UNION HAS RAISED A QUESTION AS TO THE
 COMPELLING NEED FOR THAT
 
    REGULATION;  AND THEREFORE THE DUTY TO BARGAIN, PURSUANT TO 5 U.S.C.
 7117(A)(2), DOES NOT
 
    EXTEND TO THE MATTER AT ISSUE HERE.
 
    IN THIS CONNECTION, THE AGENCY DOES NOT EXPLAIN WHY THE UNION SHOULD
 HAVE BEEN EXPECTED TO ANTICIPATE A QUESTION REGARDING THE COMPELLING
 NEED FOR THIS AGENCY REGULATION WHICH, AS INDICATED, HAD NOT PREVIOUSLY
 BEEN RELIED UPON BY THE AGENCY.  FURTHER THE AGENCY DOES NOT ADVERT TO
 ANY CONFLICT BETWEEN THE PROPOSAL AND THE REGULATION.  MOREOVER, THE
 AGENCY DOES NOT MAKE ANY SHOWING WHATSOEVER TO SUPPORT A FINDING BY THE
 AUTHORITY THAT A COMPELLING NEED DOES EXIST FOR THE REGULATION IN
 QUESTION TO BAR NEGOTIATIONS ON THE UNION'S PROPOSAL.
 
    THE DUTY TO BARGAIN IN GOOD FAITH UNDER SECTION 7117 OF THE STATUTE
 EXTENDS IN GENERAL TO MATTERS WHICH ARE THE SUBJECT OF AGENCY RULES AND
 REGULATIONS WHICH ARE NOT GOVERNMENT-WIDE RULES AND REGULATIONS, TO THE
 EXTENT THEY ARE NOT INCONSISTENT WITH FEDERAL LAW.  /5/ WHEN THERE IS A
 "COMPELLING NEED," HOWEVER, FOR PARTICULAR INTERNAL AGENCY RULES AND
 REGULATIONS TO PREVAIL VIS A VIS PARTICULAR CONFLICTING UNION BARGAINING
 PROPOSALS, SUCH RULES AND REGULATIONS WILL STAND AS BARS TO NEGOTIATION
 ON SUCH PROPOSALS.  THEREFORE, INTERNAL AGENCY RULES AND REGULATIONS,
 SUCH AS THE DOD INSTRUCTION INVOLVED IN THE PRESENT CASE, MAY BAR
 NEGOTIATIONS ON CONFLICTING COLLECTIVE BARGAINING PROPOSALS WHEN, UNDER
 THE STATUTE, A COMPELLING NEED FOR SUCH A RESULT IS DETERMINED TO EXIST
 BY THE AUTHORITY PURSUANT TO SUBPART B OF ITS RULES.  /6/
 
    HENCE, IN A PROCEEDING BEFORE THE AUTHORITY SUCH AS THE INSTANT CASE
 INVOLVING AN ALLEGATION BY AN AGENCY THAT A UNION PROPOSAL IS NOT WITHIN
 THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) OF THE STATUTE BECAUSE OF
 AN INTERNAL AGENCY REGULATION RAISED SPECIFICALLY FOR THE FIRST TIME IN
 THE AGENCY'S STATEMENT OF POSITION, THE AGENCY BEARS THE BURDEN OF
 COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS ASSERTION THAT THE
 REGULATION IN QUESTION BARS NEGOTIATIONS BECAUSE, IMPLICITLY, A
 COMPELLING NEED EXISTS FOR THE REGULATION.  THIS IS CONSISTENT WITH THE
 REQUIREMENT IN THE AUTHORITY'S RULES CONCERNING THE REVIEW OF
 NEGOTIABILITY ISSUES THAT AN AGENCY'S STAT