18:0871(102)NG - IBEW Local 640 and Interior, Bureau of Reclamation -- 1985 FLRAdec NG

[ v18 p871 ]
The decision of the Authority follows:

 18 FLRA No. 102
                                            Case No. 0-NG-766
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 relating to the negotiability of one Union proposal.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determination.
                              Union Proposal
          The Employer will provide up to $60.00 to each employee
       required to wear safety shoes for purchase of same.  Each employee
       required to wear protective footwear will have an account which is
       credited with $5.00 per month to provide replacement footwear.
       Upon presentation of receipt for approved safety footwear, the
       balance of the employee's account up to the cost of the same will
       be paid to the employee.
    The proposal would expressly require the Agency to provide funding
 for the purchase of protective footwear for each employee required to
 wear safety shoes in the performance of his/her duties at work.
    The Agency contends that the proposal is inconsistent with Federal
 law, specifically 18 U.S.C. 4124.  /1/ In this regard, Federal
 departments, agencies and all other Government institutions of the
 United States are required under that statutory provision to purchase
 products from Federal Prison Industries, Inc. (FPI).  Under law and
 implementing regulations, such products as authorized by 41 CFR subpart
 1-5.402 /2/ shall be purchased to the extent that they are available and
 meet the requirements of the ordering office.  According to the record
 in the instant case, pursuant to the provisions of the cited law and
 implementing regulations, leather-type protective footwear is purchased
 by the Agency herein and issued at no cost to employees.
    In agreement with the Agency, the Authority concludes that the
 proposal is inconsistent with 18 U.S.C. 4124.  In this regard, that law
 mandates that government required products be purchased from FPI when
 available.  The record establishes that protective footwear is required
 by the Agency and available from FPI.  The proposal, insofar as it would
 allow employees the option of purchasing protective footwear from other
 than FPI, is clearly inconsistent with the statutory requirement.  The
 fact that the proposal does not require the Agency itself to purchase
 the product from other than FPI is not dispositive, contrary to the
 Union's argument.  The proposal would preclude the Agency from complying
 with the mandate of the law and implementing regulations to purchase its
 requirements from FPI.
    The Union essentially contends that, notwithstanding law, the
 proposal is negotiable because it is encompassed by the term "prevailing
 rates and practices," as defined in section 704 of the Civil Service
 Reform Act of 1978.  /3/ The cited law provides for negotiation over
 matters with respect to covered employees without regard to certain
 provisions of law set forth therein.  Contrary to the Union's
 contention, section 704 provides no basis for negotiation over matters
 inconsistent with 18 U.S.C. 4124.  It is a widely recognized rule of
 statutory construction, that, absent a clear intent to the contrary,
 where a statute expressly designates matters which apply to it, matters
 omitted are to be understood as exclusions.  See, e.g., 2A Sands,
 Sutherland on Statutory Construction Sec. 47.23, at 194 (4th ed. 1984).
 Therefore, the Authority concludes that the proposal is inconsistent
 with law and is outside the duty to bargain.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.  /4/ Issued, Washington, D.C., June 28, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ Federal law 18 U.S.C. 4124 currently provides:
          Sec. 4124.  Purchase of prison-made products by Federal
          The several Federal departments and agencies and all other
       Government institutions of the United States shall purchase at not
       to exceed current market prices, such products of the industries
       authorized by this chapter as meet their requirements and may be
          Disputes as to the price, quality, character, or suitability of
       such products shall be arbitrated by a board consisting of the
       Comptroller General of the United States, the Administrator of
       General Services, and the President, or their representatives.
       Their decision shall be final and binding upon all parties.
    /2/ Federal Procurement Regulations provide in relevant part:
          Sec. 1-5.402 Mandatory procurement of prison-made products.
          Federal departments, agencies, and all other government
       institutions of the United States shall purchase the products
       which are produced by FPI and listed in their "Schedule of
       Products Made in Federal Penal and Correctional Institutions"
       (hereinafter called the "Schedule") to the extent that such
       products are available and meet the requirements of the ordering
    /3/ Section 704 provides:
          Section 704.  (a) Those terms and conditions of employment and
       other employment benefits with respect to Government prevailing
       rate employees to whom section 9(b) of Public Law 92-392 applies
       which were the subject of negotiation in accordance with
       prevailing rates and practices prior to August 19, 1972, shall be
       negotiated on and after the date of the enactment of this Act in
       accordance with the provisions of section 9(b) of Public Law
       92-392 without regard to any provision of chapter 71 of title 5,
       United States Code (as amended by this title), to the extent that
       any such provision is inconsistent with this paragraph.
          (b) The pay and pay practices relating to employees referred to
       in paragraph (1) of this subsection shall be negotiated in
       accordance with prevailing rates and pay practices without regard
       to a