26:0785(93)NG - NFFE, Local 1827, and Defense Mapping Agency, Aerospace Center -- 1987 FLRAdec NG



[ v26 p785 ]
26:0785(93)NG
The decision of the Authority follows:


 26 FLRA No. 93
 
 NATIONAL FEDERATION OF 
 FEDERAL EMPLOYEES, LOCAL 1827
 Union
 
 and
 
 DEFENSE MAPPING AGENCY 
 AEROSPACE CENTER
 Agency
 
                                            Case No. 0-NG-1134
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    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) and concerns the
 negotiability of four proposals.  /1/ The proposals concern an eye care
 program operated by the Defense Mapping Agency (the Agency).  Under this
 program, the Agency provides vision testing (reading eye charts),
 glaucoma testing and in some cases stereoscopic vision testing for
 employees as well as safety glasses for employees whose job duties
 necessitate them.  As set forth below, we find Proposal 1 nonnegotiable
 and Proposals 2, 3, and 4 negotiable.
 
    II.  Laws, Regulations, and Comptroller General Decisions Which
 Govern Health Service Programs and Protective Equipment for Employees
 
    5 U.S.C. section 7901 authorizes Federal agencies to provide health
 service programs for their employees and sets out the type of services
 which may be provided.  /2/ The services which these health care
 programs can provide are limited to:  (1) treatment of on-the-job
 illness or injury;  (2) preemployment and other examination;  (3)
 referral of employees to private physicians and dentists;  and (4)
 preventive programs.  Regulations issued by the office of Personnel
 Management (OPM), which implement section 7901 and reflect the statutory
 limitations, appear in Federal Personnel Manual (FPM) Chapter 792.
 Under these OPM regulations, the examination and preventive programs
 authorized include vision and glaucoma testing.  FPM Supplement 792-1,
 Subchapters S2-5 and S4-3.
 
    The Occupational Safety and Health Act of 1970 (OSHA) requires
 agencies to establish occupational safety and health programs which
 include providing employees with necessary personal protective
 equipment.  29 U.S.C. section 668(a).  Under implementing regulations
 agencies are required to provide protective eye equipment whenever
 necessary by reason of exposure to workplace hazards which could cause
 injury to employees.  29 CFR section 1910.132-3.  Also, under 5 U.S.C.
 section 7903 Agency funds "are available for the purchase and
 maintenance of special clothing and equipment for the protection of
 personnel in the performance of their assigned tasks." In deciding
 questions as to the propriety of payments made from public monies, /3/
 the Comptroller General has ruled that for protective equipment to be
 purchased under authority of section 7903, the employee must be engaged
 in hazardous work.  For example, 63 Comp. Gen. 278 (1984).
 
    The Comptroller General has also ruled on the general issue of when
 appropriated funds may be spent for the purchase of items which could be
 considered personal equipment.  See, for example, 63 Comp. Gen. 278
 (1984), 61 Comp. Gen. 634 (1982);  56 Comp. Gen. 398 (1977);  45 Comp.
 Gen. 215 (1965), and 3 Comp. Gen. 433 (1924).  Under those decisions
 public funds may be spent for such items when it is determined that:
 (1) the Government, rather than the employee, receives the primary
 benefit from the equipment;  and (2) the equipment is not a personal
 item which the employee should furnish.  In ruling on the question of
 whether appropriated funds may be spent for medical examinations and
 treatment of employees the Comptroller General has applied a criterion
 similar to (1).  41 Comp. Gen. 531 (1962), 41 Comp. Gen 387 (1961), and
 30 Comp. Gen. 387 (1951).
 
    III.  Proposal 1
 
          The employer agrees to provide eye examinations to all unit
       employees who are advised to seek further examination or reimburse
       the employee for expenses if he/she goes to a private
       ophthalmologist.
 
    A.  Positions of the Parties
 
    The Agency maintains that neither 5 U.S.C. section 7901 et seq., the
 Federal statute which establishes guidelines for employee health service
 programs, nor decisions of the Comptroller General interpreting this
 statute authorize the expenditure of funds required by Proposal 1.  The
 Agency also asserts that the proposal does not concern a condition of
 employment because there is no connection between the proposal and the
 employment relationship.
 
    The Union asserts that all of the proposals at issue in this case
 contain the same provisions as the Agency' regulations on eye care and
 safety glasses.  The Union argues that none of the expenditures required
 by the proposals violate law or regulation.
 
    B.  Analysis and Conclusions
 
    1.  The Proposal Concerns a Condition of Employment
 
    Under our decision in Antilles Consolidated Education Association and
 Antilled Consolidated School System, 22 FLRA No. 23 (1986), a proposal
 concerns a condition of employment if:  (1) it pertains to bargaining
 unit employees;  and (2) there is a direct connection between the
 proposal and the work situation or employment relationship of those
 employees.  The proposal literally applies to bargaining unit employees
 and clearly meets the first criterion.  For the following reasons we
 find that it meets criterion (2), as well.  This proposal requires the
 Agency to provide certain employee health services.  In 5 U.S.C. section
 7901 Congress expressly authorized agencies to provide health services
 to their employees.  The history of the legislation which became section
 7901 indicates that Congress considered that Federal employee health
 programs would contribute to reducing employee turnover and absenteeism
 and to increasing efficiency and productivity.  /4/
 
    In view of this Congressional purpose and intent in enacting section
 7901, we find the Agency's argument that the proposal does not concern a
 condition of employment -- that is, "personnel policies, practices, and
 matters . . . affecting working conditions" -- is not supportable.  5
 U.S.C. section 7103 (a)(14).  Rather, by enacting 5 U.S.C. section 7901,
 Congress made employees' health services a matter which is directly
 related to the work situation and employment relationship.  The
 Authority set forth this factor in Antilles Consolidated Education
 Association and Antilles Consolidated School System, 22 FLRA No. 23
 (1986), for determining whether a proposal concerns conditions of
 employment.
 
    2.  The Proposal Is Inconsistent with Federal Law
 
    The Union claims that, because the employees work in an "industrial
 atmosphere" and that some of the work involved is "extremely hard on the
 eyes," there is a connection between the eye examinations and their
 occupations.  However, it has provided no basis for the Authority to
 conclude that, even if its claim is true, the particular circumstances
 cited cause glaucoma or defective vision.  Thus, it does not appear that
 the examinations referred to in the proposal are related to occupational
 illnesses or injuries or to providing employees with protective eye
 equipment.  Rather, it appears that the proposal relates to those
 instances where, as a consequence of vision or glaucoma testing provided
 by the Agency under 5 U.S.C. section 7901 and FPM Chapter 792, it is
 recommended that an employee undergo further examination and/or
 treatment.  We conclude that the proposal relates to medical services
 which are governed by 5 U.S.C. section 7901 and FPM Chapter 792.
 
    As noted earlier, under those authorities, agencies are specifically
 authorized to provide health services which include any in-service
 examinations as well as preventive services such as specific disease
 screening examinations which the agency head determines to be necessary.
  /5/ However, the statutory authorization to provide health services
 does not extend to treatment beyond that involving on-the-job illness
 and dental conditions of a minor nature or requiring emergency
 attention.  Nor does it extend to the reimbursement of employees for the
 cost of examination and treatment of nonoccupational illnesses or
 injuries by their private physicians.  /6/
 
    Under the proposal, where the initial eye examination provided by the
 Agency indicates that an employee's vision is defective or that a
 current corrective lense prescription is no longer adequate, any further
 examination would logically include treatment -- for example, a
 prescription for appropriate corrective lenses.  Consequently, the
 proposal would effectively require the Agency to provide routine eye
 care including treatment, to employees either directly or by
 reimbursement for the expense of obtaining it from a private physician.
 
    Agency-provided treatment for medical conditions beyond those of an
 emergency or on the job nature and reimbursement of private physicians
 for routine employee medical care exceeds the statutory authorization of
 medical services under 5 U.S.C. section 7901.  Thus, this proposal is
 inconsistent with Federal law and is not within the Agency's obligation
 to bargain.  See National Treasury Employees Union and Department of the
 Treasury, Internal Revenue Service, 6 FLRA 508 (1981), (Proposal 1).
 
    IV.  Proposal 2
 
          Unit employees who are found to have useful vision in only one
       eye will be provided an eye examination and plain or prescription
       glasses at agency expense.
 
    A.  Positions of the Parties
 
    The Agency contends that the proposal is nonnegotiable because it
 would require:  (1) allocating funds not authorized by 5 U.S.C. section
 7901(c) and pertinent Comptroller General decisions, including limits on
 the conditions under which eye examinations for prescription glasses
 will be provided;  and (2) providing glasses to all unit employees with
 vision in only one eye regardless of (a) the existence of safety hazards
 in particular jobs;  and (b) the fact that, in the absence of an Agency
 requirement that employees wear safety glasses, the Comptroller General
 considers the purchase of eye safety devices as a matter personal to
 each employee.
 
    The Union asserts that the purpose of the proposal is to include
 portions of the Agency's safety regulations regarding safety equipment
 and eye examinations in the collective bargaining agreement.  The Union
 further claims that the relevant Comptroller General decisions cited by
 the Agency support the principle that expenditures for the proposed eye
 examinations and glasses are lawful.
 
    B.  Analysis and Conclusions
 
    The Agency has not shown that Proposal 2 is inconsistent with
 applicable laws, regulations or Comptroller General decision.  The
 glasses referred to in this proposal are limited solely to safety
 glasses, based on the parties' arguments and the record as a whole, and
 we so interpret the proposal for purposes of this decision.  We note
 that the Agency by regulation, currently requires that the employees
 having useful vision in only one eye who would be covered by this
 proposal will be provided safety glasses "without regard to the degree
 of eye hazard involved" in their jobs.  /7/
 
    Proposal 2, as well as the Agency's regulation, is concerned with
 providing designated employees with personal protective equipment, that
 is, safety glasses as distinguished from providing health or medical
 services as discussed in connection with Proposal 1.  Consequently, the
 legality of this proposal is not governed by 5 U.S.C. section 7901 and
 the limitations previously discussed in section II of this decision do
 not apply to Proposal 2.  Furthermore, because this proposal and the
 Agency regulation require that safety glasses be provided without regard
 to the actual existence of workplace safety and health hazards, the OSHA
 provisions and 5 U.S.C. section 7903 also discussed in section II are
 inapplicable as well.  These authorities concern hazardous conditions
 and do not govern whether safety glasses may be provided to employees
 who are not necessarily exposed to workplace safety and health hazards,
 as under Proposal 2 and the Agency regulations.  The Agency does not
 claim that the OSHA provisions, 5 U.S.C. section 7903, or interpretive
 Comptroller General decision prevent it from providing safety glasses
 under the circumstances specified in the proposal and, if it did, it
 would be arguing against the validity of its own regulation.
 
    We are left, then, with the question of whether the Agency is
 prohibited from expending its funds for equipment which it claims are
 items of a nature personal to its employees.  The Agency, citing 61
 Comp. Gen. 634 (1982), contends that under the circumstances the safety
 glasses are a personal responsibility of the employee.  However, as
 discussed in section II above, the Comptroller General has held that
 appropriated funds may be used to pay for equipment where the
 Government, rather than the employee, receives the primary benefit.
 Since the Agency's regulation already requires that safety glasses must
 upon request be provided to employees having useful vision in only one
 eye, we conclude that the Agency has already determined that
 expenditures for the safety glasses are legally permissible.  No basis
 appears in the record for concluding that the Agency's regulatory
 provision is not in accordance with law or Comptroller General decisions
 relating to expenditures of appropriated funds.
 
    As to that portion of the proposal which would require that an eye
 examination be provided, we find that the examinations are directly
 related to providing the employees with safety glasses.  In ruling on
 the propriety of using agency funds to provide eye refraction
 examinations for employees to whom the agency is providing prescription
 safety glasses, the Comptroller General held that eye refraction
 examinations may be authorized at Government expense only where (1) the
 employee involved has not previously worn glasses, or (2) where it is
 administratively determined that the employee's current prescription is
 inadequate.  51 Comp. Gen 775 (1972), 40 Comp. Gen 626 (1963).  There is
 nothing in either the language of this proposal be applied in a manner
 which would exceed this limitation.  Consequently, we have no basis for
 concluding that the portion of this proposal which deals with eye
 examinations is not in accordance with the prescribed standards
 governing use of Agency funds for that purpose.
 
    Based on the foregoing we conclude that Proposal 2 would only have
 the effect of placing in the agreement what is already in the Agency's
 regulations and is within the duty to bargain.
 
    V.  Proposal 3
 
          Eye hazard areas, equipment and occupations will be designated
       by the Agency Safety and Health Office.  Some hazards are flying
       objects, dust, chemicals, compressed air, welding operations, low
       illumination of the work area, spray dust, etc.
 
    A.  Positions of the Parties
 
    Although the Agency asserted in its allegation of nonnegotiability
 that this proposal was contrary to 5 U.S.C, Chapter 79, it did not
 address the negotiability of this proposal in its brief.  The Union
 contends that the proposal identifies hazards which are included in the
 Agency regulation concerning eye safety.  The Union also claims that the
 proposal allows the Agency Safety and Health Division to determine what
 constitutes an eye hazard.
 
    B.  Analysis and Conclusion
 
    We find no basis on which to conclude that this proposal is
 inconsistent with any of the statutory or regulatory provisions
 discussed previously in this decision.  Therefore, in the absence of any
 arguments from the Agency we find Proposal 3 to be within the duty to
 Agency, bargain.  /8/
 
    VI. Proposal 4
 
          Unit employees working in eye hazard areas will be provided eye
       examinations at Agency expense.
 
    A.  Positions of the Parties
 
    Citing the failure to define the term "eye examinations," the Agency
 contends that (1) the language of the proposal is to vague to permit an
 understanding of its impact;  and (2) the proposal violates the
 principles established by the Comptroller General governing when eye
 examinations can be provided for Federal employees.  The Union contends
 that it is attempting to insert paraphrased sections of the Agency
 regulations concerning the provision of eye examinations for employees
 into the collective bargaining agreement and that it seeks nothing more
 than what is currently in Defense Mapping Agency Manual 6500.2.
 
    B.  Analysis and Conclusion
 
    The portion of Agency regulation DMAM 6500.2, which relates to eye
 examinations for employees working in eye hazard areas, provides:
 
          Chapter 9.  Indistrial Hygiene
 
                     .     .     .     .     .     .
 
 
          Chapter 7.  Occupational Vision
 
                      .    .    .    .    .    .
 
 
          a.  Vision Testing
 
          (1) Vision testing to assess workers' visual skills, with
       appropriate referrals for evaluation and correction, is aimed at
       improving job performance.  Replacement and biennial vision
       testing, using a stereoscopic screening instrument, will be
       conducted on all employees engaged in industrial-type operations.
       When resources are available, vision screening and glaucoma
       testing should be made available on a voluntary basis for other
       employees.  Employees who fail vision screening tests should be
       referred to ophthalmic specialist.
 
                       .    .    .    .   .   .
 
 
          c.  Protective eyewear is discussed in Chapter 10, paragraph
       5.c., of this manual.
 
          Chapter 10.  Personal Protective Equipment
 
          5.  Special Provisions
 
                      .    .    .    .    .    .
 
 
          c.  Eye Protection
 
                      .    .    .    .    .    .
 
 
          (1) Industrial safety glasses, plano or prescription, will be
       issued at no cost if an individual is working in a designated eye
       hazardous area or operation.  Employees who are in eye hazardous
       areas or operations intermittently (e.g., security personnel) will
       normally be provided with flexible fitting plastic goggles or
       similar eye protection devices.
 
          (2) Eye examinations required for prescription safety glasses
       will be provided at Government expense if the employee has not
       previously worn prescription safety glasses or where a vision
       screening discloses that the present prescription (or glasses) is
       inadequate.  Eye examinations may be obtained at a nearby military
       installation or by contract.  Prescriptions written by an
       employee's own doctor may be used provided that the prescription
       is less than 1 year old and the vision screening detects no
       change.  Examinations other than those authorized are not
       reimbursable.
 
    Based on the Union's statement of intent which is compatible with the
 language of the proposal, we conclude that this proposal would require
 nothing more with respect to eye examinations than what is specified by
 these quoted portions of the Agency's regulations.  That is, eye
 examinations required for prescription safety glasses will be provided
 at Government expense if the employee has not previously worn
 prescription safety glasses or where vision screening discloses that the
 present prescription (or glasses) is inadequate.  This reflects the
 standards articulated by the Comptroller General discussed in section IV
 (B) above.  Hence, we reject the Agency's argument that this proposal
 would require an expenditure of Agency funds which is inconsistent with
 Comptroller General decisions.  In the absence of any basis in the
 record for determining that this proposal is inconsistent with
 applicable laws and regulations, we find it to be negotiable.
 
    VIII.  Order
 
    The Union's petition for review as to Proposal 1 is dismissed.  The
 Agency shall upon request (or as otherwise agreed to by the parties)
 bargain concerning Proposals 2, 3 and 4.  /9/
 
    Issued, Washington, D.C., April 30, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier, III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) We note that (1) defects in the Union's petition, pointed out by
 the Agency, were cured;  and (2) the Agency withdrew its objection to a
 fifth proposal concerning eye examinations for employees who need
 prescription safety glasses.  That proposal will not be considered
 further here.
 
    (2) For the text of 5 U.S.C. 7901(a) and (c) see the Appendix to this
 decision.
 
    (3) See 31 U.S.C. section 3529.
 
    (4) H.R. Rep. No. 516, 79th Cong., 1st Sess., reprinted in 1946 U.S.
 Code Cong. & Ad. News 1444, 1446-47.
 
    (5) 5 U.S.C. section 7901;  FPM Chapter 792, Subchap. 1-3.c (text in
 Appendix).
 
    (6) 5 U.S.C. 7901(c).  Additionally, in recommending passage of an
 earlier version of 5 U.S.C. section 7901 the House Committee on Civil
 Service noted:
 
          So far as treatment is concerned, the cost to the Government
       would be confined to minor illnesses and dental conditions, and to
       the initial treatment of emergency conditions.  Following that,
       there would be referral to private physicians, who would charge
       the Government employee just as they would charge any other
       patient.  That cost would be borne by the employees -- not by the
       Government.
 
          H.R. Rep. No. 516, 79th Cong., 1st Sess., reprinted in 1946
       U.S. Code Cong. & Ad. News 1444, 1450.
 
    The Committee also noted:
 
          NO COMPETITION WITH PRIVATE PHYSICIANS
 
          The committee wishes to make perfectly clear that the program
       proposed in this bill is not one which would put the Government
       into competition with private phsycians
 
                      .    .    .    .    .    .
 
 
          . . .Treatment by the Government physician would be limited to
       cases of minor or emergency illness.  Any treatment beyond that
       would be rendered by the Government physician only at the specific
       request of the private physician.  Id. at 1453.
 
    (7) Defense Mapping Agency Manual (DMAM) 6500.2 provides, in relevant
 part:
 
          Chapter 9.  Industrial Hygiene
 
                      .    .    .    .    .    .
 
 
          7.  Occupational Vision
 
                      .    .    .    .    .    .
 
 
          a.  Vision Testing
 
          (2) Employees having useful vision in one eye only will be
       identified and must be provided with safety glasses, without
       regard to the degree of eye hazard involved in the job, if the
       employee wishes to participate in the program.
 
    (8) Parties are responsible for creating the record upon which we
 will resolve negotiability disputes.  National Federation of Federal
 Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886
 (D.C. Cir. 1982).  A party failing to assume this burden acts at its
 peril.
 
    (9) In finding Proposals 2, 3 and 4 within the duty to bargain, the
 Authority makes no judgment as to their merits.
 
 
                                 Appendix
 
    5U.S.C. section 7901(a) and (c) provide:
 
    Section 7901.  Health service programs
 
    (a) The head of each Agency of the Government of the United States
 may establish, within the limits of appropriations available, a health
 service program to promote and maintain the physical and mental fitness
 of employees under his jurisdiction.
 
   *     *     *     *     *     *     *
 
 
    (c) A health service program is limited to -
 
    (1) treatment of on-the-job illness and dental conditions requiring
 emergency attention;
 
    (2) preemployment and other examinations;
 
    (3) referral of employees to private physicians and dentists;  and
 
    (4) preventive programs relating to health.
 
    FPM Chapter 792, Subchapter 1-3.c provides:
 
    c. The health services that agencies are authorized to provide to
 employees are limited to those defined below.  In determining whether a
 particular service is necessary, the working conditions and number of
 employees at each location will be considered.
 
          (1) Emergency diagnosis and first treatment of injury or
       illness that become necessary during working hours and that are
       within the competence of the professional staff and facilities of
       the health service unit, whether or not the employee was injured
       while in the performance of duty or whether or not the illness was
       caused by his/her employment.  When the necessary first treatment
       is outside the competence of the health service staff and
       facilities, the employee may be taken to a nearby physician or
       suitable community medical facility at his/her request or at the
       request of someone acting on his/her behalf.
 
          (2) Preemployment examinations of persons selected for
       appointment.
 
          (3) Any in-service examinations of employees that the Agency
       head determines to be necessary (in addition to fitness-for-duty
       examinations which are performed and under existing authority).
 
          (4) Administration, at the discretion of the responsible health
       service unit physician, of treatments and medications (a)
       furnished by the employee and prescribed in