26:0785(93)NG - NFFE, Local 1827, and Defense Mapping Agency, Aerospace Center -- 1987 FLRAdec NG
[ v26 p785 ]
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 writing by his/her personal physician as reasonably necessary to maintain the employee at work and (b) prescribed by a physician providing medical care in performance-of-duty injury or illness cases under the Federal Employees' Compensation Act. (5) Preventive services within the competence of the professional staff to (a) appraise and report work environment health hazards to Agency management as an aid in preventing and controlling health risks, (b) provide health education to encourage employees to maintain personal health, and (c) provide those specific disease screening examinations and immunizations that the Agency head determines to be necessary. (6) In addition to the above, employees may be referred, upon their request, to private physicians, dentists, and other community health resources.