30:0275(32)NG - FEMTC and Navy, Mare Island Naval Shipyard, Vallejo, CA -- 1987 FLRAdec NG



[ v30 p275 ]
30:0275(32)NG
The decision of the Authority follows:


 30 FLRA NO. 32
 30 FLRA 275

 30 NOV 1987


FEDERAL EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO

                  Union

      and

DEPARTMENT OF THE NAVY, MARE
ISLAND NAVAL SHIPYARD, VALLEJO,
CALIFORNIA

                  Agency

Case No. 0-NG-1429

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 We find that the proposals
are nonnegotiable.

     II. Background

     The dispute in this case arose when the Agency implemented
revised traffic control regulations governing the vehicles of
military personnel, employees, contractors, dependents, vendors,
and visitors using the Shipyard. These regulations, which apply
to all motorcycle operators on the facility, including bargaining
unit employees, require the mandatory use of certain specified
personal protective equipment. The required equipment
includes a helmet and attached face shield, long-sleeved shirts
and long pants, gloves and appropriate footwear.

     III. Union Proposals

     Proposal 2. . . . (A)s it is customary for the employer to
provide all special safety equipment required by the employer,
the Council proposes that the employer provide face shields
suitable for the helmet selected by the employee.

     Proposal 3. . . . (T)he Council proposes that the employer
provide suitable jackets, preferably leather but, we will accept
parachute nylon.

     Proposal 5. Employer to provide suitable leather gloves.

     Proposal 6. If the safety shoes currently provided by the
employer meet the criteria, the Council proposes that safety
shoes be provided to all employees.

     (Only the underscored portions are in dispute.)

     A. Positions of the Parties

     The Agency contends that these proposals are non-negotiable
because they: (1) do not concern conditions of employment of unit
employees; and (2) conflict with the U.S. Constitution and Agency
regulations which have the "force and effect" of law. The Agency
states that unit employees are not required to use motorcycles in
performing their jobs.

     The Union claims that its proposals are not intended to
require negotiation on the content of the Agency's revised
traffic regulations. According to the Union, the proposals are
only concerned with the cost of providing the required personal
protective equipment to bargaining unit employees who operate
motorcycles. The Union also claims that the employer customarily
provides required safety equipment. The Union does not dispute
the Agency's claim that this equipment is not used by employees
in the performance of their jobs. 

     B. Discussion

     We find the Union's proposals to be nonnegotiable for
reasons other than those argued by the Agency in this case.

     As to the Agency's contention that the proposals do not
concern a condition of employment, in Federal Employees Metal
Trades Council, AFL - CIO and Department of the Navy, Mare Island
Naval Shipyard, Vallejo. California, 23 FLRA  154 (1986), the
Authority found that a nexus existed between an agency motorcycle
safety regulation and the conditions of employment of unit
employees because the failure of employees to comply with the
requirements of that regulation would mean that they would not be
able to park or drive on the installation. See also Department of
the Navy, United States Marine Corps and American Federation of
Government Employees, Council 240, AFL - CIO, 26 FLRA  704
(1987). The Agency acknowledges that employees who fail to comply
with the requirements for personal protective equipment for
motorcycle operators set forth in its regulation, OPNAVINST
5100.12D, will not be allowed access to the installation on their
motorcycles and, thus, will not be allowed to commute by
motorcycle to their jobs. Agency Allegation of Nonnegotiability.
As with Mare Island Naval Shipyard above, we find that the
consequences flowing from the implementation of the regulation
regarding personal protective equipment for motorcycle operators
establish a sufficient nexus to employees' jobs so that the
Union's proposals concern a condition of employment within the
meaning of the Statute.

     These proposals would require the Agency to pay for the
personal protective equipment of employees who operate
motorcycles. In National Federation of Federal Employees, Local
1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA  785
(1987), the Authority discussed the legal requirements governing
the use of appropriated funds to provide employees safety related
equipment. The expenditure of appropriated funds by an agency for
the purchase of such equipment is governed by 29 U.S.C. 668(a)
and 5 U.S.C. 7903. Under those provisions, an agency may provide
equipment to employees where it is to be used for the employees'
protection in the performance of their jobs. Moreover, the
provisions specifically require that the work performed must be
hazardous.

     We find, based on the record and consistent with these
provisions of law, that the proposed equipment in this case may not be purchased by the Agency for unit employees because
it is clearly not intended to be used in the employees' work.
Rather, insofar as unit employees' jobs are concerned, the
proposed equipment at most is to be used for commuting to work by
motorcycle.

     The Comptroller General has 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); and 56 Comp.
Gen. 398 (1977). Under those decisions, public funds may be spent
for such items only 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.

     Based on the record, it has not been shown that the use of
the specified equipment will be for the primary benefit of the
Government. Consequently, requiring the Agency to pay the cost of
providing the equipment specified in the Union's proposals is
inconsistent with law. Compare National Federation of Federal
Employees, Local 1827 and Defense mapping Agency, Aerospace
Center, 26 FLRA  785 (1987) (Proposal 2) (proposal requiring the
agency to provide safety glasses held negotiable where the
Government, rather than the employee, received the primary
benefit from the equipment).

     In view of this disposition, it is not necessary to consider
the Agency's additional arguments concerning the nonnegotiability
of the disputed proposals in this case.

     IV. Order

     The Union