30:0415(53)NG - NAGE, SEIU, Local R7-51 and Navy, Navy Public Works Center, Great Lakes, IL -- 1987 FLRAdec NG



[ v30 p415 ]
30:0415(53)NG
The decision of the Authority follows:


 30 FLRA NO. 53
 30 FLRA 415

08 DEC 1987


NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
SEIU, LOCAL R7-51

     Union

     and

DEPARTMENT OF THE NAVY,
NAVY PUBLIC WORKS CENTER,
GREAT LAKES, ILLINOIS

     Agency

Case No. 0-NG-1399

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(D) and (E) of the Federal
Service Labor - Management Relations Statute (the Statute). It
raises issues concerning the negotiability of a single proposal.
For the reasons which follow, we hold that the proposal is
outside the duty to bargain.

II. Preliminary Matters

     The Union's Response to the Agency's Statement of Position
was untimely filed and has not been considered. The facts
indicate that the Union received the Agency's Statement of
Position on June 22, 1987. Section 2424.7(a) of the Authority's
Rules and Regulations provides that any response must be filed
within 15 days after receipt of the Agency's position, in this
case July 7,  1987. The Certificate of Service attached to the
Union's Response is dated July 8, 1987. The Union's Response was
received by the Authority on July 13, 1987. Accordingly, the
Union's Response is untimely and will not be considered. 

III. Background and Proposal

     The record in this case indicates that the Agency revised
its traffic safety regulation to require, among other things not
relevant in this dispute, that all operators of motorcycles on
the Great Lakes Training Center wear safety crash helmets with
full face shields. The Union sought to negotiate over the impact
and implementation of the changes in the Agency's traffic safety
regulation stating that its counterproposal "was to require the
wearing of either faceshields or glasses, or have a windshield on
the cycle."

IV. Positions of the Parties

     The Agency asserts that the proposal is nonnegotiable for
the following reasons: 1) the proposal does not pertain to
conditions of employment of bargaining unit employees; 2) the
proposal directly determines the conditions of employment of
non-bargaining unit employees; and 3) the proposal interferes
with the Agency's right under section 7106(a)(1) of the Statute
to determine internal security practices. The Agency further
asserts that the proposal is not negotiable as an appropriate
arrangement within the meaning of section 7106 (b) (3) of the
Statute. Finally, the Agency contends that the proposal is
inconsistent with Highway Safety Program Standards--Applicability
to Federally Administered Areas, 23 C.F.R. Part 1230--a
Government-wide regulation, and with the Department of Navy
Traffic Safety Regulation, OPNAV Instruction 5100.12C, a primary
national subdivision regulation for which a compelling need
exists.

     The Union contends that this proposal is an appropriate
arrangement for employees adversely affected by the Agency's
exercise of its rights. The Union also contends that it does not
consider the proposal to be one that would affect internal
security because the intent of the proposal goes to individual
safety measures and not to the protection of base security.

V. Analysis and Conclusion

     1. The Proposal does Pertain to Conditions of Employment of
Bargaining Unit Employees

     We find no  merit in the Agency's argument that the proposal
does not pertain to conditions of employment of bargaining unit
employees. We previously have determined that the enforcement of
traffic rules and regulations on an agency facility directly
affects working conditions of  bargaining unit employees
because employees who violate such rules and regulations are
subject to being denied access to the facility in a motor vehicle
and/or are subject to discipline. See Department of the Navy,
United States Marine Corps, 26 FLRA  704 (1987); Federal
Employees Metal Trades Council, AFL - CIO and Department of the
Navy, Mare Island Naval Shipyard, Vallejo, California, 23 FLRA 
154 (1986). The failure to comply with requirements set out in
the Navy Traffic Safety Regulation at issue in this case,
including the requirement for motorcycle riders to wear a full
face shield, similarly could result in an employee being
subjected to administrative procedures. See, for example,
Statement of Position at paragraph 5.b.(2) of enclosure 1.
Accordingly, we find that the proposal in this case pertains to
conditions of employment of bargaining unit employees.

     2. The Proposal is not Inconsistent With a Government-wide
Regulation

     The Government-wide regulation relied upon by the Agency,
specifically, Highway Safety Program Standard No.  3, Motorcycle
Safety, set out at 23 C.F.R. 1204.4, merely states that
motorcycle operators "wear an approved safety helmet and eye
protection" when operating a motorcycle. There is nothing in this
regulation which mandates the particular type of eye protection a
motorcycle operator must wear. Further, this regulation does not
indicate that only a full face shield, rather than glasses or
windshields as proposed by the Union, will constitute approved
eye protection. Thus, we find that the Agency has not established
that the Union's proposal, which expressly provides for eye
protection, is inconsistent with this regulation.

     3. The Proposal Interferes with the Right to Determine
Internal Security Practices

     The Authority consistently has held that an agency's right
to determine its internal security practices under section
7106(a)(1) includes the right to determine policies and take
actions which are part of its plan to secure or safeguard its
personnel and physical property. See, for example, Defense
Logistics Council of American Federation of Government Employees
Locals and Defense Logistics Agency, 20 FLRA  166 (1985),
reversed in part as to other matters sub nom. Defense Logistics
Council of American Federation of Government Employees Locals v.
FLRA,  810 F.2d 234 (D.C. Cir. 1987). 

     The Union does not contest that the Agency has adopted the
requirement that motorcycle operators wear a full face shield as
part of its plan to prevent accidents and thereby safeguard its
personnel and property. Specifically, the record indicates that
the Agency is seeking not only to prevent injury to motorcycle
operators from being struck in the face by flying objects but
also, to prevent injury to other individuals and/or damage or
destruction of the Agency's property from motorcycle operators
losing control of their motorcycles as a result of having been
struck in the face by flying objects. The Agency argues, without
contravention by the Union, that unlike glasses or windshields, a
full face shield protects the entire face from flying objects
which could injure the operator.

     In our view, the Agency has shown a sufficient link between
its goal of safeguarding personnel and property and its chosen
practice of requiring motorcycle operators to wear full face
shields. We find, therefore, that the Agency's requirement
constitutes an exercise of its right under section 7106(A)(1) to
determine internal security practices.

     This proposal expressly permits employees the option of
wearing glasses or having a windshield on the motorcycle instead
of wearing a full face shield. According to the Union, this
proposal is intended to limit the Agency to conforming to
Illinois law which does not require a full face shield but
permits the use of glasses or windshields instead. Petition for
review at 1. In our view, however, by precluding the Agency from
adopting safety requirements which are more stringent than the
requirements adopted by the State of Illinois, the proposal
directly interferes with the Agency's right to determine the
particular plan or practice to safeguard its personnel and
property. Thus, the proposal violates management's right under
section 7106(a)(1) to determine its internal security practices.
See U.S. Marine Corps.

     4. The Proposal is not an Appropriate Arrangement

     The proposal directly interferes with the Agency's right to
determine its internal security practices under section
7106(a)(1) of the Statute. The proposal, therefore, is outside
the Agency's duty to bargain unless it is a negotiable
appropriate arrangement under section 7106(b)(3) of the Statute.
As we stated in National Federation of Federal Employees, Local
284 and Department of the Navy, Naval Air Technical Training
Center, Lakehurst, New Jersey, 29 FLRA  958 (1987), in order to
determine whether a proposal constitutes a negotiable
appropriate arrangement, a determination must be made as to
whether the proposal is intended to be an arrangement for
employees who may be adversely affected by the exercise of
management's rights. If the proposal is intended to be an
"arrangement," a determination must be made as to whether the
proposal is appropriate, or whether it is inappropriate because
it excessively interferes with the exercise of management's
rights.

     According to the Union, the requirement to wear a full face
shield is stricter than Illinois State law which allows face
shields, glasses or windshields. Thus, the Union argues that the
requirement for motorcycle operators to wear a full face shield
results in additional monetary expenditures by employees.
Instead, the Union contends that its proposal is consistent with
Illinois law, protects the employees' faces and at the same time
saves employees from making additional expenditures for full face
shields. We conclude, therefore, that the proposal is intended to
be an arrangement for employees who may be adversely affected by
the exercise of the Agency's section 7106(a)(1) rights.

     The remaining question is whether the burden imposed on the
exercise of management's rights is excessive when weighed against
the proposal's benefit to employees. We conclude that, on
balance, the benefit accruing to employees does not outweigh the
detriment imposed on the Agency's right to determine its internal
security practices.

     As we have noted, the proposal would prevent the Agency from
safeguarding personnel and physical property through its chosen
practice, that is, requiring a full face shield. Thus, the
proposal directly conflicts with the Agency's reason for
requiring full face shields, which is to provide the motorcycle
rider with optimum protection from flying debris. This protection
not only safeguards the motorcycle operator but also other
persons as well as the Agency's property. By precluding the
Agency from implementing its chosen internal security practice,
the proposal constitutes a significant intrusion into the
exercise of management's rights.

     The Union, on the other hand, has not introduced any
evidence to indicate how many unit employees would be affected by
the Agency's requirement. Further, the Union has not shown what
the added cost of compliance would be for affected employees. On
balance, therefore, we conclude that the proposal would
excessively interfere with management's right to determine its
internal security practices under  section 7106(a)(1) of
the Statute and