32:0380(59)NG - - IFPTE, Local 11 and Mare Island Naval Shipyard Vallejo, CA - - 1988 FLRAdec NG - - v32 p380
[ v32 p380 ]
The decision of the Authority follows:
32 FLRA No. 59
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL FEDERATION OF PROFESSIONAL
AND TECHNICAL ENGINEERS, LOCAL 11
MARE ISLAND NAVAL SHIPYARD
Case No. 0-NG-1471
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). This case involves five proposals concerning implementation of an Agency traffic safety regulation.
For the reasons which follow, we dismiss the appeal of Proposal 1 because it concerns a matter related to the interpretation of a governing collective bargaining agreement rather than a negotiability dispute under section 7117 of the Statute. Proposals 2 and 4, which provide for a notice period before implementation of the traffic regulation, and fair and equitable enforcement of the regulation are negotiable because they pertain to the conditions of employment of bargaining unit employees and do not conflict with the Agency's authority under the Constitution and Government-wide regulations to enact traffic or safety regulations. We also find that Proposal 3, the first sentence, which establishes a grace period after implementation of the traffic safety regulation is negotiable. Proposal 3, the second sentence, which provides that during the grace period employees would receive only warning tickets for violations of the regulation, is nonnegotiable because it interferes with the Agency's right to take disciplinary actions under section 7106(a)(2)(A). Finally, Proposal 5, concerning the use of the Tennessee Street Causeway to enter the base by employees riding motorcycles, is negotiable because the Agency has not established that the proposal interferes with the Agency's right under section 7106(a)(1) to determine its internal security practices.
II. Proposals 1, 2, 3, 4 and 5
This instruction requires operators and passengers of motorcycles to wear certain protective equipment. Article 23, Section 5, of the Agreement between this union and the Shipyard states that the Shipyard will "furnish special issue protective clothing and equipment at no expense to the employee whenever it is required by the employer for safety or industrial health purpose." OPNAV Instruction 5100.12D requires the use of protective equipment by certain employees of the shipyard, therefore the shipyard is to provide this equipment at no cost to the employees.
Prior to implementation of the requirements of OPNAV Instruction 5100.12D, notice is to be given to all affected employees. This notice shall be by printed notice in the "Grapevine" for at least 4 issues prior to the implementation date. Additionally, written notification is to be distributed to all affected employees on an individual basis. This notice may be similar to those previously distributed by the Mare Island Police Department but must contain the effective date of the new requirement. These notices should not be distributed directly to the motorcycle operators while they are driving, i.e. entering or exiting the shipyard, since this creates an unsafe condition. They should either be mailed to all employees with motorcycles registered on Mare Island or be attached to motorcycles parked on Mare Island.
After the implementation date, a grace period should be established. During this grace period, violators should receive a warning citation only.
The provisions of OPNAV Instruction 5100.12D are to be fairly and equitably enforced.
In light of the additional safety equipment required, motorcycles will be allowed to enter and exit Mare Island via the Tennessee street causeway.
III. Positions of the Parties
The Agency asserts that the appeal of Proposal 1 was filed untimely and should be dismissed. The Agency also contends that because the proposals do not pertain to matters arising out of the employer-employee relationship, the petition for review should be dismissed for lack of subject matter jurisdiction. The Agency argues that the proposals are nonnegotiable because they are inconsistent with the United States Constitution and Navy Regulations and because they do not pertain to conditions of employment of bargaining unit employees. The Agency also contends that Proposal 1 violates Federal law governing the expenditure of appropriated funds for safety related equipment. In support, the Agency relies on Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 30 FLRA 275 (1987). Finally, the Agency argues that Proposal 5 interferes with the Agency's right to determine its internal security practices under section 7106(a)(1).
The Union contends that its appeal of Proposal 1 is properly before the Authority. The Union also alleges that Proposal 1 "does not relate to security in any way" and that Proposal 5 was proposed to address arbitrary safety considerations raised by the Agency's traffic regulation.
IV. Preliminary Matters
A. The Appeal of Proposal 1 is Dismissed
We dismiss the appeal of Proposal 1, but not for the reason suggested by the Agency. The language of Proposal 1 provides that under Article 23, Section 5 of the parties' collective bargaining agreement, the Agency "will furnish special issue protective clothing at no expense to the employee whenever it is required by the employer for safety or industrial health purpose." The language provides further, that the Agency's traffic safety regulation "requires the use of protective equipment by certain employees of the shipyard, therefore the shipyard is to provide this equipment at no cost to the employees."
We find that the wording of Proposal 1 does not concern a matter proposed to be bargained within the meaning of section 7117 of the Statute. Rather, Proposal 1 constitutes an asserted interpretation of a provision in the parties' collective bargaining agreement and a request that the Agency comply with that provision as interpreted by the Union. Questions concerning interpretation of provisions in the parties' collective bargaining agreement are not properly resolved through the negotiability appeal procedures set out in section 7117 of the Statute and Part 2424 of our Rules and Regulations, but rather, should be resolved in other appropriate proceedings, such as the parties' negotiated grievance procedure.
Although we dismiss the appeal as to Proposal 1, we note that we recently addressed the issue of whether an agency may be required to pay for personal protective clothing of employees who operate motorcycles on an agency's property in Mare Island Naval Shipyard. In that case, four proposals required the agency to provide, free of charge, certain protective equipment for employees who operated motorcycles on the installation. In concluding that these proposals were nonnegotiable, we relied on our decision in National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785 (1987), and found that the expenditure of appropriated funds by an agency for the purchase of safety related equipment is governed by 29 U.S.C. º 668(a) and 5 U.S.C. º 7903. We stated that under those laws, an agency may provide equipment to employees where it is to be used for the employees' protection in the performance of their jobs. Moreover, those laws specifically require that the work performed must be hazardous.
We also determined that under decisions of the Comptroller General, appropriated funds may be spent for the purchase of personal equipment only when an agency determines 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. See, for example, 63 Comp. Gen. 278 (1984), 61 Comp. Gen. 634 (1982); and 56 Comp. Gen. 398 (1977).
We found that the proposed equipment in Mare Island Naval Shipyard was not intended to be used in the employees' work. Rather, the record indicated that the proposed equipment was to be used for commuting to work by motorcycle. Further, since it was not established in Mare Island Naval Shipyard that the use of the specified equipment would be for the primary benefit of the Government, we found that requiring the Agency to pay the cost of providing the equipment specified in the four proposals was inconsistent with law.
B. The Authority Has Subject Matter Jurisdiction
The Agency contends that the petition for review should be dismissed because the Authority lacks subject matter jurisdiction. The Agency argues that the basis for a negotiability appeal "must arise out of, and be the product of, the employer-employee relationship." Statement of Position at 8. The Agency also claims that "more is required than simply a showing that an employer-employee relationship exists. The regulations themselves must be in the nature of an employment decision." Id.
We reject the Agency's claim. We are obligated by section 7105(a)(2)(E) of the Statute to "resolve issues relating to the duty to bargain in good faith under section 7117(c)" of the Statute. Under section 7117 of the Statute and part 2424 of our Rules and Regulations, we will consider a petition for review of negotiability issues only where the parties are in dispute as to whether a matter proposed for bargaining is inconsistent with law, rule, or regulation. Where the conditions for review of a negotiability issue have been met, a union is entitled to a decision by the Authority as to whether the proposal is negotiable under the Statute even if other issues exist in the case, such as a conflict between the proposal and a controlling agreement. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983).
The Agency contends that the Union's proposals are inconsistent with various provisions of law, including the management rights provision of the Statute. Thus, the parties are in dispute as to whether the Union's proposals are inconsistent with law, rule, or regulation. Since the conditions for review have been met and the Union's appeal was filed within the time limits set out in section 7117(c) of the Statute and section 2424.3 of our Rules and Regulations, we reject the Agency's claim that we lack subject matter jurisdiction in this case.
We will address the Agency's argument that the proposals do not arise out of the employer-employee relationship as part of our analysis concerning whether the proposals directly affect the conditions of employment of bargaining unit employees.
V. Analysis and Conclusions
A. The Proposals Concern Conditions of Employment of Bargaining Unit Employees
The Agency argues that because the proposals do not directly relate to employees' work situations or employment relationships, the proposals do not pertain to conditions of employment of bargaining unit employees within the meaning of section 7103(a)(14) of the Statute.
In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986) (Antilles), the Authority set forth the test for determining whether a proposal involves a condition of employment of bargaining unit employees under section 7103(a)(14). The test contains two factors:
1. Whether the matter proposed to be bargained pertains to bargaining unit employees; and
2. The nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. [Emphasis in original.]
For the following reasons, we conclude that the proposals satisfy both prongs of the Antilles test.
1. The Proposals Pertain to Bargaining Unit Employees
In Antilles, 22 FLRA at 237, we stated the following about the first prong of the test to determine whether a proposal involves conditions of employment of unit employees:
For example, as to the first factor, the question of whether the proposal pertains to bargaining unit employees, a proposal which is principally focused on nonbargaining unit positions or employees does not directly affect the work situation or employment relationship of bargaining unit employees. But, a proposal which is principally focused on bargaining unit positions or employees and which is otherwise consistent with applicable laws and regulations is not rendered nonnegotiable merely because it would have some impact on employees outside the bargaining unit. (Citations omitted.)
In determining whether a proposal's impact on nonunit employees is sufficient to make the proposal nonnegotiable, the union's right to negotiate over conditions of employment of unit employees is balanced against the agency's right to determine the conditions of employment of nonunit employees. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA 478 (1986), petition for review filed sub nom. American Federation of Government Employees Local 32, AFL-CIO v. FLRA, No. 86-1447 (D.C. Cir. Aug. 11, 1986). A proposal which has only an indirect effect on the working conditions of nonunit employees is negotiable. Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352, 352 (1987) (Proposal 1). A proposal which has a direct and significant effect on vital interests of nonunit employees is nonnegotiable. American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 25 FLRA 979 (1987) (Member Frazier dissenting).
The record does not reflect that these proposals are intended to apply to any employees other than members of the bargaining unit. Further, the Agency makes no claim that the proposals would have any impact on nonbargaining unit employees. Thus, in our view, the proposals pertain only to members of the bargaining unit.
Consequently, we find that the proposals satisfy the first prong of the Antilles test. These proposals are focused on bargaining unit employees and do not affect nonunit employees.
2. The Proposals Directly Affect the Working Conditions of Unit Employees
In evaluating the nature and extent of effect of proposals on unit employees' working conditions, we must consider whether there is a "direct connection between a proposal and the work situation or employment relationship of bargaining unit employees." Antilles, 22 FLRA at 237.
The enforcement of traffic rules and regulations on an agency facility 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 National Association of Government Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public Works Center, Great Lakes, Illinois, 30 FLRA 415, 416-17 (1987); Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 30 FLRA 275 (1987) (Mare Island Naval Shipyard); 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 the requirements set out in the Navy Traffic Safety Regulation involved in this case (OPNAV Instruction 5100.12D of 11 February 1987), including the failure to wear the specified safety equipment, similarly could result in an employee being denied access to the installation and, in addition, being subjected to discipline. See, for example, Paragraph (5)(b)(2) of OPNAV Instruction 5100.12D enclosed with the petition for review. Thus, we find that implementation of the traffic safety regulation directly affects the working conditions of bargaining unit employees. Accordingly, these proposals, which are concerned with the implementation of the traffic safety regulation as it pertains to bargaining unit employees, satisfy the second prong of the Antilles test.
Since the proposals satisfy both prongs of the Antilles test, they concern "conditions of employment" within the meaning of section 7103(a)(14) of the Statute.
B. The Proposals Do Not Interfere with the Agency's Authority Under the Constitution and Government-wide Regulations to Enact Traffic or Safety Regulations
The Agency contends that the proposals conflict with the U.S. Constitution and Government-wide regulations. The Agency argues that Article I, section 8, clause 17 of the U.S. Constitution "gives Congress the power to authorize a commanding officer of a Naval base to make all laws which shall be necessary and proper to run the activity." Statement of Position at 9. The Agency argues further, that "[a]cting in accordance with this Congressional grant, the Department of the Navy has promulgated regulations delegating broad authority to base commanders to control their activities." Statement of Position at 10. The Agency concludes that because the proposals seek to restrict the base commander's legislative powers, the proposals directly conflict with Navy regulations.
We note that the regulation relied on by the Agency in support of its position, 32 C.F.R. º 765.4, was removed from Title 32 C.F.R. on June 23, 1986, and thus, is no longer applicable. 51 Fed. Reg. 22804 (1986). Moreover, contrary to the Agency's contention, there is nothing in the wording of these proposals which restricts in any manner the authority of the Agency to enact traffic or safety regulations. Rather, these proposals concern only the implementation of the Agency's traffic safety regulation. Thus, we reject the Agency's claim that the proposals are inconsistent with the Agency's authority to enact traffic or safety regulations.
C. Proposals 2 and 4 are Negotiable
The sole claims raised by the Agency concerning Proposals 2 and 4 are that the proposals are nonnegotiable because they are inconsistent with the United States Constitution and Navy Regulations and because they do not pertain to conditions of employment of bargaining unit employees. For the reasons stated in sections V.B. and V.C. of this decision, we rejected these claims. Thus, we will not discuss these claims further with regard to Proposals 2 and 4.
Proposal 2 merely obligates the Agency to notify employees who ride motorcycles when the requirement to wear the specified safety equipment would go into effect. Requiring the Agency to provide such notice in no manner prevents or restricts the Agency from requiring motorcycle riders to wear the specified safety equipment or from implementing the traffic safety regulation on a particular date. Thus, we find that Proposal 2 is within the duty to bargain.
Proposal 4 requires that the provisions of OPNAV Instruction 5100.12D be fairly and equitably enforced. Proposal 4 merely establishes a general standard by which management actions in enforcing the traffic safety regulation through administrative or disciplinary procedures may be subsequently evaluated in a grievance. See, for example, International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 129-35 (1987) (Provision 22, subsection (b)) (Bureau of Engraving and Printing). We note that the Agency did not specifically address this proposal in its Statement of Position. Thus, no showing has been made that this proposal would in any way interfere with the exercise of any management right. We, therefore, find that Proposal 4 is within the duty to bargain.
D. Proposal 3 Interferes with the Agency's Right to Discipline Employees Under Section 7106(a)(2)(A)
The first sentence of Proposal 3 establishes a "grace period" after the implementation of the Agency's traffic safety regulation. The Agency did not specifically address this proposal in its Statement of Position. Thus, no showing has been made that this sentence would in any way interfere with the exercise of any management right. We, therefore, find that Proposal 3, the first sentence, is within the duty to bargain.
The second sentence, however, provides that during this "grace period" employees will receive only warning tickets for violations of the regulation. Management's right to