32:1200(159)NG - - International Brotherhood of Teamsters, Truck Drivers, Warehousemen & Helpers of Jacksonville, Local 512 and Navy, Consolidated Civilian Personnel, Jackson, FL - - 1988 FLRAdec NG - - v32 p1200
[ v32 p1200 ]
The decision of the Authority follows:
32 FLRA No. 159
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
TRUCK DRIVERS, WAREHOUSEMEN & HELPERS
OF JACKSONVILLE, LOCAL UNION 512
DEPARTMENT OF THE NAVY
CONSOLIDATED CIVILIAN PERSONNEL
Case No. 0-NG-1525
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). The appeal concerns two Union proposals bearing on the application and implementation of safety rules for the operation of motorcycles at a Department of the Navy facility.
We find that the proposals are outside the duty to bargain because: (1) the first proposal, which requires the Agency to waive the safety rules for employees, directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1); and (2) the second proposal, which requires the Agency to furnish shoes and clothing that are mandated by the safety rules, is inconsistent with other Federal law.
The Union represents employees of the Agency's Naval Aviation Depot, Jacksonville, Florida (NADEP), which is a tenant activity of the Agency's Naval Air Station, Jacksonville (NASJAX). NASJAX issued certain traffic regulations for the operation of motorcycles at its facility. By these regulations, drivers and passengers on motorcycles are required to wear: (1) a properly fastened (under the chin) protective helmet which meets U.S. Department of Transportation standards; (2) a face shield, properly fastened to each side and the back of the helmet; and (3) a long-sleeved shirt or jacket, long trousers, full-finger leather gloves, and hard-soled shoes with heels. Drivers also are required to complete a prescribed motorcycle safety training course.
[T]he requirements imposed by NASJAX in 1986 [will] not apply to [the Union's] unit members in NADEP and that the motorcycle training [shall] be waived for NADEP employees who hold Florida Driver's License for Motorcycles.
NADEP [will] furnish the shoes and clothing that is required and that the items furnished be acceptable to both NAS[JAX] and this Union.
IV. Positions of the Parties
The Agency contends that both proposals are nonnegotiable. It argues that neither proposal relates to employees' work situation or employment relationship so as to be concerned with conditions of employment under section 7103(a)(14). In support, the Agency relies on Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986) (Antilles). The Agency also argues that both proposals are inconsistent with the United States Constitution and Navy Regulations.
The Agency further contends that Proposal 1: (1) conflicts with the Agency's right to determine its internal security practices under section 7106(a)(1); and (2) does not constitute an appropriate arrangement under section 7106(b)(3). Finally, relying on Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 30 FLRA 275 (1987), the Agency contends that Proposal 2 is inconsistent with 29 U.S.C. § 668(a) and 5 U.S.C. § 7903.
The Union argues that the motorcycle requirements should not be imposed on the employees it represents because the Agency imposed these requirements without first properly negotiating with the Union. The Union also contends that if specific clothing is required by the Agency, the Agency should pay for it.(*)
V. Analysis and Conclusions
A. The Proposals Concern Conditions of Employment of Bargaining Unit Employees
In International Federation of Professional and Technical Engineers, Local 11 and Mare Island Naval Shipyard, Vallejo, California, 32 FLRA 380 (1988) (IFPTE Mare Island), we considered and rejected agency arguments under Antilles that union proposals analogous to the proposals here did not concern conditions of employment. This Agency's arguments under Antilles are substantively identical to the agency's arguments in IFPTE Mare Island.
The Antilles 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.
22 FLRA at 236-37 (emphasis in original).
Like the proposals in IFPTE Mare Island, this Union's proposals concern employees in the Union's bargaining unit. The proposals are not intended to apply to employees or persons outside the Union's bargaining unit. Further, the Agency makes no claim that the proposals would have any impact on nonbargaining unit employees. Therefore, the proposals satisfy the first factor of the Antilles test. IFPTE Mare Island, 32 FLRA at 386-87.
The proposals also meet the second factor of the Antilles test; that is, whether there is a direct connection between a proposal and the work situation or employment relationship of bargaining unit employees. As stated in IFPTE Mare Island, 32 FLRA at 387, union proposals on agency traffic rules and regulations meet this requirement when employees who violate the rules and regulations are subject to being denied access to the facility in a motor vehicle and/or are subject to discipline. In IFPTE Mare Island this connection was demonstrated by a Navy Traffic Safety Regulation (OPNAV Instruction 5100.12D of 11 February 1987) which gave rise to the traffic rules and regulations in IFPTE Mare Island.
This Navy regulation is not included in the record in this case. However, the Union asserts in its appeal that the traffic rules and regulations in this case do arise from higher Navy regulations. The Agency does not dispute this contention. Instead, the Agency states that its traffic rules and regulations are imposed for the same purpose as the safety requirements in National Association of Government Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public Works Center, Great Lakes, Illinois, 30 FLRA 415 (1987) (Great Lakes). Agency Statement of Position at 26. Under the safety requirement in Great Lakes, a failure to comply with the rules and regulations could result in an employee being subjected to administrative procedures. 30 FLRA at 416-17. Accordingly, as in IFPTE Mare Island and Great Lakes, we conclude that these Union proposals also meet the second factor of the Antilles conditions of employment test.
Since the proposals satisfy both factors of the Antilles test, we find that they concern "conditions of employment" within the meaning of section 7103(a)(14).
B. The Proposals Do Not Interfere with the Agency's Authority under the Constitution and Government-wide Regulations to Enact Traffic or Safety Regulations
In IFPTE Mare Island, 32 FLRA at 388, we also considered and rejected an agency argument substantively identical to this Agency's argument that union proposals on traffic rules and regulations interfere with the Agency's authority, under the Constitution and regulations, to enact traffic and safety regulations.
As we explained in IFPTE Mare Island, the regulation relied on by the Agency in support of its position, 32 C.F.R. § 765.4, was removed from Title 32 C.F.R. on June 23, 1986. Therefore, this regulation is no longer applicable. 51 Fed. Reg. 22804 (1986). Moreover, as with the proposals in IFPTE Mare Island, nothing in these proposals restricts in any manner the Agency's authority to enact traffic or safety regulations. Instead, the proposals concern only the implementation of the regulations. Therefore, we reject the Agency's claim that the proposals are inconsistent with the Agency's authority to enact such regulations.
C. Proposal 1 Interferes with the Agency's Right to Determine Its Internal Security Practices Under Section 7106(a)(1)
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 National Federation of Federal Employees, Local 15 and U.S. Army Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock Island, Illinois, 30 FLRA 472, 475 (1987) (Rock Island); Great Lakes, 30 FLRA 415, 417-18 (1987), and cases cited therein.
This right extends to agency decisions that certain kinds of training, equipment, and clothing are necessary for motorcycle operations at agency facilities and installations to safeguard its personnel and its property. For example, Rock Island (safety helmets, eye protection, long trousers, and high visibility garments); Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 23 FLRA 154, 156 (1986) (motorcycle training).
The Union does not dispute that the Agency's requirements for motorcycle operations were adopted as part of its plan to prevent accidents and thereby to safeguard its personnel and property. Accordingly, we find that the Agency's requirements involve the exercise of its right under section 7106(a)(1) to determine its internal security practices.
Proposal 1, by its wording and the Union's explanation of its intent, would negate the Agency's requirements for motorcycle operations at its facility insofar as the requirements apply to bargaining unit employees. Therefore, we find that Proposal 1 directly interferes with management's right to determine its internal security practices. Id.
Although the Agency argues, anticipating a Union claim, that Proposal 1 does not constitute an appropriate arrangement under section 7106(b)(3), the Union makes no such claim. Therefore, we find it unnecessary to reach that issue. The proposal is outside the duty to bargain because it directly interferes with the Agency's right under section 7106(a)(1).
The Union's claim that the Agency should not require the employees it represents to conform to the Agency's motorcycle safety rules, because the Agency issued the rules without first negotiating them with the Union, has no relevance to the resolution of negotiability issues. Based on the record, in settlement of the Union's claim that the Agency had failed to bargain as it should have before it issued the rules, the parties agreed to negotiate concerning the rules as required by law and regulation. In this negotiability appeal, the only question before us is whether the disputed proposals are within the duty to bargain under applicable law and regulations. For example, American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 26 FLRA 768, 769 (1987).
D. Proposal 2 Is Inconsistent with Law
Proposal 2 would require the Agency to furnish the shoes and clothing required of employees who operate motorcycles at the Agency's facility. In Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 30 FLRA 275, 277-78 (1987) (MTC Mare Island), we explained that agency expenditures of appropriated funds to provide employees safety-related equipment is governed by 29 U.S.C. § 668(a) and 5 U.S.C. § 7903. Under these statutes, an agency may provide such equipment to employees where the equipment is to be used for the employees' protection in the performance of hazardous agency work.
Further, the Comptroller General has ruled that public funds may be spent for personal equipment 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 would furnish. See, for example, 63 Comp. Gen. 278 (1984); 61 Comp. Gen. 634 (1982); 56 Comp. Gen. 398 (1977).
Based on the record, the equipment covered by Proposal 2 clearly is not intended to be used in the employees' work. Rather, the equipment is to be used for commuting to work. The record does not show that the equipment will be for the primary benefit of the Government. Consequently,