34:0635(108)CA - - Navy, Marine Corps and AFGE Local 1881 - - 1990 FLRAdec CA - - v34 p635



[ v34 p635 ]
34:0635(108)CA
The decision of the Authority follows:


34 FLRA No. 108

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY

UNITED STATES MARINE CORPS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1881

AFL-CIO

(Charging Party)

3-CA-80352

DECISION AND ORDER

January 29, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The issue is whether, as alleged in the complaint, the Department of the Navy, United States Marine Corps (the Agency or the Respondent) repudiated a memorandum of understanding and failed to bargain in good faith in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by ceasing to provide, at no charge, reflective safety vests to unit employees who operate motorcycles on the Respondent's facilities.

We find, for the reasons discussed below, that the Respondent has not committed the unfair labor practices as alleged.

II. Facts

The American Federation of Government Employees, AFL-CIO (AFGE) is the exclusive representative of two consolidated bargaining units consisting of professional and nonprofessional employees of the Respondent, including bargaining unit employees at the Respondent's El Toro, California, and Tustin, California installations. AFGE has delegated to AFGE, Council 240 (the Council) the authority to represent employees in the consolidated units. The Charging Party, AFGE, Local 1881 (the Union) is an agent of the Council for the purpose of representing unit employees at Respondent's El Toro and Tustin, California installations.

Since 1985, every person operating or riding on a motorcycle on Marine Corps property has been required to wear a reflective vest. Joint Exh. No. 6 at 2. On or about September 22, 1987, the Respondent executed a Memorandum of Understanding (MOU) with the Council concerning reflective safety vests for unit employees who operate motorcycles on Respondent's facilities. Pursuant to this MOU, the Respondent agreed to provide these unit employees with reflective vests at no charge. Stipulation, Paragraph 9. By letter dated March 31, 1988, the Respondent (1) notified the Council of its intention to cease providing reflective vests to unit employees who operate motorcycles on the Respondent's facilities, and (2) invited the Council to submit proposals regarding the impact and implementation of the Respondent's decision to cease providing reflective vests to unit employees. Stipulation, Paragraph 10. The Council did not request to bargain over the Respondent's decision to cease providing reflective vests free of charge to unit employees. Id.

Since March 31, 1988, the Respondent has not provided reflective safety vests to unit employees who operate motorcycles on the Respondent's facilities. As a result, unit employees are "personally and financially responsible for obtaining the required safety vests." Stipulation, Paragraph 11.

No unit employee is required to operate a motorcycle as part of his or her assigned duties. Unit employees who operate motorcycles on the Respondent's property do so only for commuting purposes. Stipulation, Paragraph 13. Unit employees operating a motorcycle on the Respondent's property "have long been personally and financially responsible for obtaining other required items of safety equipment such as motorcycle helmets." Stipulation, Paragraph 12.

III. Positions of the Parties

The Respondent, relying on the Authority's decision in Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 30 FLRA 275 (1987), maintains that the agreement to provide reflective safety vests to unit employees (the MOU) was inconsistent with law and decisions of the Comptroller General and, consequently, the agreement was void. Respondent's Brief at 2-5. The Respondent argues that it fulfilled its obligation to bargain by providing the Union with an opportunity to bargain over the impact and implementation of the revocation of the MOU. Id. at 7. In the alternative, the Respondent maintains that, if the Authority finds that the Respondent's conduct violated the Statute, a status quo ante remedy is not warranted. Id. at 9-14.

The General Counsel maintains that the Respondent's repudiation of the MOU violated the Statute. General Counsel's Brief at 4-5. The General Counsel argues that because the issue here is the repudiation of a negotiated agreement, rather than the termination of an unlawful past practice, the Union was not obligated to request bargaining over the impact and implementation of the change. Id. at 6-7.

The General Counsel disagrees with the Respondent's reliance on the Authority's decision in Mare Island Naval Shipyard. The General Counsel notes that although the decision in Mare Island Naval Shipyard was issued on November 22, 1987, the Respondent did not rely on the decision to revoke the MOU until March 31, 1988. The General Counsel also maintains that the MOU was consistent with the Authority's decision in Mare Island Naval Shipyard because the Government is the primary beneficiary of the use of reflective safety vests by employees who operate motorcycles on Respondent's facilities. Id. at 5-6.

IV. Analysis and Conclusion

We conclude that the complaint should be dismissed.

The MOU required the Agency to pay for protective equipment of employees who operate motorcycles on the Respondent's facilities. The reflective safety vests which are the subject of the MOU are not intended to be used in the employees' work. Rather, the safety vests are to be used for commuting to work by motorcycle.

In Mare Island Naval Shipyard, the Authority 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. The Authority concluded that four proposals which required the agency to provide, at no charge, certain protective equipment (face shields, jackets, gloves, and shoes) for employees who operated motorcycles on the installation were nonnegotiable. The Authority 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. The Authority stated that under those provisions and relevant decisions of the Comptroller General, an agency may provide equipment to employees if (1) it is to be used for the employees' protection in the performance of hazardous duties, or (2) the Government, rather than the employee, receives the primary benefit from the equipment and the equipment is not a personal item which the employee should purchase. Mare Island Naval Shipyard, 30 FLRA at 277-78.

The Authority found that the proposed equipment in Mare Island Naval Shipyard: (1) was not intended to be used in the employees' work, and (2) was not for the primary benefit of the Government. Rather, the record indicated that the equipment was to be used for commuting to work by motorcycle. Accordingly, the Authority found that requiring the agency to pay the costs of providing the equipment was inconsistent with law. Id. at 278.

We reject the General Counsel's argument that the Government is the primary beneficiary of the use of reflective safety vests by employees who operate motorcycles on the Respondent's facilities. The reflective safety vests are not used in the employees' work. The vests are used for commuting to work. Although the Agency requires the use of reflective vests when an employee operates a motorcycle on its facilities, the Agency does not require any employee to use a motorcycle to commute to work. There is no contention that reflective safety vests are used to protect unit employees in the performance of hazardous duties.

Here, as in Mare Island Naval Shipyard, the use of the reflective safety vests is not for protection of employees in the performance of hazardous duties and the Government is not the primary beneficiary of the requirement that reflective safety vests be used. Consequently, requiring the Respondent to pay the costs of providing reflective safety vests is inconsistent with law. Compare National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785, 790-92 (1987) (requiring the agency to provide safety glasses held negotiable where Government, rather than employee, received the primary benefit from the equipment). Because the MOU required the Respondent to pay costs which are inconsistent with law, the MOU is unenforceable.

The fact that the Respondent did not revoke the MOU until several months after the Authority's decision in Mare Island Naval Shipyard is not relevant to our decision. The repudiation of the MOU was based on a correct interpretation of applicable law. The timing of the repudiation, therefore, is not significant.

The MOU was inconsistent with law. Accordingly, the Respondent was not obligated to bargain over its decision to revoke the MOU. See Department of the Navy, Philadelphia Naval Shipyard, 18 FLRA 902, 911-14 (1985) (agency was not obligated to bargain over its decision to terminate differential pay for certain work when such pay was inconsistent with a Government-wide regulation). We note that the Respondent offered to bargain about the impact and implementation of its decision to revoke the MOU.

The complaint alleges only a repudiation of a memorandum of understanding and a failure to bargain in good faith over the decision to revoke the MOU. Therefore, we will dismiss the complaint in its entirety.

V. Order

The complaint in this case is dismissed.




FOOTNOTES: