40:0012(2)NG - - AFGE Local 1482 and Navy, Marine Corps Logistics Base, Barstow, CA - - 1991 FLRAdec NG - - v40 p12
[ v40 p12 ]
The decision of the Authority follows:
40 FLRA No. 2
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS LOGISTICS BASE
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 2, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on 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 six proposals.(1)/ The proposals were submitted by the Union in response to changes proposed by the Agency in regulations prescribing rules for the operation of two and three-wheeled vehicles on the Marine Corps Logistics Base (Base).
Because we find that the proposals directly interfere with the management's right to determine its internal security practices under section 7106(a)(1) of the Statute, we conclude that the proposals are nonnegotiable.
The proposed regulations, Base Order P5500.13, governing the operation of two and three-wheeled vehicles on the Base require, among other things, that operators of those vehicles wear specified personal protective equipment. That equipment includes: (1) safety helmets which meet Department of Transportation standards; (2) eye protection; (3) high visibility garments, such as reflective vests; (4) footwear; and (5) clothing covering the torso and legs. These requirements would "primarily impact on motorcycle operators and riders," and would apply to any individual, military or civilian, operating such vehicles on the Base. Statement of Position (Statement) at 2.
III. Proposals 2-7
Proposals 2-7 concern changes to and/or deletions from Base Order P5500.13, Security, Law Enforcement & Motor Vehicle Regulations.(2) The proposals are as follows:
Proposal 2. 3002.2 - sixth line after "all" delete the rest of the sentence and add "requirements of the CVC [California Vehicle Code].
[The proposal substitutes the requirements of the California Vehicle Code for the requirements of the regulation.]
Proposal 3. 3002.2a - delete.
[The proposal would delete the requirement for employees to wear helmets.]
Proposal 4. 3002.2b - delete.
[The proposal would delete the requirement for employees to wear eye protection.]
Proposal 5. 3002.2c - delete.
[The proposal would delete the requirement for employees to wear highly visible clothing, such as reflective vests.]
Proposal 6. 3002.2d - delete.
[The proposal would delete the requirement for employees to wear certain footwear.]
Proposal 7. 3002.2e - delete.
[The proposal would delete the requirement that employees wear clothing covering the upper torso and legs.]
IV. Positions of the Parties
The Agency contends that Proposal 2 would exclude unit employees from that portion of its regulations requiring the use of personal protective equipment and would, instead, require them to comply with "less stringent requirements" of the CVC. Statement at 2. The Agency asserts that Proposals 3-7 would delete requirements to wear specific items of personal protection equipment, including helmets, eye protection, reflective vests, footwear and certain clothing. The Agency contends that these proposals, taken together, would replace the requirements of its regulations with the requirements governing the operation of two and three-wheeled vehicles imposed by the State of California.
According to the Agency, the purpose of the regulations in dispute is "to protect agency personnel and property from injury, damage, and destruction arising from traffic accidents on the [Base]." Id. The Agency asserts that an agency's right to determine internal security practices includes the right to determine policies and actions which are part of its plan to secure or safeguard its personnel and physical property. In support of its position, the Agency cites International Brotherhood of Teamsters, Truck Drivers, Warehousemen & Helpers of Jacksonville, Local Union 512 and Department of the Navy, Consolidated Civilian Personnel, Jacksonville, Florida, 32 FLRA 1200 (1988) (Department of the Navy) and 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), among other Authority decisions. The Agency contends that the requirement to wear the safety equipment at issue is part of a plan adopted by the Agency to guard against harm to its property and personnel. The Agency concludes that because Proposals 2-7 remove management's requirements as to the use of specified protective equipment, the proposals "directly and excessively interfere with [management's] right to determine its internal security practices" under section 7106(a)(1) of the Statute and are, therefore, nonnegotiable. Statement at 2.
The Union contends that the proposals should be found negotiable because the Agency "[has] not shown any compelling need for the regulations in [dispute] which far exceed the CVC requirements of the State of California." Response at 3 (emphasis in original).
According to the Union, Proposal 2 would require civilians operating a motorcycle at the Base "to abide by the State of California Vehicle Code only." Petition for Review at 3. The Union asserts that "there is no reason for [the] additional safety gear [requirements proposed by the Agency] since the State of California" has no such requirements. Id. (emphasis in original). As to Proposal 3, the Union states that because employees of the Agency are beyond the age requirement of the CVC for wearing helmets, there should be no requirement for employees to wear helmets. With respect to Proposals 4, 5, 6 and 7, which concern, respectively, eye protection, highly visible clothing, footwear, and clothing covering the upper torso and legs, the Union contends that the CVC does not require this equipment and, therefore, there is "no reason" for the requirements provided in the Agency's regulations. Id. at 4-5.
V. Analysis and Conclusions
For the reasons discussed below, we find that Proposals 2-7 directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute and conclude, therefore, that the proposals are nonnegotiable.
Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and actions that are a part of its plan to secure or safeguard the personnel and the physical property of the Agency. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 631 (1990); Department of the Navy, 32 FLRA at 1204; 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). Where an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and its practice or decision designed to implement that goal, a proposal which directly interferes with or negates the agency's practice or decision conflicts with the agency's right under section 7106(a)(1). American Federation of Government Employees, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 34 FLRA 977, 983 (1990).
The Agency states that the requirement in its regulations that operators of two and three-wheeled vehicles, including motorcycles, wear personal protective equipment is a part of the plan that it has adopted to protect Agency personnel and property from injury and to prevent damage and destruction resulting from traffic accidents on the Base. We find that the Agency has established a link between its goal of safeguarding personnel and property and its requirement that operators of two and three-wheeled vehicles, including motorcycles, wear particular personal protective equipment.
Accordingly, we find that the Agency's right to determine its internal security practices includes the right to determine the kinds of equipment and clothing that are necessary for the operation of two and three-wheeled vehicles at agency facilities and installations in order to safeguard the agency's personnel and its property. See, for example, Department of the Navy (Proposal 1) (proposal requiring agency to waive its safety rules governing the operation of motorcycles for employees, for example, rules concerning safety helmets, eye protection, long trousers, long-sleeved garments, and footwear, found to be nonnegotiable); Rock Island (proposal precluding agency from imposing safety requirements for the operation of motorcycles by employees, for example, high visibility garments and other protective equipment, found to be nonnegotiable).
Proposals 2-7 would preclude the Agency from imposing any requirements for personal protective equipment that are more stringent than state highway safety regulations governing the operation of motorcycles. Thus, Proposals 2-7 are to the same effect as the proposal found nonnegotiable in Rock Island. In that case, a proposal was found nonnegotiable because it precluded the agency from imposing safety requirements, with respect to equipment and clothing, that were more stringent than applicable requirements of the State of Illinois governing the operation of motorcycles or mopeds. The proposal was found to be nonnegotiable because it directly interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Consistent with Rock Island, we find that Proposals 2-7 directly interfere with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. Consequently, we conclude that Proposals 2-7 are nonnegotiable.
Because we find that the proposals are nonnegotiable under section 7106(a)(1) of the Statute, we do not address the Union's contentions as to whether there is a compelling need for the Agency's regulations concerning personal protective equipment. We also note that the Union does not claim that the proposals constitute an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of a management right. Accordingly, we do not address that issue. See American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA 1469, 1477 (1990).
The petition for review is dismissed.
SECURITY, LAW ENFORCEMENT AND
MOTOR VEHICLE REGULATIONS
3002. TWO AND THREE WHEELED VEHICLE OPERATION AND EQUIPMENT
. . . .
2. The following personal protective equipment requirements must be met by all military personnel assigned to the base while operating or riding a motorized two or three-wheeled vehicle on or off of the installation. Civilians operating a motorized two or three-wheeled vehicle aboard the installation are required to comply with all other requirements of this chapter. Requirements for personal protective equipment are:
a. Helmet. Operators and passengers must wear an unornamented protective helmet meeting or exceeding the requirements set forth in Federal Motor Vehicle Standard 218 while operating the vehicle, a DOT label or stamp upon the helmet signifies that it meets this requirement. Additionally, the helmet must either be of highly reflective design or be affixed with a one inch wide white or silver reflective tape which will extend horizontally around the base and vertically from front to rear.
b. Eye Protection. Operators and passengers are required to wear a shatterproof protective shield or goggles at all times while operating or riding aboard the vehicle. The operator eye protection requirement may also be met by a windshield which is not tinted and so constructed as to rise above the line of sight of the operator when the operator is seated astride the motorcycle in a normal upright position. No tinted or colored eye protection may be worm during the hours of darkness as defined by the CVC, Section 280.
c. Reflective Vest. A highly visible and reflective upper torso garment (lime green or international orange with reflective striping) will be the outermost garment worn by operators and passengers while the vehicle is in motion. The garment will be worn over the uniform by military personnel while the vehicle is being operated but will be removed immediately upon dismounting from the vehicle if the rider is in military uniform.
d. Footwear. Boots or shoes must be worn. Footwear which exposes a portion of the foot, (e.g., sandals and open-toed shoes) are prohibited footwear for this type of vehicle operation.
e. Uniforms and Clothing. When in uniform military operators and passengers will not wear civilian packs, shoes, boots, or other garments over the uniform. Clothing will cover the upper torso and legs. Long sleeved jackets, gloves, and boots are recommended although not required.
(If blank, the decision does not have footnotes.)
1. Proposal 1 is no longer in dispute between the parties. Therefore, that proposal will not be considered in this decision.
2. The sections of Base Order P5500.13 mentioned in the proposals are set forth in the Appendix.