41:0107(13)NG - FEMTC and NAVY, MARE ISLAND NAVAL SHIPYARD VALLEJO, CALIFORNIA -- 1991 FLRAdec NG



[ v41 p107 ]
41:0107(13)NG
The decision of the Authority follows:


41 FLRA No. 13
	
	FEDERAL LABOR RELATIONS AUTHORITY
	WASHINGTON, D.C.

	     

	FEDERAL EMPLOYEES METAL TRADES COUNCIL
	(Union)
	
	and

	U.S. DEPARTMENT OF THE NAVY
	MARE ISLAND NAVAL SHIPYARD
	VALLEJO, CALIFORNIA
	(Agency)

	                              0-NG-1904

	

                   	DECISION AND ORDER ON NEGOTIABILITY ISSUES

                              	June 11, 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 by the 
Union under section 7105(a)(2)(E) of the Federal Service Labor-Management
Relations Statute (the Statute) and involves five proposals.

	Proposals 1 and 5, which require management to provide certain safety 
clothing and equipment to employees who operate motorcycles on the facility, 
are nonnegotiable.  Proposal 2, which requires that the Agency provide 
storage containers for the motorcycle safety equipment and that the Agency 
be responsible for the safekeeping and maintenance of the equipment, is 
negotiable except for that portion which requires management to maintain the 
equipment.  Proposal 3, which requires the Agency to provide facilities for 
employees to change into and out of the required protective clothing, is 
nonnegotiable.  Proposal 4, which requires the Agency to place employees in 
a paid status while they are changing into and out of the required 
protective clothing, is nonnegotiable.

 II.	Procedural Issues

	The Agency asserts that the Union's petition for review does not comply 
with 5 C.F.R. § 2424.4(a)(1) because it "does not contain the express 
language which the union sought to negotiate with the agency and which the 
agency declared nonnegotiable."  Statement of Position at 2.  The Agency 
claims that the proposals in the petition for review are similar, but not 
identical, to the proposals the Agency previously declared nonnegotiable.  
In particular, the Agency argues that Proposal 2 has been modified to 
include a new provision which provides that "management will be responsible 
for the safekeeping and maintenance of required motorcycle equipment."  Id.  
Therefore, the Agency asserts that the Union's negotiability appeal is 
deficient and should be dismissed.  The Agency has, however, submitted 
arguments concerning both sets of proposals, and with one exception, has 
declared both sets to be nonnegotiable.

	We have reviewed both sets of proposals and, with the exception of the 
second part of Proposal 2, find that the proposals declared nonnegotiable by 
the Agency are not substantively different from the proposals in the Union's 
petition for review.  Instead, the latter proposals are merely a restatement 
of the earlier proposals.  Accordingly, we reject the Agency's request that 
the petition be dismissed.  In addition, although Proposal 2, as modified, 
differs from the proposal declared nonnegotiable by the Agency, the Agency 
has fully expressed its position on that part of the proposal.


	As the proposals are not different in substance and as both parties have 
fully expressed their positions on them, we find that the petition for 
review is properly before us.  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, 1471 (1991) 
(second proposal held to be a restatement of an earlier proposal and 
properly before the Agency).  Compare American Federation of Government 
Employees, Department of Education Council of Locals and U.S. Department of 
Education, 36 FLRA 130, 137 (1990) (proposal held to be substantively 
different from proposal declared nonnegotiable and not properly before the 
Authority).

III.	Background

	The proposals in this case were submitted in response to an Agency 
decision to require all motorcycle riders on the base, including bargaining 
unit employees, to wear or  use certain motorcycle safety clothing and 
equipment.  Although helmets, eye protection, and hard-soled shoes had 
previously been mandated, the additional clothing required by the changes 
included long-sleeved shirts or jackets, long-legged trousers, full-finger 
gloves, and yellow or orange vests with retro-reflective strips.  In 
addition, the changes required that all motorcycles be equipped with two 
rear-view mirrors.

IV.	Proposal 1

     All motorcycle protective clothing that is required, except helment [sic], 
     will be provided by Mare Island Naval Shipyard for use of the employees at 
     no cost to them.  The employee will provide the required helmet.


Proposal 5

     The shipyard will provide and install the second rear view mirror that is 
     required on the employee's motorcycle if the motorcycle is equipped with 
     only one rear view mirror.

	A.	Positions of the Parties

		1.	The Agency

	The Agency contends that Proposals 1 and 5 are contrary to 29 U.S.C 
§ 668(a), 5 U.S.C. § 7903, and certain decisions of the 
Comptroller General because they require the Agency to expend appropriated 
funds for protective equipment which is "not required for the employee's 
protection in the performance of his or her duties."  Statement of Position 
at 4.  The Agency maintains that Proposal 1 is "identical in all material 
respects" to the proposals held nonnegotiable in Federal Employees Metal 
Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval 
Shipyard, Vallejo, California, 30 FLRA 275 (1987) (Mare Island).  Id. at 2.  


		2.	The Union

	The Union states that "the only use of these items" is to satisfy the 
Agency's requirements because none of the equipment is "required to operate 
a motorcycle on the highways of the state of California[.]"  Petition for 
Review at 2.  In addition, the Union argues that the Agency imposed the 
requirements "as a means of reducing benefits such as workman's compensation 
and sick leave that are paid to  motorcyclists if they are injured while 
riding on Mare Island Naval Shipyard."  Id.  The Union maintains that "the 
greatest benefit is realized by the agency" and payment for the equipment 
"would not be inconsistent with law."  Id.

	The Union acknowledges that previous Authority decisions are contrary to 
its position.  However, the Union maintains that unlike previous cases, 
the equipment requirements in this case were instituted at the Agency's "own 
initiation" and not "directed by higher authority" under the Department of 
Defense Traffic Safety Program.  Id.

	B.	Analysis and Conclusions

	The expenditure of appropriated funds to purchase the equipment and 
clothing encompassed by Proposals 1 and 5 is governed by 29 U.S.C. § 
668(a) 1/ and 5 U.S.C. § 7903.2/  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, 1205-06 (1988) 
(Jacksonville); Mare Island, 30 FLRA 275, 277-78 (1987).  Consistent with these 
provisions, "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."  Jacksonville, 32 FLRA at 1205.  Similarly, the Comptroller General has 
ruled that agency funds may be spent for such equipment only if: (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); 51 Comp. Gen. 446 (1972); 
42 Comp. Gen. 626 (1963).  See generally National Federation of Federal 
Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 
26 FLRA 785, 785-86 (1987).

                         



	Based on the record before us, we conclude that the equipment and clothing 
encompassed by Proposals 1 and 5 are not intended to be used in the employees' work.  
There is no dispute, in this regard, that the Agency does not require unit employees 
to ride motorcycles on the Agency's facilities or otherwise use motorcycles in 
performing their work.  Rather, the equipment and clothing is to be used by the 
employees only while commuting to and from work.  As such, there also is no 
basis on which to conclude that the equipment would be for the primary benefit of 
the Government.  Accordingly, and consistent with Jacksonville and Mare Island, we 
find that Proposals 1 and 5 are inconsistent with law and are nonnegotiable.

V.	Proposal 2

     The shipyard will provide storage containers at the main gates for the motorcycle 
     safety equipment and will be responsible for its safekeeping and 
     maintenance.

	A.	Positions of the Parties

		1.	The Agency

	The Agency maintains that being required to provide storage facilities 
"at the gates" interferes with management's right to determine its internal 
security practices under section 7106(a)(1) of the Statute.  Statement of 
Position at 4.  The Agency argues that because the gates "are located inside 
the property line of the installation[,]" Proposal 2 would permit the 
employees to "rid[e] their motorcycles between the installation property 
line . . . and the . . . storage facilities located at the  gates without 
the required protective equipment."  Id.  The Agency maintains that "[h]
owever short this distance might be, there can be no guarantee that an 
accident could not occur during such a ride."  Id.  In addition, the Agency 
asserts that the portion of the proposal relating to storage facilities does 
"not pertain to conditions of employment" under section 7103(a)(14) of the 
Statute because it does not directly relate to the "employees' work 
situations or employment relationships."  Id. at 4-5.

	With regard to the portion of Proposal 2 concerning "safekeeping and 
maintenance," the Agency asserts first that 5 U.S.C § 7903 prohibits 
the Agency from either purchasing or maintaining equipment that is not used 
in performing employees' work.  The Agency also argues, however, that if the 
equipment were the employees' personal property, that portion of the 
proposal which "relates solely to the 'safekeeping' of the equipment . . . 
would be negotiable . . . ."  Id. at 8.  On the other hand, the Agency 
contends that the "safekeeping" portion would be nonnegotiable if the Agency 
were required to furnish the equipment.  The Agency reasons that because the 
equipment then would be the Agency's property, proposals involving the 
safekeeping of the property would interfere with its right to determine its 
internal security practices.  

		2.	The Union

	The Union offers no arguments with regard to Proposal 2.

	B.	Analysis and Conclusions

	We reject, at the outset, the Agency's claim that to the extent that 
Proposal 2 concerns the location of storage facilities, the proposal 
interferes with the Agency's right to determine its internal security 
practices because the proposal requires the Agency to place the storage 
facilities "inside the property line of the installation."  Statement of 
Position  at 4.  Although the proposal provides for "storage containers at 
the main gates[,]" it does not specify an exact location for the containers 
and does not restrict the Agency from placing them in the general area of 
the gates, including at the property line.  Because Proposal 2 does not 
specify an exact location for the storage containers, we conclude that 
employees will not necessarily be exempt from the equipment requirements, 
even for a short distance.  

 	We reject also the Agency's argument that the portion of Proposal 2 
requiring the Agency to provide storage facilities does not concern unit 
employees' conditions of employment.  In deciding whether a matter involves 
a condition of employment of bargaining unit employees, the Authority 
considers whether: (1) the matters pertain to bargaining unit employees; and 
(2) the record establishes that there is a direct connection between the 
matter and the work situation or employment relationship of bargaining unit 
employees.  Antilles Consolidated Education Association and Antilles 
Consolidated School System, 22 FLRA 235, 236-37 (1986) (Antilles).

	The portion of Proposal 2 requiring the Agency to provide storage 
facilities clearly pertains to unit employees.  As such, it satisfies the 
first prong of the Antilles test.  We find that the proposal satisfies the 
second prong also.  In this regard, we find no difference between this 
portion of Proposal 2 and proposals concerning the storage of other personal 
property of employees while at work.  More particularly, all employees 
reasonably may be expected to have and need various personal items at the 
workplace.  In fact, some of these items, such as paychecks and other 
personal papers, may be acquired at the workplace.  Other items, such as the 
equipment involved in this case, are required by the Agency as employer.  It 
is unreasonable to expect employees to carry their personal items while they 
perform their duties.  As such, and as a direct result of their work 
situation, employees have a need to store personal property.  We conclude, 
therefore, that the proposal for storage facilities for the equipment 
involved in this case concerns a condition of employment, within the meaning 
of section 7103(a)(14) of the Statute.  See National Federation of Federal 
Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 
715 (1990) (EPA) (Authority stated that "protecting employee's personal 
property" was "principally related to the working conditions of 
employees.").

	Proposal 2 also requires the Agency to be responsible for "safekeeping 
and maintenance."  In the absence of any argument to the contrary from the 
Union, we adopt the Agency's interpretation that this portion of Proposal 2 
requires the Agency to be responsible for the "safekeeping and maintenance" 
of motorcycle safety equipment.  As noted previously, the Agency asserts 
that the portion of the proposal concerning the "safekeeping of the 
equipment" is nonnegotiable only if the Agency is required to provide the 
equipment.  Statement of Position at 8.  We have determined that Proposal 1 
is nonnegotiable and that, therefore,  employees must provide their own 
motorcycle safety equipment.  Accordingly, and consistent with the Agency's 
assertion, we conclude that the portion of the proposal requiring the Agency 
to provide storage containers for the safekeeping of employee personal items 
including motorcycle safety equipment is negotiable.  See EPA, 35 FLRA at 
713-16.  

	Finally, with regard to that portion of Proposal 2 which concerns the 
maintenance of motorcycle safety equipment, we note that the expenditure of 
appropriated funds for the maintenance of safety and protective equipment is 
governed by 29 U.S.C. § 668(a) and 5 U.S.C. § 7903, which also 
govern the purchase of such equipment.  See notes 1 and 2 above.  As we 
stated with regard to Proposals 1 and 5, 29 U.S.C. § 668(a) and 5 
U.S.C. § 7903 authorize the purchase of such safety equipment only 
where the equipment is to be used for the employee's protection in the 
performance of hazardous work or where the equipment would be for the 
primary benefit of the Government.  It follows, therefore, that the 
expenditure of appropriated funds under 29 U.S.C. §668(a) or 5 U.S.C. 
§ 7903 for the maintenance of safety equipment also is subject to the 
same standards, that is, that the equipment will be used for the employee's 
protection in the performance of hazardous work or the equipment will be for 
the primary benefit of the Government.

	Consequently, as the record in this case does not establish that the 
motorcycle safety equipment encompassed by Proposals 1 and 5 above would be 
used in the employees' work or would be for the primary benefit for the 
Government, there is no basis to conclude that the expenditure of 
appropriated funds for the maintenance of the same motorcycle safety 
equipment would be permitted under 29 U.S.C. §668(a) or 5 U.S.C. § 
7903.  Therefore, that portion of Proposal 2 which provides that the Agency 
is responsible for the maintenance of the equipment is inconsistent with law 
and is nonnegotiable.

	In conclusion, we find that the portions of Proposal 2 concerning the 
safekeeping and storing of the equipment are negotiable.  The portion of 
Proposal 2 which concerns the maintenance of the equipment is nonnegotiable.


VI.	Proposal 3

     The shipyard will provide facilities for the employees['] use to change into 
     or out of the required additional clothing.

 	A.	Positions of the Parties

		1.	The Agency

	The Agency maintains that proposals for "changing facilities . . . do 
not pertain to conditions of employment" under section 7103(a)(14) of the 
Statute because they do not directly relate to the "employees' work 
situations or employment relationships."  Statement of Position at 4-5.  The 
Agency notes that employees are not required to wear the protective clothing 
while in a duty status or in the performance of their work.

		2.	The Union

	The Union offers no arguments with regard to Proposal 3.

	B.	Analysis and Conclusions

	As noted previously, in deciding whether a matter involves a condition 
of employment of unit employees, the Authority considers whether:  (1) the 
matters pertain to unit employees; and (2) the record establishes that there 
is a direct connection between the matter and the work situation or 
employment relationship of the employees.  Antilles, 22 FLRA at 236-37.


	We find that Proposal 3 satisfies the first prong of the Antilles test 
because it clearly pertains to unit employees.  However, we find that 
Proposal 3 does not satisfy the second prong.  It is not disputed in this 
case that the Agency does not require employees to wear the protective 
clothing in the course of their work.  It also is undisputed that employees 
may wear the required protective clothing to and from work and on the base 
to the same extent as other clothing worn while commuting.  As such, any 
desire to change into and out of the required clothing results solely from 
employees' personal preference.  

	Unlike Proposal 2, which concerns the storage of employees' personal 
property, the need for which results directly from the work situation, 
Proposal 3 addresses a matter which results solely from employees' personal 
preference.  We find, therefore, that Proposal 2 is not directly connected 
to the work situation of unit employees.  As such, Proposal 3 does not 
concern a condition of employment, within the meaning of section 7103(a)(14) 
of the Statute, and is nonnegotiable.  Compare American Federation  of 
Government Employees Council 214, AFL-CIO and Department of Defense, 
Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 
1037-38 (1988) (Air Force Logistics Command) (proposal requiring the agency 
provide changing facilities for employees required to wear a uniform on duty 
concerned condition of employment); American Federation of State, County and 
Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, 
Washington, D.C., 7 FLRA 578, 588 (1982), enforced sub. nom. Library of 
Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) (proposal requiring the 
agency to provide showers and locker facilities for employees who came in 
contact with dirt and chemicals in their work concerned conditions of 
employment).  Compare also National Association of Government Employees, 
Locals R12-122, R12-222 and U.S. Department of Defense, Washington National 
Guard, Tacoma, Washington, 38 FLRA 295, 306-07 (1990) (proposal requiring 
the agency to furnish a storage area where employees could leave their 
uniforms when they were not required to wear them concerned conditions of 
employment); U.S. Department of the Air Force, Griffis Air Force Base, Rome, 
New York, 37 FLRA 570 (1990) (agency policy of referring off-duty misconduct 
to Magistrate's court directly connected to the "work situation" or 
"employment relationship" of bargaining unit employees).  

VII.	Proposal 4

     The employees are to be in a paid status while changing into or out of the 
     motorcycle safety equipment by the Navy before or after their normally 
     assigned work hours.

	A.	Positions of the Parties 

		1.	The Agency

	The Agency asserts that Proposal 4 interferes with its right to assign 
work under section 7106(a)(2)(B) of the Statute because it precludes 
management from "assigning any work to employees, while in a paid duty 
status, when they are changing into and out of their motorcycle safety 
equipment."  Statement of Position at 6.  The Agency notes that an 
employee's decision not to wear the prescribed protective equipment before 
entering the Agency's facility "is a matter of personal choice . . . ."  Id.


		2.	The Union

	The Union offers no arguments with regard to Proposal 4.

 	B.	Analysis and Conclusions

	Proposal 4 requires the Agency to place employees in a paid status while 
they change into and out of their motorcycle safety clothing before and 
after their normal working hours.  As noted in connection with Proposal 3, 
it is not disputed that "management is not requiring that the employees 
hange into or out of