49:0973(94)NG - - NTEU and Treasury, IRS, Washington, DC - - 1994 FLRAdec NG - - v49 p973



[ v49 p973 ]
49:0973(94)NG
The decision of the Authority follows:


49 FLRA No. 94

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

WASHINGTON, D.C.

(Agency)

0-NG-2179

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

May 17, 1994

_____

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). The appeal concerns the negotiability of one provision of a collective bargaining agreement that was disapproved by the Agency head under section 7114(c) of the Statute. The collective bargaining agreement relates to the Agency's decision to initiate a new program that requires the use of video display terminals (VDTs).

For the following reasons, we find that the portion of the provision requiring the Agency to reimburse an employee for the cost of corrective lenses certified by a private physician as necessary for the employee to operate a VDT is inconsistent with 29 U.S.C. § 668(a) and 5 U.S.C. § 7903 and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute. We also find that the remaining portion of the provision, which requires the Agency to reimburse an employee for the cost of an eye examination by a private physician if the physician prescribes corrective lenses or a change in existing lenses due to the use of a VDT, is inconsistent with 5 U.S.C. § 7901, and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

II. The Provision

If an employee's physician (optometrist or ophthalmologist) prescribes corrective lenses or a change in existing lenses, and certifies that such lenses are necessitated due to the use of VDT equipment on the job, the Employer shall reimburse such an employee for 75% of the cost of the prescription up to a maximum of $100.00 toward the cost of such an examination or toward the cost of a new prescription on an annual basis.

III. Positions of the Parties

1. Agency

The Agency states that the corrective lenses referenced in the provision are "ordinary corrective lenses[.]" Statement of Position at 3.

The Agency contends that the portion of the provision requiring the Agency to reimburse an employee for the cost of corrective lenses is contrary to certain decisions of the Comptroller General ruling on the general issue of when appropriated funds may be spent for the purchase of items that could be considered personal equipment. The Agency argues, in this connection, that corrective lenses are items that will not primarily benefit the Government and that they are personal in nature and, therefore, should be furnished by employees who need them. In support of its position that appropriated funds may not be used for this purpose, the Agency cites 63 Comp. Gen. 278 (1984) (the purchase of corrective lenses for employees who operate VDTs may not be made with public funds) and 61 Comp. Gen. 634 (1982) (the purchase of an air purifier for an employee who suffers from allergies may not be made with public funds).

The Agency further contends that the portion of the provision requiring the Agency to reimburse an employee for the cost of an eye examination for the corrective lenses is contrary to 5 U.S.C. § 7901 and Federal Personnel Manual (FPM) chapter 792 because it requires the Agency to expend appropriated funds for medical services not authorized by those provisions.(1) In support of its position, the Agency cites Proposal 1 in National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785 (1987) (Defense Mapping Agency), which the Authority found to be nonnegotiable.

2. Union

The Union states that the corrective lenses referenced in the provision are to be used by an employee for protection when operating a VDT. The Union argues, in this connection, that the provision applies only to corrective lenses that the employee's physician certifies are needed due to the use of VDT equipment on the job. Consequently, the Union argues that, because the corrective lenses must be certified as job-related, the provision is consistent with both 29 U.S.C. § 668(a) and 5 U.S.C. § 7903, which govern the expenditure of appropriated funds for the purchase of protective equipment.

The Union asserts that the Agency, in support of its position of nonnegotiability, relies solely on the argument that the Comptroller General has held that requiring an agency to reimburse an employee for corrective lenses or for an eye examination is inconsistent with the authorized use of appropriated funds. In this regard, the Union argues that the Authority is not bound by Comptroller General decisions.

In the alternative, the Union contends that the provision is consistent with Comptroller General decisions because the Agency receives the primary benefit of the corrective lenses and eye examinations for the corrective lenses. The Union argues, in this connection, that the corrective lenses promote productivity by assuring that the Agency will retain experienced employees who otherwise could not operate a VDT satisfactorily and by assuring the benefits of an automated work place. The Union further argues that the provision is designed to allow an employee, if requested, to return the corrective lenses to the Agency when the employee separates from employment and, therefore, that the corrective lenses "are not necessarily personal to the employee . . . ." Response at 6.

With regard to the portion of the provision requiring reimbursements for eye examinations, the Union maintains that the provision "only requires the Agency to reimburse employees for eye examinations that lead to prescriptions for corrective lenses[.]" Id. at 5. The Union contends that this provision is similar to Proposals 2 and 4 in Defense Mapping Agency, which the Authority found negotiable. The Union notes that in that case both Proposal 2, requiring the Agency to provide safety glasses, and Proposal 4, requiring the Agency to provide eye examinations for the safety glasses, concerned the expenditure of funds for which the Government, rather than the employee, received the primary benefit.

The Union further maintains that this provision is distinguishable from Proposal 1, which was found nonnegotiable in Defense Mapping Agency. The Union asserts that the proposal in that case was concerned with routine eye examinations while, by contrast, this provision is concerned with protective equipment.

IV. Analysis and Conclusions

A portion of the provision requires the Agency to reimburse an employee for the cost of corrective lenses that a private physician certifies are needed to operate a VDT. The remaining portion of the provision requires the Agency to reimburse an employee for the cost of an eye examination that leads to a prescription for corrective lenses.

We first address the portion of the provision requiring reimbursement for the cost of corrective lenses. In this connection, the Union claims that the corrective lenses are used by employees for protection in the performance of work on a VDT. In Defense Mapping Agency, the Authority discussed the legal requirements governing the use of appropriated funds to provide employees with safety-related equipment. The expenditure of appropriated funds by an agency for the purchase of such equipment is governed by 29 U.S.C. § 668(a)(2) and 5 U.S.C. § 7903.(3)

See also Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 41 FLRA 107, 110-11 (1991). Under those provisions, an agency may provide equipment to employees if it is to be used for the employees' protection in the performance of their jobs. Moreover, public monies may be expended for protective equipment under the cited statutes only if the work performed is hazardous. See Defense Mapping Agency, 26 FLRA at 786. In addition, a regulation specifically addressing eye and face protection requires agencies to provide "[s]uitable eye protectors . . . where machines or operations present the hazard of flying objects, glare, liquids, injurious radiation, or a combination of these hazards." 29 C.F.R. § 1910.133.

We find, based on the record and consistent with these provisions of law and regulation, that the record does not establish that corrective lenses are safety-related equipment and, therefore, that the proposed corrective lenses in this case may not be purchased by the Agency for unit employees. In this regard, the Union has provided no basis for the Authority to conclude that the use of a VDT is hazardous. Moreover, it does not appear that the corrective lenses are related to occupational illness or injuries. Rather, it seems clear that the Union seeks new prescriptions for employees who "may now be unable to perform [their] work satisfactorily without corrective lenses." Response at 5. Thus, although the corrective lenses may assist the employees to perform better on the new equipment, there is no evidence that the lenses would be designed to protect the employees from any hazards that might be associated with the equipment. For example, although the applicable regulation provides that agencies may protect employees' eyes from the hazards associated with glare, the provision is silent regarding the provision of tinted lenses or some other way of addressing the glare that may be associated with VDTs.

In our view, the record establishes that the corrective lenses discussed in the provision are ordinary eyeglasses that are routinely furnished by employees when the need to correct their vision arises. Moreover, in contrast to a hazardous situation where everyone in the workplace must be protected against a known hazard, the lenses at issue here will be required only by certain employees who operate VDTs. Other employees may require no correction or may possess existing lenses that provide the necessary correction.

This conclusion is consistent with decisions of the Comptroller General in rulings on the general issue of when appropriated funds may be spent for the purchase of items which could be considered personal equipment. See, for example, 63 Comp. Gen. 278 (1984); 61 Comp. Gen. 634 (1982); and 56 Comp. Gen. 398 (1977). Under those decisions, public funds may be spent for such items 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 that should be furnished by the employee.

Based on the record before us, it has not been shown that the use of corrective lenses to operate VDTs will be for the primary benefit of the Government.  Accord 63 Comp. Gen. 278, 281 (1984). In addition, we are not persuaded by the Union's argument that the provision is designed to allow an employee to return the corrective lenses to the Agency when an employee is separated from employment and, therefore, that the corrective lenses would be the property of the Government and not necessarily the personal property of the employees. We note, in this regard, that most prescription lenses cannot readily be used by other employees and, therefore, it is unlikely that the Agency would wish to collect and recycle them. We also reject the Union's argument that the corrective lenses promote productivity by assuring that the Agency will retain experienced employees who otherwise could not operate a VDT, thereby assuring the benefits of an automated work place. The Union has not supported its argument in this regard and it is not otherwise apparent that the provision of ordinary corrective lenses by the Agency would promote productivity or otherwise guarantee the retention of certain employees who operate VDTs or assure the benefits of an automated workplace. See, for example, id. (Comptroller General found the long-range benefits of providing corrective lenses to employees who operate VDTs to be speculative).

Consequently, we find that requiring the Agency to pay the cost of corrective lenses for operators of VDT equipment would not be permitted under 29 U.S.C. § 668(a) or 5 U.S.C. § 7903 and, therefore, that the provision is inconsistent with law. Accordingly, this portion of the provision is nonnegotiable under 7117(a)(1) of the Statute.

In reaching this result, we find that the instant provision is distinguishable from Proposal 2, which was found negotiable in Defense Mapping Agency. That proposal required the agency management to provide safety glasses. The Authority found that the Government, rather than the employee, received the primary benefit of the safety glasses. The record indicated that an agency regulation provided for the provision of safety glasses and that the regulation was not inconsistent with law or Comptroller General decisions. This case, by contrast, concerns corrective lenses, and not safety glasses. Moreover, the record establishes that the corrective lenses sought in the instant case do not primarily benefit the Government and are items that are personal in nature.

We now turn to the remaining portion of the provision, which would require the Agency to reimburse an employee for the cost of an eye examination if the physician prescribed corrective lenses or a change in existing lenses. As noted above, the corrective lenses are ordinary eyeglasses that generally are furnished by the employee. Consequently, we find that the provision would effectively require the Agency to provide routine eye care by reimbursing the employee's expenses of obtaining a prescription for eyeglasses from a private physician. As such, we find that the provision is substantially similar to Proposal 1 in Defense Mapping Agency, which required the Agency to provide eye examinations to employees or to reimburse employees for the expenses of obtaining examinations from a private physician. In concluding that the proposal in that case was nonnegotiable, the Authority reviewed the legislative history and stated purpose of 5 U.S.C. § 7901, which authorizes Federal employee health programs,(4) and concluded that:

[T]he statutory authorization to provide health services does not extend to treatment beyond that involving on-the-job illness and dental conditions of a minor nature or requiring emergency attention.

26 FLRA at 788 (emphasis in original) (footnote omitted). The Authority found that the proposal in Defense Mapping Agency was inconsistent with 5 U.S.C. § 7901 because it required the Agency to provide specific medical services exceeding the limited authorization of that section. This portion of the provision similarly would require the Agency to provide routine eye care beyond that of an emergency or on-the-job nature. Consequently, we find, consistent with Proposal 1 in Defense Mapping Agency, that this portion of the provision is inconsistent with 5 U.S.C. § 7901 because it requires the Agency to provide specific medical services exceeding the limited authorization of that section. Accordingly, this portion of the provision is inconsistent with law and nonnegotiable under section 7117(a)(1) of the Statute.

In so finding, we conclude that this portion of the provision is distinguishable from a portion of Proposal 2 in Defense Mapping Agency that sought eye examinations for safety glasses prescribed for use by agency regulation. In this case, by contrast, the eye examinations are for lenses that are required neither by regulation nor safety considerations.

In summary, we conclude that the portion of the provision requiring the Agency to reimburse an employee for the cost of corrective lenses is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with 29 U.S.C. § 668(a) and 5 U.S.C. § 7903. We further find that the remaining portion of the provision, which requires the Agency to reimburse an employee for the cost of an examination to determine whether the employee needs corrective lenses or a change in existing lenses, is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with 5 U.S.C. § 7901. In reaching this result, we find no merit in the Union's assertion that the Agency's reliance on Comptroller General decisions is misplaced because the Authority is not bound by such decisions. Here, we did not rely solely on Comptroller General decisions. See, for example, American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Services, Social Security Administration, 25 FLRA 600 (1987). Instead, we independently evaluated the provision in light of applicable law and regulation as well as interpretive decisions of the Comptroller General. See id. (on remand, the Authority noted the court's statement that while a Comptroller General's decision had precedential value, it lacked binding force and the Authority was required to evaluate independently the union's proposal against the applicable provision of law).

V. Order

The petition for review is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency cites FPM chapter 792. We note that during the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document at 1. As relevant here, FPM chapter 792 has been abolished.

2. 29 U.S.C. § 668(a)(1) and (2) provides, in pertinent part:

It shall be the responsibility of the head of each Federal agency to establish and maintain an effective and comprehensive occupational safety and health program . . . . The head of each agency shall (after consultation with representatives of the employees thereof)--

(1) provide safe and healthful places and conditions of employment, . . . ; [and]

(2) acquire, maintain, and require the use of safety equipment, personal protective equipment, and devices reasonably necessary to protect employees[.]

3. 5 U.S.C. § 7903 provides, in pertinent part:

Appropriations available for the procurement of supplies and material or equipment are available for the purchase and maintenance of special clothing and equipment for the protection of personnel in the performance of their assigned tasks. . . .

4. 5 U.S.C. § 7901 provides, in pertinent part:

(a) The head of each agency of the Government of the United States may establish, . . . a health service program to promote and maintain the physical and mental fitness of employees under his jurisdiction.

. . . .

(c) A health service program is limited to--

(1) treatment of on-the-job illness and dental conditions requiring emergency attention;

(2) preemployment and other examinations;

(3) referral of employees to private physicians and dentists; and

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