53:0131(19)NG - - AFGE Council 214 and HQ, Air Force Materiel Command, Wright-Patterson AFB, OH - - 1997 FLRAdec NG - - v53 p131



[ v53 p131 ]
53:0131(19)NG
The decision of the Authority follows:


53 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 214

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

HEADQUARTERS, AIR FORCE MATERIEL COMMAND

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

(Agency)

0-NG-2338

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 30, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

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 seven proposals submitted in response to the implementation of an Agency traffic safety program requiring employees to use specific safety equipment.

For the reasons that follow, we conclude that Proposals 1, 2, and 4, which preclude the Agency from requiring motorcyclists and bicyclists to use certain safety equipment on Agency premises, are outside the duty to bargain because they affect the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Proposal 3, which requires the Agency to provide or to pay for recommended safety equipment, is outside of the duty to bargain under section 7117 of the Statute because it is contrary to Federal law. We dismiss, without prejudice, the petition for review of Proposals 5, 6, and 7 because the Agency has not alleged that the proposals are inconsistent with law, rule or regulation.

II. Preliminary Matter

The Union's petition for review contains seven proposals. However, with respect to three of these proposals (Proposals 5, 6, and 7), there is no dispute as to whether the proposals are inconsistent with law, rule or regulation. The Agency stated in its allegation of nonnegotiability that these three proposals "no longer need to be addressed by the parties." Petition for Review (Petition), Attachment 2 at 1. In response, the Union stated only that Proposal 5 "was covered by the language of the instruction and was thus moot[,]" that the Agency's "assessment of [Proposal] 7 . . . [wa]s correct[,]" and that Proposal 6 was "not a high priority item [.]" Id., Attachment 1 at 1. The Union has provided no argument regarding the negotiability of any of these three proposals.

Under section 2424.1 of the Authority's Regulations, the Authority will consider a petition for review of a negotiability issue only where the parties are in dispute as to whether a proposal is inconsistent with law, rule or regulation. See 5 U.S.C. § 7117(c); 5 C.F.R. § 2424.1. As there is no basis on which to conclude that the Agency has alleged that its duty to bargain does not extend to Proposals 5, 6 and 7, the petition for review is not properly before us. Therefore, we dismiss the petition as it relates to Proposals 5, 6 and 7 without prejudice to the Union's right to file an appeal if the Agency alleges that the proposals are outside the duty to bargain and the other conditions governing review are met. National Federation of Federal Employees, Council of VA Locals and U.S. Department of Veterans Affairs, Washington, D.C., 49 FLRA 923, 929 (1994).

III. Proposals 1, 2 and 4

Proposal 1

Employees will be required to wear only the personal protection equipment for the operation of motorcycles required by the state in which said installation is located.

Proposal 2

The agency may encourage or recommend personal protection equipment over and above that required by the state government.

Proposal 4

Employees that use bicycles in the course of performing their duties may be encouraged to wear helmets but not be required to.

A. Positions of the Parties

1. The Agency (1)

The Agency contends that Proposals 1, 2 and 4 are inconsistent with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. In support of its contention, the Agency relies on Department of the Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania and American Federation of Government Employees, Local 1156, 44 FLRA 728 (1992) and National Association of Government Employees, Local R7-72 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 42 FLRA 1019 (1991) (Rock Island).

2. The Union

The Union contends that Proposals 1, 2 and 4 do not concern the Agency's internal security practices because "internal security practices" should include only practices designed to prevent the employer's facility, equipment and other property from being damaged, stolen or accessed by unauthorized personnel. The Union asserts that internal security practices should not extend to "personal safety issues." Response to Deficiency Order at 2 (Response).

B. Analysis and Conclusions

1. Meaning of the Proposals

There is no dispute that, consistent with its plain wording, Proposal 1 would preclude the Agency from requiring motorcyclists on its installation to use safety equipment not required by the state in which a covered installation is located.

Proposal 2 relates to the wearing of "personal protection equipment over and above that required by the state government" providing that such equipment may be encouraged or recommended by the Agency. Although Proposal 2 does not expressly state that the personal protection equipment referenced applies to cyclists, we conclude, from the record as a whole, that it does. Further, although the proposal does not expressly preclude the Agency from requiring safety equipment for motorcyclists and bicyclists that is not required by the state, the Union asserts that, under the proposal, the Agency may "only recommend[] or encourage[] use of [such safety] equipment[.]" Response at 2. Where a proposal is silent as to a particular matter, a union's statement of intent clarifying the matter will be adopted if it is otherwise consistent with the wording of the proposal. See e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996). As the Union's statement of intent is consistent with the wording of the proposal, we adopt it. So construed, the proposal would preclude the Agency from requiring safety equipment for cyclists over and above that required by the state.

There is also no dispute that, based on its express language, Proposal 4 would preclude the Agency from requiring bicyclists to use helmets.

2. The Proposals Are Not Within the Duty to Bargain Because They Interfere With Management's Right to Determine Its Internal Security

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. American Federation of Government Employees, Local 1482 and U.S. Department of the Navy, United States Marine Corps Logistics Base, Barstow, California, 40 FLRA 12, 15 (1991) (Logistics Base). Where an agency shows a link or reasonable connection between its goal of safeguarding personnel or property and its practice designed to implement that goal, a proposal which directly interferes with the agency's practice conflicts with the agency's right under section 7106(a)(1). Id. at 15-16. The Union argues, in this regard, that the Authority should find that internal security practices do not extend to "personal safety issues." Response at 2. However, other than its broad statement that "the Statute sets forth a general duty to bargain[,]" the Union fails to provide any support for its argument. Id. at 3. We conclude that this argument is insufficient for us to reverse long-standing precedent that internal security practices include such practices as those involved in this case. See, e.g., National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 631 (1990); 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) (Consolidated Civilian Personnel); 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).

Air Force Instruction 91-207 (the Instruction), entitled "US Air Force Traffic Safety Program", establishes the Agency's requirement that cyclists wear specified safety equipment. Petition, Attachment 7 at 1. The Instruction explains that the requirement that cyclists wear specified safety equipment is part of the plan to "prevent or reduce frequency and severity of vehicular mishaps involving Air Force personnel and equipment." Id. This statement in the Instruction establishes the necessary link between the Agency's goal of safeguarding personnel and property and the requirement that motorcyclists and bicyclists wear specified safety equipment. Accordingly, we conclude that the Agency's right to determine its internal security practices includes the right to determine the equipment and clothing necessary to protect cyclists on Agency installations. See, e.g., Rock Island, 42 FLRA at 1030-33 (Agency's right to determine internal security practices includes the right to determine the equipment and clothing necessary to protect employee on Agency installations and while conducting Agency business off the installation); Logistics Base, 40 FLRA at 16.

Proposal 1 and 2 would preclude the Agency from requiring employees who operate motorcycles or bicycles on the Agency's premises to wear protective equipment over and above the protective equipment required by the state in which a covered installation is located. Proposal 4 would preclude the Agency from requiring bicyclists to wear safety helmets while on the Agency's premises. By precluding the Agency from requiring the use of specific safety equipment, we find that each of these proposals affect the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. As the Union has not claimed that the proposals constitute either "procedures" or "appropriate arrangements" within the meaning of section 7106(b)(2) and (3) of the Statute, we conclude that Proposals 1, 2, and 4 are outside the Agency's duty to bargain.

IV. Proposal 3

If an employee requests to wear Personal Protection Equipment recommended by the agency but not required by the state the base is located in, the agency will provide the employee with said Protective Equipment or reimburse the employee for the cost of said equipment.

A. Position of the Parties

The Agency contends that Proposal 3 is inconsistent with law. In support of its position, the Agency relies on Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 41 FLRA 107 (1991); Consolidated Civilian Personnel, 32 FLRA 1200 (1988); and Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 30 FLRA 275 (1987).

The Union does not address Proposal 3 in its petition for review.

B. Analysis and Conclusions

1. Meaning of the Proposal

Based on its plain wording, Proposal 3 requires the Agency to either provide or pay for protective equipment that is recommended by the Agency but not required by the state in which a covered installation is located.

2. The Proposal Is Not Within the Duty to Bargain Because It Is Contrary to Law

In the cases cited by the Agency, the Authority stated that Agency expenditures of appropriated funds to provide safety-related equipment are governed by 29 U.S.C. § 668(a)(2) and 5 U.S.C. § 7903.(3) Based on its examination of these statutory provisions, the Authority has consistently held that an agency may provide such equipment to employees only where the equipment is to be used for the employees' protection in the performance of agency work. National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 49 FLRA 973, 976-77 (1994); National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785, 786 (1987) (Defense Mapping). In this connection, the Comptroller General has consistently 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 that should be furnished by the employee. See e.g., 63 Comp. Gen. 278 (1984); 61 Comp. Gen. 634 (1982); see also Defense Mapping, 26 FLRA at 786. The test for determining whether an item will primarily benefit the Government is to examine whether the item procured is essential to the transaction of official business from the Agency's standpoint. See 63 Comp. Gen. 278 (1984).

There is no assertion, or other basis on which to conclude, that the equipment and clothing encompassed by Proposal 3 -- that which is recommended by the Agency but not required by the state -- are intended to primarily benefit the Government. Consistent with the provisions of law cited above, the Union must establish that the equipment would be used in the performance of Agency work or is essential to the transaction of the Agency's official business and is not a personal item that should be furnished by the employee. Because the Union has not demonstrated that the equipment and clothing encompassed by Proposal 3 are intended to be used during the performance of Agency work or are essential to the transaction of official Agency business, we are unable to conclude that the equipment would primarily benefit the Government. Therefore, the use of appropriated funds to purchase such equipment would be contrary to 29 U.S.C. § 668(a)(1) and 5 U.S.C. § 7903. Accordingly, we find that Proposal 3 is inconsistent with law and, therefore, outside of the duty to bargain.

V. Order

The petition for review, as it pertains to Proposals 1, 2, 3, and 4, is dismissed. The petition for review concerning Proposals 5, 6, and 7 is dismissed without prejudice to the Union's right to file a negotiability appeal if the conditions for review are satisfied.




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

1. The Agency's statement of position was not timely filed. The Agency requests that the Authority nevertheless consider its statement of position because, according to the Agency, it misinterpreted an Authority procedural order involving service of the Union's petition for review. The Agency has not established extraordinary circumstances warranting waiver by the Authority of the expired time limit for filing the statement of position. Accordingly, we reject its request that we consider the statement of position. See American Federation of Government Employees, Local 3434 and National Aeronautics and Space Administration, Marshall Space Flight Center, Alabama, 49 FLRA 382, 384 (1994). Consistent with the Authority's practice, we have taken the Agency's position from its written allegation of nonnegotiability, which was attached to the Union's petition for review. Id. at 386.

2. 29 U.S.C. § 668(a)(1) and (2) provide, 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)--

. . . .

(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 clot