United States, Army Corps of Engineers, Waterways Experiment Station, ERDC, Vicksburg, Mississippi (Respondent/Agency) and American Federation of Government Employees, Local 3310 (Charging Party/Union)

[ v59 p835 ]

59 FLRA No. 153

UNITED STATES
ARMY CORPS OF ENGINEERS
WATERWAYS EXPERIMENT STATION, ERDC
VICKSBURG, MISSISSIPPI
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3310
(Charging Party/Union)

AT-CA-01-0305

_____

DECISION AND ORDER

April 15, 2004

_____

Before the Authority: Dale Cabaniss, Chairman, and Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed an opposition to the General Counsel's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) in two respects: by failing to negotiate in good faith before executing an agreement concerning insulated coveralls, and by subsequently repudiating that agreement.

      The Respondent filed a motion to dismiss the complaint. The General Counsel filed an opposition to the Respondent's motion and also filed a motion for summary judgment. Without holding a hearing, the Judge dismissed the complaint on the basis of the pleadings.

      Upon consideration of the Judge's decision and the entire record, we find that there are factual matters that must be resolved and, therefore, the complaint must be remanded to the Judge for further proceedings.

II.     Background and Judge's Decision

      In June 2000, the parties negotiated an agreement that required the Respondent to provide insulated coveralls to unit employees. [n1] In December 2000, the Respondent gave the Union a memorandum explaining that it would not implement the agreement because the purchase of special clothing was unlawful pursuant to a 1984 decision by the Comptroller General. [n2] 

      The General Counsel issued a complaint alleging that the Respondent repudiated the agreement in violation of § 7116(a)(1) and (5) of the Statute. The complaint also alleged that the Respondent violated § 7116(a)(1) and (5) of the Statute by failing to negotiate in good faith, since the Respondent's Chief Negotiator and other management officials were aware during negotiations of the Comptroller General's 1984 decision that the Respondent relied on for its subsequent repudiation of the executed agreement.

      The Respondent filed an answer admitting all of the factual allegations of the complaint, but asserting the following defenses: (1) the agreement was illegal; (2) the Chief Negotiator negotiated in good faith, but he had no authority to violate a statute; and (3) the agreement was not properly reviewed for legal sufficiency prior to execution by the Chief Negotiator for the Respondent. [n3] 

      At the pre-hearing conference with the Judge, the parties agreed that resolution of the case "turn[ed] on the legality, or illegality," of the parties' agreement and that the Respondent would "seek [a] decision by its Headquarters as to whether [to] seek a ruling by the Comptroller General on the legality of the [parties'] agreement." Judge's Order Confirming Pre-Hearing Conference Agreement (August 16, 2001). The Respondent then sought a ruling by the Comptroller General, and furnished the Union and the General Counsel with a copy of its submission to the Comptroller General. [n4] The Comptroller General subsequently issued a decision entitled Matter of Purchase of Insulated Coveralls, Vicksburg, Mississippi, B-288828 (October 3, 2002) (Mississippi Insulated Coveralls).

      In Mississippi Insulated Coveralls, the Comptroller General noted that, generally, items of clothing such [ v59 p836 ] as coveralls are a personal expense of the employee, and appropriated funds are not available for personal expenses without clear statutory authority. However, the Comptroller General stated that there are three statutes that permit the purchase of wearing apparel. As relevant here, the Comptroller General stated that an agency may provide protective clothing "if the agency determines that the clothing is necessary to satisfy Occupational Safety and Health Act (OSHA) requirements[,]" regardless of whether the agency satisfies the requirements under the other two statutes. Id., slip op. at 3. [n5] The Comptroller General further stated that OSHA, 29 U.S.C. § 668(a), requires the head of each agency to establish and maintain an effective and comprehensive occupational safety and health program consistent with standards promulgated by the Secretary of Labor pursuant to the Act, and that one of these standards addresses personal protective equipment. See 29 C.F.R. § 1910.132(a). The Comptroller General then stated:

While this standard does not directly address the hazards of cold weather or establish specific standards for protection against the elements, we have held that weather-related protective clothing, such as swamp boots to work in a jungle environment or ski boots for Forest Service snow rangers, may be furnished by the government if the agency head determines the clothing to be necessary under OSHA and its implementing regulations and standards. 51 Comp. Gen. at 448; B-187507, Dec. 23, 1976. Similarly, we would not object to an agency's use of appropriated funds to furnish insulated coveralls so long as the agency determines the coveralls to be necessary under OSHA.
In the instant case, however, [Respondent's] Counsel advises our Office that the agency has not determined that insulated coveralls are necessary to comply with OSHA or its implementing regulations. . . . Section 19, therefore, does not provide authority for [Respondent] to use appropriated funds to purchase the insulated overalls.
CONCLUSION
[Respondent's] appropriations are not available to purchase the insulated coveralls. Absent statutory authority, appropriated funds are not available to purchase articles of clothing for federal employees. There are three statutes that permit agencies to use appropriations, in varying circumstances, for this purpose. None of the three statutes authorize ERDC to purchase insulated coveralls in the circumstances presented herein.

Id., slip op. at 4.

      The Respondent subsequently filed a motion to dismiss the complaint on the ground that "the Comptroller General has issued a [d]ecision that appropriated funds could not be expended for the purchase[.]" Motion to Dismiss at 1. The General Counsel filed an opposition to the Respondent's motion to dismiss and a motion for summary judgment. The Judge issued his decision based on the pleadings, without holding a hearing.

      Without explicitly ruling on the motions before him, the Judge dismissed the complaint in its entirety. First, the Judge dismissed the allegation in the complaint that the Respondent's Chief Negotiator had engaged in bad faith bargaining, given his prior knowledge of the Comptroller General's decision in Alaska Down-Filled Parkas. The Judge found that the record did not support the General Counsel's allegation. In this respect, the Judge found that the Charging Party and the Respondent's Chief Negotiator "obviously . . . viewed" the Alaska Down-Filled Parkas decision as permitting the Respondent to provide "down-filled coveralls" in this case when the parties reached agreement. Judge's Decision at 5. The Judge also found that there was "nothing indicat[ing] . . . that [the Chief Negotiator] ever had any reservations about the legality of the [a]greement[,]" and that it was Respondent's legal counsel for Headquarters that declared the agreement illegal, not the Chief Negotiator. Id.

      In addition, the Judge dismissed the allegation in the complaint that the Respondent's repudiation of the agreement violated the Statute. In this respect, the Judge concluded that implementation of the agreement would be unlawful based on the last paragraph of the Comptroller General's decision in Mississippi Insulated Coveralls, set forth above. The Judge went on to state that "[n]othing in this decision shall be construed, in any manner, to prevent the Union requesting negotiations with respect to matters of safety and health," if the Agency determines that the clothing is necessary to satisfy OSHA requirements. Id. at 8.  

III.     Positions of the Parties

A.     General Counsel's Exceptions

      The General Counsel argues that the Judge erred in concluding that the Comptroller General's decision in [ v59 p837 ] Mississippi Insulated Coveralls establishes that the purchase of the coveralls is unlawful and that the Respondent's repudiation of the agreement did not violate the Statute. The General Counsel maintains that contrary to the Respondent's and Judge's interpretation of Mississippi Insulated Coveralls, the Comptroller General "practically shouted that this is a lawful appropriation of funds" if the agency determines that the clothing is necessary to satisfy OSHA requirements. Exceptions at 8.

      The General Counsel maintains that consistent with Authority precedent, since the Respondent has discretion to make such determinations under OSHA, the Respondent must negotiate with the Union to the extent of its discretion. The General Counsel disputes the Respondent's assertion, which was considered by the Comptroller General and the Judge, that the Respondent has not determined that insulated coveralls are necessary to comply with OSHA or its implementing regulations. The General Counsel maintains that "by virtue of the[] negotiations and subsequent agreement, the Respondent has determined that the insulated coveralls were necessary." Id. at 6 n.1. As such, the General Counsel argues that the Respondent lawfully exercised its discretion through negotiations with the Union and "cannot now be allowed to repudiate its previous lawful agreement just because others within its organization do not like the result." Id. at 10.

      In addition, the General Counsel argues that the Judge erred in dismissing the allegation that the Respondent engaged in bad faith bargaining based on his finding that this allegation was unsupported by the record and his reliance on "unanswered questions on the record." Exceptions at 11. Although the General Counsel "concedes" that this allegation "may not be appropriate" for summary judgment, it maintains that the Judge's dismissal of this allegation based on a "lack of factual support" is "procedurally incorrect," and instead, the Judge should have dismissed the General Counsel's motion for summary judgment on this allegation. Id. at 11-12. In this regard, the General Counsel contends that, as a result of the Judge's dismissal of this allegation, it will be denied the opportunity to fully litigate this allegation. As such, the General Counsel requests that the Authority overturn the Judge's dismissal of this allegation and remand the issue to the Judge for hearing.

B.     Respondent's Opposition

      The Respondent maintains that the Judge correctly concluded that repudiation of the parties' insulated coveralls agreement was not a violation of the Statute, based on the Comptroller General's decision in Mississippi Insulated Coveralls. The Respondent maintains that it has not made a determination that such coveralls are necessary under OSHA, and as a result, the agreement is contrary to law. The Respondent also maintains that the Respondent's Chief Negotiator does not have the authority to make OSHA determinations on behalf of the Agency. Opposition at 6. The Respondent maintains that the "[General] Counsel is aware [that the Chief Negotiator does not have authority to make OSHA determinations] because the agreement did not mention anything about fulfilling OSHA requirements." Id.

      In addition, the Respondent maintains that the Judge properly dismissed the allegation that the Respondent's Chief Negotiator bargained in bad faith, and that the General Counsel has failed to carry its burden of proving otherwise. The Respondent maintains that the Judge, in applying the totality of the circumstances standard, correctly concluded "that there was simply no evidence demonstrating that [the Chief Negotiator] acted in bad faith." Opposition at 8. The Respondent contends that the mere fact that the Chief Negotiator knew about the Alaska Down-Filled Parkas decision does not demonstrate bad faith bargaining, and the "simple fact remains that [the Chief Negotiator] did not realize that the insulated coverall provision was improper until Respondent's Office of Counsel brought it to his attention after the negotiations ended." Id. at 9.

IV.     Analysis and Conclusions

A.     The Repudiation Allegation

      The General Counsel alleged in the complaint that the Respondent repudiated the parties' coveralls agreement in violation of § 7116(a)(1) and (5) of the Statute. The Respondent moved to dismiss this allegation based on the Comptroller General's decision in Mississippi Insulated Coveralls. The Judge dismissed this allegation because he agreed with the Respondent's argument that the Comptroller General's decision in Mississippi Insulated Coveralls had found the coveralls agreement to be unlawful. For the following reasons, we find that the Judge's reliance on the Comptroller General's decision in Mississippi Insulated Coveralls in dismissing this allegation was not appropriate.

      The Comptroller General's decision in Mississippi Insulated Coveralls stated that weather-related protective clothing may be furnished by the government if the agency head determines the clothing to be necessary under OSHA, 29 U.S.C. § 668(a), and its implementing regulations and standards. The decision further stated that an agency may use appropriated funds to furnish insulated coveralls so long as the agency determines the [ v59 p838 ] coveralls to be necessary under § 668(a). Specifically, the Comptroller General noted that, under § 668(a), the head of each Federal agency must "establish and maintain an effective and comprehensive occupational safety and health program" that is consistent with applicable standards promulgated by the Secretary of Labor. [n6] In particular, § 668(a)(2) provides that

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[.]

      The Comptroller General found that this standard requires "the employer (here ERDC) to assess the workplace to determine if hazards are present, and, as necessary, to make available appropriate protective equipment to affected employees." Mississippi Insulated Coveralls, slip op. at 4 (citation omitted).

      There is no dispute in this case that § 668(a)(2) authorizes the Respondent to provide protective clothing, specifically insulated coveralls, to unit employees as long as certain circumstances are met. In this respect, the language of § 668(a)(2) that grants the Respondent the authority to "acquire, maintain, and require the use of . . . personal protective equipment . . . reasonably necessary to protect employees," clearly indicates that the Respondent has the discretion to determine whether protective clothing or coveralls are necessary, and that if it has made such a determination, appropriated funds may lawfully be used to furnish such coveralls. Furthermore, the language of § 668(a), which requires an agency head to consult with representatives of employees, supports the conclusion that the Respondent can exercise this discretion through collective bargaining with the union. See, e.g., AFGE, Local 1547, 55 FLRA 684, 685-86 (1999) (negotiability of proposal requiring agency to provide reflective motorcycle vests governed in part by compliance with 29 U.S.C. § 668(a)); Fed. Employees Metal Trades Council, 41 FLRA 107, 110-11 (1991) (same); Int'l Brotherhood of Teamsters, Truck Drivers, Warehousemen and Helpers of Jacksonville, Local Union 512, 32 FLRA 1200, 1205-06 (1988) (same). See also In the Matter of National Council of Meat Graders, AFGE, 57 Comp. Gen. 379, B-190,292 (March 28, 1978) (Comptroller General found that nothing in OSHA or implementing regulations precludes negotiations on the determination required by Secretary of Agriculture or his designee to provide protective clothing and that implementing regulations further emphasize that consultation with representatives of employees under § 668(a) shall be done consistent with labor management relations program under the Executive Order 11491).

      The question that must be resolved in this case is whether the Respondent, in accordance with § 668(a)(2), made a determination that providing insulated coveralls to unit employees was reasonably necessary. The Comptroller General found that the Respondent had not made such a determination under § 668(a)(2). However, this finding was not based on an undisputed factual finding; rather, it was based solely on a statement from the Respondent's "[c]ounsel advis[ing] [the Comptroller General's] Office that the agency has not determined that insulated coveralls are necessary to comply with OSHA or its implementing regulations." Mississippi Insulated Coveralls, slip op. at 4. There is no evidence in the record before us that addresses whether the Respondent made such a determination.

      Moreover, the Comptroller General's decision did not address the General Counsel's argument to the Judge that the parties' coveralls agreement itself constituted a determination by the Respondent that the insulated coveralls were necessary under § 668(a)(2). [n7] GC's Opposition to Respondent's Motion to Dismiss and GC's Motion for Summary Judgment at 9 n.2; GC's Exceptions at 6 n.1. Accordingly, the Comptroller General's decision did not establish as a matter of law that the coveralls agreement in this case was unlawful and that the Respondent's repudiation of the agreement did not violate the Statute.

      Resolution of the General Counsel's argument requires additional factual findings, particularly as to [ v59 p839 ] whether the Respondent's Chief Negotiator was authorized as the agency head's designee to make such a determination on behalf of the Respondent. While the Respondent asserts that its Chief Negotiator was not so authorized and that the Respondent has made no determination that insulated coveralls are necessary, the record in this case contains no testimony or other evidence on this matter. In addition, we note that because the parties' insulated coveralls agreement was not entered into the record, we cannot tell whether the agreement itself contained any terms relevant to determining whether the agency head had delegated his discretion to the Respondent's Chief Negotiator.

      As such, the Judge's dismissal of the repudiation claim without a hearing to resolve these disputed matters was not appropriate. See, e.g., Hoover v. Ronwin, 466 U.S. 558, 565-66 (1984) (in considering a motion to dismiss, a complainant's factual allegations must be accepted as true, drawing all reasonable inferences in the complainant's favor). See 5 C.F.R. § 2423.27(a) (a summary judgment motion can be granted only where there is no genuine issue of material fact). Moreover, by effectively denying the General Counsel's motion for summary judgment, the Judge erred by dismissing the complaint instead of proceeding to a hearing on the disputed factual matters. See 5 C.F.R. § 2423.27(c) (if summary judgment is denied, the hearing shall proceed as necessary).

      Thus, in these circumstances, a hearing is necessary to resolve these factual issues.

B.     The Allegation that the Respondent Failed to Bargain in Good Faith

      With respect to the allegation that the Respondent failed to bargain in good faith, we also find that the Judge erred in dismissing the claim. As there are material facts in dispute, this allegation can only be resolved after a hearing is held to resolve these disputed matters.

      Under Authority precedent, allegations of bad faith bargaining are resolved based on a totality of the circumstances. United States Dep't of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 531 (1990). The General Counsel argued to the Judge that the Chief Negotiator negotiated in bad faith because he continued to bargain and reached agreement on furnishing insulated coveralls "despite his concerns over the lawfulness of this appropriation of funds based on" the Comptroller General's decision in Alaska Down-Filled Parkas. General Counsel's Brief in Support of its Opposition to Respondent's Motion to Dismiss and its Motion for Summary Judgment, at 10. Without taking testimony or other evidence, the Judge dismissed this aspect of the complaint as "unsupported by the record." Judge's Decision at 5. In this regard, the Judge found that the Chief Negotiator "obviously" viewed the Comptroller General's decision in Alaska Down-Filled Parkas as permitting the Respondent to furnish insulated coveralls, and further found that "nothing indicates, or even suggests, that [the Chief Negotiator] ever had any reservations about the legality of the [a]greement he signed . . . ." Id.

      The Judge's assessment as to how the Chief Negotiator viewed the Comptroller General's decision in Alaska Down-Filled Parkas and whether he had any reservations as to the legality of the agreement was based solely on speculation, not on record testimony and evidence. In this respect, there is a factual dispute between the parties regarding how the Chief Negotiator, as well as other management officials, viewed the effect of the Comptroller General's decision in Alaska Down-Filled Parkas on the legality of the agreement and whether the Respondent intended to implement the agreement after it was executed. Further, in this regard, we reiterate that the record does not include either a copy of the parties' agreement or a copy of the memorandum that the Respondent gave to the Union, explaining the basis for its refusal to implement the agreement.

      As such, and for the reasons stated above, the Judge's dismissal of the allegation that the Respondent failed to bargain in good faith without a hearing to resolve these disputed matters was not appropriate.

V.     Order

      The Judge erred in dismissing both allegations of the complaint. We remand the complaint to the Judge for a hearing. [ v59 p840 ]


Office of Administrative Law Judges

U.S. ARMY CORPS OF ENGINEERS
WATERWAYS EXPERIMENT STATION, ERDC
VICKSBURG, MISSISSIPPI
Respondent

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 3310
Charging Party

Case No. AT-CA-01-0305

Lewis H. Burke, Esquire
For the Respondent

Mr. Rudy Smith
For the Charging Party

Brent S. Hudspeth, Esquire
For the General Counsel

Before:     WILLIAM B. DEVANEY
Administrative Law Judge

DECISION

Statement of the Case

      1. The American Federation of Government Employees, Local 3310 (hereinafter, Union") is the exclusive representative of an appropriate unit of employees of the U.S. Army Corps of Engineers, Waterways Experiment Station, ERDC, Vicksburg, Mississippi (hereinafter, "Respondent") (G.C. Exhs. 1(b), 1(c) ¶ 2 and 3).

      2. From December, 1999, until June, 2000, the Union and Respondent met and negotiated the provision of insulated coveralls. On, or about, June 16, 2000, the parties entered into a written agreement entitled, "Insulated Coveralls Agreement" (G.C. Exhs. 1(b) and 1(c), ¶ 9 and 11).

      3. On December 6, 2000, Respondent repudiated the Agreement (G.C. Exhs. 1(b) and 1(c), ¶ 3); on, or about, December 11, 2000, Respondent provided the Union a Memorandum explaining that Respondent would not implement the, "Insulated Coveralls Agreement", because the proposed agreement required the purchase of special clothing and was, pursuant to the decision of the Comptroller General in 63 Comp. Gen. 245 (1984), illegal (G.C. Exhs. 1(b) and 1(c), ¶ 14 and Affirmative Defense, G.C. Exh. 1(c)).

      4. The Union filed the charge herein on February 20, 2001 (G.C. Exh. 1(a)) which asserted,

"Since on or about December 6, 2000 and continuing to date, the above named agency, through its Chief Negotiator (David Haulman), committed an act of bad faith bargaining, failing to implement the insulated coveralls agreement which he signed (No. 00-FSIP-105), `For the Employer'".

      5. The Complaint and Notice of Hearing issued on May 25, 2001, and set the hearing for August 22, 2001. The Complaint, in pertinent part, provided:

"13. On December 6, 2000, the Respondent repudiated the agreement described in paragraphs 11 and 12.
"14. On or about December 11, 2000, the Respondent, through Haulman, provided the Charging Party a memorandum explaining that the Respondent would not implement the agreement described in paragraphs 11 and 12 due to the Comptroller General's decision in Matter of Down-Filled Parkas, 63 Comp. Gen. 245 (1984).
"15. By the conduct described in paragraph 13, the Respondent committed an unfair labor practice in violation of U.S.C. § 7116(a)(1) and (5).
"16. By the conduct described in paragraphs 9 through 14, the Respondent has failed to negotiate in good faith and thereby has committed an unfair labor practice in violation of U.S.C. § 7116(a)(1) and (5)." (G.C. Exhs. 1(b), ¶ 13, 14, 15 and 16).

      6. At the pre-hearing conference call in this matter the parties agreed that resolution of the case depended on the legality, or illegality, of the Settlement Agreement negotiated and signed on, or about, June 16, 2000, and further agreed, as set forth in, "Order Confirming Pre-Hearing Conference Agreement (G.C. Exh. 1 (d) to General Counsel's Opposition to Respondent's Motion to Dismiss and General Counsel's Motion for Summary Judgment), as follows:

"1.     The hearing now scheduled for August 22, 2001, is postponed.
"2.     Because the determination of this case turns on the legality, or illegality, of the Settlement Agreement negotiated and signed on, or about June 16, 2000, Respondent will, forthwith, seek decision by its Headquarters as to whether [ v59 p841 ] it will seek a ruling by the Comptroller General on the legality of the Settlement Agreement.
"3.     Respondent will notify all parties by COB August 28, 2001, whether a ruling by the Comptroller General will be sought.
"4.     If the decision is not to seek a ruling by the Comptroller General, the hearing in this case will be held on August 30, 2001, commencing at 9:00 a.m., at a place to be determined, in Vicksburg, Mississippi.
"5.     If the decision is to seek a ruling by the Comptroller General, Respondent shall promptly, and in no event later than September 11, 2001, without the express concurrence of General Counsel and Local 3310, submit the request to the Comptroller General. Respondent understands and agrees that any submission, to be meaningful, must present to the Comptroller General all the facts of the Settlement Agreement. Respondent will furnish General Counsel and Local 3310 each a copy of its submission to the Comptroller General.
"6.     If a ruling by the Comptroller General is sought, this case will be postponed indefinitely pending the ruling of the Comptroller General."
     . . . ." (G.C. Exh. 1(d)

      7. Respondent did seek a ruling by the Comptroller General; the case was postponed indefinitely; and on October 3, 2002, the Comptroller General, File No. B-288828 "Matter of Purchase of Insulated Coveralls, Vicksburg, Mississippi" held that,

"CONCLUSION"

ERDC appropriations are not available to purchase the insulated coveralls. Absent statutory authority, appropriated funds are not available to purchase articles of clothing for federal employees. There are three statutes that permit agencies to use appropriations, in varying circumstances, for this purpose. None of the three statutes authorize ERDC to purchase insulated coveralls in the circumstances presented herein." (G.C. Exh. 1(e) to General Counsel's Opposition to Respondent's Motion to Dismiss and General Counsel's Motion for Summary Judgment; Exhibit A to Respondent's Motion to Dismiss) (Emphasis supplied).

      8. On October 8, 2002, Respondent filed a Motion to Dismiss, grounds being, ". . . that the Comptroller General has issued a Decision that appropriated funds could not be expended for the purchase, which was the basis of the Unfair Labor Practice. A copy of the Decision is attached hereto as Exhibit `A'". (Respondent's Motion to Dismiss was received on October 8, 2002).

      9. On October 16, 2002, General Counsel filed an Opposition to Respondent's Motion to Dismiss and General Counsel's Motion for Summary Judgment which was received by facsimile mail on October 16, 2002.

CONCLUSIONS

1.     Allegation of bad faith bargaining unsupported

      Paragraph 10 of the Complaint (G.C. Exh. 1(b) alleged, and Respondent admitted (G.C. Exh. 1(c), that Respondent's Chief Negotiator, Mr. David Haulman, Director of Public Works, was aware of the Comptroller General's decision in Matter of Down-Filled Parkas, 63 Comp. Gen. 245 (1984), from which the General Counsel argues,

". . . Haulman was clearly aware of the Comptroller General decision in Matter of Down-Filled Parkas, . . . and continued to bargain despite his concerns over the lawfulness of this appropriation of funds based on that decision. Instead, Haulman continued to negotiate; entered into the agreement; and repudiated the agreement based upon this same Comptroller General decision. Under these circumstances . . . General Counsel contends that the Respondent never had any intention of complying with the agreement. . .
". . . General Counsel asserts . . . that the Respondent acted in a manner designed to avoid an agreement and negotiated in bad faith in violation of section 7116(a)(1) and (5)." (G.C. Brief at 10-11).

      General Counsel's argument, while imaginative, does not bear close scrutiny and is unsupported by the record. First, the decision of the Comptroller General did authorize the furnishing of down-filled parkas, stating, in part, "The Office of Surface Mining (OSM), Department of Interior, may furnish down-filled parkas to employees temporarily assigned to Alaska or the high country of the Western States during the winter months . . . ." (63 Comp. Gen. 245). It would be easy for anyone reading the decision to assume, without appreciating or undertaking the limited scope of the decision, that if down-filled parkas were permissible then down-filled coveralls must also be permissible. The Charging Party, [ v59 p842 ] whose demand for down-filled coveralls appears directly based on the Comptroller General's decision, obviously so viewed the Comptroller General's decision as did Mr. Haulman. The parties did reach agreement.

      Second, nothing indicates, or even suggests, that Mr. Haulman ever had any reservations about the legality of the Agreement he signed on, or about, June 16, 2000.

      Third, it was not Mr. Haulman who declared the Agreement illegal; rather; it was legal counsel for Headquarters ERDC.

      Fourth, while Paragraph 13 of the Complaint alleged (G.C. Exh. 1(b)) and Respondent admits (G.C. Exh. 1(c)), that, "On December 6, 2000, the Respondent repudiated the agreement . . . .", there is no contention that Mr. Haulman did anything on December 6, 2000, and the allegation of Paragraph 14 of the Complaint (G.C. Exh. 1(b)), admitted by Respondent (G.C. Exh. 1(c)), that, "On or about December 11, 2000, the Respondent, through Haulman, provided the Charging Party a memorandum explaining that the Respondent would not implement the agreement . . . .." because the purchase of special clothing, i.e. insulated coveralls, was illegal (G.C. Exh. 1(c), Affirmative Defense), asserts no more than that Mr. Haulman acted as a conduit for the furnishing of Respondent's memorandum.

      Accordingly, because there is no support for the allegation that Respondent bargained in bad faith, the allegation of Paragraph 16 of the Complaint (G.C. Exh. 1(b)) is dismissed.

2.     The Complaint alleges only Repudiation

      Paragraph 13 of the Complaint (G.C. Exh. 1(b)), as noted above, alleges that, "On December 6, 2000, the Respondent repudiated the agreement . . . ." and Paragraph 15 of the Complaint (G.C. Exh. 1(b)), alleges, "By the conduct described in paragraph 13, the Respondent committed an unfair labor practice in violation of U.S.C. § 7116(a)(1) and (5)." There is no allegation that Respondent failed or refused to bargain.

3.     Agreement became final subject to applicable law

      The Agreement was signed by the parties on, or about, June 16, 2000. The head of the agency neither approved, nor disapproved, the agreement within the 30 day period as provided by §7114(c)(2) of the Statute, and §7114(c)(3) provides as follows:

"(3)     If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation." (5 U.S.C. § 7114(c)(3)).

The agreement of June 16, 2000, became effective; subject, however, ". . . to the provisions of this chapter and any other applicable law, rule, or regulation." (Emphasis supplied), which would include illegality under governing statutes. The legal Office at Respondent's Headquarters determined that implementation of the Agreement would be unlawful and the Union was informed on December 6, 2000, that Respondent would not implement the Agreement; and on, or about, December 11, 2000, Respondent gave the Union a memorandum explaining why it would not implement the Agreement.

4.     Pursuant to the Pre-Hearing Conference Agreement, the Comptroller General has issued his decision and concluded that purchase of insulated coveralls would be unlawful

      The Comptroller General issued his decision in the "Matter of: Purchase of Insulated Coveralls, Vicksburg, Mississippi" on October 3, 2002, and concluded,

"ERDC appropriations are not available to purchase the insulated coveralls. Absent statutory authority, appropriated funds are not available to purchase articles of clothing for federal employees. There are three statutes that permit agencies to use appropriations, in varying circumstances, for this purpose. None of the three statutes authorize ERDC to purchase insulated coveralls in the circumstances presented herein." (File No. B-288828, October 3, 2002).

By so ruling, the Comptroller General, like Respondent's legal Office, has found that implementation of the June 16, 2000, Insulated Coveralls Agreement would be unlawful. Consequently, Respondent's repudiation, by refusing to implement the Agreement, on December 6, 2000, did not violate §7116(a)(5) or (1) of the Statute because implementation would have been unlawful. Department of Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA 543 (1982); U.S. Department of the Interior, Bureau of Reclamation, 20 FLRA 587, 588-89 (1985); Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1527-28 (1994). Of course, as the Authority has made clear,

     "When management is required to correct an unlawful practice once discovered, there is nonetheless an obligation to give notice of the [ v59 p843 ] change and, upon request, bargain to the extent consistent with law and regulation concerning the impact of the required change and, if possible, concerning its implementation. See Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA 1522, 1527-28 (1994) and Department of Interior, U.S. Geological Survey, Conservation Division and AFGE, Local 3457, 9 FLRA 543 (1982)." 24th Combat Support Group, Howard Air Force Base, Republic of Panama, 55 FLRA 273, 275, 290 (1999) (Emphasis supplied).

      Here, Respondent gave the Union notice on December 6, 2000, that it would not implement the Insulated Coveralls Agreement; and on, or about, December 11, 2000, gave the Union a memorandum explaining why it would not implement the Agreement, namely that implementation would be unlawful. At no time did the Union request to bargain on the impact or implementation of the Respondent's decision; the charge, filed by the Union on February 20, 2001, did not allege a refusal to bargain; nor does the Complaint allege a refusal to bargain. Therefore, because the Union had notice and ample opportunity to request bargaining on the impact and/or implementation of Respondent's decision but did not do so, Respondent did not violate §7116(a)(5) or (1) of the Statute by not bargaining on impact and implementation.

      Because the Complaint alleges solely that Respondent, on December 6, 2000, repudiated the agreement by refusing to purchase insulated coveralls (Par. 13) and thereby (Par. 15) violated §7116(a)(5) and (1); but because, the Comptroller General has determined that purchase of insulated coveralls would be unlawful, Respondent's repudiation of the Agreement on December 6, 2000, by refusing to purchase insulated coveralls, did not violate section 7116(a)(5) or (1) and I shall recommend that the Complaint be dismissed.

      Nothing in this decision shall be construed, in any manner, to prevent the Union requesting negotiations with respect to matters of safety and health, as the Comptroller General has noted,

"Although we conclude that ERDC may not purchase the coveralls under authority of section 7903, we do not read section 7903 to bar negotiations between an agency and a union with respect to matters of safety and health. See 57 Comp. Gen. 379, 382 (1978). An agency may provide protective clothing regardless of whether the purchase satisfies the three tests of section 7903 if the agency determines that the clothing is necessary to satisfy Occupational Safety and Health Act (OSHA) requirements . . . ." (B-288828, p. 3).

      The Comptroller General having determined that Respondent's purchase of insulated coveralls would have been unlawful, Respondent's repudiation of the Agreement on December 6, 2000, by refusing to implement the Agreement, did not violate section 7116(a)(5) or (1) of the Statute and it is recommended that the Authority adopt the following:

ORDER

      The Complaint in Case No. AT-CA-01-0305 be, and the same is hereby, dismissed.

      ________________________
WILLIAM B. DEVANEY     Administrative Law Judge

Dated:      October 29, 2002
      Washington, DC,



Footnote # 1 for 59 FLRA No. 153 - Authority's Decision

   The record does not contain a copy of the parties' agreement.


Footnote # 2 for 59 FLRA No. 153 - Authority's Decision

   The record does not contain a copy of the memorandum that the Respondent gave to the Union. The Comptroller General's decision, Matter of Down-Filled Parkas, 63 Comp. Gen. 245 (1984) (Alaska Down-Filled Parkas), is discussed in Section IV, below.


Footnote # 3 for 59 FLRA No. 153 - Authority's Decision

   The Respondent admitted that the Chief Negotiator was aware of the Comptroller General's 1984 decision, but denied that other management officials knew of that decision.


Footnote # 4 for 59 FLRA No. 153 - Authority's Decision

   The record does not contain a copy of the Respondent's submission to the Comptroller General.


Footnote # 5 for 59 FLRA No. 153 - Authority's Decision

   There is no dispute that the other two statutes discussed by the Comptroller General do not apply in the circumstances of this case.


Footnote # 6 for 59 FLRA No. 153 - Authority's Decision

   As relevant here, 29 C.F.R. § 1910.132(a) provides in pertinent part that:

Protective equipment, including . . . protective clothing, . . . shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury o