Department of the Navy Naval Station Puget Sound Sandy Point Seattle, Washington and Local 48, American Federation of Government Employees, AFL-CIO
In the Matter of
Department of the Navy )
Naval Station Puget Sound )
Sandy Point )
Seattle, Washington )
and ) Case No. 91 FSIP 125
Local 48, American Federation )
of Government Employees, )
Local 48, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Navy, Naval Station Puget Sound, Sandy Point, Seattle Washington (Employer).
After investigation of the request for assistance, the Panel determined that the parties' dispute concerning reflective safety vests for motorcycle riders should be submitted to a Panel representative for resolution through a telephone conference with the parties. The parties were advised that if no settlement were reached, the Panel's representative would report to the Panel on the status of the dispute, including the parties' final offers, and make recommendations for resolving the issue. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Accordingly, Chief Legal Advisor Donna M. Di Tullio held a
teleconference with representatives of the parties on December 9, 1991; the parties, however were unable to reach agreement. Ms. Di Tullio has reported to the Panel based on the record developed by the parties, and it now has considered the entire record I n the case.
The mission of the Naval Station Puget Sound at Sandy Point where the Employer is located is to provide administrative support for Naval functions in the Northwest Region; the facility is scheduled to be closed in 3 years. The Union represents a bargaining unit of approximately 150 employees who hold positions in security, firefighting, public works, and supply. The parties have entered into a collective-bargaining agreement which is in
effect until December 15, 1992.
The dispute herein arose during impact-and-implementation bargaining following the issuance of the Department of the Navy's
5100.12F, dated July 20, 1990, concerning the Navy Traffic Safety Program which is effective on all ships and naval stations. The parties reached agreement on all safety matters except the impact of that section of the regulation concerning motorcycle safety which requires, in section E, that "when operating or riding a motorcycle, individuals shall properly wear or use the following personal protective equipment: . . . (5) (p)roperly worn (as an outer garment) yellow or orange vest with 1 ½- to 2-inch-wide
vertical or horizontal retro-reflective strips front and back."
ISSUE AT IMPASSE
The parties disagree over who should provide the reflective vests which motorcycle riders must wear while riding on the base
POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes the following:
The yellow or orange vest with the 1 ½- to 2-inch-wide retro-reflective stripe will be available at the gate. The security
person on the gate will check a vest out to the motorcyclist on entering the base.
The motorcyclist will return the vest to the security person on the gate on leaving the base.
The Union contends that since the Navy regulation is more restrictive than the local or Washington state laws concerning motorcycle safety equipment, it is unfair to employees and the Employer should provide the vests at no cost as an accommodation for those who ride their privately-owned motorcycles to and from work. Only two or three bargaining-unit employees use privately-owned motorcycles for commuting; therefore, providing reflective vests to so few should not be burdensome for the Employer, and there would be no storage problem at the gate. Vests are available, according to the Union, since security officers and traffic management personnel on the base wear them. The Employer should absorb the cost since the last accident on the station involving a motorcycle was approximately 15 years ago; this demonstrates that there is no need for this safety measure in the first place.
2. The Employer's Position
The Employer maintains that employees who choose to ride privately-owned motorcycles on the base should furnish their own reflective vests which meet the requirements of the Navy regulation.
The requirement that employees wear such vests is not overly burdensome and, actually, is in the best interest of employees. Therefore, they should provide their own. Furthermore, the Employer disputes the availability of surplus vests which the Union claims could readily be distributed to the affected employees. In no other bargaining with the Local representing its other units has it objected to having employees furnish their own vests for riding motorcycles on naval installations. Since military personnel who use motorcycles for commuting also are required to wear and provide their own vests, the Employer's proposal represents an opportunity to have a consistent rule for both civilian and military personnel, which sometimes is not possible. Moreover, providing reflective vests for nonwork-related motorcycle riding is contrary to Federal Labor Relations Authority (Authority) precedent and rulings of the U.S. Comptroller General.*/ Since no employee is required to ride a motorcycle as part of his or her conditions of employment, the Employer has no obligation to provide this safety item. Despite the negotiability problems with the Union's proposal, however, the Panel should retain jurisdiction and resolve the dispute based upon the merits of the Employer's position in order to give finality to the negotiation process.
*/ In this regard the Employer contends that the Union's proposal is substantively similar to one found nonnegotiable in Federal Employees Metal Trades Council. AFL-CIO and Department of the Navy. Mare Island Naval Shipyard, Vallejo, California, 30 FLRA 275 (1987), where the Authority determined that a proposal requiring the employer to provide certain personal safety equipment mandated by Navy regulation OPNAVINST 5100.12D (the predecessor to the regulation involved in the dispute before the Panel) for those who ride motorcycles on naval installations was contrary to law. Although the Authority found a nexus between the regulation and employees' jobs, making the requirement a condition of employment, it determined that the proposal, which would require the employer to pay for personal safety equipment, did not meet the test imposed by applicable law. In this regard, 29 U.S.C. section 668(a) and 5
U.S.C. section 7903 provide that an agency may use appropriated funds to purchase personal protective equipment only if it is to be used for performing hazardous job-related duties. In Mare Island, the equipment failed to meet the test because it was not intended to be used in employees' work. Moreover, the Authority noted that the U.S. Comptroller General has determined that appropriated funds may be used to purchase personal protective equipment only when "(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 should furnish. See, for example, 63 Comp. Gen. 278 (1984), 61 Comp. Gen. 634 (1982), and 56 Comp. Gen. 398 (1977)." The Authority determined that the protective equipment benefitted employees more than the Government.
Having considered the parties' arguments with respect to their
proposals, we conclude that the dispute should be resolved on the basis of the Employer's position. In this regard, a requirement that employees provide their own reflective vests, should they choose to ride a motorcycle on base, does not appear to be onerous given that there was no contention that furnishing such vests would be costly. Moreover, since employees would benefit primarily from this enhanced safety measure, purchasing their own reflective vests would enable employees to utilize them beyond the naval installation, thereby promoting their safety. The Union's proposal, on the other hand, assumes without evidence that enough reflective vests already have been purchased by the Employer and are available for those few employees who commute to work via motorcycle. Even if their availability were undisputed, however, should the number of employees who ride motorcycles to work increase beyond the two or three claimed by the Union, it could become administratively burdensome for the Employer to maintain its inventory of vests at the guard gate and monitor to whom and when the reflective vests have been distributed.
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer's proposal.