American Federation of Government Employees, AFL-CIO, Local 1928 (Union) and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania (Activity)  

 2 FLRA No. 62
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1928
 (Union)
 
 and
 
 DEPARTMENT OF THE NAVY
 NAVAL AIR DEVELOPMENT CENTER
 WARMINSTER, PENNSYLVANIA
 (Activity)
 
                                            Case No. 0-NG-13
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                              UNION PROPOSAL
 
    (C)IVILIAN AND OFFICER PERSONNEL WHO ARE ENGAGED IN FOOT HAZARDOUS
 OPERATIONS AND WHO ARE REQUIRED TO WEAR FOOT PROTECTION (SHALL) BE
 PROVIDED WITH SAFETY SHOES WITHOUT CHARGE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL FALLS WITHIN THE DUTY TO
 BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
 (THE STATUTE), OR WHETHER, AS ALLEGED BY THE AGENCY, THE DUTY TO BARGAIN
 DOES NOT EXTEND TO THE PROPOSAL IN VIEW OF PUBLISHED AGENCY REGULATIONS,
 PURSUANT TO SECTION 7117(A)(2) OF THE STATUTE.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE AGENCY HAS FAILED TO SUPPORT ITS ALLEGATION THAT THE
 UNION'S PROPOSAL FALLS OUTSIDE THE DUTY TO BARGAIN UNDER SECTION
 7117(A)(2) OF THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF
 THE AUTHORITY'S RULES AND REGULATIONS(44 FED. REG.  44740 ET
 SEQ.(1979)), THE AGENCY'S ALLEGATION IS SET ASIDE.  /2/
 
    REASONS:  THE PROPOSAL AT ISSUE ESSENTIALLY WOULD REQUIRE THE
 ACTIVITY TO PROVIDE, WITHOUT CHARGE, SAFETY SHOES FOR EMPLOYEES REQUIRED
 TO WEAR FOOT PROTECTION IN THE COURSE OF THEIR WORK.  THE DEPARTMENT OF
 DEFENSE (THE AGENCY) ALLEGES THAT NEGOTIATION OF THIS PROPOSAL IS
 BARRED, UNDER SECTION 7117(A)(2) OF THE STATUTE, BY AN AGENCY REGULATION
 (DOD INSTRUCTION 6055.2) /3/ WHICH, ACCORDING TO THE AGENCY, "REQUIRES
 THAT COMPONENTS OF THE DEPARTMENT OF DEFENSE PROVIDE ANY REQUIRED
 PERSONAL PROTECTIVE EQUIPMENT AT GOVERNMENT EXPENSE . . .  (INCLUDING)
 SAFETY SHOES FOR EMPLOYEES REQUIRED TO WEAR FOOT PROTECTION." THIS
 PARTICULAR REGULATION WAS RAISED FOR THE FIRST TIME BY THE AGENCY IN ITS
 STATEMENT OF POSITION TO THE AUTHORITY, IN RESPONSE TO THE UNION'S
 PETITION FOR REVIEW.  /4/ THE AGENCY'S SOLE ARGUMENT IN SUPPORT OF ITS
 ALLEGATION IS AS FOLLOWS:
 
    NO DETERMINATION HAS BEEN MADE BY THE AUTHORITY THAT NO COMPELLING
 NEED EXISTS FOR DOD
 
    INSTRUCTION 6055.2;  NO UNION HAS RAISED A QUESTION AS TO THE
 COMPELLING NEED FOR THAT
 
    REGULATION;  AND THEREFORE THE DUTY TO BARGAIN, PURSUANT TO 5 U.S.C.
 7117(A)(2), DOES NOT
 
    EXTEND TO THE MATTER AT ISSUE HERE.
 
    IN THIS CONNECTION, THE AGENCY DOES NOT EXPLAIN WHY THE UNION SHOULD
 HAVE BEEN EXPECTED TO ANTICIPATE A QUESTION REGARDING THE COMPELLING
 NEED FOR THIS AGENCY REGULATION WHICH, AS INDICATED, HAD NOT PREVIOUSLY
 BEEN RELIED UPON BY THE AGENCY.  FURTHER THE AGENCY DOES NOT ADVERT TO
 ANY CONFLICT BETWEEN THE PROPOSAL AND THE REGULATION.  MOREOVER, THE
 AGENCY DOES NOT MAKE ANY SHOWING WHATSOEVER TO SUPPORT A FINDING BY THE
 AUTHORITY THAT A COMPELLING NEED DOES EXIST FOR THE REGULATION IN
 QUESTION TO BAR NEGOTIATIONS ON THE UNION'S PROPOSAL.
 
    THE DUTY TO BARGAIN IN GOOD FAITH UNDER SECTION 7117 OF THE STATUTE
 EXTENDS IN GENERAL TO MATTERS WHICH ARE THE SUBJECT OF AGENCY RULES AND
 REGULATIONS WHICH ARE NOT GOVERNMENT-WIDE RULES AND REGULATIONS, TO THE
 EXTENT THEY ARE NOT INCONSISTENT WITH FEDERAL LAW.  /5/ WHEN THERE IS A
 "COMPELLING NEED," HOWEVER, FOR PARTICULAR INTERNAL AGENCY RULES AND
 REGULATIONS TO PREVAIL VIS A VIS PARTICULAR CONFLICTING UNION BARGAINING
 PROPOSALS, SUCH RULES AND REGULATIONS WILL STAND AS BARS TO NEGOTIATION
 ON SUCH PROPOSALS.  THEREFORE, INTERNAL AGENCY RULES AND REGULATIONS,
 SUCH AS THE DOD INSTRUCTION INVOLVED IN THE PRESENT CASE, MAY BAR
 NEGOTIATIONS ON CONFLICTING COLLECTIVE BARGAINING PROPOSALS WHEN, UNDER
 THE STATUTE, A COMPELLING NEED FOR SUCH A RESULT IS DETERMINED TO EXIST
 BY THE AUTHORITY PURSUANT TO SUBPART B OF ITS RULES.  /6/
 
    HENCE, IN A PROCEEDING BEFORE THE AUTHORITY SUCH AS THE INSTANT CASE
 INVOLVING AN ALLEGATION BY AN AGENCY THAT A UNION PROPOSAL IS NOT WITHIN
 THE DUTY TO BARGAIN UNDER SECTION 7117(A)(2) OF THE STATUTE BECAUSE OF
 AN INTERNAL AGENCY REGULATION RAISED SPECIFICALLY FOR THE FIRST TIME IN
 THE AGENCY'S STATEMENT OF POSITION, THE AGENCY BEARS THE BURDEN OF
 COMING FORWARD WITH AFFIRMATIVE SUPPORT FOR ITS ASSERTION THAT THE
 REGULATION IN QUESTION BARS NEGOTIATIONS BECAUSE, IMPLICITLY, A
 COMPELLING NEED EXISTS FOR THE REGULATION.  THIS IS CONSISTENT WITH THE
 REQUIREMENT IN THE AUTHORITY'S RULES CONCERNING THE REVIEW OF
 NEGOTIABILITY ISSUES THAT AN AGENCY'S STATEMENT OF POSITION FILED WITH
 THE AUTHORITY SHALL SET FORTH "IN FULL ITS POSITION ON ANY MATTERS
 RELEVANT TO THE PETITION WHICH IT WISHES THE AUTHORITY TO CONSIDER IN
 REACHING ITS DECISION, INCLUDING A FULL AND DETAILED STATEMENT OF ITS
 REASONS SUPPORTING THE ALLEGATION." FURTHERMORE, WITH REGARD TO ITS OWN
 REGULATIONS, THE AGENCY OBVIOUSLY SHOULD HAVE THE GREATEST FAMILIARITY
 WITH THE CIRCUMSTANCES UNDER WHICH THE PARTICULAR REGULATION INVOLVED
 WAS DEVELOPED AND ISSUED AND THE PURPOSE IT WAS INTENDED TO SERVE.
 CONSEQUENTLY, SINCE THE AGENCY IS RELYING ON THE REGULATION TO BAR
 NEGOTIATIONS ON AN OTHERWISE NEGOTIABLE PROPOSAL, THE AGENCY PROPERLY IS
 REQUIRED TO ADDUCE SUCH RELEVANT CIRCUMSTANCES IN THE STATEMENT OF ITS
 POSITION BEFORE THE AUTHORITY.
 
    IN THIS CASE, AS ALREADY INDICATED, THE AGENCY HAS SUBMITTED NO
 AFFIRMATIVE SUPPORT TO THE AUTHORITY UPON WHICH THE AUTHORITY COULD BASE
 A FINDING THAT A COMPELLING NEED EXISTS FOR THE REGULATION IN QUESTION
 TO BAR NEGOTIATIONS ON THE UNION'S PROPOSAL.  THEREFORE, BASED ON THE
 FOREGOING REASONS, WE FIND THAT THE AGENCY HAS FAILED TO SUPPORT ITS
 ALLEGATION THAT THE UNION'S PROPOSAL FALLS OUTSIDE THE DUTY TO BARGAIN
 UNDER SECTION 7117(A)(2) OF THE STATUTE BECAUSE OF AN INTERNAL AGENCY
 REGULATION.
 
    ACCORDINGLY, THE AGENCY ALLEGATION IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., JANUARY 17, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
 7117(A)(92 STAT. 1205) PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY
 FEDERAL LAW OF ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT OF ANY RULE OR REGULATION ONLY IF THE RULE OR
 REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION,
 EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY AGENCY RULE OR REGULATION
 REFERRED TO IN PARAGRAPH (3) OF THIS SUBSECTION ONLY IF THE AUTHORITY
 HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO COMPELLING
 NEED (AS DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY)
 EXISTS FOR THE RULE OR REGULATION.
 
    (3) PARAGRAPH (2) OF THE SUBSECTION APPLIES TO ANY RULE OR REGULATION
 ISSUED BY ANY AGENCY OR ISSUED BY ANY PRIMARY NATIONAL SUBDIVISION OF
 SUCH AGENCY, UNLESS AN EXCLUSIVE REPRESENTATIVE REPRESENTS AN
 APPROPRIATE UNIT INCLUDING NOT LESS THAN A MAJORITY OF THE EMPLOYEES IN
 THE ISSUING AGENCY OR PRIMARY NATIONAL SUBDIVISION, AS THE CASE MAY BE,
 TO WHOM THE RULE OR REGULATION IS APPLICABLE.
 
    /2/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.
 
    /3/ DOD INSTRUCTION 6055.2, "PERSONAL PROTECTIVE EQUIPMENT" (MAY 3,
 1978), PROVIDES, IN RELEVANT PART:
 
    B.  APPLICABILITY AND SCOPE
 
    1.  THE PROVISIONS OF THIS INSTRUCTION APPLY TO THE . . . MILITARY
 DEPARTMENTS . . . (HEREAFTER REFERRED TO AS "DOD COMPONENTS")
 
   *          *          *          *
 
 
    C.  POLICY
 
    1.  WHEREVER FEASIBLE, OCCUPATIONAL HAZARDS WILL BE ELIMINATED
 THROUGH ENGINEERING OR MANAGEMENT CONTROLS . . .
 
    2.  PERSONAL PROTECTIVE EQUIPMENT APPROPRIATE TO THE WORK SITUATION
 WILL BE PROVIDED BY THE DOD COMPONENT CONCERNED AT GOVERNMENT EXPENSE IN
 THOSE SITUATIONS:
 
    A.  WHERE ENGINEERING AND/OR MANAGEMENT CONTROLS ARE NOT FEASIBLE.
 
    B.  WHERE DEVELOPMENT OR INSTALLATION OF ENGINEERING CONTROLS ARE
 PENDING.
 
    C.  THAT INVOLVE SHORT TERM, NONROUTINE OPERATIONS FOR WHICH
 ENGINEERING CONTROLS ARE NOT PRACTICABLE.
 
    D.  WHICH INVOLVE EMERGENCIES;  . . .
 
    D.  RESPONSIBILITIES
 
    HEADS OF DOD COMPONENTS SHALL INCLUDE AND ENFORCE THE FOLLOWING
 PROVISIONS IN THEIR SAFETY AND OCCUPATIONAL HEALTH PROGRAMS:
 
    1. EVALUATE WORKPLACES, INCLUDING APPLICABLE HAZARDOUS MATERIAL DATA,
 TO DETERMINE PERSONAL PROTECTIVE EQUIPMENT REQUIREMENTS.  QUALIFIED
 SAFETY AND HEALTH PERSONNEL SHOULD PERFORM THESE EVALUATIONS.
 
   *          *          *          *
 
 
    /4/ THE UNION'S PETITION FOR REVIEW RESULTED FROM AN ALLEGATION BY
 THE ACTIVITY THAT THE PROPOSAL VIOLATED A DEPARTMENT OF THE NAVY
 REGULATION.  THE AGENCY NO LONGER RELIES ON THE NAVY REGULATION AS A BAR
 TO NEGOTIATION IN THIS CASE.
 
    /5/ SECTION 7117(A)(1) OF THE STATUTE.  NOTE 1, SUPRA.
 
    /6/ SECTION 7117(A)(2) AND (3) OF THE STATUTE, NOTE 1, SUPRA, AND
 SECTION 2424.11 OF THE AUTHORITY'S RULES AND REGULATIONS (44 FED. REG.
 44766(1979)) WHICH PROVIDES:
 
    SEC. 2424.11 ILLUSTRATIVE CRITERIA.
 
    A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
 ANY CONDITION OF EMPLOYMENT WHEN THE RULE OR REGULATION MEETS ONE OR
 MORE OF THE FOLLOWING ILLUSTRATIVE CRITERIA:
 
    (A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
 HELPFUL OR DESIRABLE, TO THE ACCOMPLISHMENT OF THE MISSION OF THE AGENCY
 OR PRIMARY NATIONAL SUBDIVISION;
 
    (B) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
 HELPFUL OR DESIRABLE, TO THE MANAGEMENT OF THE AGENCY OR THE PRIMARY
 NATIONAL SUBDIVISION;
 
    (C) THE RULE OR REGULATION IS NECESSARY TO INSURE THE MAINTENANCE OF
 BASIC MERIT PRINCIPLES;
 
    (D) THE RULE OR REGULATION IMPLEMENTS A MANDATE TO THE AGENCY OR
 PRIMARY NATIONAL SUBDIVISION UNDER LAW OR OTHER OUTSIDE AUTHORITY, WHICH
 IMPLEMENTATION IS ESSENTIALLY NONDISCRETIONARY IN NATURE;  OR
 
    (E) THE RULE OR REGULATION ESTABLISHES UNIFORMITY FOR ALL OR A
 SUBSTANTIAL SEGMENT OF THE EMPLOYEES OF THE AGENCY OR PRIMARY NATIONAL
 SUBDIVISION WHERE THIS IS ESSENTIAL TO THE EFFECTUATION OF THE PUBLIC
 INTEREST.