[ v18 p871 ]
The decision of the Authority follows:
18 FLRA No. 102 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 640 Union and U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION Agency Case No. 0-NG-766 DECISION AND ORDER ON NEGOTIABILITY ISSUE The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises issues relating to the negotiability of one Union proposal. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determination. Union Proposal The Employer will provide up to $60.00 to each employee required to wear safety shoes for purchase of same. Each employee required to wear protective footwear will have an account which is credited with $5.00 per month to provide replacement footwear. Upon presentation of receipt for approved safety footwear, the balance of the employee's account up to the cost of the same will be paid to the employee. The proposal would expressly require the Agency to provide funding for the purchase of protective footwear for each employee required to wear safety shoes in the performance of his/her duties at work. The Agency contends that the proposal is inconsistent with Federal law, specifically 18 U.S.C. 4124. /1/ In this regard, Federal departments, agencies and all other Government institutions of the United States are required under that statutory provision to purchase products from Federal Prison Industries, Inc. (FPI). Under law and implementing regulations, such products as authorized by 41 CFR subpart 1-5.402 /2/ shall be purchased to the extent that they are available and meet the requirements of the ordering office. According to the record in the instant case, pursuant to the provisions of the cited law and implementing regulations, leather-type protective footwear is purchased by the Agency herein and issued at no cost to employees. In agreement with the Agency, the Authority concludes that the proposal is inconsistent with 18 U.S.C. 4124. In this regard, that law mandates that government required products be purchased from FPI when available. The record establishes that protective footwear is required by the Agency and available from FPI. The proposal, insofar as it would allow employees the option of purchasing protective footwear from other than FPI, is clearly inconsistent with the statutory requirement. The fact that the proposal does not require the Agency itself to purchase the product from other than FPI is not dispositive, contrary to the Union's argument. The proposal would preclude the Agency from complying with the mandate of the law and implementing regulations to purchase its requirements from FPI. The Union essentially contends that, notwithstanding law, the proposal is negotiable because it is encompassed by the term "prevailing rates and practices," as defined in section 704 of the Civil Service Reform Act of 1978. /3/ The cited law provides for negotiation over matters with respect to covered employees without regard to certain provisions of law set forth therein. Contrary to the Union's contention, section 704 provides no basis for negotiation over matters inconsistent with 18 U.S.C. 4124. It is a widely recognized rule of statutory construction, that, absent a clear intent to the contrary, where a statute expressly designates matters which apply to it, matters omitted are to be understood as exclusions. See, e.g., 2A Sands, Sutherland on Statutory Construction Sec. 47.23, at 194 (4th ed. 1984). Therefore, the Authority concludes that the proposal is inconsistent with law and is outside the duty to bargain. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. /4/ Issued, Washington, D.C., June 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Federal law 18 U.S.C. 4124 currently provides: Sec. 4124. Purchase of prison-made products by Federal departments The several Federal departments and agencies and all other Government institutions of the United States shall purchase at not to exceed current market prices, such products of the industries authorized by this chapter as meet their requirements and may be available. Disputes as to the price, quality, character, or suitability of such products shall be arbitrated by a board consisting of the Comptroller General of the United States, the Administrator of General Services, and the President, or their representatives. Their decision shall be final and binding upon all parties. /2/ Federal Procurement Regulations provide in relevant part: Sec. 1-5.402 Mandatory procurement of prison-made products. Federal departments, agencies, and all other government institutions of the United States shall purchase the products which are produced by FPI and listed in their "Schedule of Products Made in Federal Penal and Correctional Institutions" (hereinafter called the "Schedule") to the extent that such products are available and meet the requirements of the ordering office. /3/ Section 704 provides: Section 704. (a) Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate employees to whom section 9(b) of Public Law 92-392 applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after the date of the enactment of this Act in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision of chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph. (b) The pay and pay practices relating to employees referred to in paragraph (1) of this subsection shall be negotiated in accordance with prevailing rates and pay practices without regard to any provision of-- (A) chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph; (B) subchapter IV of chapter 53 and subchapter V of chapter 55 of title 5, United States Code; or (C) any rule, regulation, decision, or order relating to rates of pay or pay practices under subchapter IV of chapter 53 or subchapter V of chapter 55 of title 5, United States Code. /4/ Given the finding of nonnegotiability and the fact that no party raised the issue of whether the proposal sought to have the Agency negotiate over items of its budget within the meaning of section 7106(a)(1) of the Statute, the Authority does not find it necessary to address this issue herein.