[ v30 p275 ]
The decision of the Authority follows:
30 FLRA NO. 32 30 FLRA 275 30 NOV 1987 FEDERAL EMPLOYEES METAL TRADES COUNCIL, AFL-CIO Union and DEPARTMENT OF THE NAVY, MARE ISLAND NAVAL SHIPYARD, VALLEJO, CALIFORNIA Agency Case No. 0-NG-1429 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of four proposals. 1 We find that the proposals are nonnegotiable. II. Background The dispute in this case arose when the Agency implemented revised traffic control regulations governing the vehicles of military personnel, employees, contractors, dependents, vendors, and visitors using the Shipyard. These regulations, which apply to all motorcycle operators on the facility, including bargaining unit employees, require the mandatory use of certain specified personal protective equipment. The required equipment includes a helmet and attached face shield, long-sleeved shirts and long pants, gloves and appropriate footwear. III. Union Proposals Proposal 2. . . . (A)s it is customary for the employer to provide all special safety equipment required by the employer, the Council proposes that the employer provide face shields suitable for the helmet selected by the employee. Proposal 3. . . . (T)he Council proposes that the employer provide suitable jackets, preferably leather but, we will accept parachute nylon. Proposal 5. Employer to provide suitable leather gloves. Proposal 6. If the safety shoes currently provided by the employer meet the criteria, the Council proposes that safety shoes be provided to all employees. (Only the underscored portions are in dispute.) A. Positions of the Parties The Agency contends that these proposals are non-negotiable because they: (1) do not concern conditions of employment of unit employees; and (2) conflict with the U.S. Constitution and Agency regulations which have the "force and effect" of law. The Agency states that unit employees are not required to use motorcycles in performing their jobs. The Union claims that its proposals are not intended to require negotiation on the content of the Agency's revised traffic regulations. According to the Union, the proposals are only concerned with the cost of providing the required personal protective equipment to bargaining unit employees who operate motorcycles. The Union also claims that the employer customarily provides required safety equipment. The Union does not dispute the Agency's claim that this equipment is not used by employees in the performance of their jobs. B. Discussion We find the Union's proposals to be nonnegotiable for reasons other than those argued by the Agency in this case. As to the Agency's contention that the proposals do not concern a condition of employment, in Federal Employees Metal Trades Council, AFL - CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo. California, 23 FLRA 154 (1986), the Authority found that a nexus existed between an agency motorcycle safety regulation and the conditions of employment of unit employees because the failure of employees to comply with the requirements of that regulation would mean that they would not be able to park or drive on the installation. See also Department of the Navy, United States Marine Corps and American Federation of Government Employees, Council 240, AFL - CIO, 26 FLRA 704 (1987). The Agency acknowledges that employees who fail to comply with the requirements for personal protective equipment for motorcycle operators set forth in its regulation, OPNAVINST 5100.12D, will not be allowed access to the installation on their motorcycles and, thus, will not be allowed to commute by motorcycle to their jobs. Agency Allegation of Nonnegotiability. As with Mare Island Naval Shipyard above, we find that the consequences flowing from the implementation of the regulation regarding personal protective equipment for motorcycle operators establish a sufficient nexus to employees' jobs so that the Union's proposals concern a condition of employment within the meaning of the Statute. These proposals would require the Agency to pay for the personal protective equipment of employees who operate motorcycles. In National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785 (1987), the Authority discussed the legal requirements governing the use of appropriated funds to provide employees safety related equipment. The expenditure of appropriated funds by an agency for the purchase of such equipment is governed by 29 U.S.C. 668(a) and 5 U.S.C. 7903. Under those provisions, an agency may provide equipment to employees where it is to be used for the employees' protection in the performance of their jobs. Moreover, the provisions specifically require that the work performed must be hazardous. We find, based on the record and consistent with these provisions of law, that the proposed equipment in this case may not be purchased by the Agency for unit employees because it is clearly not intended to be used in the employees' work. Rather, insofar as unit employees' jobs are concerned, the proposed equipment at most is to be used for commuting to work by motorcycle. The Comptroller General has ruled on the general issue of when appropriated funds may be spent for the purchase of items which could be considered personal equipment. See, for example, 63 Comp. Gen. 278 (1984), 61 Comp. Gen. 634 (1982); and 56 Comp. Gen. 398 (1977). Under those decisions, public funds may be spent for such items only when it is determined that: (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. Based on the record, it has not been shown that the use of the specified equipment will be for the primary benefit of the Government. Consequently, requiring the Agency to pay the cost of providing the equipment specified in the Union's proposals is inconsistent with law. Compare National Federation of Federal Employees, Local 1827 and Defense mapping Agency, Aerospace Center, 26 FLRA 785 (1987) (Proposal 2) (proposal requiring the agency to provide safety glasses held negotiable where the Government, rather than the employee, received the primary benefit from the equipment). In view of this disposition, it is not necessary to consider the Agency's additional arguments concerning the nonnegotiability of the disputed proposals in this case. IV. Order The Union's petition for review is dismissed. Issued, Washington, D.C., November 30,, 1987. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 Two additional proposals, designated by both parties in this case as Proposals 1 and 4, merely set forth the Union's concurrence with the Agency's requirement that protective helmets and long trousers be worn by motorcyclists. These proposals are not in dispute (Agency Statement of Position at 2) and will not be considered further in this decision.