30:0415(53)NG - NAGE, SEIU, Local R7-51 and Navy, Navy Public Works Center, Great Lakes, IL -- 1987 FLRAdec NG

[ v30 p415 ]
The decision of the Authority follows:

 30 FLRA NO. 53
 30 FLRA 415

08 DEC 1987






Case No. 0-NG-1399


I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(D) and (E) of the Federal
Service Labor - Management Relations Statute (the Statute). It
raises issues concerning the negotiability of a single proposal.
For the reasons which follow, we hold that the proposal is
outside the duty to bargain.

II. Preliminary Matters

     The Union's Response to the Agency's Statement of Position
was untimely filed and has not been considered. The facts
indicate that the Union received the Agency's Statement of
Position on June 22, 1987. Section 2424.7(a) of the Authority's
Rules and Regulations provides that any response must be filed
within 15 days after receipt of the Agency's position, in this
case July 7,  1987. The Certificate of Service attached to the
Union's Response is dated July 8, 1987. The Union's Response was
received by the Authority on July 13, 1987. Accordingly, the
Union's Response is untimely and will not be considered. 

III. Background and Proposal

     The record in this case indicates that the Agency revised
its traffic safety regulation to require, among other things not
relevant in this dispute, that all operators of motorcycles on
the Great Lakes Training Center wear safety crash helmets with
full face shields. The Union sought to negotiate over the impact
and implementation of the changes in the Agency's traffic safety
regulation stating that its counterproposal "was to require the
wearing of either faceshields or glasses, or have a windshield on
the cycle."

IV. Positions of the Parties

     The Agency asserts that the proposal is nonnegotiable for
the following reasons: 1) the proposal does not pertain to
conditions of employment of bargaining unit employees; 2) the
proposal directly determines the conditions of employment of
non-bargaining unit employees; and 3) the proposal interferes
with the Agency's right under section 7106(a)(1) of the Statute
to determine internal security practices. The Agency further
asserts that the proposal is not negotiable as an appropriate
arrangement within the meaning of section 7106 (b) (3) of the
Statute. Finally, the Agency contends that the proposal is
inconsistent with Highway Safety Program Standards--Applicability
to Federally Administered Areas, 23 C.F.R. Part 1230--a
Government-wide regulation, and with the Department of Navy
Traffic Safety Regulation, OPNAV Instruction 5100.12C, a primary
national subdivision regulation for which a compelling need

     The Union contends that this proposal is an appropriate
arrangement for employees adversely affected by the Agency's
exercise of its rights. The Union also contends that it does not
consider the proposal to be one that would affect internal
security because the intent of the proposal goes to individual
safety measures and not to the protection of base security.

V. Analysis and Conclusion

     1. The Proposal does Pertain to Conditions of Employment of
Bargaining Unit Employees

     We find no  merit in the Agency's argument that the proposal
does not pertain to conditions of employment of bargaining unit
employees. We previously have determined that the enforcement of
traffic rules and regulations on an agency facility directly
affects working conditions of  bargaining unit employees
because employees who violate such rules and regulations are
subject to being denied access to the facility in a motor vehicle
and/or are subject to discipline. See Department of the Navy,
United States Marine Corps, 26 FLRA  704 (1987); Federal
Employees Metal Trades Council, AFL - CIO and Department of the
Navy, Mare Island Naval Shipyard, Vallejo, California, 23 FLRA 
154 (1986). The failure to comply with requirements set out in
the Navy Traffic Safety Regulation at issue in this case,
including the requirement for motorcycle riders to wear a full
face shield, similarly could result in an employee being
subjected to administrative procedures. See, for example,
Statement of Position at paragraph 5.b.(2) of enclosure 1.
Accordingly, we find that the proposal in this case pertains to
conditions of employment of bargaining unit employees.

     2. The Proposal is not Inconsistent With a Government-wide

     The Government-wide regulation relied upon by the Agency,
specifically, Highway Safety Program Standard No.  3, Motorcycle
Safety, set out at 23 C.F.R. 1204.4, merely states that
motorcycle operators "wear an approved safety helmet and eye
protection" when operating a motorcycle. There is nothing in this
regulation which mandates the particular type of eye protection a
motorcycle operator must wear. Further, this regulation does not
indicate that only a full face shield, rather than glasses or
windshields as proposed by the Union, will constitute approved
eye protection. Thus, we find that the Agency has not established
that the Union's proposal, which expressly provides for eye
protection, is inconsistent with this regulation.

     3. The Proposal Interferes with the Right to Determine
Internal Security Practices

     The Authority consistently has held that an agency's right
to determine its internal security practices under section
7106(a)(1) includes the right to determine policies and take
actions which are part of its plan to secure or safeguard its
personnel and physical property. See, for example, Defense
Logistics Council of American Federation of Government Employees
Locals and Defense Logistics Agency, 20 FLRA  166 (1985),
reversed in part as to other matters sub nom. Defense Logistics
Council of American Federation of Government Employees Locals v.
FLRA,  810 F.2d 234 (D.C. Cir. 1987). 

     The Union does not contest that the Agency has adopted the
requirement that motorcycle operators wear a full face shield as
part of its plan to prevent accidents and thereby safeguard its
personnel and property. Specifically, the record indicates that
the Agency is seeking not only to prevent injury to motorcycle
operators from being struck in the face by flying objects but
also, to prevent injury to other individuals and/or damage or
destruction of the Agency's property from motorcycle operators
losing control of their motorcycles as a result of having been
struck in the face by flying objects. The Agency argues, without
contravention by the Union, that unlike glasses or windshields, a
full face shield protects the entire face from flying objects
which could injure the operator.

     In our view, the Agency has shown a sufficient link between
its goal of safeguarding personnel and property and its chosen
practice of requiring motorcycle operators to wear full face
shields. We find, therefore, that the Agency's requirement
constitutes an exercise of its right under section 7106(A)(1) to
determine internal security practices.

     This proposal expressly permits employees the option of
wearing glasse