[ v41 p107 ]
The decision of the Authority follows:
41 FLRA No. 13 FEDERAL LABOR RELATIONS AUTHORITY WASHINGTON, D.C. FEDERAL EMPLOYEES METAL TRADES COUNCIL (Union) and U.S. DEPARTMENT OF THE NAVY MARE ISLAND NAVAL SHIPYARD VALLEJO, CALIFORNIA (Agency) 0-NG-1904 DECISION AND ORDER ON NEGOTIABILITY ISSUES June 11, 1991 Before Chairman McKee and Members Talkin and Armendariz. I. Statement of the Case This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves five proposals. Proposals 1 and 5, which require management to provide certain safety clothing and equipment to employees who operate motorcycles on the facility, are nonnegotiable. Proposal 2, which requires that the Agency provide storage containers for the motorcycle safety equipment and that the Agency be responsible for the safekeeping and maintenance of the equipment, is negotiable except for that portion which requires management to maintain the equipment. Proposal 3, which requires the Agency to provide facilities for employees to change into and out of the required protective clothing, is nonnegotiable. Proposal 4, which requires the Agency to place employees in a paid status while they are changing into and out of the required protective clothing, is nonnegotiable. II. Procedural Issues The Agency asserts that the Union's petition for review does not comply with 5 C.F.R. § 2424.4(a)(1) because it "does not contain the express language which the union sought to negotiate with the agency and which the agency declared nonnegotiable." Statement of Position at 2. The Agency claims that the proposals in the petition for review are similar, but not identical, to the proposals the Agency previously declared nonnegotiable. In particular, the Agency argues that Proposal 2 has been modified to include a new provision which provides that "management will be responsible for the safekeeping and maintenance of required motorcycle equipment." Id. Therefore, the Agency asserts that the Union's negotiability appeal is deficient and should be dismissed. The Agency has, however, submitted arguments concerning both sets of proposals, and with one exception, has declared both sets to be nonnegotiable. We have reviewed both sets of proposals and, with the exception of the second part of Proposal 2, find that the proposals declared nonnegotiable by the Agency are not substantively different from the proposals in the Union's petition for review. Instead, the latter proposals are merely a restatement of the earlier proposals. Accordingly, we reject the Agency's request that the petition be dismissed. In addition, although Proposal 2, as modified, differs from the proposal declared nonnegotiable by the Agency, the Agency has fully expressed its position on that part of the proposal. As the proposals are not different in substance and as both parties have fully expressed their positions on them, we find that the petition for review is properly before us. See American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA 1469, 1471 (1991) (second proposal held to be a restatement of an earlier proposal and properly before the Agency). Compare American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130, 137 (1990) (proposal held to be substantively different from proposal declared nonnegotiable and not properly before the Authority). III. Background The proposals in this case were submitted in response to an Agency decision to require all motorcycle riders on the base, including bargaining unit employees, to wear or use certain motorcycle safety clothing and equipment. Although helmets, eye protection, and hard-soled shoes had previously been mandated, the additional clothing required by the changes included long-sleeved shirts or jackets, long-legged trousers, full-finger gloves, and yellow or orange vests with retro-reflective strips. In addition, the changes required that all motorcycles be equipped with two rear-view mirrors. IV. Proposal 1 All motorcycle protective clothing that is required, except helment [sic], will be provided by Mare Island Naval Shipyard for use of the employees at no cost to them. The employee will provide the required helmet. Proposal 5 The shipyard will provide and install the second rear view mirror that is required on the employee's motorcycle if the motorcycle is equipped with only one rear view mirror. A. Positions of the Parties 1. The Agency The Agency contends that Proposals 1 and 5 are contrary to 29 U.S.C § 668(a), 5 U.S.C. § 7903, and certain decisions of the Comptroller General because they require the Agency to expend appropriated funds for protective equipment which is "not required for the employee's protection in the performance of his or her duties." Statement of Position at 4. The Agency maintains that Proposal 1 is "identical in all material respects" to the proposals held nonnegotiable in Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 30 FLRA 275 (1987) (Mare Island). Id. at 2. 2. The Union The Union states that "the only use of these items" is to satisfy the Agency's requirements because none of the equipment is "required to operate a motorcycle on the highways of the state of California[.]" Petition for Review at 2. In addition, the Union argues that the Agency imposed the requirements "as a means of reducing benefits such as workman's compensation and sick leave that are paid to motorcyclists if they are injured while riding on Mare Island Naval Shipyard." Id. The Union maintains that "the greatest benefit is realized by the agency" and payment for the equipment "would not be inconsistent with law." Id. The Union acknowledges that previous Authority decisions are contrary to its position. However, the Union maintains that unlike previous cases, the equipment requirements in this case were instituted at the Agency's "own initiation" and not "directed by higher authority" under the Department of Defense Traffic Safety Program. Id. B. Analysis and Conclusions The expenditure of appropriated funds to purchase the equipment and clothing encompassed by Proposals 1 and 5 is governed by 29 U.S.C. § 668(a) 1/ and 5 U.S.C. § 7903.2/ International Brotherhood of Teamsters, Truck Drivers, Warehousemen & Helpers of Jacksonville, Local Union 512 and Department of the Navy, Consolidated Civilian Personnel, Jacksonville, Florida, 32 FLRA 1200, 1205-06 (1988) (Jacksonville); Mare Island, 30 FLRA 275, 277-78 (1987). Consistent with these provisions, "an agency may provide such equipment to employees where the equipment is to be used for the employees' protection in the performance of hazardous agency work." Jacksonville, 32 FLRA at 1205. Similarly, the Comptroller General has ruled that agency funds may be spent for such equipment only if: (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 would furnish. See, for example, 63 Comp. Gen. 278 (1984); 61 Comp. Gen. 634 (1982); 56 Comp. Gen. 398 (1977); 51 Comp. Gen. 446 (1972); 42 Comp. Gen. 626 (1963). See generally National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785, 785-86 (1987). Based on the record before us, we conclude that the equipment and clothing encompassed by Proposals 1 and 5 are not intended to be used in the employees' work. There is no dispute, in this regard, that the Agency does not require unit employees to ride motorcycles on the Agency's facilities or otherwise use motorcycles in performing their work. Rather, the equipment and clothing is to be used by the employees only while commuting to and from work. As such, there also is no basis on which to conclude that the equipment would be for the primary benefit of the Government. Accordingly, and consistent with Jacksonville and Mare Island, we find that Proposals 1 and 5 are inconsistent with law and are nonnegotiable. V. Proposal 2 The shipyard will provide storage containers at the main gates for the motorcycle safety equipment and will be responsible for its safekeeping and maintenance. A. Positions of the Parties 1. The Agency The Agency maintains that being required to provide storage facilities "at the gates" interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Statement of Position at 4. The Agency argues that because the gates "are located inside the property line of the installation[,]" Proposal 2 would permit the employees to "rid[e] their motorcycles between the installation property line . . . and the . . . storage facilities located at the gates without the required protective equipment." Id. The Agency maintains that "[h] owever short this distance might be, there can be no guarantee that an accident could not occur during such a ride." Id. In addition, the Agency asserts that the portion of the proposal relating to storage facilities does "not pertain to conditions of employment" under section 7103(a)(14) of the Statute because it does not directly relate to the "employees' work situations or employment relationships." Id. at 4-5. With regard to the portion of Proposal 2 concerning "safekeeping and maintenance," the Agency asserts first that 5 U.S.C § 7903 prohibits the Agency from either purchasing or maintaining equipment that is not used in performing employees' work. The Agency also argues, however, that if the equipment were the employees' personal property, that portion of the proposal which "relates solely to the 'safekeeping' of the equipment . . . would be negotiable . . . ." Id. at 8. On the other hand, the Agency contends that the "safekeeping" portion would be nonnegotiable if the Agency were required to furnish the equipment. The Agency reasons that because the equipment then would be the Agency's property, proposals involving the safekeeping of the property would interfere with its right to determine its internal security practices. 2. The Union The Union offers no arguments with regard to Proposal 2. B. Analysis and Conclusions We reject, at the outset, the Agency's claim that to the extent that Proposal 2 concerns the location of storage facilities, the proposal interferes with the Agency's right to determine its internal security practices because the proposal requires the Agency to place the storage facilities "inside the property line of the installation." Statement of Position at 4. Although the proposal provides for "storage containers at the main gates[,]" it does not specify an exact location for the containers and does not restrict the Agency from placing them in the general area of the gates, including at the property line. Because Proposal 2 does not specify an exact location for the storage containers, we conclude that employees will not necessarily be exempt from the equipment requirements, even for a short distance. We reject also the Agency's argument that the portion of Proposal 2 requiring the Agency to provide storage facilities does not concern unit employees' conditions of employment. In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matters pertain to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986) (Antilles). The portion of Proposal 2 requiring the Agency to provide storage facilities clearly pertains to unit employees. As such, it satisfies the first prong of the Antilles test. We find that the proposal satisfies the second prong also. In this regard, we find no difference between this portion of Proposal 2 and proposals concerning the storage of other personal property of employees while at work. More particularly, all employees reasonably may be expected to have and need various personal items at the workplace. In fact, some of these items, such as paychecks and other personal papers, may be acquired at the workplace. Other items, such as the equipment involved in this case, are required by the Agency as employer. It is unreasonable to expect employees to carry their personal items while they perform their duties. As such, and as a direct result of their work situation, employees have a need to store personal property. We conclude, therefore, that the proposal for storage facilities for the equipment involved in this case concerns a condition of employment, within the meaning of section 7103(a)(14) of the Statute. See National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 715 (1990) (EPA) (Authority stated that "protecting employee's personal property" was "principally related to the working conditions of employees."). Proposal 2 also requires the Agency to be responsible for "safekeeping and maintenance." In the absence of any argument to the contrary from the Union, we adopt the Agency's interpretation that this portion of Proposal 2 requires the Agency to be responsible for the "safekeeping and maintenance" of motorcycle safety equipment. As noted previously, the Agency asserts that the portion of the proposal concerning the "safekeeping of the equipment" is nonnegotiable only if the Agency is required to provide the equipment. Statement of Position at 8. We have determined that Proposal 1 is nonnegotiable and that, therefore, employees must provide their own motorcycle safety equipment. Accordingly, and consistent with the Agency's assertion, we conclude that the portion of the proposal requiring the Agency to provide storage containers for the safekeeping of employee personal items including motorcycle safety equipment is negotiable. See EPA, 35 FLRA at 713-16. Finally, with regard to that portion of Proposal 2 which concerns the maintenance of motorcycle safety equipment, we note that the expenditure of appropriated funds for the maintenance of safety and protective equipment is governed by 29 U.S.C. § 668(a) and 5 U.S.C. § 7903, which also govern the purchase of such equipment. See notes 1 and 2 above. As we stated with regard to Proposals 1 and 5, 29 U.S.C. § 668(a) and 5 U.S.C. § 7903 authorize the purchase of such safety equipment only where the equipment is to be used for the employee's protection in the performance of hazardous work or where the equipment would be for the primary benefit of the Government. It follows, therefore, that the expenditure of appropriated funds under 29 U.S.C. §668(a) or 5 U.S.C. § 7903 for the maintenance of safety equipment also is subject to the same standards, that is, that the equipment will be used for the employee's protection in the performance of hazardous work or the equipment will be for the primary benefit of the Government. Consequently, as the record in this case does not establish that the motorcycle safety equipment encompassed by Proposals 1 and 5 above would be used in the employees' work or would be for the primary benefit for the Government, there is no basis to conclude that the expenditure of appropriated funds for the maintenance of the same motorcycle safety equipment would be permitted under 29 U.S.C. §668(a) or 5 U.S.C. § 7903. Therefore, that portion of Proposal 2 which provides that the Agency is responsible for the maintenance of the equipment is inconsistent with law and is nonnegotiable. In conclusion, we find that the portions of Proposal 2 concerning the safekeeping and storing of the equipment are negotiable. The portion of Proposal 2 which concerns the maintenance of the equipment is nonnegotiable. VI. Proposal 3 The shipyard will provide facilities for the employees['] use to change into or out of the required additional clothing. A. Positions of the Parties 1. The Agency The Agency maintains that proposals for "changing facilities . . . do not pertain to conditions of employment" under section 7103(a)(14) of the Statute because they do not directly relate to the "employees' work situations or employment relationships." Statement of Position at 4-5. The Agency notes that employees are not required to wear the protective clothing while in a duty status or in the performance of their work. 2. The Union The Union offers no arguments with regard to Proposal 3. B. Analysis and Conclusions As noted previously, in deciding whether a matter involves a condition of employment of unit employees, the Authority considers whether: (1) the matters pertain to unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of the employees. Antilles, 22 FLRA at 236-37. We find that Proposal 3 satisfies the first prong of the Antilles test because it clearly pertains to unit employees. However, we find that Proposal 3 does not satisfy the second prong. It is not disputed in this case that the Agency does not require employees to wear the protective clothing in the course of their work. It also is undisputed that employees may wear the required protective clothing to and from work and on the base to the same extent as other clothing worn while commuting. As such, any desire to change into and out of the required clothing results solely from employees' personal preference. Unlike Proposal 2, which concerns the storage of employees' personal property, the need for which results directly from the work situation, Proposal 3 addresses a matter which results solely from employees' personal preference. We find, therefore, that Proposal 2 is not directly connected to the work situation of unit employees. As such, Proposal 3 does not concern a condition of employment, within the meaning of section 7103(a)(14) of the Statute, and is nonnegotiable. Compare American Federation of Government Employees Council 214, AFL-CIO and Department of Defense, Department of the Air Force, Air Force Logistics Command, 30 FLRA 1025, 1037-38 (1988) (Air Force Logistics Command) (proposal requiring the agency provide changing facilities for employees required to wear a uniform on duty concerned condition of employment); American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 588 (1982), enforced sub. nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) (proposal requiring the agency to provide showers and locker facilities for employees who came in contact with dirt and chemicals in their work concerned conditions of employment). Compare also National Association of Government Employees, Locals R12-122, R12-222 and U.S. Department of Defense, Washington National Guard, Tacoma, Washington, 38 FLRA 295, 306-07 (1990) (proposal requiring the agency to furnish a storage area where employees could leave their uniforms when they were not required to wear them concerned conditions of employment); U.S. Department of the Air Force, Griffis Air Force Base, Rome, New York, 37 FLRA 570 (1990) (agency policy of referring off-duty misconduct to Magistrate's court directly connected to the "work situation" or "employment relationship" of bargaining unit employees). VII. Proposal 4 The employees are to be in a paid status while changing into or out of the motorcycle safety equipment by the Navy before or after their normally assigned work hours. A. Positions of the Parties 1. The Agency The Agency asserts that Proposal 4 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it precludes management from "assigning any work to employees, while in a paid duty status, when they are changing into and out of their motorcycle safety equipment." Statement of Position at 6. The Agency notes that an employee's decision not to wear the prescribed protective equipment before entering the Agency's facility "is a matter of personal choice . . . ." Id. 2. The Union The Union offers no arguments with regard to Proposal 4. B. Analysis and Conclusions Proposal 4 requires the Agency to place employees in a paid status while they change into and out of their motorcycle safety clothing before and after their normal working hours. As noted in connection with Proposal 3, it is not disputed that "management is not requiring that the employees hange into or out of the protective equipment when they enter or leave the installation." Statement of Position at 6. Proposals which "set aside time during the workday for employees to change clothes merely to accommodate an employee's preference directly interfere with an agency's right under section 7106(a)(2)(B) to assign ork." National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740, 746 (1990). See also, for example, Air Force Logistics Command, 30 FLRA at 1036-37 (proposal allowing employees 30 minutes at the beginning and the end of their shift to change into and out of uniforms they were permitted to wear to and from work interfered with right to assign work); American Federation of State, County and Municipal Employees, Local 2477, AFL-CIO and Library of Congress, 23 FLRA 204, 205 (1986) (proposal allowing 10 minutes for employees to change clothes where employees permitted to wear uniforms to and from work held to directly interfere with right to assign work). Unlike the proposals in the foregoing cases, Proposal 4 does not set aside time during the regular work day for employees to change clothes. The proposal does, however, require that employees be in a paid status "before or after" their normal work hours. As no other basis on which to place employees in such status is argued or apparent to us, we conclude that the proposal would require the Agency to assign employees the work of changing their clothes before and after their regular hours (on overtime). So construed, we find that the proposal directly interferes with mangement's right under section 7106(a)(2)(B) to assign work. First, the proposal would require the Agency to assign particular duties to particular employees, that is, the Agency would be required to assign employees the duty of changing their clothes. An agency's right to assign particular duties to particular employees encompasses the duties to be performed during regular hours or during overtime. Accordingly, a requirement to assign specific duties during overtime directly interferes with managment's right under section 7106(a)(2)(B) to assign work. American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA No. 38 (1991) (Proposal 3) (Member Armendariz concurring on other grounds). We conclude, therefore, that Proposal 4 directly interferes with the Agency's right to assign work. As the Union does not claim that Proposal 4 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we find that Proposal 4 is nonnegotiable. VIII. Order The Agency must, upon request or as otherwise agreed to by the parties, bargain on the portions of Proposal 2 concerning the storage and safekeeping of safety equipment.3/ The petition for review concerning Proposals 1, 3, 4, 5, and the portion of Proposal 2 concerning the maintenance of equipment, is dismissed. FOOTNOTES: 1/ 29 U.S.C. § 668(a)(1) and (2) provide, in pertinent part: It shall be the responsibility of the head of each Federal agency to establish and maintain an effective and comprehensive occupational safety and health program . . . . The head of each agency shall (after consultation with representatives of the employees thereof)-- (1) provide safe and healthful places and conditions of employment, . . . ; [and] (2) acquire, maintain, and require the use of safety equipment, personal protective equipment, and devices reasonably necessary to protect employees[.] 2/ 5 U.S.C. § 7903 provides, in pertinent part: Appropriations available for the procurement of supplies and material or equipment are available for the purchase and maintenance of special clothing and equipment for the protection of personnel in the performance of their assigned tasks. . . . 3/ In finding these portions of the proposal to be negotiable, we make no judgment as to their merits.