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41:0297(31)NG - - Planners-Estimators, Progressmen and Schedulers Association, Local 5 and Navy, Mare Island Naval Shipyard, Vallejo, CA - - 1991 FLRAdec NG - - v41 p297

[ v41 p297 ]
The decision of the Authority follows:

41 FLRA No. 31














June 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The 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 1. 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. The Proposals

Proposal 1

All motorcycle protective clothing that is required, except a helmet, 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 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.

Proposal 3

The shipyard will provide facilities for the employees use to change into or out of the required additional clothing.

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.

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.

V. Positions of the Parties

A. 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). Id. at 2.

With respect to Proposal 2, 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. Id. 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.

With respect to Proposal 3, 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.

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.

B. The Union

The Union states with regard to Proposals 1 and 5 that "the only use for 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 [sic] 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.

The Union offers no specific arguments with regard to Proposals 2, 3 and 4.

VI. Analysis and Conclusions

In Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 41 FLRA No. 13 (1991), the Authority recently considered proposals and arguments identical to those involved in this case. For the reasons discussed at length in that decision, we find that: Proposals 1 and 5 are inconsistent with law and are nonnegotiable; the portions of Proposal 2 concerning the safekeeping and storing of the equipment are negotiable and the portion of Proposal 2 which concerns the maintenance of the equipment is nonnegotiable; Proposal 3 does not concern a condition of employment and is nonnegotiable; and Proposal 4 directly interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work and, as the Union does not claim that Proposal 4 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, Proposal 4 is nonnegotiable.

VII. 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.(*) The petition for review concerning Proposals 1, 3, 4, 5, and the portion of Proposal 2 concerning the maintenance of equipment, is dismissed.

(If blank, the decision does not have footnotes.)

*/ In finding these portions of the proposal to be negotiable, we make no judgment as to their merits.