31:1002(80)NG - IBEW Local 1245 and Energy, Western Area Power Administration -- 1988 FLRAdec NG

 31 FLRA NO. 80


INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
LOCAL 1245

                  Union

      and

DEPARTMENT OF ENERGY
WESTERN AREA POWER
ADMINISTRATION

                  Agency

                                                Case No. 0-NG-1465

             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 two proposals which would require the Agency
to provide, free of cost to employees: (1) an accidental death
and dismemberment policy and (2) a medical insurance plan or
supplemental medical policy. We find both proposals to be
nonnegotiable because they do not concern &conditions of
employment* within the meaning of section 7103(a)(14) of the
Statute and also because they conflict with applicable law.

     II. Proposals

     Proposal I

     To provide for a $100,000 accidental death and dismemberment
     policy, the premium to be paid for by Western Area Power
     Administration.

     Proposal 2

     To provide for Western to pay 100 percent of medical
     premium. (If illegal, propose a supplemental medical plan.)

     A. Positions of the Parties

     The Agency contends that the proposals are nonnegotiable
because they concern matters specifically provided for by Federal
law. Therefore the proposals do not concern "conditions of
employment" as defined in section 7103(a) (14) of the Statute.

     The Union did not file a response to the Agency's statement
of position, but asserted in its petition for review that the
proposals concern terms and conditions of employment of
bargaining unit employees.

     B. Analysis and Conclusion

     Section 7103(a)(12) of the Statute, requires agencies and
exclusive representatives to consult and bargain in good faith
"with respect to the conditions of employment" affecting
bargaining unit employees. "Conditions of employment" is defined
in section 7103(a)(14) as "personnel policies, practices, and
matters . . . affecting working conditions(.)" Excluded from the
definition, among other matters, are those personnel policies and
matters "to the extent such matters are specifically provided for
by Federal statute (.)" Furthermore, under section 7117 (a),
matters which are inconsistent with law or Government-wide rule
or regulation are excluded from the scope of bargaining.

     The disputed proposals would provide, free of cost,
accidental death and dismemberment insurance to unit employees
and would also provide the employees with free medical insurance
or, alternatively, with cost-free supplemental medical insurance.
Life insurance, including accidental death and dismemberment
coverage, is covered by 5 U.S.C. 8701-16. The Union does not
contend, nor is there any other basis for concluding, that the
employees in the unit are not covered by these sections. Compare,
American Federation of Government Employees, AFL - CIO, Local
1897 and Department of the Air Force Eglin Air Force Base,
Florida, 24 FLRA  377 (1986) (Chairman Calhoun dissenting) (the
payment of health insurance premiums for employees of a
nonappropriated fund activity was held to be negotiable
because the employees were not covered by laws relating to health
insurance and retirement).

     5 U.S.C. 8707(a) requires that a share of the premium of an
insured employee's group life and accidental death and
dismemberment policy be withheld from the employee's pay. 5
U.S.C. 8707 provides that the Government will contribute a sum
equal to one-half the amount withheld from an insured employee's
pay toward the payment of the employee's group life and
accidental death and dismemberment premium. These two sections,
taken together, require that both employees and their agencies
share in paying the premiums for group life and accidental death
and dismemberment policies. Additionally, 5 U.S.C. 8714a and b
require that the cost of any optional life and accidental
dismemberment insurance made available by the Office of Personnel
Management, the administrator of the program, be borne
exclusively by employees who select such coverage. Consequently,
the first proposal not only concerns a matter--accidental death
and dismemberment insurance--provided for by law but also, by
establishing the amount of insurance and providing it will be
cost-free to employees, is inconsistent with the applicable law.
Accordingly, we find proposal I to be nonnegotiable, because it
fails to meet the definition of "conditions of employment" under
section 7103(a)(14) of the Statute and because its conflict with
applicable law precludes bargaining under section 7117(a)(1).

     Similarly, Proposal 2 concerns a matter provided for by law.
5 U.S.C. 8901-13 cover Federal employees' health insurance. 5
U.S.C. 8906 provides that the Government's contribution for
employee health benefits shall not exceed 60 percent of the
average premium for selected health insurance plans or 75 percent
of an individual's premium. Proposal 2, therefore, addresses a
matter provided for by law and, by requiring that health
insurance in some form be furnished without cost to employees, is
in direct conflict with the applicable law. Accordingly Proposal
2 is also nonnegotiable under sections 7103(a)(14) and 7117(a)(1)
of the Statute. See Fort Stewart (Georgia) Association of
Educators and Fort Stewart Schools, 28 FLRA  547, 555 (1987)
(Chairman Calhoun concurring in relevant part), petition for
review filed sub nom. Fort Stewart Schools v. FLRA,  No.  87-8734
(11th Cir. Sept. 22, 1987).

     Therefore, for the reasons stated, we find both of the
disputed proposals to be outside the duty to bargain.

     III. Order

     The petition for review is dismissed.

Issued, Washington, D.C. March 25, 1988.

                              Jerry L. Calhoun,        Chairman

                              Jean McKee,                Member

                              FEDERAL LABOR RELATIONS AUTHORITY