41:0107(13)NG - FEMTC and NAVY, MARE ISLAND NAVAL SHIPYARD VALLEJO, CALIFORNIA -- 1991 FLRAdec NG
[ v41 p107 ]
41:0107(13)NG
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.