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55 FLRA No. 121
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1547
(Union)
and
U.S. DEPARTMENT OF THE AIR FORCE
56th FIGHTER WING
LUKE AIR FORCE BASE, ARIZONA
(Agency)
0-NG-2473
_____
DECISION AND ORDER ON A
NEGOTIABILITY ISSUE
July 31, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
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 (Statute). The appeal concerns the negotiability of one proposal submitted by the Union in response to the Agency's decision to implement portions of an Air Force Instruction (AFI) concerning traffic safety. As relevant here, the AFI requires that certain safety equipment that had not previously been required, including a reflective vest, be worn when riding a motorcycle on an Air Force installation.
For the reasons that follow, we find the proposal, which would require the Agency to supply or reimburse employees for the purchase of any motorcycle safety equipment required by the (AFI) but not required by Arizona law, is outside the duty to bargain because it is contrary to Federal law.
II. Proposal
The requirements for riding motorcycles on Luke will be in compliance with Arizona State Law and the Department of Transportation. Therefore, the agency will supply the required equipment that is beyond the State requirements, or reimburse the employee(s) for equipment which is not able to be supplied by the agency and purchased by the employee(s) for compliance with this policy. [ v55 p685 ]
A. Positions of the Parties
1. The Agency
The Agency contends that the Union's proposal is contrary to law. According to the Agency, a union proposal that an agency pay for recommended safety equipment is negotiable only if the United States Government, rather than the employee, receives the primary benefit of the equipment, and the equipment is not a personal item that should be furnished by the employee. Statement of Position at 1-2, citing American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Headquarters, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 53 FLRA 131 (1997) (Wright-Patterson). Here, the Agency argues that the Union has not shown that the government would receive the primary benefit of the equipment. Therefore, according to the Agency, the proposal violates 29 U.S.C. § 668(a) and 5 U.S.C. § 7903. Statement of Position at 2.
2. The Union
The Union contends that the Agency has not provided any statistical data which would show the need for the use of additional motorcycle safety equipment on Luke Air Force Base beyond that required by Arizona law. In addition, the Union contends that there is no requirement in any law, rule or regulation other than the Agency's that anyone who rides motorcycles have and maintain the additional safety equipment. Therefore, according to the Union, the use of the additional equipment is for the sole benefit of the Agency. Union Statement of Meaning at 2.
B. Meaning of the Proposal
Consistent with its plain wording, the proposal would require the Agency to supply or reimburse employees for any required motorcycle safety equipment that is required by the Agency but not required by the State of Arizona. [n1]
C. Analysis and Conclusions
1. The Proposal is Not Within the Duty to Bargain Because it is Contrary to Law.
In Wright-Patterson, the Authority found that agency expenditures of appropriated funds to provide safety-related equipment are governed by 29 U.S.C. § 668(a) [n2] and 5 U.S.C. §7903. [n3] 53 FLRA at 136-37. The Authority held that under these statutory provisions, an agency may provide such equipment to employees only where the equipment is to be used for the employees' protection in the performance of agency work. Id. at 137. In this connection, the Authority noted that the Comptroller General has consistently 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 that should be furnished by the employee. Id., citing 63 Comp. Gen. 278 (1984). Moreover, to determine whether an item primarily benefits the Government, the Authority held that the item in question should be examined to see if it is essential to the transaction of official business from the agency's standpoint. Id.
Consistent with the above, the Union has the burden of establishing that the equipment would be used in the performance of Agency work or is essential to the transaction of the Agency's official business and is not a personal item that should be furnished by the employee. The Union asserts that since the Agency requires the use of this equipment, its use benefits the Agency, not the employees. This argument, however, does not show how the equipment would be used in the performance of Agency work or that the equipment is essential to the transaction of the Agency's official business and is not personal in nature. Moreover, the record indicates that the Agency does not require unit employees to ride [ v55 p686 ] motorcycles on the Agency's facilities or otherwise use motorcycles in performing their work. Rather, the equipment and clothing are apparently used by the employees commuting to and from work. As such, based on the record in this case, "there is also no basis on which to conclude that the equipment would be for the primary benefit of the Government." See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 41 FLRA 107, 111 (1991), finding the following proposals nonnegotiable as a matter of law (despite the union's contention that state law did not require the additional safety equipment mandated by the agency): (1) All motorcycle protective clothing that is required, except helmet, will be provided by Mare Island Naval Shipyard for use of the employees at no cost to them, and; (2) 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.
Accordingly, and in line with the unchallenged Authority precedent discussed, supra, we conclude that the proposal would require the Agency to purchase or reimburse employees for safety equipment that was for their benefit, in violation of 29 U.S.C. § 668(a)(1) and 5 U.S.C. § 7903. [n4]
III. Order
The petition for review is dismissed.
Footnote # 1 for 55 FLRA No. 121
The Union also states that the proposal should be read as not requiring the Agency to provide or pay for any motorcycle safety equipment required by the Department of Transportation. Union Statement of Meaning at 2. We do not need to determine whether this statement of meaning by the Union comports with the language of the proposal, since the ultimate disposition of this matter is not dependent on either interpretation.
Footnote # 2 for 55 FLRA No. 121
29 U.S.C. § 668(a)(1) and (2) provides, 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)--
. . . .
(2) acquire, maintain, and require the use of safety equipment, personal protective equipment, and devices reasonably necessary to protect employees[.]
Footnote # 3 for 55 FLRA No. 121
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. . . .
Footnote # 4 for 55 FLRA No. 121
The Authority has not expressly addressed whether, under the broad mandate of 29 U.S.C. § 668 and independent of 5 U.S.C. § 7903, an agency is authorized to provide "safety equipment, personal protective equipment, and devices reasonably necessary to protect employees[,]" where the equipment may be unrelated to the transaction of official business but its use is required by an agency. 29 U.S.C.§ 668(a)(2). See also, 29 U.S.C. § 651 (setting forth congressional policy obligating agencies to provide safe and healthful working conditions); 57 Comp. Gen. 379 (1978) ("if the head of an Executive agency or department, or an official designated by him, determines that certain items of equipment or clothing are required to protect employees from . . . hazards, the agency or department may expend its appropriated funds to procure such items."). Absent any contention or evidence in this case that the Air Force Instruction was implemented in furtherance of the policies of 29 U.S.C. § 651 and satisfies the broad mandate of 29 U.S.C. § 668(a)(2), or that the supply or reimbursement of the required equipment in this case is otherwise authorized under law, we decline to address those matters in this case.