[ v26 p785 ]
26:0785(93)NG
The decision of the Authority follows:
26 FLRA No. 93
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1827
Union
and
DEFENSE MAPPING AGENCY
AEROSPACE CENTER
Agency
Case No. 0-NG-1134
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 four proposals. /1/ The proposals concern an eye care
program operated by the Defense Mapping Agency (the Agency). Under this
program, the Agency provides vision testing (reading eye charts),
glaucoma testing and in some cases stereoscopic vision testing for
employees as well as safety glasses for employees whose job duties
necessitate them. As set forth below, we find Proposal 1 nonnegotiable
and Proposals 2, 3, and 4 negotiable.
II. Laws, Regulations, and Comptroller General Decisions Which
Govern Health Service Programs and Protective Equipment for Employees
5 U.S.C. section 7901 authorizes Federal agencies to provide health
service programs for their employees and sets out the type of services
which may be provided. /2/ The services which these health care
programs can provide are limited to: (1) treatment of on-the-job
illness or injury; (2) preemployment and other examination; (3)
referral of employees to private physicians and dentists; and (4)
preventive programs. Regulations issued by the office of Personnel
Management (OPM), which implement section 7901 and reflect the statutory
limitations, appear in Federal Personnel Manual (FPM) Chapter 792.
Under these OPM regulations, the examination and preventive programs
authorized include vision and glaucoma testing. FPM Supplement 792-1,
Subchapters S2-5 and S4-3.
The Occupational Safety and Health Act of 1970 (OSHA) requires
agencies to establish occupational safety and health programs which
include providing employees with necessary personal protective
equipment. 29 U.S.C. section 668(a). Under implementing regulations
agencies are required to provide protective eye equipment whenever
necessary by reason of exposure to workplace hazards which could cause
injury to employees. 29 CFR section 1910.132-3. Also, under 5 U.S.C.
section 7903 Agency funds "are available for the purchase and
maintenance of special clothing and equipment for the protection of
personnel in the performance of their assigned tasks." In deciding
questions as to the propriety of payments made from public monies, /3/
the Comptroller General has ruled that for protective equipment to be
purchased under authority of section 7903, the employee must be engaged
in hazardous work. For example, 63 Comp. Gen. 278 (1984).
The Comptroller General has also ruled on the general issue of when
appropriated funds may be spent for the purchase of items which could be
considered personal equipment. See, for example, 63 Comp. Gen. 278
(1984), 61 Comp. Gen. 634 (1982); 56 Comp. Gen. 398 (1977); 45 Comp.
Gen. 215 (1965), and 3 Comp. Gen. 433 (1924). Under those decisions
public funds may be spent for such items when it is determined that:
(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 should furnish. In ruling on the question of
whether appropriated funds may be spent for medical examinations and
treatment of employees the Comptroller General has applied a criterion
similar to (1). 41 Comp. Gen. 531 (1962), 41 Comp. Gen 387 (1961), and
30 Comp. Gen. 387 (1951).
III. Proposal 1
The employer agrees to provide eye examinations to all unit
employees who are advised to seek further examination or reimburse
the employee for expenses if he/she goes to a private
ophthalmologist.
A. Positions of the Parties
The Agency maintains that neither 5 U.S.C. section 7901 et seq., the
Federal statute which establishes guidelines for employee health service
programs, nor decisions of the Comptroller General interpreting this
statute authorize the expenditure of funds required by Proposal 1. The
Agency also asserts that the proposal does not concern a condition of
employment because there is no connection between the proposal and the
employment relationship.
The Union asserts that all of the proposals at issue in this case
contain the same provisions as the Agency' regulations on eye care and
safety glasses. The Union argues that none of the expenditures required
by the proposals violate law or regulation.
B. Analysis and Conclusions
1. The Proposal Concerns a Condition of Employment
Under our decision in Antilles Consolidated Education Association and
Antilled Consolidated School System, 22 FLRA No. 23 (1986), a proposal
concerns a condition of employment if: (1) it pertains to bargaining
unit employees; and (2) there is a direct connection between the
proposal and the work situation or employment relationship of those
employees. The proposal literally applies to bargaining unit employees
and clearly meets the first criterion. For the following reasons we
find that it meets criterion (2), as well. This proposal requires the
Agency to provide certain employee health services. In 5 U.S.C. section
7901 Congress expressly authorized agencies to provide health services
to their employees. The history of the legislation which became section
7901 indicates that Congress considered that Federal employee health
programs would contribute to reducing employee turnover and absenteeism
and to increasing efficiency and productivity. /4/
In view of this Congressional purpose and intent in enacting section
7901, we find the Agency's argument that the proposal does not concern a
condition of employment -- that is, "personnel policies, practices, and
matters . . . affecting working conditions" -- is not supportable. 5
U.S.C. section 7103 (a)(14). Rather, by enacting 5 U.S.C. section 7901,
Congress made employees' health services a matter which is directly
related to the work situation and employment relationship. The
Authority set forth this factor in Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA No. 23
(1986), for determining whether a proposal concerns conditions of
employment.
2. The Proposal Is Inconsistent with Federal Law
The Union claims that, because the employees work in an "industrial
atmosphere" and that some of the work involved is "extremely hard on the
eyes," there is a connection between the eye examinations and their
occupations. However, it has provided no basis for the Authority to
conclude that, even if its claim is true, the particular circumstances
cited cause glaucoma or defective vision. Thus, it does not appear that
the examinations referred to in the proposal are related to occupational
illnesses or injuries or to providing employees with protective eye
equipment. Rather, it appears that the proposal relates to those
instances where, as a consequence of vision or glaucoma testing provided
by the Agency under 5 U.S.C. section 7901 and FPM Chapter 792, it is
recommended that an employee undergo further examination and/or
treatment. We conclude that the proposal relates to medical services
which are governed by 5 U.S.C. section 7901 and FPM Chapter 792.
As noted earlier, under those authorities, agencies are specifically
authorized to provide health services which include any in-service
examinations as well as preventive services such as specific disease
screening examinations which the agency head determines to be necessary.
/5/ However, the statutory authorization to provide health services
does not extend to treatment beyond that involving on-the-job illness
and dental conditions of a minor nature or requiring emergency
attention. Nor does it extend to the reimbursement of employees for the
cost of examination and treatment of nonoccupational illnesses or
injuries by their private physicians. /6/
Under the proposal, where the initial eye examination provided by the
Agency indicates that an employee's vision is defective or that a
current corrective lense prescription is no longer adequate, any further
examination would logically include treatment -- for example, a
prescription for appropriate corrective lenses. Consequently, the
proposal would effectively require the Agency to provide routine eye
care including treatment, to employees either directly or by
reimbursement for the expense of obtaining it from a private physician.
Agency-provided treatment for medical conditions beyond those of an
emergency or on the job nature and reimbursement of private physicians
for routine employee medical care exceeds the statutory authorization of
medical services under 5 U.S.C. section 7901. Thus, this proposal is
inconsistent with Federal law and is not within the Agency's obligation
to bargain. See National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 6 FLRA 508 (1981), (Proposal 1).
IV. Proposal 2
Unit employees who are found to have useful vision in only one
eye will be provided an eye examination and plain or prescription
glasses at agency expense.
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because it
would require: (1) allocating funds not authorized by 5 U.S.C. section
7901(c) and pertinent Comptroller General decisions, including limits on
the conditions under which eye examinations for prescription glasses
will be provided; and (2) providing glasses to all unit employees with
vision in only one eye regardless of (a) the existence of safety hazards
in particular jobs; and (b) the fact that, in the absence of an Agency
requirement that employees wear safety glasses, the Comptroller General
considers the purchase of eye safety devices as a matter personal to
each employee.
The Union asserts that the purpose of the proposal is to include
portions of the Agency's safety regulations regarding safety equipment
and eye examinations in the collective bargaining agreement. The Union
further claims that the relevant Comptroller General decisions cited by
the Agency support the principle that expenditures for the proposed eye
examinations and glasses are lawful.
B. Analysis and Conclusions
The Agency has not shown that Proposal 2 is inconsistent with
applicable laws, regulations or Comptroller General decision. The
glasses referred to in this proposal are limited solely to safety
glasses, based on the parties' arguments and the record as a whole, and
we so interpret the proposal for purposes of this decision. We note
that the Agency by regulation, currently requires that the employees
having useful vision in only one eye who would be covered by this
proposal will be provided safety glasses "without regard to the degree
of eye hazard involved" in their jobs. /7/
Proposal 2, as well as the Agency's regulation, is concerned with
providing designated employees with personal protective equipment, that
is, safety glasses as distinguished from providing health or medical
services as discussed in connection with Proposal 1. Consequently, the
legality of this proposal is not governed by 5 U.S.C. section 7901 and
the limitations previously discussed in section II of this decision do
not apply to Proposal 2. Furthermore, because this proposal and the
Agency regulation require that safety glasses be provided without regard
to the actual existence of workplace safety and health hazards, the OSHA
provisions and 5 U.S.C. section 7903 also discussed in section II are
inapplicable as well. These authorities concern hazardous conditions
and do not govern whether safety glasses may be provided to employees
who are not necessarily exposed to workplace safety and health hazards,
as under Proposal 2 and the Agency regulations. The Agency does not
claim that the OSHA provisions, 5 U.S.C. section 7903, or interpretive
Comptroller General decision prevent it from providing safety glasses
under the circumstances specified in the proposal and, if it did, it
would be arguing against the validity of its own regulation.
We are left, then, with the question of whether the Agency is
prohibited from expending its funds for equipment which it claims are
items of a nature personal to its employees. The Agency, citing 61
Comp. Gen. 634 (1982), contends that under the circumstances the safety
glasses are a personal responsibility of the employee. However, as
discussed in section II above, the Comptroller General has held that
appropriated funds may be used to pay for equipment where the
Government, rather than the employee, receives the primary benefit.
Since the Agency's regulation already requires that safety glasses must
upon request be provided to employees having useful vision in only one
eye, we conclude that the Agency has already determined that
expenditures for the safety glasses are legally permissible. No basis
appears in the record for concluding that the Agency's regulatory
provision is not in accordance with law or Comptroller General decisions
relating to expenditures of appropriated funds.
As to that portion of the proposal which would require that an eye
examination be provided, we find that the examinations are directly
related to providing the employees with safety glasses. In ruling on
the propriety of using agency funds to provide eye refraction
examinations for employees to whom the agency is providing prescription
safety glasses, the Comptroller General held that eye refraction
examinations may be authorized at Government expense only where (1) the
employee involved has not previously worn glasses, or (2) where it is
administratively determined that the employee's current prescription is
inadequate. 51 Comp. Gen 775 (1972), 40 Comp. Gen 626 (1963). There is
nothing in either the language of this proposal be applied in a manner
which would exceed this limitation. Consequently, we have no basis for
concluding that the portion of this proposal which deals with eye
examinations is not in accordance with the prescribed standards
governing use of Agency funds for that purpose.
Based on the foregoing we conclude that Proposal 2 would only have
the effect of placing in the agreement what is already in the Agency's
regulations and is within the duty to bargain.
V. Proposal 3
Eye hazard areas, equipment and occupations will be designated
by the Agency Safety and Health Office. Some hazards are flying
objects, dust, chemicals, compressed air, welding operations, low
illumination of the work area, spray dust, etc.
A. Positions of the Parties
Although the Agency asserted in its allegation of nonnegotiability
that this proposal was contrary to 5 U.S.C, Chapter 79, it did not
address the negotiability of this proposal in its brief. The Union
contends that the proposal identifies hazards which are included in the
Agency regulation concerning eye safety. The Union also claims that the
proposal allows the Agency Safety and Health Division to determine what
constitutes an eye hazard.
B. Analysis and Conclusion
We find no basis on which to conclude that this proposal is
inconsistent with any of the statutory or regulatory provisions
discussed previously in this decision. Therefore, in the absence of any
arguments from the Agency we find Proposal 3 to be within the duty to
Agency, bargain. /8/
VI. Proposal 4
Unit employees working in eye hazard areas will be provided eye
examinations at Agency expense.
A. Positions of the Parties
Citing the failure to define the term "eye examinations," the Agency
contends that (1) the language of the proposal is to vague to permit an
understanding of its impact; and (2) the proposal violates the
principles established by the Comptroller General governing when eye
examinations can be provided for Federal employees. The Union contends
that it is attempting to insert paraphrased sections of the Agency
regulations concerning the provision of eye examinations for employees
into the collective bargaining agreement and that it seeks nothing more
than what is currently in Defense Mapping Agency Manual 6500.2.
B. Analysis and Conclusion
The portion of Agency regulation DMAM 6500.2, which relates to eye
examinations for employees working in eye hazard areas, provides:
Chapter 9. Indistrial Hygiene
. . . . . .
Chapter 7. Occupational Vision
. . . . . .
a. Vision Testing
(1) Vision testing to assess workers' visual skills, with
appropriate referrals for evaluation and correction, is aimed at
improving job performance. Replacement and biennial vision
testing, using a stereoscopic screening instrument, will be
conducted on all employees engaged in industrial-type operations.
When resources are available, vision screening and glaucoma
testing should be made available on a voluntary basis for other
employees. Employees who fail vision screening tests should be
referred to ophthalmic specialist.
. . . . . .
c. Protective eyewear is discussed in Chapter 10, paragraph
5.c., of this manual.
Chapter 10. Personal Protective Equipment
5. Special Provisions
. . . . . .
c. Eye Protection
. . . . . .
(1) Industrial safety glasses, plano or prescription, will be
issued at no cost if an individual is working in a designated eye
hazardous area or operation. Employees who are in eye hazardous
areas or operations intermittently (e.g., security personnel) will
normally be provided with flexible fitting plastic goggles or
similar eye protection devices.
(2) Eye examinations required for prescription safety glasses
will be provided at Government expense if the employee has not
previously worn prescription safety glasses or where a vision
screening discloses that the present prescription (or glasses) is
inadequate. Eye examinations may be obtained at a nearby military
installation or by contract. Prescriptions written by an
employee's own doctor may be used provided that the prescription
is less than 1 year old and the vision screening detects no
change. Examinations other than those authorized are not
reimbursable.
Based on the Union's statement of intent which is compatible with the
language of the proposal, we conclude that this proposal would require
nothing more with respect to eye examinations than what is specified by
these quoted portions of the Agency's regulations. That is, eye
examinations required for prescription safety glasses will be provided
at Government expense if the employee has not previously worn
prescription safety glasses or where vision screening discloses that the
present prescription (or glasses) is inadequate. This reflects the
standards articulated by the Comptroller General discussed in section IV
(B) above. Hence, we reject the Agency's argument that this proposal
would require an expenditure of Agency funds which is inconsistent with
Comptroller General decisions. In the absence of any basis in the
record for determining that this proposal is inconsistent with
applicable laws and regulations, we find it to be negotiable.
VIII. Order
The Union's petition for review as to Proposal 1 is dismissed. The
Agency shall upon request (or as otherwise agreed to by the parties)
bargain concerning Proposals 2, 3 and 4. /9/
Issued, Washington, D.C., April 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) We note that (1) defects in the Union's petition, pointed out by
the Agency, were cured; and (2) the Agency withdrew its objection to a
fifth proposal concerning eye examinations for employees who need
prescription safety glasses. That proposal will not be considered
further here.
(2) For the text of 5 U.S.C. 7901(a) and (c) see the Appendix to this
decision.
(3) See 31 U.S.C. section 3529.
(4) H.R. Rep. No. 516, 79th Cong., 1st Sess., reprinted in 1946 U.S.
Code Cong. & Ad. News 1444, 1446-47.
(5) 5 U.S.C. section 7901; FPM Chapter 792, Subchap. 1-3.c (text in
Appendix).
(6) 5 U.S.C. 7901(c). Additionally, in recommending passage of an
earlier version of 5 U.S.C. section 7901 the House Committee on Civil
Service noted:
So far as treatment is concerned, the cost to the Government
would be confined to minor illnesses and dental conditions, and to
the initial treatment of emergency conditions. Following that,
there would be referral to private physicians, who would charge
the Government employee just as they would charge any other
patient. That cost would be borne by the employees -- not by the
Government.
H.R. Rep. No. 516, 79th Cong., 1st Sess., reprinted in 1946
U.S. Code Cong. & Ad. News 1444, 1450.
The Committee also noted:
NO COMPETITION WITH PRIVATE PHYSICIANS
The committee wishes to make perfectly clear that the program
proposed in this bill is not one which would put the Government
into competition with private phsycians
. . . . . .
. . .Treatment by the Government physician would be limited to
cases of minor or emergency illness. Any treatment beyond that
would be rendered by the Government physician only at the specific
request of the private physician. Id. at 1453.
(7) Defense Mapping Agency Manual (DMAM) 6500.2 provides, in relevant
part:
Chapter 9. Industrial Hygiene
. . . . . .
7. Occupational Vision
. . . . . .
a. Vision Testing
(2) Employees having useful vision in one eye only will be
identified and must be provided with safety glasses, without
regard to the degree of eye hazard involved in the job, if the
employee wishes to participate in the program.
(8) Parties are responsible for creating the record upon which we
will resolve negotiability disputes. National Federation of Federal
Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886
(D.C. Cir. 1982). A party failing to assume this burden acts at its
peril.
(9) In finding Proposals 2, 3 and 4 within the duty to bargain, the
Authority makes no judgment as to their merits.
Appendix
5U.S.C. section 7901(a) and (c) provide:
Section 7901. Health service programs
(a) The head of each Agency of the Government of the United States
may establish, within the limits of appropriations available, a health
service program to promote and maintain the physical and mental fitness
of employees under his jurisdiction.
* * * * * * *
(c) A health service program is limited to -
(1) treatment of on-the-job illness and dental conditions requiring
emergency attention;
(2) preemployment and other examinations;
(3) referral of employees to private physicians and dentists; and
(4) preventive programs relating to health.
FPM Chapter 792, Subchapter 1-3.c provides:
c. The health services that agencies are authorized to provide to
employees are limited to those defined below. In determining whether a
particular service is necessary, the working conditions and number of
employees at each location will be considered.
(1) Emergency diagnosis and first treatment of injury or
illness that become necessary during working hours and that are
within the competence of the professional staff and facilities of
the health service unit, whether or not the employee was injured
while in the performance of duty or whether or not the illness was
caused by his/her employment. When the necessary first treatment
is outside the competence of the health service staff and
facilities, the employee may be taken to a nearby physician or
suitable community medical facility at his/her request or at the
request of someone acting on his/her behalf.
(2) Preemployment examinations of persons selected for
appointment.
(3) Any in-service examinations of employees that the Agency
head determines to be necessary (in addition to fitness-for-duty
examinations which are performed and under existing authority).
(4) Administration, at the discretion of the responsible health
service unit physician, of treatments and medications (a)
furnished by the employee and prescribed in writing by his/her
personal physician as reasonably necessary to maintain the
employee at work and (b) prescribed by a physician providing
medical care in performance-of-duty injury or illness cases under
the Federal Employees' Compensation Act.
(5) Preventive services within the competence of the
professional staff to (a) appraise and report work environment
health hazards to Agency management as an aid in preventing and
controlling health risks, (b) provide health education to
encourage employees to maintain personal health, and (c) provide
those specific disease screening examinations and immunizations
that the Agency head determines to be necessary.
(6) In addition to the above, employees may be referred, upon
their request, to private physicians, dentists, and other
community health resources.